State v. Hymore, 40058

• Decision Date: 01 March 1967
• Docket Number: No. 40058,40058
• Citation: 38 O.O.2d 298,9 Ohio St.2d 122,224 N.E.2d 126
• Parties: , 38 O.O.2d 298 The STATE of Ohio, Appellant, v. HYMORE, Appellee.
• Court: Ohio Supreme Court

Page 122

9 Ohio St.2d 122

224 N.E.2d 126, 38 O.O.2d 298

The STATE of Ohio, Appellant, v. HYMORE, Appellee.

No. 40058.

Supreme Court of Ohio.

March 1, 1967.

Syllabus by the Court

Where a police officer, who is later charged with manslaughter, takes charge at the scene of a disturbance, calls the sheriff's office for assistance and voluntarily makes statements to the arriving officers in response to their preliminary, routine, investigatory questions, such statements are admissible into evidence at a criminal trial.

Arthur Henry 'Chico' Cadena, hereinafter referred to as deceased, died at approximately 2:50 or 3 a. m., January 26, 1965, as the result of a gunshot wound in the head. It is undeniable, and no one contends otherwise, that the wound was inflicted by James Hymore, hereinafter referred to as defendant. The defendant was indicted for an unlawful killing contrary to Section 2901.06, Revised Code (Manslaughter in the first degree), and pleaded not guilty thereto.

The trial of this cause produced many pages of testimony. In view of the determination we are disposed to render, the events of the night in question will be taken from the testimony of the defendant solely for the purpose of clarifying the error claimed, and without any reflection on the part of this court as to their veracity.

Defendant, a guard for Libbey-Owens-Ford, was also employed by the Lake Township ship Trustees as a Lake Township 'policeman.' As such he was in possession of a navy blue uniform (shirt, tie, pants, jacket and cap), a gunbelt, a blackjack, a gun and a badge. He had no regular hours of duty. On the night in question, defendant, wearing his uniform shirt, tie and pants and a light-colored winter jacket, arrived at the Wales Bar at approximately 7:15 p. m. He consumed four bottles of beer. From there, he proceeded to the Web Bar, arriving shortly after 11 p. m. Leaving his police cap and gunbelt in his car, defendant put his blackjack into his hip pocket, his gun into his belt, his badge into his pocket and proceeded into the building and up to the bar. By 2:30 a. m. he had, by his own testimony, consumed one or two more bottles of beer and three to six drinks of whiskey, although he considered himself on duty and contended that he was checking to see whether minors were being served. Shortly after defendant's arrival, one Kendall and the barmaid played a game on a bowling machine, gambling one dollar on the outcome. At this time, defendant, whom the barmaid had identified to the patrons of the bar as a 'cop,' warned them against gambling. The, and repeatedly thereafter, Kendall challenged defendant to arrest him, threatening at the same time to sue him for false arrest. Sometime during this period, defendant himself played two games on the bowling machine with the barmaid. At approximately 2:30 a. m., defendant arrested both Kendall and the barmaid for gambling. At this point, according to the defendant, the deceased, Cadena, entered the argument, hit the defendant and was shot dead. Defendant then ordered everyone to remain in their places and asked 'someone' to call the sheriff.

A deputy sheriff arrived within eight or nine minutes. Defendant made statements to the officers at this time as to what had transpired. He made further statements while being transported to jail.

The court, in its charge, specifically stated that defendant was an officer of the law and was so acting when the shooting occurred.

A jury found defendant guilty of manslaughter in the first degree.

On appeal the Court of Appeals reversed on the following grounds of claimed error:

(1) Admission, over objection, of 'testimony of Deputy Sheriff McGiffin as to incriminating statements made by the Defendant at the scene of the crime without constitutional warning';

(2) Admission, over objection, of 'testimony by the coroner of incriminating statements given by the defendant to the sheriff in the presence of the coroner at the scene of the crime and on the trip from the scene of the crime to the Wood County jail';

(3) Admission, over objection, of 'testimony of Hazel Veler Johnson and Bonnie Veler elicited * * * on immaterial and collateral matters.'

The cause is before this court pursuant to an appeal as of right and upon allowance of a motion for leave to appeal.

Donald D. Simmons, Pros. Atty., and Glenn C. Parsons, No. Baltimore, for appellant.

Clarence M. Condon, Robert J. W. Meffley, Toledo, and Beryl W. Stewart, Bowling Green, for appellee.

MATTHIAS, Judge.

The points of claimed error will be considered in the sequence in which they are stated in the statement of facts, supra.

The first ground of claimed error is the admission, over objection, of 'testimony of Deputy Sheriff McGiffin as to incriminating statements made by the defendant at the scene of the crime without constitutional warning.' Deputy Sheriff McGiffin testified that he received a radio dispatch at 2:41 a. m January 26, 1965, instructing him to proceed immediately to the Web Bar on East Broadway. When he arrived, Kendall (whom defendant had arrested) ran up to him asking to be put in protective custody. Thereupon, Deputy Sheriff McGiffin 'walked on in and talked to Mr. Hymore (defendant). I asked him what went on and what happened. And he said, 'I shot him! " Defendant claims that the admission of this testimony constitutes prejudicial error and the Court of Appeals so held. Nothing could be further from the mark.

At the outset, it must be noted that at this juncture defendant, admittedly a police officer, had taken charge of a situation and called for the sheriff. To now say that when the requested officer arrived he must have immediately informed the officer in charge of his constitutional rights is absurd. When Deputy Sheriff McGiffin entered the Web Bar he had no knowledge that a crime had been committed and had no possible suspects in mind. The investigative process had barely begun and he naturally asked the man he knew to be a police officer within his jurisdiction what had happened. Defendant's response was nothing more than an immediate and voluntary statement to this investigating officer's natural and routine opening question. After defendant made the statement complained of, McGiffin then talked to the witnesses and only after this did he place the defendant in custody.

Thus we have a situation unlike that in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, or Jackson v. Denno, Warden, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. Those cases deal with in-custody interrogation, voluntariness of a confession and the right to counsel. In the instant case, the statement made came at the very outset of a general inquiry. No suspect existed and indeed there was no indication that a crime had even been committed. Thus statements made by an officer to another officer who has responded to a summons from the first and has arrived soon thereafter are admissible into evidence where the statements are voluntary answers to preliminary, routine, investigatory questions. In short, this court is not disposed to require officers of the law to greet each other with warnings of constitutional safeguards whenever they meet at the scene of a disturbance unless adequate grounds for such precautions exist.

The second ground of claimed error is the admission, over objection, of 'testimony by the coroner of incriminating statements given by the defendant to the sheriff in the presence of the coroner at the scene of the crime and on the trip from the scene of the crime to the Wood County jail.' The coroner of Wood County, one Roger A. Peatee, testified at the trial as to a conversation he has with defendant...