State v. Kassow

• Decision Date: 22 December 1971
• Docket Number: No. 71-253,71-253
• Parties: , 57 O.O.2d 390 The STATE of Ohio, Appellee, v. KASSOW, Appellant.
• Court: Ohio Supreme Court

Page 141

28 Ohio St.2d 141

277 N.E.2d 435, 57 O.O.2d 390

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

No. 71-253.

Supreme Court of Ohio.

Dec. 22, 1971.

Syllabus by the Court

1. The rule of Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, which requires proof of the voluntary waiver of the Fifth Amendment right not to respond to police questioning, exists independently of, and in addition to, the historic rule of evidence that an accused's statement may not be used against him in any way if the statement itself is proved to be involuntary, i. e., untrustworthy when tested by traditional legal standards. Harris v. New York (1971), 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1; Spears v. State (1853), 2 Ohio St. 583.

2. The function of a pre-trial motion challenging the admissibility of an inculpatory statement is to serve notice upon the court that the statement itself is claimed to be involuntary, and thus inadmissible as evidence, and to preclude a waiver of that claim, regardless of whether the Miranda waiver was made.

3. Upon the trial of the issues raised by a pre-trial motion to suppress a statement claiming that the statement was compelled by mistreatment, threat of disadvantage, or hope of reward, the burden is upon the accused to prove his claim in that respect. Rufer v. State (1874), 25 Ohio St. 464.

4. Prior to the use of an in-custodial statement, given in response to police interrogation, against the accused in its case in chief, the state has the burden of establishing that the accused knowingly, intelligently and voluntarily waived his Fifth Amendment right not to make the statement. Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

Appeal as of right from the affirmance of the death penalty by the Court of Appeals for Hamilton County.

On September 24, 1969, at approximately 11:00 a. m., a robbery of the Cabinet-Supreme Savings and Loan Association, located in Delhi Township, Hamilton County, occurred. During the robbery, the lone woman teller and three female customers were shot and killed.

Acting upon information given them by several witnesses who had been the appellant at the scene of the crime, the police took appellant into custody at approximately 2:30 p. m. on the same day and questioned him periodically until approximately 8:30 p. m. the next day.

Appellant was tried by a jury on one of four counts of first degree murder. The Court of Appeals affirmed the verdict of guilty without a recommendation of mercy.

Appellant admitted that the had been at the Cabinet-Supreme bank on the 24th; that he met the two other persons involved in the robbery that morning; that he had gone to Delhi with them and waited for the manager of the bank to leave; and that when the manager left, they drove up to the bank.

Appellant's involvement in the robbery was not disputed. There was dispute as to whether appellant entered the bank or remained outside.

Simon L. Leis, Jr., Pros. Atty., and Fred J. Cartolano, Cincinnati, for appellee.

Reisenfeld, Norton & Schneider, Gary L. Schneider and Richard L. Norton, Cincinnati, for appellant.

SCHNEIDER, Justice.

We affirm the Court of Appeals.

Appellant's first proposition of law relates to the trial court's treatment of his pre-trial 'application' (motion) to conduct an evidentiary hearing to determine the admissibility of an inculpatory statement 'and for the court to put into the record its conclusions and findings thereon.' The motion was not accompanied by affidavit particularizing the facts in support of the claim, but undoubtedly it was directed to a tape-recorded statement elicited by in-custodial interrogation.

Apparently upon the premise that the state did not intend to use the statement, and in fact did not use it in its case in chief, the judge held the motion in abeyance without a hearing and without ever deciding it.

However, on cross-examination of appellant who assumed the stand in his own defense and made reference to a portion of that statement, the state, over objection, impeached appellant on the basis of an inconsistency between the statement and his testimony in chief.

Appellant now contends, as he did before the Court of Appeals, that the trial court should have specifically determined 'the actual voluntariness of the statements, and whether there was compliance with Miranda.'

The rule of Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, which requires proof of the voluntary waiver of the Fifth Amendment right not to respond to police questioning, exists independently of, and in addition to, the historic rule of evidence that an accuseds' statement may not be used against him in any way if the statement itself is proved to be involuntary, i. e., untrustworthy when tested by traditional legal standards. Harris v. New York (1971), 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1; Spears v. State (1853), 2 Ohio St. 583. See 8 Wigmore, Evidence (McNaughton rev. 1961) 400, Sec. 2266; 3 Wigmore, Evidence (Chadburn rev. 1970) 286 et seq., Sec. 815 et seq.

Accordingly, the function of a pretrial motion challenging the admissibility of an inculpatory statement is to serve notice upon the court that the statement itself is claimed to be involuntary and thus inadmissible evidence, and to preclude a waiver of that claim, regardless of whether the Miranda waiver was made. State v. Davis (1964), 1 Ohio St.2d 28, 203 N.E.2d 357; State v. Woodards (1966), 6 Ohio St.2d 14, 245 N.E.2d 568. Cf. the fourth paragraph of the syllabus of Spears v. State, supra (2 Ohio St. 583), which indicates that the objection may be delayed until the prosecution offers to prove the confession.

Upon the trial the issues raised by a pre-trial motion to suppress a statement claiming that the statement was compelled by mistreatment, threat of disadvantage, or hope of reward, the burden is upon the accused to prove his claim in that respect. Rufer v. State (1874), 25 Ohio St. 464.

It is not the function of a motion to suppress to test compliance with Miranda (although it may be so employed) because, prior to the use of an in-custodial statement, given in response to police interrogation, against the accused in its case in chief, the state has the burden of establishing that the accused knowingly and intelligently waived * * * his right not to make it. Miranda v. Arizona (1966), 384 U.S. 436, 473-475, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694.

Moreover, as we read Miranda, it nowhere contemplates that the failure of an accused to file a pre-trial objection to the possible use of his statement may be construed as a waiver of his right to demand proof, at the trial and before it is used, of his voluntary and intelligent waiver of his right not to have made the statement. Thus, the waiver rule of State v. Davis, supra (1 Ohio St.2d 28), cannot apply to a failure of a pre-trial objection to noncompliance with Miranda. ¹

The knowledge demanded by Miranda relates to the right not to speak. The voluntariness equally demanded by that decision relates to the waiver of that right, not to a perversion of the will inhibiting the ability to speak truthfully.

Admittedly, if involuntariness in the latter sense is proven, it would hardly be possible for voluntariness to attach to a waiver of Miranda rights. But it does not follow that proof of apparent satisfaction of Miranda precludes proof that the statement itself was compelled by circumstances rendering it unworthy of belief.

Since in this case, the statement was used not to accuse but to impeach, the prosecution's failure to prove compliance with Miranda and the court's failure to consider that question was not error. State v. Butler (1969), 19 Ohio St.2d 55, 249 N.E.2d U.S. 222, 91 S.Ct. 643). U.S. 222, 91S.Ct. 643).

This feature of the case would not, however, excuse the trial court from the duty to determine whether abuse, threat or reward compelled the statement itself. We will now demonstrate that the trial court indeed determined that issue.

Appellant filed another pre-trial motion to suppress real evidence claimed to be the 'fruit' of the same statement and which was likewise referred to as being involuntary and induced without compliance with Miranda. Despite the apparent similar intention of the state not to use the evidence in its case in chief, and extensive pre-trial hearing was held, at the conclusion of which the trial court denied the motion without specific findings of fact or law and without an express determination of the issues. Accord: Sims v. Georgia (1967), 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593.

The state, in fact, did not introduce the evidence (photographs of three pistols to which the police were led by appellant during the course of his interrogation) until its case in rebuttal, that is, after appellant's testimony that he had seen three pistols on the day of the robbery was impeached by reference to his statement in which he said he had only seen two.

Nevertheless, appellant claims error in the action of the trial court on this motion similar to that claimed as to the first motion discussed. The same rules as those discussed in connection with the first motion were applicable, except that the accused had the further burden of showing that the challenged evidence was in fact the 'fruit' of his statement.

Apparently with these considerations in mind, appellant undertook to carry his burden on the issue of involuntariness at the pre-trial hearing. In so doing, his counsel called as witnesses some nine police officers who had contact with appellant while in custody. Through their testimony alone (appellant did not testify on the motion) he established beyond cavilling that the evidence sought to be suppressed was indeed found as a result of in-custodial interrogation which also resulted in the tape-recorded statement, and further, established a prima facie case of full compliance with Miranda upon...