State v. Lazzaro

• Decision Date: 07 August 1996
• Docket Number: No. 95-647,95-647
• Citation: 76 Ohio St.3d 261,667 N.E.2d 384
• Parties: The STATE of Ohio, Appellee, v. LAZZARO, Appellant.
• Court: Ohio Supreme Court

Page 261

76 Ohio St.3d 261

667 N.E.2d 384

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

No. 95-647.

Supreme Court of Ohio.

Submitted March 20, 1996.

Decided Aug. 7, 1996.

SYLLABUS BY THE COURT

The making of an unsworn false oral statement to a public official with the purpose to mislead, hamper or impede the investigation of a crime is punishable conduct within the meaning of R.C. 2921.13(A)(3) and 2921.31(A). (Columbus v. Fisher [1978], 53 Ohio St.2d 25, 7 O.O.3d 78, 372 N.E.2d 583, and Dayton v. Rogers [1979], 60 Ohio St.2d 162, 14 O.O.3d 403, 398 N.E.2d 781, overruled.)

On October 7, 1993, Noel Neece and Julie Swindell, who are employed as nurse's aides by the Good Samaritan Nursing Home, were assisting a resident, Carl Newman, at the toilet when an argument erupted between Neece and Newman, resulting in Neece punching and breaking Newman's nose. Charlotte Lazzaro, then administrator of the nursing home, was notified of the incident and immediately conducted an initial investigation by separately questioning the two nurse's aides.

Lazzaro began by talking with Swindell, who told Lazzaro that Neece had intentionally struck Newman. Swindell also gave Lazzaro a written statement describing the assault. Lazzaro then permitted Swindell to leave for the day.

Next, Lazzaro questioned Neece. Neece's depiction of the events differed markedly. According to Neece, he had struck Newman accidentally while putting his arm up to defend himself. Lazzaro then wrote down Neece's description of the event, and he signed the statement. Although Neece's shift had ended, Lazzaro detained him so the police could question him.

Lazzaro contacted the Avon Police Department and requested that an officer be sent to investigate the incident. According to Officer Michael Kish, when he arrived at the nursing home, he spoke first with Lazzaro, who told him that she had an employee who had struck a resident, but that the employee had described it as an accident. When Kish asked Lazzaro if anyone witnessed the incident, she responded that no one had. Lazzaro, however, denies that she ever had this initial conversation with Kish.

Kish then questioned Neece regarding the injury to Newman. Neece maintained his story that the assault had been an accident. Although Lazzaro was present during Neece's entire explanation and demonstration of the incident, at no time did Lazzaro tell Kish about the existence of a contradictory witness, nor did she provide him with Swindell's written statement describing the incident as an intentional assault. After investigating the incident for approximately one-half hour, Kish informed Lazzaro that there appeared to be no criminal act and left the nursing home.

Four days later, Lazzaro again called the Avon police. By this time, she had learned that Kish had filed his report concluding that Neece had struck Newman accidentally. She had also learned that the full extent of Newman's injuries consisted of a broken nose and visible facial bruising. In her call to the police, Lazzaro indicated that new evidence had come to light suggesting that Neece had intentionally struck Newman. When Kish returned the call two days later, Lazzaro, for the first time, also suggested that the police talk to Swindell.

Aided by the new information, the Avon police reopened the investigation and, ultimately, arrested Neece. Neece admitted that he had intentionally struck Newman, and eventually pled guilty to felonious assault.

Subsequently, Lazzaro was charged with obstructing official business, falsification, and obstructing justice. After a trial to a jury, she was found guilty of obstructing official business and falsification. Following this court's decision in State v. Bailey (1994), 71 Ohio St.3d 443, 644 N.E.2d 314, the Ninth District Court of Appeals affirmed the convictions and sentence.

This cause is now before this court upon the allowance of a discretionary appeal.

Gregory A. White, Lorain County Prosecuting Attorney, and Jonathan Rosenbaum, Assistant Prosecuting Attorney, for appellee.

Gold, Rotatori & Schwartz Co., L.P.A., Gerald S. Gold and John S. Pyle, Cleveland, for appellant.

MOYER, Chief Justice.

This case presents the court with the question of whether the making of an unsworn false oral statement to a public official with the purpose to mislead, hamper or impede the investigation of a crime is punishable conduct within the meaning of R.C. 2921.13(A)(3) and 2921.31(A). For the following reasons, we answer that question in the affirmative.

At trial, Lazzaro was found guilty of violating R.C. 2921.13, Ohio's falsification statute, which provides:

"(A) No person shall knowingly make a false statement, or knowingly swear or affirm the truth of a false statement previously made, when any of the following applies:

" * * *

"(3) The statement is made with purpose to mislead a public official in performing the public official's official functions."

Lazzaro was also convicted of obstructing official business under R.C. 2921.31(A), which provides:

"(A) No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within his official capacity, shall do any act which hampers or impedes a public official in the performance of his lawful duties."

Lazzaro relies on our holdings in Columbus v. Fisher (1978), 53 Ohio St.2d 25, 7 O.O.3d 78, 372 N.E.2d 583, and Dayton v. Rogers (1979), 60 Ohio St.2d 162, 14 O.O.3d 403, 398 N.E.2d 781, where we held that the making of unsworn false oral statements to a police officer was not punishable conduct with the meanings of R.C. 2921.13(A)(3) or 2921.31(A), respectively.

In Fisher, the defendant was convicted of violating a municipal ordinance virtually identical to R.C. 2921.13(A)(3) for giving a false name to a police officer. The Fisher court reviewed the history of the statute, and adopted the reasoning that for a false statement to be punishable it must be in writing and must also derive from an intent to mislead.

In Rogers, the defendant was convicted of violating a Dayton municipal ordinance identical to R.C. 2921.31(A) for lying to a police officer by falsely confirming the identity of her companion. Relying on the reasoning in Fisher, the Rogers court concluded that because "conduct such as appellant's is not punishable under R.C. 2921.13(A)(3), which specifically addresses the making of false statements to public officials, we are reasonably led to the determination here not to extend the meaning of R.C. 2921.31 beyond that intended by the General Assembly." Rogers, supra, 60 Ohio St.2d at 164, 14 O.O.3d at 404-405, 398 N.E.2d at 783.

The holdings in Fisher and Rogers were expressly limited to their facts by this court's recent decision in State v. Bailey (1994), 71 Ohio St.3d 443, 644 N.E.2d 314. In Bailey, the defendant was convicted under R.C. 2921.32(A)(5) for obstructing justice when she continually refused to move from the doorway of the house, thereby blocking the police from entering the house to arrest her brother, and repeatedly declared that her brother was not home. In Bailey we observed that both state and federal case law have "firmly established that unsworn false oral statements made for the purpose of impeding an officer's investigation are punishable * * *." (Citations omitted.) Id. at 446, 644 N.E.2d at 316. We held at the syllabus that "[t]he making of unsworn false oral statements to a law enforcement officer with the purpose to hinder the officer's investigation of a crime is punishable conduct within the meaning of R.C. 2921.32(A)(5)."

In view of our recent decision in Bailey, we conclude that Lazzaro's reliance on Fisher and Rogers is misplaced. Although Bailey did not overrule those cases, it did limit them to their facts, as the specific statutes involved in each were not directly before this court at that time. However, both R.C. 2921.13(A)(3) and 2921.31(A) are the subject of review in the instant case, and we conclude that the sound reasoning expressed in Bailey applies equally to both statutes.

Lazzaro argues that it would be an improper retroactive application of our decision in Bailey to the facts at bar because Bailey was not announced until after Lazzaro's convictions, but before review of the case by the court of appeals. We disagree. "The general rule is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former was bad law, but that it never was the law." Peerless Elec. Co. v. Bowers (1955), 164 Ohio St. 209, 210, 57 O.O. 411, 129 N.E.2d 467, 468.

Lazzaro also argues that the doctrine that mere exculpatory denials cannot be punished should apply to her responses to Kish. See Columbus v. New (1982), 1 Ohio St.3d 221, 1 OBR 244, 438 N.E.2d 1155. But, see, United States v. Steele (C.A.6, 1991), 933 F.2d 1313, 1320. However, this doctrine does not extend to the facts in the present case because the questions asked by Kish of Lazzaro did not implicate her Fifth Amendment protections against self-incrimination. Accordingly, we make no decision regarding its applicability to the statutes reviewed.

The record indicates that Lazzaro embarked upon a course of conduct aimed at limiting the police investigation in such a way that the assault on Newman would be ruled accidental. One way was by allowing the only witness to the assault, Julie Swindell, to leave work without speaking to Kish. Neece testified that when he talked with Lazzaro soon after the assault, she told him that she had already taken Swindell's statement, and that Swindell would not be talking to the police. This suggests that Lazzaro did not merely passively fail to assist Kish's investigation, but actively chose which witnesses Kish would encounter. Lazzaro furthered the concealment of this key witness by denying her existence. Specifically, when Kish testified at trial, he st...