State v. Luck

• Decision Date: 31 December 1984
• Docket Number: No. 84-138,84-138
• Citation: 472 N.E.2d 1097,15 Ohio St.3d 150,15 OBR 296
• Parties: , 15 O.B.R. 296 The STATE of Ohio, Appellant, v. LUCK, Appellee.
• Court: Ohio Supreme Court

Page 150

15 Ohio St.3d 150

472 N.E.2d 1097, 15 O.B.R. 296

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

No. 84-138.

Supreme Court of Ohio.

Dec. 31, 1984.

Syllabus by the Court

1. A defendant in a criminal prosecution is deprived of the right to the assistance of counsel in violation of the Sixth Amendment to the United States Constitution, as made applicable to the states by the Fourteenth Amendment, when a police officer elicits statements from the defendant after (1) refusing to allow an attorney, retained pursuant to the defendant's request, to speak to the defendant on the telephone, (2) failing to inform the defendant either of the attorney's retention by her husband or of the attorney's telephone calls to the police station on her behalf, and (3) assuring the defendant's attorney that the police will not talk to or interrogate the defendant.

2. An unjustifiable delay between the commission of an offense and a defendant's indictment therefor, which results in actual prejudice to the defendant, is a violation of the right to due process of law under Section 16, Article I of the Ohio Constitution and the Fifth and Fourteenth Amendments to the United States Constitution.

On or around October 30, 1967, Helen Marie Tietjen was killed in Lakewood, Ohio, and the Lakewood Police Department began an investigation into the cause of her death. This investigation resulted in the collection of a variety of real evidence from the crime scene and in the conduct of numerous interviews with potential witnesses and suspects. The defendant-appellee herein, Katherine Drummond Luck, was one of the suspects interviewed in late 1967 and early 1968.

After an initial period of active investigation, the Lakewood Police Department was unable to gather any new evidence, and neither the police nor the prosecutor took any official action on the Tietjen case for a period of approximately fifteen years. Then, for reasons that are not entirely clear from the record, the Cuyahoga County Prosecutor's office turned its attention to the Tietjen case. On March 15, 1983, the prosecutor sought and obtained a secret indictment against Katherine Luck for the murder of Helen Tietjen. The following day at approximately 6:30 p.m., Luck was arrested at her home in Sheffield Lake, Ohio by Captain Glen Walker and Detective Robert Holmok of the Lakewood Police Department and Sergeant Ezso of the Sheffield Lake Police Department.

At the time of her arrest, Mrs. Luck asked for permission to call her husband on the telephone. The arresting officers agreed to this request, and, according to the police report, Detective Holmok advised the defendant of her rights so that she would understand "that anything she might say to her husband * * * could be used against her in court." Mrs. Luck was unable to contact her husband, but she left a message for him to return her call. After a short period during which Mrs. Luck was allowed to change from her robe and slippers into street clothes, Mr. Luck returned the call. Mrs. Luck then informed her husband that she was being arrested for murder and she requested that he contact an attorney for her.

The police report indicates that while speaking to her husband and, later, while being transported to the Lakewood Police Station, Mrs. Luck became physically ill and vomited. Upon her arrival at the police station, Mrs. Luck provided Patrolman Murray of the Lakewood Police Department with basic information for her "booking record," and she signed both an "Advice of Rights-Adult" and "Waiver of Rights." This "booking procedure" began at approximately 7:10 p.m. and was completed by about 7:30 p.m. Mrs. Luck was then placed in a cell to await further "processing."

At 8:13 p.m., attorney Michael Duff, who had been retained by Mr. Luck, telephoned the Lakewood Police Department. The record reveals that this call lasted for one minute, with subsequent calls occurring as follows: (1) 8:14 p.m.--five minutes, (2) 8:37 p.m.--three minutes, (3) 8:41 p.m.--three minutes, and (4) 10:22 p.m.--two minutes. Apparently, in all but the 8:13 p.m. call, Duff spoke with Detective Holmok. Duff informed Holmok that he was representing Mrs. Luck, and he asked to speak to her. Holmok refused this request on the ground that Luck was "in lock-up" and could not come to the phone. Duff asked Holmok if Mrs. Luck had made any statement, and Holmok said that she had not. Duff also asked the detective not to question Mrs. Luck, and he requested that Mrs. Luck be informed that he had been retained as her lawyer by Mr Luck. Holmok indicated that Mrs. Luck had not been questioned and he assured Duff that he had no intention of talking to Mrs. Luck.

At approximately the same time that Duff first called the Lakewood Police Station, Holmok began "processing" Mrs. Luck by taking her fingerprints and obtaining a handwriting sample. After "processing," at approximately 9:00 p.m., Mrs. Luck apparently expressed a desire to talk to Holmok; and, after signing both an "Interrogation: Advise [sic ] of Rights" and "Waiver of Rights," Mrs. Luck began discussing how she came to know Helen Tietjen. At one point Mrs. Luck asked Holmok if he knew what the events were that had led up to Tietjen's death. Holmok said that he thought he knew what had happened, and that he would write his theory down on a paper and then see if his theory "agreed" with that of Mrs. Luck.

The "conversation" between Mrs. Luck and Holmok continued for approximately five hours, with Holmok at one point drawing a picture of two roads--one of which was a path whereon he could offer her help, the other a path where he could provide no help. Holmok agreed at the hearing on defendant's motion to dismiss that this demonstration was to encourage Mrs. Luck to unburden herself. At no time in this five-hour period did Holmok inform Mrs. Luck that her husband had retained an attorney for her; and, it was not until she had described her role in the death of Tietjen and given what amounted to a full confession that Mrs. Luck called her husband and learned that Duff had been retained as her lawyer.

Prior to trial, counsel for defendant Luck filed motions to suppress and to dismiss the indictment. On July 19, 1983, a hearing on these motions was held in the Court of Common Pleas of Cuyahoga County; and, on August 4, 1983, the court granted both motions. The court of appeals affirmed the judgment of the trial court.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

John T. Corrigan, Pros. Atty., and Carmen M. Marino, Asst. Pros. Atty., for appellant.

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

SWEENEY, Justice.

The central issue in this case is whether the trial court properly granted the defendant's motion to dismiss the indictment. The arguments of defendant's counsel in support of the motion to dismiss are (1) that the fifteen-year delay between the commission of the offense and the defendant's indictment therefor has deprived the defendant of her right to a speedy trial under the Ohio Constitution, and (2) that this delay has resulted in actual prejudice to the defendant, thereby violating her right to due process of law.

The defendant's first argument relies heavily on State v. Meeker (1971), 26 Ohio St.2d 9, 268 N.E.2d 589 , in which we held at paragraph three of the syllabus that "[t]he [state and federal] constitutional guarantees of a speedy trial are applicable to unjustifiable delays in commencing prosecution, as well as to unjustifiable delays after indictment." Although the Supreme Court subsequently ruled that the speedy trial guarantee under the Sixth Amendment to the United States Constitution has no applicability to pre-indictment delays, United States v. Marion (1971), 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468, the defendant urges that Meeker still is controlling insofar as it applies the speedy trial guarantee under Section 10, Article I of the Ohio Constitution to pre-indictment delay. We agree that Meeker was not nullified in its entirety by Marion, but we believe that in light of Marion and its progeny, our holding in Meeker is viable only insofar as its application is limited to cases that are factually similar to it.

In Meeker, the defendant committed acts at the same time and place which would have constituted four separate offenses; and, in June 1963, the state knowingly chose to indict the defendant for only one of those four possible offenses. When the defendant's conviction on the 1963 indictment was overturned by a post-conviction order in 1969, the state obtained another indictment charging the defendant with the three other crimes that were committed in 1963. This conduct, which was found to violate the defendant's right to a speedy trial, is distinguishable from the facts of the instant case.

The defendant in Meeker initially was indicted in 1963 for one of four offenses that arose from a single sequence of events. His second indictment in 1969 was based upon the three other offenses that arose from that same sequence of events. The defendant's right to a speedy trial under the Ohio Constitution was violated in Meeker because the defendant's initial indictment encompassed the same events that were the basis of his second indictment, and the delay in commencing prosecution for the offenses described in the second indictment occurred after the defendant had already been indicted for an offense arising from the same sequence of events.

The defendant in the instant case was never indicted for any offense prior to 1983. Therefore, because the defendant herein was not the subject of any official prosecution until 1983, the delay between Tietjen's death in 1967 and the commencement of prosecution in 1983 is not protected by the speedy trial guarantee contained in Section 10, Article I of the Ohio Constitution. The defendant's first argument in support...