State v. McMillan

• Citation: 590 N.E.2d 23,69 Ohio App.3d 36
• Decision Date: 01 August 1990
• Docket Number: No. 89CA004658,89CA004658
• Parties: The STATE of Ohio, Appellee, v. McMILLAN, Appellant.
• Court: Ohio Court of Appeals

Page 36

69 Ohio App.3d 36

590 N.E.2d 23

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

No. 89CA004658.

Court of Appeals of Ohio, Ninth District, Lorain County.

Decided Aug. 1, 1990.

Gregory A. White, Pros. Atty., Elyria, for appellee.

Hollace B. Weizel, Lorain, for appellant.

BAIRD, Presiding Judge.

This cause comes before the court upon the appeal of Curtis Gene McMillan from his conviction for one count of rape in violation of R.C. 2907.02(A)(2) and one count of gross sexual imposition in violation of R.C. 2907.05(A)(3).

Because of incriminating statements made by his eleven-year-old son and his twenty-two-year-old daughter, McMillan was arrested and was taken to the Elyria police station for questioning. McMillan's arrest occurred at 11:03 p.m. The booking and fingerprinting process lasted until 1:00 a.m. From 1:00 a.m. to 3:28 a.m., Detective Riley, from the youth bureau, talked to McMillan concerning his history and the events leading to his arrest. At 3:28 a.m., Riley read McMillan the Miranda warnings, see Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and taped the ensuing interrogation.

Prior to trial, McMillan sought to suppress the taped statement he made to the detective. The court denied the motion, concluding that McMillan's statement was knowingly, voluntarily, and intelligently made. The case proceeded to trial. David McMillan, the defendant's son, testified that his father fondled him on various occasions, the most recent incident having taken place in the neighbor's garage. Vicky Skaggs, McMillan's daughter, testified that the defendant began to touch her breasts and genitalia when she was nine and that this conduct finally culminated at sixteen, when she was forced to engage in sexual intercourse with him. Besides McMillan's two children, the state presented two other witnesses, Riley and a pediatrician who had examined David McMillan in 1985. The defense presented nine witnesses, including the defendant.

The jury convicted McMillan on both counts. The court sentenced him to a term of seven to twenty-five years on the rape count and to a concurrent term of two years on the gross sexual imposition count. McMillan appeals and assigns five errors.

Assignment of Error I

"The trial court erred to the prejudice of appellant, and in violation of rights conferred by the Fifth and Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution, when it denied appellant's motion to suppress statements made while in police custody."

Appellant argues two points under this assignment of error. First, McMillan asserts that his taped responses to questions that he made after Riley gave him the Miranda warnings are inadmissible because of his prior unwarned statement. Second, McMillan contends that, regardless of the prior unwarned statement, his taped statement was inadmissible because it was not voluntarily made because he was under the influence of medication at the time the police questioned him.

As to the first argument, the Supreme Court of the United States has held that a subsequent warned confession may be admissible if the prior unwarned statement was voluntary. Oregon v. Elstad (1985), 470 U.S. 298, 314, 105 S.Ct. 1285, 1296, 84 L.Ed.2d 222, 235. Where the police ask questions of a suspect in custody without administering the required warnings, Miranda requires that the answers be presumed compelled, and thus the state is prohibited from using them in its case in chief. Id. at 317, 105 S.Ct. at 1297, 84 L.Ed.2d at 237. If, however, the initial questioning is uncoercive and the responses are voluntarily made, then the second statement made after Miranda warnings may be admissible. Id. at 318, 105 S.Ct. at 1297-1298, 84 L.Ed.2d at 238.

In the instant case, Riley informed McMillan prior to engaging in a discourse with him that he would use only McMillan's taped statement against him. Riley then asked McMillan if he had anything to say. At the suppression hearing Riley testified that McMillan "wanted to talk; so we talked." Riley stated he talked to McMillan about McMillan's background, the statements McMillan's son and daughter had made, as well as other incidents. If Riley's initiation of his talk with McMillan can be considered an initiation of a custodial interrogation, then the statements that McMillan made were technically in violation of Miranda. Upon a review of the totality of circumstances, it is clear, however, that McMillan voluntarily talked to Riley after Riley initiated the conversation. Although statements he made prior to the Miranda warnings are not admissible in the prosecutor's case in chief, they do not taint the subsequent statements Riley elicited from McMillan after McMillan was read the Miranda warnings.

As the Supreme Court concluded in Oregon v. Elstad, supra, the relevant inquiry is whether, in fact, the second statement was voluntarily made. Id. at 318, 105 S.Ct. at 1297-1298, 84 L.Ed.2d at 238. The question of whether the accused's statements were voluntary is separate from the question of compliance with Miranda. Thus, formal compliance with the requirements of Miranda does not preclude proof that the statements themselves were involuntary. State v. Chase (1978), 55 Ohio St.2d 237, 246, 9 O.O.3d 180, 185, 378 N.E.2d 1064, 1070. The court must determine whether the totality of the circumstances shows that the statements are of the accused's free and rational choice. State v. Jenkins (1984), 15 Ohio St.3d 164, 231, 15 OBR 311, 369, 473 N.E.2d 264, 320.

McMillan contends that, because he was taking medication and possessed poor cognitive skills, his statement to Riley was not the result of a free and rational choice. McMillan's wife testified that the defendant was taking prescribed muscle relaxants, pain medication, and kidney medication. A psychologist testified that McMillan scored a sixty-seven out of a possible one hundred on the Weschsler Memory Scale, which in the expert's opinion indicated that McMillan had difficulty in short-term memory and concentration skills. The record reveals that despite the medication he was taking and despite his inability to concentrate and remember certain things, McMillan was able to coherently respond to Riley's questions. Furthermore, Riley testified that McMillan did not appear to be under the influence of drugs, and that his demeanor was such that an inquiry into his drug usage was not necessary. From our review of the totality of the circumstances, we cannot say that the trial court erred in determining that McMillan's responses to the police officer's questions were voluntarily, knowingly and intelligently made. Appellant's first assignment of error is not well taken.

Assignment of Error III

"The trial court erred to the prejudice of appellant, and in violation of ORC Section[s] 2907.02(D) & (E) and ORC Section[s] 2907.05(D) & (E) when it failed to hold an in camera voir dire of witness who testified to other alleged sexual acts of appellant, and where such other acts testimony was inadmissible under ORC Section 2945.59."

McMillan complains that the trial court erroneously admitted his son's and daughter's testimony concerning other sexual acts to which he had allegedly forced them to submit. The defense counsel did not object to this testimony. We thus exercise our right not to consider an error that could have been called to the trial court's attention, but was not, which, in effect, foreclosed the trial court from correcting or avoiding such error. State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph one of the syllabus.

Assignment of Error V

"The trial court erred to the prejudice of appellant, when it entered judgment of conviction on the second count of the indictment, where such conviction was against the manifest weight of the evidence."

In his fifth assignment of error, McMillan claims that his conviction for gross sexual imposition per R.C. 2907.05(A)(3) ¹ was against the manifest weight of the evidence. In reviewing a claim that a judgment is against the manifest weight of the evidence, this court must review the entire record, weigh the evidence and all reasonable inferences, and consider the credibility of the witnesses. State v. Martin (1983), 20 Ohio App.3d 172, 20 OBR 215, 485 N.E.2d 717. We must determine from our review whether the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Id. David McMillan, defendant's son, testified that his father was constantly touching his genitals, and that, in May 1988, his father called him into a neighbor's garage under the pretext of checking to see if he had been bitten by the neighbor's dog, told him to pull down his pants, and then touched his penis. McMillan denies that he fondled his son in the garage and claims that he was just making sure that David had not been injured by the dog.

McMillan claims that his son's testimony was sufficiently contradicted by the neighbor's testimony concerning the incident with the dog. Upon our review of the neighbor's testimony, we find that it did not significantly conflict with David McMillan's testimony. Furthermore, the neighbor testified that she could not see into the garage because she was in her house at the time that the alleged incident between McMillan and his son occurred. We find that the judgment as to the gross sexual imposition count was not against the manifest weight of the evidence. Appellant's fifth assignment of error is not well taken.

Assignment of Error II

"The trial court erred to the prejudice of appellant, and in violation of ORC Section[s] 2907.02(D) & (E), ORC Section[s] 2907.05(D) & (E), ORC Section 2945.59, Evidence Rule 404(B), and Evidence Rule 613 when it permitted the prosecution to introduce evidence of a prior sexual acts [sic] of appellant."

This claim of error is predicated...