State v. Morris

• Court: Ohio Supreme Court
• Writing for the Court: J. J. P. CORRIGAN; Benjamin F. Cardozo; C. WILLIAM O'NEILL, C. J., and STERN; STERN; C. WILLIAM O'NEILL
• Citation: State v. Morris, 42 Ohio St.2d 307, 329 N.E.2d 85, 71 O.O.2d 294 (Ohio 1975)
• Decision Date: 21 May 1975
• Docket Number: Nos. 74-81 and 74-94,s. 74-81 and 74-94
• Parties: , 71 O.O.2d 294 The STATE of Ohio, Appellee, v. MORRIS, Appellant. The STATE of Ohio, Appellee, v. McSPADDEN, Appellant.

Page 307

42 Ohio St.2d 307

329 N.E.2d 85, 71 O.O.2d 294

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

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

Nos. 74-81 and 74-94.

Supreme Court of Ohio.

May 21, 1975.

Syllabus by the Court

1. An appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. (Paragraph three of the syllabus in State v. Childs, 14 Ohio St.2d 56, 236 N.E.2d 545, approved and followed.)

2. Where the facts surrounding a warrantless search of baggage, and seizure of evidence discovered therein, indicate that the search in question was instigated by private individuals, for private purposes, and that the minimal police participation which did occur was done for purposes of protection of the public safety and not with the intent of gathering evidence to be used in a criminal prosecution or otherwise evading constitutional protections, then the search is a private undertaking for purposes of the Fourth Amendment to the United States Constitution, and contraband evidence, thereby coming within the 'plain view' of police officers having a legitimate right to be present, is not subject to exclusion at trial under the Fourth Amendment.

3. There is no constitutional right to a preliminary hearing under R.C. 2937.10, once an indictment has been returned by a grand jury, and, absent a showing by a defendant of particularized need for the inspection of grand jury minutes, such latter relief is not required.

4. Where a notice of appeal is directed to an adverse judgment and to the order of the trial court overruling appellant's motion for new trial, a bill of exceptions must be filed with the appellate court in order to bring upon the record the evidence presented by affidavit or otherwise at the hearing on the issue.

These two appeals were consolidated for argument and disposition by this court. They arise out of an indictment returned by the Lucas County grand jury on November 10, 1971, charging defendant-appellants, Alan Murray Morris and Harold Michael McSpadden, together with one Willie Middlebrook, with two counts, namely: (1) Conspiracy to violate R.C. 3719.09, possession of a narcotic drug, and (2) possession or control of a narcotic drug, on or about October 31, 1971, for purposes of sale. A related identical two-count indictment was returned the same day against Joaquin (John) Ramos.

Prior to trial, motions to suppress and for discovery were filed by defendants, appellants herein. Regarding the motions for discovery, the court ruled, with the stipulation on behalf of the state, that each of the defendants would have the right to inspect all the state's physical evidence to be used in the proceedings. A hearing was held upon the motions to suppress, and, on May 26, 1972, the motions were overruled. Subsequently, defendant McSpadden filed a motion to reconsider suppression of evidence, which was overruled.

The trial commenced on August 10, 1972, and, on August 19, 1972, the jury returned a verdict finding the defendant Morris guilty on both counts of the indictment, conspiracy to violate R.C. 3719.09, possession of a narcotic drug, and possession for sale. McSpadden was found guilty on the first count, conspiracy to violate R.C. 3719.09, possession of a narcotic drug, and, on the second, guilty of possession of a narcotic drug, a lesser included offense of the charge, possession for sale. Judgments were entered upon the verdicts.

Motions for new trial were filed on August 22, 1972, and overruled, following a hearing on the motions. Thereafter, appeals were filed, and, on November 26, 1973, the Court of Appeals affirmed the judgments of the Court of Common Pleas.

Subsequent to the trial in this case, appellant Morris was tried in the United States District Court, Southern District of New York, with five codefendants, for conspiracy to violate the federal narcotic laws.

Appellant Morris and the five codefendants were found guilty. United States v. Capra (D.C.N.Y.1973), 372 F.Supp. 600, 603, 609.

In Capra, a motion to suppress was filed, challenging the search and seizure at the Toledo Penn Central Railroad Terminal of the same physical evidence, namely, narcotics, upon which the convictions in the case at bar were based.

The District Court denied the motion to suppress after a hearing, and the judgment of the District Court, finding Morris guilty of the conspiracy charges, was subsequently affirmed by the Second Circuit Court of Appeals in United States v. Capra (1974), 501 F.2d 267. The motion to suppress was held to have been properly denied upon the basis that the defendants lacked standing to challenge the search, but both courts, in dicta, expressed the opinion that under the circumstances the search in question was reasonable.

Additional facts as are necessary for resolution of this matter are stated in the opinion.

These causes are now before this court pursuant to the allowance of appellants' motions for leave to appeal.

Harry Friberg, Pros. Atty., Melvin L. Resnick and Charles J. Doneghy, Toledo, for appellee.

Hayward, Cooper, Straub, Walinski, Cramer & Co., L. P. A., Richard S. Walinski and John L. Straub, Toledo, for appellant Morris.

John D. O'Connell, Detroit, Mich. and Roy Daniel Chinnis, Holland, for appellant McSpadden.

J. J. P. CORRIGAN, Justice.

In case Nos. 74-81 and 74-94, appellants Morris and McSpadden, respectively, cite as error the admission in evidence at trial certain narcotics which, they allege, were obtained in violation of the restrictions of the Fourth Amendment to the United States Constitution, prohibiting unreasonable searches and seizures.

In case No. 74-81, appellant Morris also maintains that the verdicts returned by the jury in the trial of the codefendants on the first count of the indictment are inconsistent and repugnant and must be set aside. Appellant Morris also contends that the procedure whereby the grand jury returns secret indictments constitutes a denial of due process and equal protection of the law; and that Ohio law compels, at the least, a preliminary examination be held or that the accused be provided a copy of the grand jury minutes.

In case No. 74-94, appellant McSpadden maintains that the trial court committed reversible error in denying the defense the opportunity to present new evidence directly related to the veracity of the testimony of the state's toxicology expert witness, in violation of appellant's Sixth Amendment right to confrontation; that the discovery of other new evidence subsequent to the appellate court's decision is directly related to due-process and fair-trial standards of the Fifth and Sixth Amendments to the United States Constitution and mandates reversal of appellant's conviction on the first count of the indictment.

For purposes of this opinion, the appeals in case Nos. 74-81 and 74-94 will be treated jointly on the issues touching the legality of the search and seizure conducted at the Toledo Penn Central Railroad Terminal. The other propositions urged by appellants will be discussed separately as they relate to each case.

I.

Preliminary to a discussion of the legality of the search, is the question of appellants' standing to challenge the search, first raised by the prosecution on appeal.

It is well established that: 'It is a general rule that an appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. * * *' (Paragraph three of the syllabus in State v. Childs (1968), 14 Ohio St.2d 56, 236 N.E.2d 545.)

It is not necessary for this court to consider whether the 'automatic standing' provisions of Jones v. United States (1960), 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, have been overruled by Simmons v. United States (1968), 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247.

Clearly, the defendants were entitled, under Simmons, to testify in support of their motion to suppress and the testimony could not thereafter be admitted against them in the trial. In the present case, however, no record was made on the 'standing' issue upon which this court could base its review.

Moreover, not only did the prosecution compound the error in failing to object to the appellants' standing to contest the introduction of the evidence obtained in the search, but also in proceeding under the assumption that appellants did, in fact, have standing and in choosing instead to defend the reasonableness of the search.

Had appellants failed to object to the introduction of the evidence obtained in the search prior to trial, their right to object would have been waived. State v. Davis (1964), 1 Ohio St.2d 28, 203 N.E.2d 357. Where, as here, the state fails to challenge appellants' standing to object and thereby preserve its record for appeal and instead elects to defend the reasonableness of the search and seizure, it also waives any right to challenge 'standing' on appeal. State v. Childs, supra, 14 Ohio St.2d 56, 236 N.E.2d 545. See, also, United States v. Moody (C.A.3, 1973), 485 F.2d 531, 533, fn. 3, where the court likewise refused to determine, upon appeal, an appellant's standing to challenge an alleged illegal search and seizure because: (1) Appellant's reliance on 'automatic standing' under Jones v. United States, supra, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, was reasonable; (2) the issue was not raised by the government until the appeal, and the trial court had no opportunity to examine the question, and (3) the Third Circuit Court of Appeals held for the government on the merits and a decision on the question would have no practical effect on the outcome.

II.

Appellants in case Nos....