State v. Nichols
| Decision Date | 11 August 1965 |
| Citation | 3 Ohio App.2d 182,209 N.E.2d 750 |
| Parties | , 32 O.O.2d 271 The STATE of Ohio, Appellee, v. NICHOLS, Appellant. |
| Court | Ohio Court of Appeals |
Paul J. Mikus, Pros, Atty., and Joseph R. Grunda, Lorain, for appellee.
Andrew J.
Warhola, Lorain, for appellant.
An appeal on questions of law has been lodged in this court from a judgment rendered on the verdict of a jury, which verdict determined that Roy Nichols was guilty of the crime of murder in the second degree.
At one o'clock a.m., May 3, 1964, Eugene Sapolski was found in the yard of his home seriously wounded as the result of blows inflicted upon his head. He died as a result of such injuries.
A police investigation resulted in the arrest on May 13, 1964, of Roy Nichols, aged 18, the brother-in-law of the deceased. Interrogation on that day, i.e., May 13, 1964, by the police, and later by an assistant county prosecutor of Lorain County, in the presence of a court reporter, resulted in a statement by Nichols of the details leading up to, during, and after the matter wherein the deceased, Sapolski, suffered death. In the statement to the assistant county prosecutor, Nichols told in great detail how he came to the Sapolski yard, the purpose for which he came, and the manner of inflicting the blows upon the head of his brother-in-law.
At the conclusion of that statement, Nichols was immediately taken before the acting municipal judge for a preliminary hearing on the charge of first degree murder, at which time he was bound over to the grand jury of Lorain County, Ohio.
The statement made to the assistant county prosecutor complied with all safeguards found by this court to exist in the case of State v. Stewart, 120 Ohio App. 199, 201 N.E.2d 793, affirmed 176 Ohio St. 156, 198 N.E.2d 439; motion for certiorari overruled by Supreme Court of the United States, December 14, 1964.
Prior to making the statement to the assistant county prosecutor, Nichols was told that he need not make a statement, unless he wished to do so voluntarily. At the preliminary hearing he was read the charge of first degree murder, and he was told he could enter one of three pleas, to wit, not guilty, guilty, and no contest. He was then told that the court before which he was then appearing did not have final jurisdiction, only jurisdiction to take a plea, then bind Nichols over to the grand jury of the county. Nichols then plead guilty, after which the court asked him if he had a lawyer, and if he realized the seriousness of the charge, which carries with it a death penalty. Nichols said he realized the seriousness of the charge under which he was being held, and that he did not wish counsel or a preliminary hearing. The acting municipal judge then again cautioned Nichols concerning the seriousness of the offense, and again inquired if he wished his plea of guility to stand even though he could have counsel. Nichols then said: 'Yes.'
Thereafter a written statement was signed by Nichols with reference to his not wanting counsel or a preliminary hearing, and in which statement he entered a plea of guilty to first degree murder. He then was bound over to the grand jury, which grand jury returned against Nichols an indictment for murder in the second degree. He was tried in the Court of Common Pleas upon the indictment and found guilty of the offense charged.
The statement Nichols made in the presence of the court reporter before his appearance in Municipal Court, as well as all of that which transpired in that court, was read by this reporter to the jury. The introduction of these matters was based upon the contention that they were admissions against interest.
In the course of the trial, counsel for Nichols called as a witness a psychiatrist who had examined Nichols, but this witness was denied the opportunity ot testify by the trial court for the reason of insanity, no plea of not guilty by reason of insanity, and hence this doctor was not a competent witness for the defense. Counsel for the defense proffered the testimony of the lady doctor, and the bill of exceptions contains such testimony taken out of the presence of the jury.
Counsel for Roy Nichols says the trial court erred: in refusing to allow in evidence the testimony of the psychiatrist; in failing to hold a preliminary judicial examination upon the issue of the voluntary or involuntary nature of the alleged confession or admissions before allowing them in evidence; in submitting the issue of the voluntary or involuntary nature of the confession or admissions to the jury without first having held such preliminary examination thereon; in permitting the court reporter to read to the jury a transcript of the statement made to the assistant county prosecutor; and in failing to exclude the transcript of the proceedings before the Municipal Court from consideration by the jury.
Without the use of the statement Nichols gave to the assistant county prosecutor in the presence of the court reporter, the evidence of the guilt of Roy Nichols is meager.
Counsel for Nichols objected to the use of the statement on the ground that it was not a voluntary statement, and that, when given, a lawyer was not present in behalf of Nichols. The trial court then told the jury that if they should find that the statement was not given voluntarily, they could not consider the statement as evidence. Other pertinent instructions concerning this subject were also given, both at the time of admission and at the conclusion of the case. No preliminary examination was made by the trial court bearing on the voluntary nature of the statement, although the lawyers did argue at some length as to what the evidence on that subject would disclose.
The Ohio rule with respect to the subject now considered may be found in: Spears v. State, 2 Ohio St. 583; Rufer v. State, 25 Ohio St. 464; Burdge v. State, 53 Ohio St. 512, 42 N.E. 594; and State v. Powell, 105 Ohio App. 529, 148 N.E.2d 230.
The discussion between counsel in this case, concerning the nature of the claimed voluntary statement made by Nichols, did not constitute a preliminary hearing on the nature of the voluntariness of the admissions. Counsel for the state insist that the statement given is an admission against interest, while defense counsel insists that it is a confession. In the matter before us, we must say there is no distinction, for the statement as given is a full and complete account of the homicide, which does establish an offense committed by Nichols. Any discussion of admissions or confessions under the circumstances herein is not needed.
There was very little evidence bearing on the involuntary nature of the confession adduced by Nichols, but ther was sufficient to create an issue thereon.
The procedure used by the trial court herein is similar to that in the case of Jackson v. Denno, Warden, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. In that case the Supreme Court of the United States determined that the procedure as used in the instant case is a violation of a constitutional right, and that the issue of voluntariness must be determined by the court or an independent jury before its use, and then the matter shall be submitted to the jury trying the case, under proper instruction. The jury may then believe or disbelieve that it was a voluntary confession. The Ohio rule announced in Burdge v. State, supra, and the Spears and Rufner cases, supra, is similar.
The fact that there was no lawyer present at the interrogation of Nichols is not in our judgment prejudicial under th facts as disclosed by the bill of exceptions. State v. McLeod, 1 Ohio St.2d 60, 203 N.E.2d 349.
We pass now to the use, as evidence, of the transcript of the proceedings before the acting municipal judge.
Under Section 2937.09 et seq., Revised Code, the procedure is outlined when a plea of guilty is entered on a felony charge. This procedure was...
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