State v. Perry

• Citation: 237 N.E.2d 891,14 Ohio St.2d 256
• Decision Date: 12 June 1968
• Docket Number: No. 41168,41168
• Parties: , 43 O.O.2d 434 The STATE of Ohio, Appellee, v. PERRY, Appellant.
• Court: United States State Supreme Court of Ohio

Page 256

14 Ohio St.2d 256

237 N.E.2d 891, 43 O.O.2d 434

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

No. 41168.

Supreme Court of Ohio.

June 12, 1968.

Syllabus by the Court

1. Inculpatory statements by a person in custody voluntarily made to a law enforcement officer, not as the result of interrogation initiated by the officer, but before the warnings announced in the case of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, could reasonably have been given, are admissible in evidence in a criminal action against such person.

2. Where a law enforcement officer apprehends a person fleeing from the scene of suspicious activities, which person, immediately upon apprehension and before the required warnings announced in the case of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, could reasonably have been given, voluntarily makes inculpatory but ambiguous statements to such officer, which statements are not the result of interrogation initiated by the officer, and where such statements reasonably lead the officer to believe that a crime has been committed, the officer is not required to prevent such person from continuing his explanation of his activities at the scene and the officer can permissibly seek clarification at the scene of such person's ambiguous but inculpatory statements.

3. Where an accused's written confession is offered in evidence by the prosecution during a jury trial and the trial judge, after a hearing out of the presence of the jury, makes a determination on the question of the voluntariness of the confession and fully and independently resolves that issue against the accused, the trial court does not deny the accused due process of law in violation of the Fourteenth Amendment to the United States Constitution by submitting the accused's confession to the jury and instructing the jury that it should determine whether the confession was voluntarily given and, if it finds that the confession was not voluntarily given, it should disregard the confession and determine the guilt or innocence of the defendant from all the other evidence.

This is a criminal action.

According to the record, at 2:30 a. m. on July 7, 1966, two officers of the Alliance, Ohio, police department responded to a call complaining about suspicious activities at a car wash. The officers approached the area of the car wash, and observed three men running from the side of the car wash building. The officers pursued the figures on foot. One of the officers ordered Ronald James Perry, appellant herein, to stop, and when the appellant slowed the officer caught up with him.

At the jury trial, this officer was permitted, over objection to testify that, when he caught up with the appellant, the appellant told him that 'he had never done anything like this before.' Unaware that any specific crime had been committed, the officer asked appellant 'what he had done.' Appellant told the officer that he needed money and a place to stay to he and his friends had decided to break into the car wash. When the officer asked him how they planned to accomplish this, the appellant said that they intended to remove the putty from one of the windows.

The appellant was placed in the cruiser, which then was driven to the car wash, where another officer checked the windows and found that most of the putty around one of the windows had been removed and was lying on the ground beneath the window. The officer testified further that appellant and one Lee Patterson, who had also been apprehended and placed in the cruiser, were informed that 'anything they said would be used in court against them' and that 'if they could not afford a lawyer the court would appoint one for them.'

Appellant and Patterson were taken to police headquarters, where they spent the night in jail. The next morning, the appellant was interrogated by a detective. At the trial, when the state offered in evidence the appellant's written confession, made to the detective, the trial court recessed the jury and held an independent hearing on its admissibility. The detective testified that, at the outset, he orally warned appellant that anything he said could be used in court against him; that he had a right to have a lawyer present during any questioning and that if he could not afford a lawyer, but desired one, the court would appoint one before any interrogation would be undertaken. The detective stated that the appellant declined to have a lawyer present and that the appellant said that he desired to make a written statement. Appellant then wrote a confession on a form entitled 'Voluntary Statement-Waiver of Right to Presence and Advice of a Lawyer Free to Me If I Am Indigent,' which form, prepared by the county prosecutor, contained, in substance, the same warnings which the detective testified that he had given orally to the appellant. Appellant denied that he was given a warning either in the cruiser or in the interrogation room, and asserted that he made the written confession to avoid personal injury which, he claimed, the detective threatened if he did not make the confession.

After hearing the evidence of the officer, the detective and the appellant, the court concluded that the confession was 'proper evidence' and was admissible. The court charged the jury that, in considering appellant's written confession, it should determine whether the confession was voluntarily given, and if it determined that the confession was not voluntarily given, then it should disregard the confession and determine the guilt or innocence of the appellant based upon all the other evidence.

The appellant was found guilty by the jury of attempted breaking and entering contrary to the provisions of Section 2907.10, Revised Code. Upon appellant's appeal, the Court of Appeals affirmed the judgment of the trial court.

The cause is now before this court upon the allowance of appellant's motion for leave to appeal.

David D. Dowd, Jr., Pros. Atty., and Ira G. Turpin, Canton, for appellee.

Berkman, Gordon & Kancelbaum, Bernard A. Berkman and Joshua J. Kancelbaum, Cleveland, for appellant.

O'NEILL, Judge.

The first question which this court must determine is: Does the exclusionary rule announced in Miranda v. State of Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, require the court to exclude the testimony of the police officer, who apprehended the appellant, concerning the inculpatory statements appellant made to that officer at the scene of the crime, for the reason that such statements were made prior to the giving of any warnings and for the reason that no counsel was present?

It is the opinion of this court that, in the instant case, the exclusionary rule announced in Miranda does not require the exclusion of the testimony of the police officer concerning the appellant's inculpatory statements made to that officer at the scene of the crime.

In Miranda, after the court noted the inherent unrealiability of compelled confessions and recognized the respect which a government must accord the individual liberties of its citizens, the court held, at pages 444 and 445, 86 S.Ct. at page 1612.

'* * * the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or oherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.'

The decision in Miranda has been the subject of wide comment by the bar, academicians and the general public. Against the background of constitutional development, in which reliance was placed upon the flexible and often elusive concept of due process, Miranda, at first blush, may appear to represent a sharp break with historical precedents and to establish rigid rules for the regulation of police procedures. See dissenting opinion of Harlan, J., in Miranda, page 504, 86 S.Ct. 1602 et seq.; Kamisar, A Dissent from the Miranda Dissents-Some Comments on the 'New' Fifth Amendment and the Old 'Voluntariness' Test, 65 Mich.L.Rev. 59 (1966); President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society, 303-310 (1967) (Supplemental statement).

However, in attempting to create a structure wherein the liberties of individual citizens and the investigative powers of police officers may be maximized, the court in Miranda did not announce a rigid and inflexible rule.

In defining 'custodial interrogation,' the court said at page 444, 86 S.Ct. at page 1612 in Miranda, 'we mean questioning initiated by the law...