State v. Sampson

• Decision Date: 20 January 1982
• Citation: 4 Ohio App.3d 287,448 N.E.2d 467
• Parties: , 4 O.B.R. 536 The STATE of Ohio, Appellee, v. SAMPSON, Appellant. *
• Court: Ohio Court of Appeals

Page 287

4 Ohio App.3d 287

448 N.E.2d 467, 4 O.B.R. 536

The STATE of Ohio, Appellee, v. SAMPSON, Appellant. ^*

Court of Appeals of Ohio, Seventh District, Belmont County.

Jan. 20, 1982.

Syllabus by the Court

1. In assessing whether there is probable cause for an arrest, under R.C. 2935.04, evidence within the knowledge of the arresting officer may be considered, even though the evidence, such as hearsay, is not legally competent evidence in a criminal trial.

2. The failure of the police to comply with R.C. 2935.05, which provides that when a police officer has arrested a person without a warrant he must without unnecessary delay take such person before a court or magistrate, does not invalidate a subsequent conviction on proper and sufficient evidence.

3. Evidence of prior crimes cannot be shown in the trial of a defendant; only evidence bearing on a particular charge on which defendant is brought to trial may be introduced at trial unless evidence of other criminal acts falls within those acts enumerated in R.C. 2945.59.

William L. Thomas, Pros. Atty., and Paul B. Jefferis, St. Clairsville, for appellee.

J. Tullis Rogers, Public Defender, and Elizabeth Manton, Asst. Public Defender, for appellant.

DONOFRIO, Judge.

Appeal from the Court of Common Pleas, Belmont County, Ohio, from a judgment of conviction by jury and sentence thereon of grand theft.

The conviction was primarily based on the testimony of Gerald Ciofani, that his 1978 GMC Jimmy vehicle had been stolen. Certain pretrial statements of the defendant-appellant, Joseph Sampson, were admitted into evidence; these statements allegedly showed appellant's agreement with Ciofani to report the vehicle stolen for insurance gain, then disassemble the vehicle. Several investigating officers testified as to appellant's arrest, interrogation, statements made by the appellant, and the trip made to the dump site where some burned vehicle parts had been abandoned.

Appellant's first assignment of error, which states:

"The statement of the accused should not have been admitted into evidence," contains three branches. Branch A states:

"The police lacked probable cause to arrest the accused. All evidence obtained as a result of the arrest should have been suppressed as 'fruit of the poisonous tree.' "

Probable cause exists if facts and circumstances known to the officer warrant a prudent man in believing that an offense has been committed.

" * * * common rumor or report, suspicion, or even 'strong reason to suspect' * * * [is] not adequate * * *." Henry v. United States (1959), 361 U.S. 98 at 101, 80 S.Ct. 168 at 170, 4 L.Ed.2d 134.

R.C. 2935.04 provides that a person may arrest another when he has reasonable cause to believe that a felony has been committed and that the person detained committed it.

Appellant's contention is that the fact situation herein does not arise to probable cause but that the facts merely created suspicion and that the officer did not possess sufficient information to believe the appellant had committed a felony.

We disagree that the facts do not constitute probable cause.

In assessing whether there is probable cause, evidence within the knowledge of the agent may be considered, even though the evidence is not legally competent evidence in a criminal trial, such as hearsay. Draper v. United States (1959), 358 U.S. 307, 311, 79 S.Ct. 329, 332, 3 L.Ed.2d 327. In the instant case, the arresting officer acted on information which he had received from Lieutenant Boan of the Powhatan Police Department and Officer Martin Valoric of the Shadyside Police Department. Specifically, Officer Gross learned from these two officers that the vehicle in which appellant had been stopped on April 30, 1980, had no vehicle identification number in the proper location for a vehicle of that model year. Officer Gross then obtained a license check on the license number which was being used by appellant and found that the license number belonged to another vehicle. In addition, the officer observed appellant speeding in the car that bore license plates registered to another car.

For the foregoing reasons we overrule appellant's Branch A of the first assignment of error.

Branch B states:

"The accused was held by the police for over twenty-four hours without appearance before a magistrate. Any evidence obtained by the police was tainted by the unnecessary delay in insuring the accused the court's intervention in his detention."

From the record we do not find that appellant was detained an unreasonable amount of time before an appearance before a magistrate.

Officer Gross testified at the pretrial hearing of August 25, 1980, that the appellant was arrested on April 30, 1980, at 8:00 p.m. A warrant was obtained on May 2, 1980. Officer Gross testified that he informed the appellant of his rights several times, both at the time of his arrest and later, before questioning at the Shadyside Police Department. Quoting Officer Gross: "I informed him several times and he denied wanting an Attorney. He said he didn't need to talk to him. He said he knew his rights."

The case of Cato v. Alvis (C.A. 6, 1961), 288 F.2d 530 , may provide some guidance. In Cato, the accused was arrested on February 6 without a warrant and held until February 11. Statements were recorded on the 7th, 8th and 11th of February. The accused in Cato testified that he was not advised of his right to secure a lawyer, or to remain silent, or to be taken before a court or a magistrate. The district judge held that the evidence was insufficient to establish that the defendant's confessions were involuntary and denied the writ of habeas corpus. The court said that the failure of the police to comply with R.C. 2935.05, which provides that when a police officer has arrested a person without a warrant he must without unnecessary delay take such person before a court or magistrate, does not invalidate a subsequent conviction on proper and sufficient evidence.

For the foregoing reasons we overrule appellant's Branch B of the first assignment of error.

Branch C states:

"The accused's statement was not voluntarily made, but was rather a product of police coercion."

Under this assignment of error, the appellant contends that the statements he made to the police officers were the product of coercive police interrogation and not of a free and voluntary decision to discuss the case.

It appears from appellant's brief that his main contention is that the police urged his cooperation and frightened him with threats of lengthy incarceration marked by sexual abuse.

"The ultimate test * * * [is] voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. * * * The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession." Culombe v. Connecticut (1961), 367 U.S. 568 at 602, 81 S.Ct. 1860 at 1879, 6 L.Ed.2d 1037. (Emphasis added.)

However, the record indicates that the pivotal issue here is that of credibility of the witness's statement. The officers' testimony varied considerably to that of the appellant. The officers maintained that no promises had been made by the police officers to appellant, no threats had been made to appellant, and appellant had been advised of his constitutional rights on several different occasions. At one point, the appellant was willing to take the police officers to the area where he had disposed of the vehicle parts which he had not been able to dispose of otherwise. At any time during the almost two days of detention without a warrant, appellant could have called an attorney and caused the questioning to cease. Appellant was well aware of this fact.

It is not the function of a reviewing court to determine credibility of the witnesses. At the hearing for suppression of evidence, August 25, 1980, it was the trial judge's function to assess credibility and from the record before us we find that the trial court did not err in ruling that the statements were voluntary and admissible.

We, therefore, overrule appellant's Branch C of his first assignment of error.

Appellant's second assignment of error states:

"Oral statements made to police officers by the defendant should never have been admitted as evidence. Despite defense counsel's request for discovery of statements, the existence and contents of these statements was never revealed to defense counsel prior to the officers' testimony from the witness stand."

Crim.R. 16(B)(1)(a)(ii) provides that the state shall provide written summaries of any oral statements, or copies thereof, made by the defendant or co-defendant to a prosecuting attorney or any law enforcement officer. (Emphasis added.) The appellant was provided access to the taped interview that Officer Gross and others had conducted with the appellant. Chief Louis Keitz was not sure if he had even...