State v. Turvey
| Decision Date | 29 December 1992 |
| Docket Number | No. 1915,1915 |
| Citation | 84 Ohio App.3d 724,618 N.E.2d 214 |
| Parties | The STATE of Ohio, Appellee, v. TURVEY, Appellant. * |
| Court | Ohio Court of Appeals |
Lynn Alan Grimshaw, Scioto County Pros. Atty., Portsmouth, for appellee.
Joseph L. Hale, Portsmouth, for appellant.
This is an appeal from a judgment of conviction and sentence entered by the Scioto County Common Pleas Court. The jury found Wade Turvey, defendant below and appellant herein, guilty of two counts of gross sexual imposition in violation of R.C. 2907.05(A)(3) and one count of rape in violation of R.C. 2907.02(A)(1)(b).
Appellant assigns the following errors:
First Assignment of Error:
"The trial court erred by overruling defendant-appellant's motion to suppress evidence."
Second Assignment of Error:
"The trial court erred by refusing to grant the defendant-appellant's motion to admit into evidence the audio recording of the defendant-appellant's statement made to investigator Ken Days and to play the audio recording of the defendant-appellant's statement to the jury."
Third Assignment of Error:
"The trial court committed reversible error by improperly admitting hearsay evidence, over the defendant-appellant's objection, when the trial court permitted Jerri Robinson to testify about a statement made by Tracy Robinson."
Fourth Assignment of Error:
"The trial court committed reversible error by improperly limiting the defendant-appellant's cross-examination of investigator Days, thereby denying the defendant-appellant of his right to effectively confront the witnesses against him, in violation of the defendant-appellant's rights as guaranteed to him by the Sixth and Fourteenth Amendments to the United States Constitution."
Fifth Assignment of Error:
"The trial court committed reversible error by admitting, over objection, the defendant-appellant's incriminating statements without any evidence of a corpus delicti."
Sixth Assignment of Error:
"The trial court committed reversible error by admitting, over objection, double hearsay testimony during Rolland Williston's rebuttal testimony."
Seventh Assignment of Error:
"The jury's verdicts relative to Count One and Count Two of the indictment were against the manifest weight of the evidence."
On November 22, 1989, the grand jury indicted appellant for one count of gross sexual imposition and one count of rape against his stepdaughter, Tracey Robinson, and one count of gross sexual imposition against her cousin, Jerri Robinson. Both girls were born in 1977. The bill of particulars explained the offenses as follows:
On August 1, 1989, Jerri's stepfather complained to the Scioto County Children Services ("SCCS") about the sexual abuse appellant committed against Jerri. A SCCS caseworker questioned Jerri on August 2, 1989. After Jerri alerted the caseworker to the sexual abuse against Tracey, the caseworker questioned Tracey on August 3, 1989. On August 22, 1989, Scioto County Sheriff's Department Investigator Ken Days questioned appellant. Appellant confessed to the crimes.
The clerk of courts issued a summons on the indictment on November 22, 1989. The summons ordered appellant to appear in court on November 29, 1989. Appellant never received the summons. The summons came back on December 4, 1989 with a notation "not enough time for service."
No further action appears in the file until March 13, 1990, when the prosecutor requested issuance of a warrant to arrest appellant. The March 26, 1990 return of the warrant indicates appellant was arrested on March 23, 1990. On March 26, 1990, appellant appeared in court with counsel and pleaded not guilty to the charges in the indictment.
On May 29, 1990, appellant moved to suppress the audiotaped confession and a written confession he made on August 22, 1989 to Scioto County Sheriff's Department Investigator Ken Days. The court held a hearing on the motion on June 5, 1990.
Appellant testified he voluntarily went to talk with Days about the charges on August 22, 1989. Appellant further testified that when Days advised him of his right to an attorney, appellant said, "Well, get him in here." Days did not find appellant an attorney or cease questioning appellant. Appellant contends Days threatened to put appellant's stepdaughter in a home if he did not confess to the crimes. Appellant further contends Days acted violently during the questioning--jumping up, scooting chairs around in the room, and hitting a table. Appellant's wife, who was present during some of the questioning, corroborated the bulk of appellant's testimony.
Appellant's counsel asked the court to listen to the entire one-hour-and-twenty-minute audiotape of the confession, arguing in pertinent part:
The court listened to a portion of the audiotaped confession. That portion spans pages eighteen through thirty-seven of the motion to suppress hearing transcript. On the last of those pages, appellant's counsel interrupted the audiotape to make a point. After some discussion among counsel, the court expressed reluctance about listening to the remaining portions of the audiotape. The court indicated it would prefer to listen to live testimony by appellant's witnesses.
The record transmitted on appeal does not contain a complete copy of the audiotape. We have only the nineteen pages of the motion to suppress hearing transcript containing the portion of the audiotape played in court. In that portion, Days asked appellant questions and discussed the Miranda rights contained on the written statement form. Appellant contends that portion of the audiotape demonstrates Days led appellant to believe that by confessing to the crimes, appellant would receive "help" and would not be sent to prison:
Days testified appellant did not request an attorney. Days further testified he did not threaten appellant during the questioning. Days noted he went to great lengths to tell appellant that neither Days nor the prosecutor's office could get appellant any "help."
The court overruled appellant's motion to suppress and tried the matter to a jury. The first witness was the SCCS caseworker who interviewed Jerri on August 2, 1989, and Tracey on August 3, 1989 about the incidents. The caseworker testified the interviews substantiated the complaints she had received about the sexual abuse.
Jerri testified consistent with the bill of particulars. She noted that when she spent the night with her cousin Tracey near the end of July 1989, she woke up during the night to find appellant fondling her vagina. Jerri slapped appellant and he left the room. After Jerri told Tracey what happened, Tracey told Jerri that appellant had fondled Tracey, too.
When Tracey testified, she denied having Jerri spend the night, denied telling Jerri that appellant fondled her, and recanted what she told the caseworker about the sexual abuse. Tracey testified she is currently living with appellant. Tracey further testified she lied about the sexual abuse because appellant "whipped me all of the time, and he made me work."
Days testified that appellant confessed to the crimes. Days denied threatening appellant at the time of the confession. During cross-examination, appellant's counsel asked Days whether he is presently barred from the Scioto County Jail. The prosecutor objected, claiming the question was irrelevant. Appellant's counsel argued the question is relevant because issues have been raised about the way Day interrogates inmates and other people suspected of committing crimes. The court sustained the prosecutor's objection to the question.
Appellant called various witnesses to the stand to testify about possible reasons why false allegations might have been made against him. Appellant caught his wife in bed with another man just two days before the allegations. Animosity exists between appellant and Jerri's stepfather, the man who made the sexual abuse...
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