State v. White

• Decision Date: 09 March 1967
• Citation: 224 N.E.2d 377,9 Ohio App.2d 271
• Parties: , 38 O.O.2d 330 The STATE of Ohio, Appellee, v. WHITE, Appellant.
• Court: Ohio Court of Appeals

Page 271

9 Ohio App.2d 271

224 N.E.2d 377, 38 O.O.2d 330

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

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

March 9, 1967.

John T. Corrigan, Pros. Atty., for appellee.

Gerald S. Gold and James R. Willis, Cleveland, for appellant.

SKEEL, Judge.

This appeal comes to this court from a judgment entered in the Court of Common Pleas of Cuyahoga County on the unanimous decision of a three-judge court (trial by jury having been waived as provided by law) finding the defendant guilty of murder in the first degree without a recommendation of mercy.

On the morning of October 20, 1964, a taxicab crashed into a fire hydrant located in the vicinity of East 89th Street and Crawford Road. Two men were seen to emerge from the cab and hurriedly leave the scene. When the police arrived they found the cab driver in the front seat. He was removed from the cab and taken to Mt. Sinai Hospital where he was pronounced dead from gunshot wounds. On October 23, the Cleveland Police contacted the house detective of the Majestic Hotel, who produced a 22-caliber revolver that he had taken from Leon Samuels following an incident at the hotel. This gun was determined to be the one used in the murder of the cab driver.

The police investigation centered on Leon Samuels and this defendant, Kenneth White, as the perpetrators of the robbery and the murder of the cab driver, Ernest Williams.

Kenneth White, together with his girlfriend, Dorothy Berts, surrendered to police on October 24 at about 10:30 p. m. at the Central Police Station. Samuels was arrested the following day and was subsequently permitted to plead guilty to two counts of murder in the second degree.

The defendant, White, went to trial, as stated, before a three-judge court. It was the theory of the state, which was clearly supported by the record, that White was the one who actually shot Williams. It should also be stated that the evidence disclosed, without contradiction, that, upon an examination of the inside of the cab, some change was found on the floor, the radio microphone had been pulled out, and the decedent's left hand pants pocket was turned inside out.

From the judgment finding defendant guilty on two counts of murder in the first degree, that is, the purposeful killing of the taxi driver, Williams, of deliberate and premeditated malice and the purposeful killing of such taxi driver in the perpetration of or the attempt to perpetrate a robbery, the defendant asserts four assignments of error.

The first claimed error is in the presenting of evidence concerning decedent's family and his family responsibilities. Defendant offered to stipulate that Williams 'was a real living person on the date alleged in the indictment and that the dead body examined by the coroner (on the date alleged) was * * * that of Ernest Williams.' Unquestionably the family obligations of the decedent were not an issue, or could such testimony contribute anything in support of the state's case, and it was clearly irrelevant to the issues here being tried. It would constitute error to admit such evidence if the case were being tried to a jury. In the instant case, the issues of fact were being presented to a three-judge court, and it, therefore, cannot be held that more than the evidence relevant to the issues of the case would be considered. Certainly the defendant could not have been prejudiced under these circumstances.

The second assignment of error presents the question of whether defendant's first confession or written statement made by him and signed early on the morning of October 25, 1964, was procured in violation of his constitutional rights as defined by the Supreme Court of the United States in the case of Escobedo v. State of Illinois (1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. There is considerable conflict in the evidence as to the circumstances surrounding the taking of this statement. The defendant, as stated heretofore, together with his girlfriend, Mrs. Dorothy Berts, surrendered themselves to the police at about 10:30 p. m., October 24. There was some evidence that Mrs. Berts hoped that she would be eligible to claim the reward offered to one giving information leading to the arrest and conviction of the perpetrators of the murder of Ernest Williams, because of a previous statement about the case that she had made to the police. The defendant not only filed a motion to suppress his first written statement or confession but also a motion to suppress his written statements made October 26, on the grounds that he was not advised of his constitutional right to remain silent and the right to the assistance of counsel. He asserts that he was not advised of these constitutional rights before the statement of October 25 was made. The second statement, made on October 26, was ordered suppressed during trial on the merits on the alleged violation of his constitutional rights, after a previous motion to suppress had been overruled upon a pretrial hearing. However, as to the first statement, there is credible evidence clearly supporting the contention of the state that the defendant was informed of his right to remain silent on being questioned by police in a pretrial in-custody interrogation. The written statement of the defendant, as shown by the exhibit received in evidence containing the statement, is headed with advice on the subject, which is sufficient when considered in the light of the other testimony of advising the defendant of his right to remain silent. The evidence on this question being in conflict, and the three-judge trial court being the trier of the facts and having ruled on the question adversely to the defendant, we, therefore, conclude that the overruling of the motion to suppress, dealing with the first question of whether the defendant was advised of his constitutional right to remain silent, is supported by credible evidence, and the court's ruling thereon must be affirmed.

It is also claimed that the defendant was not afforded the services of counsel before making a statement or advised of his constitutional right to be afforded the right to call counsel or to the appointment of counsel in case of indigency. The record is clear that there was no request for counsel at the time of the first statement taken early in the morning of October 25. While it is argued that a request should not have been necessary, as was held in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the law of Ohio on this subject is governed by Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (reported prior to Miranda), and State v. Carder, 9 Ohio St.2d 1, 222 N.E.2d 620. The third paragraph of the Carder syllabus provides as follows:

'3. Two elements of the rule in relation to in-custody interrogation prescribed by Escobedo are, one, the person being interrogated must request and be denied the right to consult with counsel, and, two, the interrogators must have failed to efectively warn him of his absolute constitutional right to remain silent.'

This court is bound to follow a decision of our Supreme Court, which is squarely on point. This assignment of error is, therefore, overruled.

The defendant, in arguing this phase of the case, cites Section 2937.03, Revised Code (129 Ohio Laws 582, 749), as his authority for the right to counsel when interrogation is attempted after arrest and before arraignment. This section provides the duties of a judge or magistrate on arraignment in a preliminary hearing in a felony case. It provides that on arraignment the court or magistrate shall inform the accused of the nature of the charge, the possible punishment upon conviction, and the right to have counsel and the right to a continuance in the proceedings to procure counsel. This section does not deal with or provide the authority for the arresting officer or officers investigating an alleged crime, after the arrest of one suspected of a felony, to appoint counsel for indigents or create an obligation on the part of the state to pay for such services. If such authority is to be granted to law enforcing authorities, it will have to be conferred by statute. Section 2937.03, Revised Code (129 Ohio Laws 582, 749), does not provide such authority. It is there provided that the judge or magistrate may, in a proper felony case, appoint counsel. Counsel cannot be appointed until the proceeding has progressed to the preliminary hearing stage where the court is vested with jurisdiction by filing of a sufficient affidavit charging the crime for which the arrest was made. An almost insurmountable difficulty is met in following the rule of the Supreme Court of the United States set out in Escobedo and Miranda requiring the state to make counsel available before an in-custody interrogation may be conducted after arrest and before the prisoner is charged, especially as to an indigent defendant. There is no one at that point in the case vested with power to provide counsel at the expense of the state. The result would seem to be that an arresting officer cannot interrogate a prisoner after his arrest and while in custody until the prisoner has waived 'intelligently' (after he has knowledge of the right) the right to counsel in addition to knowledge of his constitutional right to remain silent.

Two other assignments of error are presented on this appeal, the first of which concerns the right of a defendant to make an examination of the written statements of state witnesses (or exhibits) in the possession of the prosecution and the written statements or confessions voluntarily made...