State v. White

• Decision Date: 10 July 1968
• Docket Number: No. 41142,41142
• Citation: 239 N.E.2d 65,44 O.O.2d 132,15 Ohio St.2d 146
• Parties: , 44 O.O.2d 132 The STATE of Ohio, Appellee, v. WHITE, Appellant.
• Court: Ohio Supreme Court

Page 146

15 Ohio St.2d 146

239 N.E.2d 65, 44 O.O.2d 132

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

No. 41142.

Supreme Court of Ohio.

July 10, 1968.

Syllabus by the Court

1. Where a defendant is asked whether he cares to make a statement telling the truth about the facts which led to his arrest, after receiving a prior warning that he is under arrest and may be charged with the crime of murder and that the law gives him a right to make a statement which may be used against him at the time of his trial in court, such statement is admissible in a case tried after Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, but prior to Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, where defendant voluntarily surrendered to police in order to make precisely the same statement in question, and the warning, followed by the request, is given in an atmosphere suggesting no obligation on the part of defendant to make the statement.

2. The use by the state of evidence of the victim's background, and reliance upon such evidence in its argument for the death penalty, is improper and constitutes error, but while such error may be cause for reversal because of its prejudicial effect on a jury, it must affirmatively appear that in a bench trial the court relied on such testimony in arriving at its verdict in order for such error to be ground for reversal.

3. Where the state's principal witness admits in open court that her testimony is inconsistent with some or all of her prior statements to the police, and, in addition, that these prior statements are inconsistent with each other, the trial court must grant a request by defense counsel to inspect the statements. (Paragraph one of the syllabus of State v. Rhoads, 81 Ohio St. 397, 91 N.E. 186, overruled.)

4. In a criminal case, the defendant has a right to an in camera inspection by the trial court, with counsel for the state and the defendant, to determine the existence of inconsistencies between the testimony of the prosecution's witnesses and their prior statements.

5. Where in a criminal case, a trial court has refused an in camera inspection to determine whether there are inconsistencies in the statements of a witness, a judgment of conviction should be reversed and the cause remanded for an inspection and hearing on the evidence contained in such statements. If the trial court, on remand, finds that such discrepancies existed and prohibited defendant from receiving a fair trial and denied him due process of law, it should order a new trial.

Defendant was indicted and tried on two counts of first degree murder in the shooting death of Ernest Williams, a cab driver, in the early morning hours of October 20, 1964. He was convicted by a three-judge court on both counts of the indictment, without a recommendation of mercy, and was sentenced to death in the electric chair. The Court of Appeals affirmed. State v. White, 9 Ohio App.2d 271, 224 N.E.2d 377.

Further facts relevant to the discussion of the principles of law contained herein are discussed in the opinion.

John T. Corrigan, Pros. Atty., and Leo M. Spellacy, Cleveland, for appellee.

James R. Willis and Edward R. Brown, Cleveland, for appellant.

I.

SCHNEIDER, Judge.

Upon consideration of the conflicting testimony in the record, we subscribe to the finding of the trial court that defendant's oral confession preceded public defender Frank Petrancek's request to see the defendant and any inducement on the part of Dorothy Berts and the police to obtain the oral confession. Furthermore, there is no corroborating evidence supporting defendant's contention that his request for the assistance of counsel was denied. (Cf. Escobedo v. State of Illinois, 378 U.S. 478, 481, 84 S.Ct. 1758, 12 L.Ed.2d 977, where the police denied petitioner's request to see counsel, denied counsel's request to see petitioner, and told petitioner that his lawyer "didn't want to see' him. The testimony of the police officers confirmed these accounts in substantial detail.') Finally, his voluntary appearance belies any intention on his part to seek an attorney prior to his interrogation. If he had desired the assistance of counsel, he had four days to procure it before he surrendered and made his statement.

The only remaining question regarding the admissibility of defendant's statements is whether the warning received by him met the constitutional standards imposed by the Escobedo-Carder rule.

'Two elements of the rule in relation to in custody interrogation prescribed by Excobedo 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 effectively warn him of his absolute constitutional right to remain silent.' State v. Carder, 9 Ohio St.2d 1, paragraph three of the syllabus.

Because the trial of this case occurred after Escobedo supra, but prior to Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 222 N.E.2d 620, 16 L.Ed.2d 694, it 'is subject only to the specific rules in relation to counsel during in custody interrogation prescribed by Escobedo.' State v. Carder, supra, paragraph two of the syllabus. See also Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. The requirements of Miranda, however although not directly applicable, are relevant on the issue of voluntariness. Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895, and Clewis v. State of Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423.

Defendant turned himself in at the police station on Saturday, October 24, at 10:30 p. m. He waited approximately half an hour for interrogating officers, detectives Moss and Hospodar, to arrive. At 3:15 a. m., approximately four and one-half hours later, defendant signed a written statement. The only warning he received prior to his interrogation was the following:

'Kenneth James White: You are arrested and may be charged with the crime of murder and the law gives you the right to make a statement which may be used against you at the time of your trial in court. Understanding this do you care to make a statement telling the truth about the facts that led to your arrest?'

The Court of Appeals found that the warning included in the statement, when considered in the light of other testimony, was sufficient. We agree. Defendant knew that he had already been placed at the scene of the crime by Dorothy Berts in a police interview on the preceding day. with knowledge of her incriminating statement, he went voluntarily to the police station to make a statement to protect himself and incriminate Leon Samuels. Defendant, while denying any knowledge of Samuels' plans, stated that Samuels fired the fatal shots and took the money. Under those facts defendant would be guilty of neither a deliberate premeditated murder, nor a felony murder directly or as an aider and abettor.

We hold that under the totality of the circumstances the warning was not violative of the constitutional standards required by the Escobedo-Carder rule. By warning defendant that the statement 'may be used against * * * (him) at the time of * * * (his) trial,' and then asking him whether he cared to make a statement, the police conveyed the idea that whether he wished to make a statement was up to him. The form of the warning is inconsequential; certainly there are no magic words necessary to make it effective.

We hold further that the warning preceding defendant's oral admission met the requisites of the rule. At 10:30 a. m. Monday, detective Fishbach brought the defendant from his cell to the statement room, at which time, the detective testified:

'He recognized me and I again told him that we were going to take him to the statement unit and if he wanted to, he could either add or detract or not say anything. It was entirely up to him.'

Further testimony of the witness Fishbach follows:

'Q. Now, officer, would you tell us what, if anything, took place when you confronted the defendant, Kenneth White, with Leon Samuels? A. Mr. White had been sitting. He rose to his feet, stretched out his hand and shook hand with Leon Samuels.

'He said, 'Man, I'm sorry. I'm sorry I got you into this. I'm the one that shot the cab driver.'

'Q. What did Samuels say? A. Samuels turned to O'Hara and I, and was still crying, and said, 'See, I told you I did not shoot the cab driver.'"""

This admission was made in the face of the prior warnings and was not precipitated by any accusation on the part of Samuels. The trial court, therefore, properly considered the statements in question.

II.

Defendant urges that the prosecution's use of evidence of the deceased's background and reliance upon such evidence in its argument for the death penalty over the objection of defendant constituted reversible error. The general rule is stated as follows:

'Except perhaps where the evidence of the homicide is entirely circumstantial, it is not permissible for the state in the first instance, and before the character of deceased has been assailed, to offer primary evidence or evidence in chief of deceased's good character or reputation as a quiet peaceable, and law-abiding man.' 40 C.J.S. Homicide § 222, p. 1138.

'In most cases evidence concerning the family left by the deceased is inadmissible.' 40 C.J.S. Homicide § 225, p. 1146. See, also, 26 American Jurisprudence 367, Homicide, Section 314, and annotation, admissibility and propriety, in homicide prosecution, of evidence as to deceased's spouse and children, 67 A.L.R.2d 731.

Such evidence is excluded because it is irrelevant and immaterial to the guilt or innocence of the accused and the penalty to be imposed. The principal reason for the prejudicial effect is that it serves to inflame the passion of the jury with evidence collateral to the principal issue at bar. Although the admission and subsequent argument with the use of this testimony...