Summary
In Jones, that Court, although deciding the case on broader constitutional grounds, stated that police conduct of not permitting the defendant to use the telephone until two days after his arrest should not be countenanced.
Summary of this case from Com. v. ProctorOpinion
No. 73-556
Decided January 23, 1974.
Criminal procedure — Self-incrimination — Waiver — Burden of showing, on state — Misapprehension of Miranda warnings — Effect — Evidence.
Where a suspect, after being fully apprised of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, indicates an understanding of those rights, but subsequently acts in such a way as to reasonably alert the interrogating officer that the warnings given have been misapprehended, the officer must, before any further questioning, insure that the suspect fully understands his constitutional privilege against self-incrimination, as described in Miranda, supra.
APPEAL from the Court of Appeals for Franklin County.
On June 25, 1971, the proprietor of the Henry Street Market in Columbus was shot and killed while tending his store. Three suspects, including appellant, were charged with participation in the homicide.
Appellant pleaded not guilty, waived his right to a jury trial, and elected to be tried before a judge of the Court of Common Pleas.
At the trial, Detective Powell in testifying for the state on direct examination as to the conduct of the defendant in the store at the time of the shooting of the grocer, stated:
"* * *He [defendant] indicated that he along with Charles Carmichael and Jodie Sowell went to the Henry Street Market on the day in question, and indicated that he was there and present at the time of the shooting.
"Q. And did he indicate to you, sir, anything which he said at that time?
"Mr. Weiner: I'm going to object.
"The Court: Overruled.
"You may answer.
"The Witness: He stated that while inside the market he told Charles Carmichael that it was not the right time.
"Q. (By Mr. Brownfield), Sir, did he indicate to you anything about the shooting itself, whether or not he observed it or not?
"A. After he made the statement to Carmichael, he stated that he was in the rear of the store when he made the statement and started towards the front of the store where Mr. Sowell was standing, at which time he saw Charles Carmichael reach in his pocket, stated that he, after in the area of the front door, that he heard a shot and turned around and saw Carmichael with a gun in his hand."
Appellant was found guilty of first degree murder and assault with intent to rob. The court made the following findings of fact:
"(1) Charles Carmichael, Jodie Sowell and the defendant met late in the afternoon of June 25, 1971. The three men were together continuously from approximately 5:00 p.m. on that date to 6:00 or 6:30 p.m. During this period the group, one of whom was carrying a case, walked to the Henry Street Market operated by Donald Reed, where, in a short visit inside the store, said Donald Reed was fatally wounded by the use of a .38 caliber pistol or revolver fired by Charles Carmichael.
"Donald Reed was alone in the store when the three men entered and had charge of and control over the cash register and any other money receptacles in the store.
"Immediately before or at the time of the shooting, the defendant said to Charles Carmichael, `This isn't the time.' After the shooting, all three men fled the store and scene, got into a car together and drove away.
"Immediately following the shooting, Donald Reed said to an arriving associate, `The son of bitches shot me.'
"From all of the facts thus under consideration, the court is of the opinion that a robbery was attempted, that the killing of Donald Reed occurred in the course of the attempted robbery and that the three men, including the defendant herein, were joint participants."
Appellant's judgment of conviction was affirmed by the Court of Appeals. The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. George C. Smith, prosecuting attorney, Mr. Miles C. Durfey and Mr. Curtis Griffith, Jr., for appellee.
Weiner, Lippe Cromley Co., L.P.A., and Mr. Jerry Weiner, for appellant.
Appellant urges reversal of his conviction upon two grounds: First, that his oral statement, "This isn't the time," should have been suppressed as the involuntary product of a pre-trial, custodial interrogation by the police, and, second, that his conviction was not adequately supported by the evidence adduced at the trial. We will first consider the alleged abridgement of appellant's privilege against self-incrimination, guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, and Section 10, Article I of the Ohio Constitution.
Appellant was taken to the Columbus police headquarters for questioning after his arrest early in the morning of June 26, 1971. The interrogating officer, Detective Edward Powell, testified that, prior to any questioning, be presented appellant with a standard form, entitled "Your Constitutional Rights," to read, and then read the form aloud to appellant. Included on the bottom of that form was a portion, entitled "Waiver," which stated:
"I have read the statement of my rights shown above and I understand what my rights are and I am willing to answer questions and make a statement. I understand and know what I am doing. No promises or threats have been made to me and no pressure of any kind has been used against me."
Detective Powell testified that appellant indicated he understood his rights, but that appellant refused to sign anything, including the rights waiver, until he had spoken with his attorney, Paul Scott. The officer made no attempt to reach Mr. Scott, nor was the appellant provided a telephone to contact his attorney.
R.C. 2935.14 and 2935.20 require, generally, that a person arrested or confined be provided facilities with which to obtain counsel, or communicate with his attorney. Since Miranda v. Arizona, 384 U.S. 436, 474, does not insure counsel to defendants who are not subjected to custodial interrogation, these statutes provide a right beyond those guaranteed by the federal Constitution. Appellant testified that he was not permited to use a telephone until two days after his arrest, when he contacted his parents. Detective Powell could not, of his own knowledge, contradict this testimony. Although we base our decision here on broader, constitutional grounds, we wish to state that the mandate of both R.C. 2935.14 and 2935.20 is clear, and deviation therefrom should not be countenanced.
Detective Powell began interviewing the appellant, who participated willingly in the conversation until, at some point, Powell began to make notations on a scratch pad. According to Powell, the appellant objected to any notetaking, and refused to speak further if anything was written down. The police officer then put away his pad and, sometime during the course of the continued interrogation, appellant made the statement herein at issue.
Although he testified otherwise at trial, appellant does not here contest the adequacy of the warnings, mandated by Miranda v. Arizona (1966), 384 U.S. 436, and given him by Detective Powell. The admissibility of appellant's statement to the police officer at the time of the interrogation hinges solely upon the question of whether appellant had effectively waived his constitutional right to remain silent.
A waiver is generally defined as an "intentional relinquishment or abandonment of a known right or privilege," and courts should indulge in every reasonable presumption, arising from the particular facts and circumstances of the case, that inveighs against any waiver of fundamental, constitutional rights. Johnson v. Zerbst (1938), 304 U.S. 458, 464.
When speaking of Fifth Amendment rights, the burden is on the state to show that a defendant has made a voluntary, knowing and intelligent waiver of his privilege to remain silent. Paragraph four of the syllabus in State v. Kassow (1971), 28 Ohio St.2d 141. The trial court determined that the state had met its burden of proof in this case. Since the circumstances of appellant's interrogation, as we have set forth, are undisputed upon appeal, our review of the trial court's determination does not disturb the deference that is generally, and rightfully, accorded to a fact finder's initial judgment.
Appellant contends that throughout his interrogation he mistakenly believed that only written statements could later be used against him. If this were true, then both appellant's refusal to sign a rights waiver, before conferring with his attorney, and his objection to Detective Powell's taking notes, would be consistent with a mistaken notion of his Miranda rights. The state argues, however, that appellant's aversion to the written word is equally explainable on other grounds. Although we agree that appellant may have only intended, for some personal reason, to put various conditions on his willingness to speak to Detective Powell, the record does not affirmatively disclose what such reason might be. We are thus put in a position of speculation as to appellant's motive for taking apparently contradictory positions.
This problem has arisen elsewhere. In Brown v. State (1971), 270 N.E.2d 751, 753, the Supreme Court of Indiana found that a defendant's "* * * refusal to sign the waiver of rights form [until consulting with an attorney] was an explicit, voluntary and knowing refusal to waive his rights." Although we are not willing to imply as much from appellant's similar refusal here, we are equally unwilling to say that appellant's actions may easily be disregarded in assessing whether he waived his constitutional rights.
Again, in United States v. Nielson (C.A. 7, 1968), 392 F.2d 849, a defendant refused to sign anything, including a rights waiver, until he had spoken with his lawyer. The court faulted the interrogating federal agents for accepting the defendant's equivocal invitation to continue the questioning, and held that the government had failed to adequately demonstrate a knowing and intelligent waiver by the defendant.
We have examined numerous other federal cases, and have found a general willingness to closely scrutinize any apparent ambiguity in a defendant's purported rights waiver. Indeed, such vigilance is mandated by Miranda, supra, and provides the most fundamental protection of a person's constitutionally secured rights.
United States v. Priest (C.A. 5, 1969), 409 F.2d 491; United States v. Van Dusen (C.A. 1, 1970), 431 F.2d 1278; United States v. Crisp (C.A. 7, 1970), 435 F.2d 354; United States v. Jenkins (C.A. 7, 1971), 440 F.2d 574; United States v. Phelps (C.A. 5, 1971), 443 F.2d 246; United States v. Howell (C.A. 2, 1971), 447 F.2d 1114; United States v. Speaks (C.A. 1, 1972), 453 F.2d 966; United States v. Frazier (C.A.D.C. 1973), 476 F.2d 891.
We believe that in this case the state has not met its "* * * heavy burden * * * to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Miranda, supra, at 475. Although appellant's conduct at police headquarters may be susceptible to various interpretations, the record fails to negate the one interpretation fatal to the state's case — that appellant misunderstood the legal effect of his speaking to Detective Powell.
We do not require police officers to probe a suspect's motives after his Miranda rights have been clearly explained, he indicates an understanding of them, and then demonstrates a willingness to speak. What we do require, however, is that when a defendant subsequently acts in such a way as to reasonably alert an interrogating officer that the warnings given have been misapprehended, the officer must, before any further questioning, insure that the defendant fully and correctly understands his Fifth Amendment rights. This was not done by Detective Powell, and the trial court, therefore, erred in failing to suppress appellant's statement to the officer.
Chapman v. California (1967), 386 U.S. 18, 24, holds that "* * * before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Appellant's words, "This is not the time," tended to show his knowledge of, and complicity in, the attempted robbery that led to Donald Reed's homicide. We are unable to say, absent appellant's statement, that the evidence at trial was sufficient, beyond a reasonable doubt, to warrant his conviction.
In view of our agreement with appellant's first proposition of law, it would be inappropriate for us to consider his second proposition. To do so would be to prejudge the Franklin County prosecutor's decision as to whether sufficient evidence exists to retry appellant. Accordingly, the judgment of the Court of Appeals is reversed, and the cause is remanded to the Court of Common Pleas for further proceedings consistent with this opinion.
Judgment reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.