State v. Carder , 3 Ohio App. 2d 381 ( 1965 )

The defendant, a minor, a high school junior, aged 16-3/4 years, was convicted by a jury on two counts of first degree murder. Mercy was recommended. He was sentenced accordingly.

He makes the following assignments of error:

1. The court erred in admitting evidence of statements purportedly made by the defendant after his arrest and before defendant was taken before the judge of the Juvenile Court.

2. The court erred in admitting into evidence the state's exhibit 36, consisting of the defendant's fingerprints and picture and appearing on a "criminal card," although the defendant was a juvenile.

3. The court erred in admitting into evidence numerous pictures of the decedent's body, which, cumulated, tended to incite prejudice and inflame the minds of the jury.

4. The court erred in admitting into evidence statements purportedly made by the defendant, which statements were not voluntarily made, and the admissions of such statements were in violation of defendant's right under the "due process clause" of the Constitution of Ohio and the Constitution of the United States.

5. The court erred in permitting the prosecuting attorney onvoir dire examination of the jurors to inquire whether or not the jurors would take into consideration the defendant's age.

6. The court erred in its charge to the jury by giving incorrect instructions as to the test to be applied in considering the voluntariness of defendant's alleged confessions.

7. The court erred in admitting into evidence exhibits which were taken by unlawful search and seizure in violation of defendant's rights under the Constitution of Ohio and the Constitution of the United States.

8. The court erred in its charge to the jury by charging on the subject of "robbery" when there was no evidence in the record that a robbery had been committed or attempted.

9. The court erred in its charge to the jury by instructing the jury that the death of the decedent could have taken place on or after April 6, 1964, and before June 10, 1964.

10. Other errors manifest on the record.

The deceased woman, Vanetta Brucker, operated a small grocery, confectionery, and dance hall just outside the city limits of Lancaster.

At about 11:00 o'clock on the evening of April 6, 1964, one Dick Mattox reported to the city police that he had just come from the Brucker store and that Vanetta Brucker had been killed. The county sheriff's office, the prosecutor, the coroner, and the Bureau of Criminal Investigation at London were promptly notified.

The body was found in a large pool of blood on the dance hall floor. She was dressed in a blouse and slacks. An ice pick was transfixed in the neck, from the right protruding out of the left side. Its handle broken in two pieces was on the floor nearby. There was a meat cleaver lying on the right shoulder with its broken handle nearby. A butcher knife was under the body.

Dick Mattox, who made the initial report to the police, told the police of a telephone conversation with the deceased about 10:00 o'clock and that she had asked him to wait because someone was at her door in a white hat. The defendant was known to wear a white helmet while riding his motorcycle. He was also known to "hang around" the Brucker store often since it was near his high school. He thus became a prime suspect. Two deputies went to defendant's home and talked to him in the presence of his father. He told them he had worked that evening at the Tiki Bowling Lanes and came home about 11:00 p. m. The deputies left only to return shortly.

On their second visit they picked up a white helmet which they had noticed on a chair. They took it with them when they left, after assuring defendant that it would be returned.

The deputies returned a third time, and this time they asked to see his clothes and his motorcycle. The defendant showed them to the deputies. His father was there. The defendant was then taken to the sheriff's office. His father followed in his own car.

At the county jail his father was advised that they would hold defendant until morning at which time the prosecutor would question him. He was placed in a cell away from other prisoners.

Early on the morning of April 7th, the father was permitted to visit the defendant in his cell and to give him a prescribed insulin shot since he was diabetic. His employer, Richard Bird, proprietor of the bowling lanes where the defendant worked during evening hours, also visited him early that morning. Defendant gave Bird certain information which resulted in the finding of his bloody clothes in a garbage can back of the city hospital.

The defendant's brief recites events that followed:

"* * * In the morning, defendant's father had contacted an attorney, one, James Lantz, * * *. Mr. Lantz arrived about 8:30 and talked to the defendant briefly. * * * Mr. Lantz had represented Mrs. Brucker. * * * He could not represent the defendant. He did tell defendant's father that he would contact another attorney. * * *

"The defendant was taken into the back room of the sheriff's office at about 9:00 o'clock on the morning of April 7th, where he was interrogated * * *. Shortly after the interrogation started, defendant's attorney, Mr. Jackson arrived. This fact was made known to the sheriff's office, but neither the attorney, nor defendant's parents, who were present, were permitted in the room until after the interrogation was completed sometime after 12:00 o'clock noon. * * * The statements made by the defendant during the interrogation were not reduced to writing and were not signed by the defendant. The only record made consisted of notes made by one of the police officers. During the period of interrogation, defendant made at least two alleged confessions.

"The defendant was held in the county jail until April 11, 1964, at which time he was taken before the juvenile judge for the first time. * * *"

During trial, in the absence of the jury, before any testimony was offered, the trial court heard a defense motion to suppress the alleged confession as well as certain evidence (the white helmet, his bloody clothes, and the motorcycle) obtained as the result of alleged unlawful searches and seizures.

After a lengthy hearing, the trial court overruled the motion to suppress, and found as follows:

"2. The confession or statement was made voluntarily by the defendant after he had talked to his father, his employer, a lawyer sent to the jail by his father, and a juvenile officer from the Juvenile Court. His physicial and mental facilities were not impaired because of the use of drugs or because of his diabetic conditions.

"3. The search and seizure insofar as the helmet is concerned was reasonable and made with the consent of the persons in control of the premises involved. Facts in possession of the police were sufficient to cause a reasonable and prudent man to believe that a felony had been committed and that this defendant committed it. The testimony does not disclose the manner in which the seizure of the motorcycle or motorbike was made. The search for and examination of said motorcycle, however, was reasonable and made with the consent of the defendant."

The substance of the confession or self-incriminating statement was later admitted in evidence through the testimony of William Rutherford, the juvenile probation officer, who did most of the questioning. The accused told two stories and later said that the first story he had told was not true and that he would tell the true story. He then said that he went to the store about 10:00 o'clock p. m.; that Mrs. Brucker came to the door and invited him in. "* * * Later she said: ``Well, I'll play some music and we'll dance.'

"* * * and he got up * * * and after they had danced a little bit, * * * she put her arm around him, and I asked him if she made any other advances toward him, and he said she took her hand and placed it down in the front of his pants, * * * and he said he called her ``filth,' and that he gave her a shove away from him and that she came back toward him and that he hit her and knocked her down and that her glasses flew off * * *, she had picked up an ice pick, and that he grabbed the ice pick from her hand and grabbed her hand and that she pulled toward him and that the ice pick ran into her neck, and he said then that she ran and got * * * a hatchet, * * * and that she grabbed it and started to strike at him with it, and he took it from her hand and that he hit her with it. * * *

"Q. Did he say how many times he struck her with the meat cleaver? A. * * * more than once. He had hit her on several occasions * * *.

"* * * and he got ahold of the body and drug it toward the door and that one of her shoes came off, * * * he took her rings off and went to the cash register and took out some money. * * * look like a robbery * * * and put them in a paper sack * * * and left by the back door, and got on his motorbike * * *."

At the trial the accused testified in his own behalf and told a story different from either story which he had told the officers.

We attention the assignments of error in order. In assignments of error Nos. 1 and 2, it is claimed that certain procedural requirements of Chapter 2151, Revised Code, were not followed.

Violation of Section 2151.25 is claimed since the defendant was not taken directly before the Juvenile Court, upon arrest. And/or violation of Section 2151.31 is claimed since he was not taken immediately to the court or place of detention designated by the court upon being taken into custody. And violation of another paragraph of Section 2151.31 is claimed since he was fingerprinted on a criminal card.

The Ohio procedure is stated in these sections, as follows:

2151.25. "When a child is arrested under any charge, complaint, affidavit, or indictment, whether for a felony or a misdemeanor, such child shall be taken directly before the Juvenile Court."

2151.31. "Whenever any officer takes a child into custody * * *, such child shall be * * * taken immediately to the court or to the place of detention designated by the court, and the officer taking such child shall immediately notify the court * * *.

"* * *

"* * * When the judge permits the fingerprinting of any child, the prints shall be taken on a civilian and not a criminal card and shall be kept only in the civilian file. Provided that any child recognized to the Court of Common Pleas, under Section2151.26 of the Revised Code, shall not be exempt from fingerprinting and photographing. * * *"

To paraphrase the words of Doyle, J., in State v.Stewart, 120 Ohio App. 199, at page 205, there were "perhaps statutory" violations.

For a court to rule that these slight departures from prescribed procedural requirements "constituted a denial of due process, and thereby prejudicial error in the state's case, to one who is later ordered by the Juvenile Court to appear before the Court of Common Pleas to answer to a charge of murder would be carrying the rule of due process to absurd limits."

We find that there was substantial compliance with Chapter 2151, Revised Code.

Assignments of error Nos. 1 and 2 are overruled.

As to assignment of error No. 3, such photographs as were admitted in evidence all tended to show the position of the body, its appearance and its relation to other objects in the room where found. Their admissibility was within the sound discretion of the trial court. We find no abuse thereof. Overruled.

The crux of this appeal is the fourth assignment of error. This goes to the admission of the self-incriminating statements or oral confessions made by the accused on the forenoon of April 7th, to the corps of investigators including the juvenile probation officer, the prosecutor, a city patrolman who made notes, and sheriff's deputies. It is claimed that such statements were not voluntarily made and hence the due process clauses of the state and federal Constitutions were violated.

Exceptions were properly saved to the ruling of the court on the motion to suppress these alleged confessions, supra.

Extrajudicial confessions or self-incriminating statements, especially those made by juveniles, deserve close scrutiny by the courts. The United States Supreme Court in recent years, beginning with the case of Haley v. Ohio (1948),332 U.S. 596-625, has held that the ruling of the trial court and the finding of the jury in a criminal case on the voluntary character of a confession do not foreclose independent examination.

Since Haley, the leading case involving juvenile confessions, decided by that court, is Gallegos v. Colorado (1962),370 U.S. 49. In both cases, confession was held inadmissible and conviction was reversed. Justice Douglas, author of the majority opinion in both cases, stated in Gallegos, at page 55: "There is no guide to the decision in cases such as this, except the totality of circumstances * * *."

Haley and Gallegos are distinguishable on the totality of circumstances. Haley was a 15 year old Negro boy who was arrested at night, questioned for 5 hours by relays of police, without friend or counsel being present, when he confessed. He was not advised of his right to remain silent or his right to counsel until those statements were recorded in the written confession which he signed. He was held incommunicado for three days, during which a lawyer retained by his mother was twice refused permission to see him.

Gallegos was 14 years of age and orally admitted his guilt upon arrest. He was held from January 1st to January 7th when he signed a written confession. He was advised as to his right to counsel but did not ask for a lawyer. His mother was refused permission to see him on January 2nd. He had no adult visits or advice of any kind prior to signing the confession.

In the instant case, John L. Carder was 16-3/4 years old, near the close of his junior year in high school. He was taken into custody and kept in the upstairs of the county jail, away from other prisoners, in "juvenile quarters, * * * the only place you have in this county for detaining juvenile offenders." In fact, from the totality of circumstances surrounding his detention and questioning, it is apparent that the accused was treated with unusual fairness and consideration by the officers. In their questioning, they "reasoned" with him without heat of mind or temper. The record shows that he was told by the prosecutor, the deputies and by the juvenile probation officer, several times, "that he did not have to talk." The juvenile probation officer did most of the questioning. Accused was not denied counsel.

It is true that after the accused had talked with one lawyer, his parents appeared after the questioning had started, with another lawyer who became his trial counsel. The persons who were questioning the accused then insisted to the parents and the lawyer that they finish their questioning and then they could see the accused. But there is evidence that the accused did not wish to see his parents or the attorney. He specifically asked if he had to face them. He also asked the patrolman who had taken notes to stay with him when they came in the room. He asked that his confession be broken "easy" to his mother. Patrolman Zollars did stay and go over his notes in their presence, pausing many times to ask the accused to confirm them.

Under this "totality of circumstances," for his statements to be inadmissible we would have to hold that any self-incrimination of a person under 18 years old is involuntary unless his parents or his attorney are present. We would also have to hold that such minor is not mature enough to make a voluntary confession or waive the presence of his parents or his lawyer during any conversation with the police. This is not the law. See State v. Stewart, 176 Ohio St. 156, first paragraph of the syllabus.

There is an entire absence of any force, coercion or compulsion, physical or mental. We find nothing to make the confession or his waiver of parental or counsel presence anything other than completely voluntary.

We thus distinguish Haley and Gallegos, the two cases involving confessions by juveniles, upon which this accused so greatly relies. The fourth assignment of error is overruled.

As to the fifth assignment of error, we find no prejudicial error in the prosecutor's voir dire examination of prospective jurors. Overruled.

As to the seventh assignment of error which goes to the admission into evidence of certain exhibits, to wit, the helmet (motorcycle parts were marked for identification exhibit 28, but never offered or admitted) and clothing of the accused, such evidence was obtained with the aid and assistance of the accused and his father. Overruled.

The sixth, eighth, ninth and tenth assignments of error go mostly to the trial court's charge to the jury. We have carefully examined the charge and find no prejudicial error. Overruled.

Our scrutiny of the record, the conduct of able trial counsel for both parties, the excellent briefs and arguments of accused's counsel, and the entire conduct of the trial court, convince us that the accused was accorded a fair trial. It does not affirmatively appear from the record that the accused was prejudiced thereby or prevented from having a fair trial. See Section 2945.83, Revised Code.

Judgment affirmed.

VAN NOSTRAN, J., concurs.