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State v. Hymore

Supreme Court of Ohio
Mar 1, 1967
9 Ohio St. 2d 122 (Ohio 1967)

Summary

rejecting challenge to trial court's exclusion of evidence as irrelevant

Summary of this case from State v. Hancock

Opinion

No. 40058

Decided March 1, 1967.

Criminal procedure — Manslaughter — Evidence — Relevant antecedent circumstances — State of accused's mind — Police officer's response to preliminary routine questions — Statements admissible.

Where a police officer, who is later charged with manslaughter, takes charge at the scene of a disturbance, calls the sheriff's office for assistance and voluntarily makes statements to the arriving officers in response to their preliminary, routine, investigatory questions, such statements are admissible into evidence at a criminal trial.

APPEAL from the Court of Appeals for Wood County.

Arthur Henry "Chico" Cadena, hereinafter referred to as deceased, died at approximately 2:50 or 3 a.m., January 26, 1965, as the result of a gunshot wound in the head. It is undeniable, and no one contends otherwise, that the wound was inflicted by James Hymore, hereinafter referred to as defendant. The defendant was indicted for an unlawful killing contrary to Section 2901.06, Revised Code (manslaughter in the first degree), and pleaded not guilty thereto.

The trial of this cause produced many pages of testimony. In view of the determination we are disposed to render, the events of the night in question will be taken from the testimony of the defendant solely for the purpose of clarifying the error claimed, and without any reflection on the part of this court as to their veracity.

Defendant, a guard for Libbey-Owens-Ford, was also employed by the Lake Township Trustees as a Lake Township "policeman." As such he was in possession of a navy blue uniform (shirt, tie, pants, jacket and cap), a gunbelt, a blackjack, a gun and a badge. He had no regular hours of duty. On the night in question, defendant, wearing his uniform shirt, tie and pants and a light-colored winter jacket, arrived at the Wales Bar at approximately 7:15 p.m. He consumed four bottles of beer. From there, he proceeded to the Web Bar, arriving shortly after 11 p.m. Leaving his police cap and gunbelt in his car, defendant put his blackjack into his hip pocket, his gun into his belt, his badge into his pocket and proceeded into the building and up to the bar. By 2:30 a.m. he had, by his own testimony, consumed one or two more bottles of beer and three to six drinks of whiskey, although he considered himself on duty and contended that he was checking to see whether minors were being served. Shortly after defendant's arrival, one Kendall and the barmaid played a game on a bowling machine, gambling one dollar on the outcome. At this time, defendant, whom the barmaid had identified to the patrons of the bar as a "cop," warned them against gambling. Then, and repeatedly thereafter, Kendall challenged defendant to arrest him, threatening at the same time to sue him for false arrest. Sometime during this period, defendant himself played two games on the bowling machine with the barmaid. At approximately 2:30 a.m., defendant arrested both Kendall and the barmaid for gambling. At this point, according to the defendant, the deceased, Cadena, entered the argument, hit the defendant and was shot dead. Defendant then ordered everyone to remain in their places and asked "someone" to call the sheriff.

A deputy sheriff arrived within eight or nine minutes. Defendant made statements to the officers at this time as to what had transpired. He made further statements while being transported to jail.

The court, in its charge, specifically stated that defendant was an officer of the law and was so acting when the shooting occurred.

A jury found defendant guilty of manslaughter in the first degree.

On appeal the Court of Appeals reversed on the following grounds of claimed error:

(1) Admission, over objection, of "testimony of Deputy Sheriff McGiffin as to incriminating statements made by the defendant at the scene of the crime without constitutional warning";

(2) Admission, over objection, of "testimony by the coroner of incriminating statements given by the defendant to the sheriff in the presence of the coroner at the scene of the crime and on the trip from the scene of the crime to the Wood County jail";

(3) Admission, over objection, of "testimony of Hazel Veler Johnson and Bonnie Veler elicited * * * on immaterial and collateral matters."

The cause is before this court pursuant to an appeal as of right and upon allowance of a motion for leave to appeal.

Mr. Donald D. Simmons, prosecuting attorney, and Mr. Glenn C. Parsons, for appellant.

Mr. Clarence M. Condon, Mr. Robert J.W. Meffley and Mr. Beryl W. Stewart, for appellee.


The points of claimed error will be considered in the sequence in which they are stated in the statment of facts, supra.

The first ground of claimed error is the admission, over objection, of "testimony of Deputy Sheriff Mcgiffin as to incriminating statements made by the defendant at the scene of the crime without constitutional warning." Deputy Sheriff McGiffin testified that he received a radio dispatch at 2:41 a.m., January 26, 1965, instructing him to proceed immediately to the Web Bar on East Broadway. When he arrived, Kendall (whom defendant had arrested) ran up to him asking to be put in protective custody. Thereupon, Deputy Sheriff McGiffin "walked on in and talked to Mr. Hymore [defendant]. I asked him what went on and what happened. And he said, `I shot him!'" Defendant claims that the admission of this testimony constitutes prejudicial error and the Court of Appeals so held. Nothing could be further from the mark.

At the outset, it must be noted that at this juncture defendant, admittedly a police officer, had taken charge of a situation and called for the sheriff. To now say that when the requested officer arrived he must have immediatly informed the officer in charge of his constitutional rights is absurd. When Deputy Sheriff McGiffin entered the Web Bar he had no knowledge that a crime had been committed and had no possible suspects in mind. The investigative process had barely begun and he naturally asked the man he knew to be a police officer within his jurisdiction what had happened. Defendant's response was nothing more than an immediate and voluntary statement to this investigating officer's natural and routine opening question. After defendant made the statement complained of, McGiffin then talked to the witnesses and only after this did he place the defendant in custody.

Thus we have a situation unlike that in Escobedo v. Illinois, 378 U.S. 478, or Jackson v. Denno, Warden, 378 U.S. 368. Those cases deal with in-custody interrogation, voluntariness of a confession and the right to counsel. In the instant case, the statement made came at the very outset of a general inquiry. No suspect existed and indeed there was no indication that a crime had even been committed. Thus statements made by an officer to another officer who has responded to a summons from the first and has arrived soon thereafter are admissible into evidence where the statements are voluntary answers to preliminary, routine, investigatory questions. In short, this court is not disposed to require officers of the law to greet each other with warnings of constitutional safeguards whenever they meet at the scene of a disturbance unless adequate grounds for such precautions exist.

The second ground of claimed error is the admission, over objection, of "testimony by the coroner of incriminating statements given by the defendant to the sheriff in the presence of the coroner at the scene of the crime and on the trip from the scene of the crime to the Wood County jail." The coroner of Wood County, one Roger A. Peatee, testified at the trial as to a conversation he had with defendant while enroute from the Web Bar to the Wood County jail. Contrary to the opinion of the Court of Appeals, the coroner specifically stated that this was the only conversation he had with the defendant and that it was a conversation between him and the defendant rather than statements given to the sheriff, and that defendant did most of the talking. The record is void of mention of any interrogation, and the defense offered no testimony whatsoever on the subject of this conversation.

In view of this, the proper issue is whether evidence of the discussion between the defendant and the coroner was admissible. It is undeniable that the defendant was then in the custody of police officers. There is no indication in the record of whether defendant had been advised of his constitutional rights.

At this juncture it must be said that this case was tried in the gray area (June 1965) between Escobedo v. Illinois, supra, and Miranda v. Arizona, 384 U.S. 436. In the words of Mr. Justice Goldberg, the Escobedo decision deals specifically with a "refusal by the police to honor petitioner's request to consult with his lawyer during the course of an interrogation * * *." Escobedo, supra, at 479. Thus, the Escobedo decision has no application here for no such issue has been raised and in fact none existed. The Miranda decision is likewise inapplicable by the specific ruling of the Supreme Court of the United States which held in Johnson v. New Jersey, 384 U.S. 719, that the Miranda decision applies only to trials begun after the date of that decision, to wit, June 13, 1966.

Thus, the instant case is controlled by neither the Escobedo decision nor the Miranda decision. In fact, this case lacks one of the essential elements of those two cases, to wit, an in-custody interrogation. Instead the situation differs in that the defendant's remarks were virtually unsolicited comments made while enroute to the jail. At no time during the proceedings did the defendant deny that he had made the statements attributed to him. At no time during the proceedings did the defendant contend that the statements attributed to him were made involuntarily. In contrast to the contentions now made, the record undisputably supports the view that the conversation between the defendant and the coroner was in fact made voluntarily under conditions which did not create any feeling that defendant was compelled to speak on pain of suffering physical or psychological mistreatment. Nothing in the record suggests any threat or prominse of leniency. The defendant was not suffering from bad health or mental derangement. There was no incommunicado detention and no interrogation. The circumstances of this case disclose that the defendant, a police officer himself, freely and voluntarily spoke to the coroner while being transported to jail. This is not even a case of a police officer fairly and noncoercively questioning a subject in order to fulfill his duty to ascertain the facts. (See State v. Swiger, 5 Ohio St.2d 151, 160, certiorari denied, October 10, 1966.) Defendant's contention that this parallels Jackson v. Denno, Warden, supra ( 378 U.S. 368), is simply not supportable. Jackson was interrogated by police while lying in a hospital bed suffering from two bullet wounds and under the influence of drugs. Defendant here simply volunteered a statement of facts to the coroner while en route to jail. The absence of an interrogation coupled with the obvious voluntariness of defendant's remarks takes them out of the realm of inadmissible evidence.

The third ground of claimed error is the admission, over objection, of "testimony of Hazel Veler Johnson and Bonnie Veler elicited * * * on immaterial and collateral matters."

Hazel Johnson and Bonnie Veler were both present at the Wales Bar on the night of January 25, 1965, the former as a patron and the latter as a barmaid. Both were allowed to testify as to the defendant's activities there although neither saw him after he left to go to the Web Bar. The Court of Appeals held this to be improper and prejudicial error in that it was too remote. In this it was mistaken.

It is commonplace in a criminal trial for the prosecution to trace the defendant's steps prior to the time of an alleged crime. In fact it is so well settled that the prosecutor may show antecedent circumstances that shed light upon an alleged crime that no party to this case has found any authority contra. The only limitation upon this general rule, as it applies to this case, is relevancy, and, although the test of relevancy is not always an easy one, we feel that the best test is: Where a particular fact tends to render probable a material proposition in issue then that fact is relevant.

The trial court has broad discretion in the admission and exclusion of evidence and unless it has clearly abused its discretion and the defendant has been materially prejudiced thereby, this court should be slow to interfere.

In the instant case, defendant claimed that he was an officer of the law on official duty and was performing that duty when he shot the deceased. To counter this, the state produced the evidence in question which showed that defendant was socializing in a tavern outside the territorial limits of his jurisdiction and consuming alcoholic beverages. Such is hardly conduct indicative of a police officer preparing to go on duty let alone one who is on duty. In the words of the trial court: "No officer * * * in this county has a right to drink ever even a friendly drink while he is on the job." Such actions are clear grounds for dismissal and every officer knows this. This evidence is thus relevant and material. Its admission was proper for it sheds light upon the later events and the conduct of the defendant.

For the foregoing reasons, the judgment of the Court of Appeals is in error. However, since that court did not find it necessary to pass upon the fifth and sixth assignments of error, including the weight of the evidence, it is necessary for this court to remand this cause to the Court of Appeals for consideration of these assignments of error.

Judgment reversed and cause remanded.

TAFT, C.J., ZIMMERMAN, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.


Summaries of

State v. Hymore

Supreme Court of Ohio
Mar 1, 1967
9 Ohio St. 2d 122 (Ohio 1967)

rejecting challenge to trial court's exclusion of evidence as irrelevant

Summary of this case from State v. Hancock

In State v. Hymore (1967), 9 Ohio St.2d 122, 128, 38 O.O. 2d 298, 302, 224 N.E.2d 126, 130, we stated that a "trial court has broad discretion in the admission * * * of evidence and unless it has clearly abused its discretion and the defendant has been materially prejudiced thereby, this court should be slow to interfere.

Summary of this case from State v. Thompson

In State v. Hymore (1967), 9 Ohio St.2d 122, 128, this court recognized that the trial court has broad discretion in the admission and exclusion of evidence, and, unless it has clearly abused that discretion and prejudiced the defendant thereby, the court should be slow to interfere.

Summary of this case from State v. Nabozny

In State v. Hymore (1967), 9 Ohio St.2d 122, 128, it is stated that, "the trial court has broad discretion in the admission and exclusion of evidence and unless it clearly abused its discretion and the defendant has been materially prejudiced thereby, this court should be slow to interfere."

Summary of this case from State v. Withers
Case details for

State v. Hymore

Case Details

Full title:THE STATE OF OHIO, APPELLANT v. HYMORE, APPELLEE

Court:Supreme Court of Ohio

Date published: Mar 1, 1967

Citations

9 Ohio St. 2d 122 (Ohio 1967)
224 N.E.2d 126

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