Summary
In Gallagher, we followed United States v. Deaton (C.A. 5, 1972), 468 F.2d 541, 544, certiorari denied (1973), 410 U.S. 934.
Summary of this case from State v. RobertsOpinion
No. 73-623
Decided June 26, 1974.
Criminal law — Evidence — Statements by accused to parole officer — Inadmissible, when — Statements made in response to questioning — Miranda warnings not given prior to questioning.
Testimony as to utterances made by an accused to his parole officer is inadmissible at trial where the utterances were in response to questions by the parole officer, and, prior to the questioning, the parole officer failed to advise the accused of his right to remain silent, of his right to be provided with counsel prior to questioning, and warn him that any utterance may be used as evidence against him.
APPEAL from the Court of Appeals for Montgomery County.
On May 27, 1972, an armed robbery occurred at a 7-11 store, located in Dayton, Ohio.
Terry L Gallagher, appellant herein, was charged with the robbery, and waived his right to a jury trial.
The store's cashier described the robbery as follows: A tall man (not the defendant) approached the check-out counter, ordered a pack of cigarettes, requested change for a ten dollar bill, and then brandished a pistol and instructed the cashier to put all the money into a paper sack. At the time, there were some children in the store at a candy rack, a repairman working on an ice machine, who apparently never noticed that a robbery was taking place, and a man later identified as Gallagher.
Gallagher stood an arm's length from the gunman; but "never said a word to" the cashier, never exhibited a gun, never said a word to or made gestures at the gunman, nor manifested in any way his participation in the crime. However, when the gunman left the store with the money, Gallagher and the gunman walked out of the store and out of view "side by side."
At a pre-trial hearing, upon a motion to suppress certain evidence, the cashier testified that he had assumed the complicity of Gallagher and the gunman because the two men had stood close together in the store and left the store together. However, this testimony was not elicited at trial.
The record shows further that two women entered the store at the time the cashier was filling the bag with money. At trial, the women corroborated the cashier's account of the robbery, from the time they entered the store until Gallagher and the gunman left the store.
The women were unable to identify Gallagher, but the cashier had previously identified Gallagher and the gunman from police photographs, and made a positive identification of Gallagher at trial.
The court granted a hearing on a motion by the defense to determine the admissibility of utterances made by Gallagher to police officers in the following situation: A day after his arrest, Gallagher was taken to a police interview room where he signed a "rights waiver." In the room with him were Detective Wright, from the sheriff's office; Detective Walsh, from the Dayton Police Department; and Jerry Helson, an adult parole officer.
The sufficiency of any Miranda warnings that were given is not challenged in this appeal.
Wright testified to the following: That a Richard Sorrell, who had already made a "statement where he admitted his implication" in the armed robbery of the 7-11 store, was brought into the interview room, at Helson's suggestion, "to either refute or corroborate what was said at that point [by Gallagher];" that Gallagher was told that Sorrell had given a statement to the police, and that if both Sorrell and Gallagher "copped out" on one robbery charge then other robbery charges would be dropped; that Sorrell and Gallagher were allowed to talk privately for a half hour; that Helson and Gallagher then talked privately for a half hour; and that Wright advised Gallagher that he would not be charged with other robberies if he "copped out" on this one.
Walsh testified to the following: That during the interview, Walsh "informed Mr. Gallagher that Sorrell had implicated him [Gallagher] on some of the robberies Sorrell was charged with * * * this one included," and that Gallagher then "indicated a willingness to tell us [the police] about this particular robbery with no other charges and I [Walsh] guaranteed him I would not file any additional charges."
The court granted the motion to suppress, reasoning that "this defendant when giving this statement did act or operate under promises of leniency, and, therefore, the court feels that such action, which we feel could have been avoided by the officers in question, constitutes an involuntary statement and the court, therefore, will decline to receive it."
The next witness for the state was Bill Sykes, who identified himself as Gallagher's parole officer. A motion to suppress this testimony was overruled, and Sykes testified that he visited Gallagher in jail four days after Gallagher's interview with the police officers. At no time did Sykes advise Gallagher of his right to remain silent; that any utterances to Sykes would be used as evidence in court; or of any other Miranda right. However, during this visit, Sykes asked Gallagher to relate "the circumstances surrounding the arrest." Gallagher's response to Sykes was that "he didn't want to make any statement in regard to the circumstances surrounding the arrest."
Miranda v. Arizona (1966), 384 U.S. 436, is referred to herein as Miranda.
Sykes left, but returned seven days later to Gallagher's cell.
To justify his visits to Gallagher's cell, Sykes explained that it was part of his job to try to get some type of statement from a parolee under his charge who was a criminal suspect.
During the second visit, Sykes renewed his request for information from Gallagher, and Gallagher complied by admitting that he had participated in the robbery.
Counsel for appellant objected to the admissibility of Sykes' testimony, and moved that it be stricken. The motion was overruled.
The court entered judgment on its verdict that appellant was guilty of armed robbery.
Upon appeal, the Court of Appeals, in a reported opinion ( State v. Gallagher, 36 Ohio App.2d 29), affirmed the judgment of the Court of Common Pleas.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. Lee C. Falke, prosecuting attorney, and Mr. Randal A. Anderson, Jr., for appellee.
Mr. Jack T. Schwarz, for appellant.
The question presented is whether testimony, concerning certain statements made by appellant to his parole officer about his involvement in a crime, was received at trial in violation of appellant's privilege against self-incrimination, as guaranteed by Section 10, Article I of the Ohio Constitution, and the Fifth Amendment to the United States Constitution.
The opinion of the Court of Appeals and the brief of appellee cite cases from other jurisdictions which have considered this question. Of the cases cited, three courts held the testimony of the parole officer inadmissible because the accused had not been given Miranda warnings at any time prior to questioning by the parole officer; two courts held the testimony proper because a parole or probation officer is not a "law enforcement officer" as contemplated by Miranda and, therefore, the accused was not entitled to Miranda warnings; in Nettles v. State (Fla.App. 1971), 248 So.2d 259, the court held a probation officer's testimony admissible, even though the officer had failed to advise the accused of his rights, because the accused, by accepting probation, had supposedly effectuated a continuous waiver of the right to be advised of his Miranda rights; and in the last case cited, Gilmore v. People (1970), 171 Colo. 358, 467 P.2d 828, the court held a probation officer's testimony admissible because the statements made to the officer had been "volunteered" within the meaning of Miranda, wherein ( 384 U.S. 436), at page 478, the United States Supreme Court stated: "Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today."
State v. Lekas (1968), 201 Kan. 579, 442 P.2d 11; State v. Williams (Mo. 1972), 486 S.W.2d 468; and People v. Gastelum (1965), 237 Cal.App.2d 205, 46 Cal.Rptr. 743.
State v. Johnson (S. Dak. 1972), 202 N.W.2d 132; People v. Ronald W. (1969), 24 N.Y. 2d 732, 249 N.E.2d 882.
In our opinion, the foregoing cases are not persuasive when applied to the facts in this case, which may be briefly summarized as follows: Police officers advised appellant of his Miranda rights prior to interrogation, and when the appellant refused to make a statement he was offered promises of leniency and was confronted by an alleged accomplice who had already confessed to the crime. As a result of those tactics, appellant made a statement to the police officers which was later suppressed at trial as an involuntary utterance. Four days after appellant's interrogation, his parole officer asked for a statement, but appellant refused to discuss the matter. The parole officer never advised appellant of any of his Miranda rights, but nevertheless returned seven days later, requested a statement, and got one. At trial, the parole officer was called as a prosecution witness and related the statements made to him by appellant.
Upon those facts, we view the question presented in this appeal as whether appellant was compelled to produce evidence against himself or whether utterances to his parole officer were voluntarily given. Upon this ultimate issue of voluntariness, it is our duty to "make an independent determination." Davis v. North Carolina (1966), 384 U.S. 737, 742.
United States v. Deaton (C.A. 5, 1972), 468 F.2d 541, certiorari denied, 410 U.S. 934, squarely confronts the precise question presented by this case, at page 544:
"* * * Deaton's parole officer testified, over objection, to statements made to him by Deaton, tending to incriminate Deaton on the harboring and concealing charge, uttered in response to direct interrogation by the parole officer when Deaton was in custody, and without the officer having given Deaton the warnings required by Miranda. We have considerable doubt as to the propriety of even calling the parole officer as a witness for such a purpose. But, pretermitting that, we have no doubt that the testimony was inadmissible unless the officer gave prior Miranda warnings. A parolee is under heavy psychological pressure to answer inquiries made by his parole officer, perhaps even greater than when the interrogation is by an enforcement officer."
The lack of propriety referred to by the Deaton court is more fully illustrated in Smith v. Rhay (C.A. 9, 1969), 419 F.2d 160, 164, as follows:
"* * * Although Northrup [the parole officer] was called as a witness for the purpose of describing the investigation and arrest, his testimony revealed through necessary inference that he was already acting in the capacity of Smith's parole officer at the time of the offense. The jury obviously must have inferred that Smith had been previously convicted for unknown crimes, an inference that would place Smith's character in issue as part of the prosecution's case against him. Smith contends that this procedure violated his constitutional right to a fair trial.
"It is a rule of almost universal application that evidence of past crimes cannot be introduced as part of the prosecution's case in chief. The rule is based on both a lack of relevance to the principal case and the highly prejudicial effect that the evidence may have on a jury. * * *"
However, in this case, there was no objection made to the identification of Sykes as appellant's parole officer, and that question is not before this court.
The Deaton court went on to affirm the conviction, because on the day preceding the statement to the parole officer, Deaton had made verbal statements to police officers "after having been given proper Miranda warnings," and subsequent to the statement to the parole officer, Deaton reduced the prior verbal statement made to police officers into a formal recorded statement. Thus, the court concludes, "the statements to the parole officer were merely cumulative of evidence from other sources." In this case, however, prior statements to police officers were properly suppressed at trial as involuntary utterances.
We agree that a parolee is under heavy pressure to cooperate with his parole officer. Here, the parole officer testified that he had the power to recommend the return to prison of a parolee under his charge, and that appellant might have assumed that his utterances were in some way confidential.
It is clear, therefore, that compulsion intervened when the parole officer sought to elicit a statement from appellant, without first making known to appellant that the privilege against self-incrimination could be relied upon.
Accordingly, we hold that testimony as to utterances made by an accused to his parole officer is inadmissible at trial where the utterances were in response to questions by the parole officer and, prior to the questioning, the parole officer failed to advise the accused of his right to remain silent, his right to be provided with counsel prior to questioning, and to warn him that any utterance may be used as evidence against him.
Therefore, the judgment of the Court of Appeals is reversed, and the cause is remanded to the Court of Common Pleas for further proceedings in accordance with law.
Judgment reversed.
O'NEILL, C.J., HERBERT, STERN, CELEBREZZE and P. BROWN, JJ., concur.
CORRIGAN, J., dissents.