589 N.E.2d 421 | Ohio Ct. App. | 1990
Lead Opinion
On June 1, 1987, defendant-appellant, David Rutter, was indicted on seven counts of rape with a firearm specification, in violation of R.C.
On August 6, 1987, the appellant filed a motion to suppress evidence. A suppression hearing was held by the court on September 3, 1987 in which Sgt. Mark Massucci of the Warren Police Department and Sue Ellen Stinedurf testified for the state. Both Massucci and Stinedurf testified that they went to appellant's residence on May 22, 1987 to execute an arrest warrant and conduct a search of his residence. *640
Immediately upon the arrival at appellant's residence, Sgt. Massucci advised appellant that he had a warrant for his arrest. Appellant permitted Massucci and Stinedurf to enter his residence. Appellant read the arrest warrant and asked if he could call his attorney. Massucci then read appellant his rights and had him execute the constitutional rights form.
Appellant was allowed to contact his attorney, and he tried numerous times to reach him but was unsuccessful. Massucci even suggested to appellant some places where his attorney might be found. Although Stinedurf had in her possession a valid search warrant, she did not execute it but returned the warrant unserved. Instead, Massucci asked for appellant's consent to search the premises. Appellant gave permission after reading and executing a consent to search form. Appellant again tried to contact his attorney but was unsuccessful. Appellant then took Massucci and Stinedurf through his house and cooperated in gathering the items which were seized.
Appellant's motion to suppress certain items seized was overruled by the trial court, and these items were eventually admitted into evidence.
At trial, a polygraph examiner testified about admissions appellant made during the pretest interview stage of the polygraph examination. The admissions were about appellant's sexual contact with another daughter. Defense counsel objected to this testimony, arguing that it was outside the scope of the stipulated polygraph subject matter. The trial court overruled the objection.
After a trial by jury, appellant was convicted of six counts of rape, one count of felonious sexual penetration, one count of child endangering, and one count of illegal use of minor in nudity-oriented material or performance. The appellant was sentenced on all counts, with the sentences amounting to a total minimum of forty years and a total maximum of one hundred years.
Appellant filed a timely appeal, setting forth the following assignments of error:
"1. The trial court committed reversible error in failing to suppress items seized in the warrantless search of appellant's residence after appellant requested advice of counsel.
"2. Appellant's
"3. Appellant was sentenced in violation of Ohio Revised Code
In his first assignment of error, appellant argues that the trial court erred in failing to suppress items seized in the warrantless search of appellant's residence after he requested advice of counsel. *641
Appellant argues that he attempted to contact his attorney prior to giving a written consent for the search. Appellant argues that Massucci and Stinedurf were aware of his efforts to contact his attorney. When appellant realized that he was unable to contact his attorney, appellant claims that the state "was able to induce" him to give written consent to search.
Appellant argues that this consent was obtained in violation of his right to counsel under the
Appellant's argument is not persuasive.
In State v. Childress (1983),
"1. In order to waive his
"2. It is permissible for law enforcement officials to seek a waiver of the accused's
Thus, the Ohio Supreme Court distinguished the
The trial court properly admitted the items seized and, thus, appellant's first assignment of error is without merit.
In his second assignment of error, appellant argues that his
Appellant requested to take a polygraph test and agreed to have the results of the test admitted as evidence pursuant to the stipulations contained in the "Entry of Stipulation of Use of Polygraph."
Appellant stipulated, in part, to the following:
"1. The witness will submit to an examination process utilizing in part, a device comonly [sic] known as a `polygraph' or `lie detector,' which examination process may involve a series of interviews and tests employing such device.
"* * *
"4. Such person or persons designated by counsel for the State of Ohio shall be permitted if called as a witness by the State of Ohio to testify at trial of this cause as an `expert' regarding all aspects of the test administered, and such testimony shall be offered and received as evidence in the trial of this cause without objections of any kind by any party to this agreement except as to the weight of evidence it is to be given.
"* * *
"7. Prior to signing this Entry, and agreeing thereby to submit to `polygraph testing,' the witness has been fully advised of his constitutional and statutory rights, and by signing this Entry, he knowingly, intelligently, and voluntarily waives his right to remain silent and his right to seek advice of counsel during any stage of the administration of the polygraph test procedure. Admissions or other culpatory statements made by the defendant during `testing' shall be admissible and may be testified to during the trial of this case.
"* * *
"10. It is further understood, in keeping with normal testing procedure, that the polygraph examiner will hold in confidence any admissions or statements made by the defendant which pertain to matters not under investigation."
Bill Evans, the polygraph examiner, conducted a pretest interview in which appellant admitted to sexual activity with his other daughter, Denise Rutter. *643
On direct examination by the state of Ohio, William Donald Evans II, the polygraph examiner, stated:
"A. Well, during the pre-test interview we talked about any type of sexual misconduct with Darleen [sic] or his other daughter, Denise, and the pre-test interview as it evolved, he made a statement to me regarding sexual misconduct with his natural daughter Denise firstly. That statement was at age 14 he fondled her vaginal and breast areas and nearly had intercourse with — "
Defense counsel interjected an objection, which was overruled by the trial court; however, no further testimony was offered by the polygraph examiner concerning appellant's relationship with Denise Rutter.
Citing State v. Souel (1978),
Appellant cites State v. Wilson (1986),
The case sub judice is distinguishable from Wilson, supra. Defendant Wilson was subsequently charged and convicted of the other crimes that he admitted to in the polygraph without being separately informed of his rights. However, appellant was not charged or convicted of any crime involving sexual activity with his daughter Denise. Appellant's admissions regarding his daughter Denise were admissible under paragraphs four and seven of the polygraph stipulations.
Furthermore, unlike defendant Wilson, the record shows that appellant was not coerced or restrained in any way during the polygraph but was free to leave at any time. Appellant requested to take the polygraph, arrived on his own at the prosecutor's office to take the test, was permitted to leave the test to go unaccompanied to the bathroom which was in another part of the building, and was allowed to leave after the test was complete. *644
At the end of the test, appellant signed a standard waiver form which provided that appellant freely and knowingly submitted to the test and was free to leave at any time. Therefore, Wilson is distinguishable from the facts sub judice and, thus, is not applicable or controlling.
Next, appellant claims that the admission of evidence of his sexual activity with his other daughter, Denise, breached paragraph ten of the polygraph stipulations. Although the state alleges that appellant knew that his sexual conduct with both of his daughters was under investigation, the state fails to provide any evidence of appellant's knowledge or that both matters were under investigation. However, it is clear that appellant was only charged for his sexual activity with his daughter Darlene.
Assuming, arguendo, that paragraph ten was breached by the polygraph examiner, such breach constitutes harmless error. It is well settled that:
"Error in the admission of evidence in criminal proceedings is harmless if there is no reasonable possibility that the evidence may have contributed to the accused's conviction. In order to hold the error harmless, the court must be able to declare a belief that the error was harmless beyond a reasonable doubt. (Crim.R. 33[E][4]; Crim.R. 52[A]; Chapman v. California
[1967],
In State v. Williams (1983),
"* * * Where evidence has been improperly admitted in derogation of a criminal defendant's constitutional rights, the admission is harmless `beyond a reasonable doubt' if the remaining evidence alone comprises `overwhelming' proof of defendant's guilt. Harrington v. California (1969),
The record shows that, even without the appellant's admission of his sexual activity with his daughter Denise, there is overwhelming proof that defendant is guilty of the crimes he was convicted of committing on his daughter, Darlene.
The record reflects that appellant admitted to Sgt. Mark A. Massucci of the Warren Police Department, William Evans, the polygraph examiner, and his sister, Nancy Staton, that he engaged in sexual intercourse with his daughter, Darlene Rutter, on numerous occasions; however, he denied the use of force. Likewise, at trial, the appellant admitted to having intercourse with his daughter, Darlene, on numerous occasions but again denied the use of force. *645
Darlene Rutter testified at length concerning appellant's use of various types of force and threats of force to compel her to submit to repeated acts of sexual intercourse, one act of fellatio, the taking of nude photographs of her, and compelling her to drink wine on one occasion.
Thus, even if there was error, it was harmless error beyond a reasonable doubt; therefore, appellant's second assignment of error is without merit.
In the third assignment of error, appellant contends that he was sentenced in violation of R.C.
Former R.C.
"Consecutive terms of imprisonment imposed shall not exceed:
"* * *
"(2) An aggregate minimum term of fifteen years, when the consecutive terms imposed are for felonies other than aggravated murder or murder."
Appellant's total minimum sentence is forty years and total maximum sentence is one hundred years. Appellant contends that his sentencing is contrary to law and must be reversed and remanded pursuant to R.C.
In State v. White (1985),
"* * * [W]here a trial court's sentence exceeds the minimum established for consecutive terms, such judgment is not the basis of a reversible error, as the terms of former R.C.
Accordingly, appellant's third assignment of error is without merit.
For the reasons stated herein, appellant's assignments of error are without merit, and the decision of the trial court is affirmed.
Judgment affirmed.
CHRISTLEY, P.J., and FORD, J., concur.
Concurrence Opinion
I agree with the conclusion of the authority regarding the second assignment, to wit: that it is harmless error based on the existence of other compelling evidence. State v. Gordon
(Mar. 31, 1989), Geauga App. No. 1410, *646
unreported, 1989 WL 260228. However, I would like to note that I do not feel that the United States Supreme Court in Wyrick v.Fields (1982),
In the instant case it is not clear whether the stipulations are applicable only to the statements made during the actual "hook-up" of the polygraph test or whether the stipulations apply to the entire polygraph process. That would include the pretest dialogue which is basically standard procedure in any polygraph scenario; likewise, the post-test dialogue with the examiner in which explanations to "inconsistencies" are sought by the examiner is de rigueur and would be considered by most law enforcement people to be part and parcel of the entire polygraph procedure.
I am extremely reluctant to conclude that stipulations concerning the use of evidence obtained during any part of the polygraph process must be limited to the actual test itself unless that is what the stipulation specifically provides.
Fortunately, I am in agreement with the majority that there is more than sufficient evidence to otherwise implicate appellant.
Therefore, I concur.
Concurrence Opinion
Recently, this jurist, in writing for the court in State v.Gordon (Mar. 31, 1989), Geauga App. No. 1410, 1989 WL 260228, unreported, noted the recent trend by sister jurisdictions to prohibit the use of polygraph examinations in criminal proceedings:
"* * * [S]ince [State v. Valdez (1962),
"More specifically, the Wisconsin Supreme Court in State v.Dean (1981),
"`* * * it is error for a trial court to admit polygraph evidence in a criminal proceeding * * *' Dean, supra
[
"In Dean, the court expressly overruled State v.Stanislawski (1974),
"`The Stanislawski rule which appeared in 1974 to be a reasonable compromise between unconditional admission of and unconditional rejection of polygraph evidence does not appear at this time to be the satisfactory compromise, and we decline to continue to permit the admission of polygraph evidence pursuant to the rule set forth in Stanislawski.
"`We also reject the alternative of awaiting continued refinement of the Stanislawski rule on a case-by-case method. Adequate standards have not developed in the seven years sinceStanislawski to guide the trial courts in exercising their discretion in the admission of polygraph evidence. The lack of such standards heightens our concern that the burden on the trial court to assess the reliability of stipulated polygraph evidence may outweigh any probative value the evidence may have.' Id.
"The court based its decision upon the fact `* * * that the legal and scientific communities remain significantly divided on the reliability of the polygraph in a criminal case.' Id.
[
The facts in this cause only act to fan the embers which challenge the use of the so-called lie detector.
The courts have long recognized the potential prejudicial impact of evidential submission based upon this machine. This concern was the obvious source for the judicially adopted balancing safeguards which have served as the predicate for the operator's opinion. Unfortunately, these protections frequently provide only a mild prophylactic effect and often are the catalyst for a confession under the guise of a pre-examination or post-examination statement, which is not subject to limitation or suppression by the stipulation.
In this cause, the polygrapher testified that he had a lengthy discussion with the appellant. However, that conversation was not conducted while appellant was attached to the machine. As such, any statement which he made, "in order to develop a rapport" between the examiner and the appellant, was not subject to the strict dictates of the stipulation.
This jurist has become all too familiar with the use of this appearance of developing a rapport with the examinee to obtain incriminating statements. *648 The examiner will often broach the topic within the focus of the inquiry during the pre-examination.
The questions delve into areas which the stipulation expressly prohibits, but since the inquisition is prior to the accused being "hooked-up" to the machine, such conversations are not taboo. In Wyrick v. Fields (1982),
With this predicate in mind, I note that I concur with the majority's assessment that the statements made by the polygraph's examiner amounted to "harmless error." As noted inGordon, supra, at 20, such analysis is appropriate:
"In United States v. Morrow (C.A. 4, 1984),
As the majority correctly notes, there is more than sufficient other evidence implicating appellant.
Therefore, based upon Souel and Morrow, supra, I concur.