COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67185 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : KENT CHANDLER : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 13, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-304837. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Michael D. Horn, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Westley A. Dumas, Sr. & Associates 1711 Superior Avenue, N.E. Cleveland, OH 44114 Donald Tittle, Esq. 22946 Lorain Road Fairview Park, OH 44126 -2- DAVID T. MATIA, J.: Defendant-appellant, Kent Chandler, appeals his conviction of murder under R.C. 2903.02. Appellant raises three assignments of error for review concerning a motion to suppress, the introduction of oral statements made by appellant and the trial court's failure to allow appellant's counsel to introduce certain evidence. For the reasons set forth below, this court affirms appellant's conviction. I. STATEMENT OF FACTS In June of 1978, defendant-appellant, Kent Chandler, met with the victim, Tonya Hudson, in an area near Central Jr. High School in Cleveland, Ohio. Appellant had met the victim twice before. The two purchased some alcohol and went inside an abandoned house which was located approximately five houses from appellant's home on Gibson Avenue. In appellant's written statement, appellant stated he was "messed up." He remembered getting in an argument with the victim and that he began striking her. The next thing appellant could remember was waking up next to the victim's body. "She was laying next to me on the floor. I realized that I musta (sic) done something to her and I tried to wake her up. I tried to shake her but she wouldn't wake up. I realized that she was dead." Appellant left the victim, went home and fell asleep. The next day, appellant visited Wayne E. Tinsley, the state's main witness. Mr. Tinsley claimed appellant came to him crying, claiming that he had done something bad. Appellant then took Mr. Tinsley to the -3- abandoned house and showed him the victim's body. While Mr. Tinsley claims the body was already burned and placed in a trunk, appellant claims the two men together got some gas, moved the body to the basement and started the body on fire. Appellant claimed it was Mr. Tinsley's idea to burn the body. The fire department was called to the scene and the body was discovered amid burned rags and papers. The fire investigation revealed there was no trunk in the house. The autopsy was prepared June 4, 1978 and found the victim died through strangulation and that any other blunt impacts were not directly related to the cause of death. The autopsy revealed the victim was already dead when the fire began. Mr. Tinsley stayed in the Cleveland area until February 23, 1983 when he enlisted in the Army. He remained in service for 9-l/2 years spending time in the state of Washington, Germany and Fort Hood, Texas. During this period, Mr. Tinsley did not come forth with this information until Detective Kunz approached him at his mother's house in Cleveland, 1993. Appellant was arrested while working for a hunger center. At that time, appellant was questioned about outstanding traffic tickets and voluntarily accompanied the officers to the police station for clarification purposes. At this point it was approximately 1:30-1:45 p.m. Once at the police station, appellant was given his Miranda rights verbally and was questioned about the murder of Tonya Hudson. -4- Appellant initially denied any knowledge of the crime. However, after being left alone for some time and talking with the officers for approximately 20-30 minutes, appellant admitted to the crime and subsequently made a written statement attesting to this fact. The time appellant began the written statement was 3:10 p.m. Incorporated in the statement is appellant's acknowledgment: 1) he understood his Miranda rights, and 2) his willingness to proceed with the written statement. Appellant was indicted by the Cuyahoga County Grand Jury for aggravated murder on December 21, 1993. On January 5, 1995, appellant filed a motion to suppress his oral and written statements. Appellant claimed: 1) he was unlawfully arrested, 2) the search incident to the unlawful arrest produced property which cannot be introduced at trial, 3) all admissions and confessions were improperly and unlawfully obtained. After a hearing, appellant's motion to suppress was denied. A jury trial commenced and appellant was found guilty of the lesser included offense of murder under R.C. 2903.02. Appellant timely files this appeal. II. FIRST ASSIGNMENT OF ERROR Defendant-appellant's, Kent Chandler, first assignment of error states: THE LOWER COURT COMMITTED PREJUDICIAL ERROR IN FAILING TO GRANT DEFENDANT'S MOTION TO SUPPRESS ORAL AND WRITTEN STATEMENTS. -5- A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS Defendant-appellant argues the trial court erred in denying his motion to suppress. Specifically, appellant argues: 1) the police officers initially misrepresented the reasons for appellant's arrest, i.e, outstanding traffic tickets, 2) the fact the officers lied about incriminating evidence they had obtained, the length of time appellant was in custody before giving his "statement", and the showing to appellant of disturbing pictures of the victim gives a strong indication appellant's statements were coerced, and 3) appellant was refused counsel even though he requested an attorney three times prior to giving his written statement. Based upon this information, appellant argues, the trial court should have suppressed both the oral and written statements made by appellant. Appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW: MOTION TO SUPPRESS ORAL AND WRITTEN STATEMENTS "The rule of Miranda v. Arizona (1966), 384 U.S. 436, ***, exists independently of, and in addition to, the historic rule of evidence that an accused's statement may not be used against him in any way if the statement itself is proved to be involuntary, i.e., untrustworthy when tested by traditional legal standards." State v. Kassow (1971), Ohio St.2d 141, paragraph one of the syllabus; State v. Johnston (1990), 64 Ohio App.3d 238. Therefore, in this case, appellant's first assignment of error involves two independent analytical inquiries concerning the -6- voluntary nature of appellant's statements and the waiver of appellant's Miranda rights. In State v. Brewer (1990), 48 Ohio St.3d 50, at 58, the court wrote: Whether a confession is voluntary depends upon, *** the totality of the circumstances, including the age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment, and the existence of physical deprivation or mistreatment, and the existence of threat or inducement. See, also, Edwards v. Arizona (1981), 451 U.S. 477; Haynes v. Washington (1963), 373 U.S. 505; State v. Fields (1984), 13 Ohio App.3d 433. Furthermore, when the admissibility of a statement or confession is challenged, it is the burden of the state to prove its voluntariness by a preponderance of evidence. State v. Melchoir (1978), 56 Ohio St.2d 15. Regarding appellant's claim that his Miranda rights were violated, the Ohio State Supreme Court has held the decision in Miranda "was designed to safeguard an individual's Fifth Amendment right against compulsory self-incrimination." State v. Buchholz (1984), 11 Ohio St.3d 24, 27. Under Miranda, this privilege against self-incrimination contemplates certain procedural safeguards and that the suspect be advised of his/her rights, including the right to remain silent and the right to council. 384 U.S. 436. -7- However, a defendant may waive Miranda rights where the waiver is "voluntarily, knowingly, intelligently" made. Miranda, supra. The Miranda safeguards do not preclude the introduction of evidence which is voluntarily given after a person is read his rights. State v. Richey (1992), 64 Ohio St.3d 353, 361. Furthermore, an express or oral statement of waiver of the right to remain silent or the right to counsel is usually strong proof of the validity of that waiver. See State v. Scott (1980), 61 Ohio St.2d 155. Finally, we note that a trial court generally assumes the role of the trier of fact when it is presented with a motion to suppress evidence. See, State v. Rossiter (1993), 88 Ohio App.3d 162. Therefore, the trial court must determine the credibility of the witnesses and weigh the evidence presented at the hearings on said motions. State v. Smith (1991), 61 Ohio St.3d 284. It follows that a reviewing court must review the record to determine whether substantial evidence exists to support the trial court's ruling. See State v. Brown (1993), 91 Ohio App.3d 427. C. THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT'S MOTION TO SUPPRESS After a careful review of the totality of the circumstances, we find the trial court could properly find that the appellant's statements were voluntarily made based upon a preponderance of the evidence introduced at the suppression hearing. First, the evidence established appellant voluntarily agreed to accompany -8- the officers to the police station believing he was going to resolve a dispute concerning outstanding traffic tickets. Appellant was at this time free to leave and was only in "custody" after the officers confronted him regarding the murder. Furthermore, appellant was only interrogated for a maximum of an hour and 40 minutes before giving his written statement. Second, appellant had opened the door to further inquiries with his statement "What can I get if I talk about this case? What can you do for me." Up to that point, appellant had denied any involvement in the crime. This evidence supports the state's claim that appellant had voluntarily initiated his confession. Finally, not only is the use of deceit, as appellant refers to the police officer's line of questioning, merely a factor bearing on voluntariness, but the suggestion of leniency is itself insufficient to vitiate a confession. State v. Cooey (1989), 46 Ohio St.3d 20; State v. Deel (1983), 9 Ohio Misc.2d 12. The record simply does not support appellant's claim that he had been either physically or psychologically coerced into giving his oral and written statements. Concerning appellant's Miranda rights, appellant centers his argument on his misrepresentation of the trial court's reasoning for its denial of appellant's motion to suppress. Appellant claims the trial judge "determined that [appellant] demanded a lawyer three times before making a written statement." Appellant then cites to a portion of the transcripts which reads: -9- But, the Court is holding that his willingness to talk came from his own mouth and not from any coercion from the police. Therefore, I am finding that the written statement overcomes his oral statement in the courtroom, that he demanded three times a lawyer. (Tr. 163). As we read this, as well as other pertinent portions of the record, we are convinced the trial court concluded appellant's on-the-stand recantation that he voluntarily and knowingly waived his Miranda rights and that the statements were coerced was not supported by the evidence. From a review of the evidence there can be no question appellant had been taken into custody at the time he gave his statement. However, the record is equally clear that the police complied with the Miranda requirements. The state produced testimony that the appellant was orally given his Miranda rights at the time he was arrested and appellant's written statement contains a waiver of said rights signed by appellant. See State v. Cooey (1989), 46 Ohio St.3d 20. From a review of the record, the trial court properly held appellant was informed of his Miranda rights and intelligently and knowingly waived those rights before voluntarily giving his oral and written statements. Appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Appellant's, Kent Chandler, second assignment of error states: -10- THE LOWER COURT ABUSED ITS DISCRETION BY FAILING TO PRECLUDE AN ORAL CONFESSION PROVIDED TO DEFENSE COUNSEL ON THE DAY OF THE TRIAL. -11- A. ISSUE RAISED: WHETHER APPELLANT WAS PREJUDICED BY THE ADMISSION OF ORAL STATEMENTS Appellant argues the trial court committed prejudicial error by allowing the state to introduce an oral confession provided to appellant's counsel on the day of the trial. Specifically, while appellant's counsel had timely received a written statement wherein he admitted striking the victim, the oral statement wherein he admitted killing the victim was extremely damaging and undermined appellant's defense. Since foreknowledge of the statement would have benefitted the accused in the preparation of his defense and was prejudicial, appellant argues the trial court committed reversible error by allowing the introduction of the oral statement. Appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW: THE INTRODUCTION OF EVIDENCE; CRIM.R. 16 The philosophy of the Criminal Rules is to remove the element of gamesmanship from a trial. State v. Howard (1978), 56 Ohio St.2d 328. The discovery and inspection of evidence in a criminal proceeding is specifically governed by Crim.R. 16 which states in pertinent part: (B) Disclosure of Evidence by the Prosecuting Attorney. (1) Information subject to disclosure. (a) Statement of defendant or Co- defendant. Upon Motion of the defendant, court shall order the prosecuting attorney to permit the defendant to inspect the copy or photograph any of the following which are available to, or within the possession, custody, or control of the state, the -12- existence of which is known or by the exercise of due diligence may become known to the prosecuting attorney, * * * (ii) Written summaries of any oral statement or copies thereof, made by the defendant, or co-defendant to a prosecuting attorney or any law enforcement officer. Generally, the Ohio Supreme Court has found that the trial court does not abuse its discretion by admitting evidence objected to under Crim.R. 16 where defense counsel fails to request a continuance. See State v. Wilson (1993), 91 Ohio App.3d 611. However, the Ohio Supreme Court in State v. Parson (1983), 6 Ohio St.3d 422, syllabus, held that: Where, in a criminal trial, the prosecution fails to comply with Crim.R. 16(B)(1)(a)(ii) by informing the accused of an oral statement made *** to a law enforcement officer, and the record does not demonstrate (1) that the prosecutions failure to disclose was a willful violation of Crim.R. 16, (2) that foreknowledge of the statement would have been benefited the accused in preparation of his defense, or (3) that the accused was prejudiced by admission of the statement, the trial court does not abuse its discretion under Crim.R. (E)(3) by permitting such evidence to be admitted. Accordingly, an appellate court's inquiry is limited to a determination of whether the trial court's action constitutes an abuse of discretion. See State v. Weind (1977), 50 Ohio St.2d 224. -13- C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING THE ORAL STATEMENTS APPELLANT HAD MADE TO THE LAW ENFORCEMENT OFFICER Initially we note that appellant at no time in his written statement denied killing the victim. Rather, a review of the written statement establishes just the opposite: This all is the truth. I didn't mean for things to happen like that. I just went there to do some drinking. I didn't go there to kill nobody. I guess it just happens. I've been sorry for this ever since, every day of my life. I did it, I just don't know why. The oral statements at issue were made to the investigating officers. Both statements admitted appellant's guilt. The first occurred after appellant asked "What would I have to do to get less time?" Detective Stitt asked "Does that mean you killed her?" Appellant responded in the affirmative. This conversation was attested to by two other law enforcement officers. The second statement occurred after appellant had completed his written statement. Appellant called his mother and explained what he had done. Upon completion of the phone call, appellant told the officers he tried to tell her he did it but she wouldn't believe him. Again this statement was supported by the testimony of two law enforcement officers. We find the oral statements do not in substance contradict appellant's written statement. As such, appellant has failed to establish how prior knowledge of the oral statement would have changed the basis of his defense and/or any prejudice resulting -14- from their admission into evidence. The trial court did not abuse its discretion in admitting the oral statements. Appellant's second assignment of error is not well taken. IV. THIRD ASSIGNMENT OF ERROR Appellant's, Kent Chandler, third assignment of error states: THE LOWER COURT COMMITTED PREJUDICIAL ERROR BY DENYING THE DEFENSE THE OPPORTUNITY TO STATE EVIDENCE WHICH REBUTTED THE GOVERNMENT'S ALLEGATIONS OF A RECENT FABRICATION A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN REFUSING TO ADMIT A STATEMENT APPELLANT MADE TO A NEWSPAPER REPORTER Appellant argues the trial court committed prejudicial error in preventing appellant from testifying about his conversation with a newspaper reporter. Specifically, appellant argues he should have been able to introduce evidence, under Evid.R. 801 (D)(1)(b), of a conversation with a newspaper reporter which demonstrated he did not know how he killed the victim. This evidence would have established, as appellant claimed, that the police planted words and phrases in his written statement, i.e., that appellant knew how he killed the victim. Since this evidence would have been relevant to appellant's defense, the trial court abused its discretion in denying its admittance. Appellant's third assignment of error is not well taken. B. STANDARD OF REVIEW: PROFFER OF EVIDENCE Evid.R. 103 states in pertinent part: (A) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and *** -15- (2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. Offer of proof is not necessary if evidence is excluded during cross-examination. An offer of proof serves the salutary purpose of assisting an appellate court in determining whether the lower court's exclusion of certain evidence was prejudicial to a substantial right of the complaining party. City of Cleveland v. Houston (July 21, 1994), Cuyahoga App, No. 65897, unreported. Thus, a party is required to meet two conditions in order to predicate error on the exclusion of evidence. First, the exclusion of the evidence must affect a substantial right of the party. Second, the substance of the excluded evidence must be made known to the trial court by proffer unless the substance is apparent from the context. State v. Gilmore (1986), 28 Ohio St.3d 190. B. APPELLANT'S FAILURE TO PROFFER ALLEGEDLY EXCLUDED TESTIMONY PRECLUDES CLAIMED ERROR Based on our review of the record sub judice, appellant has failed to exemplify any error. The record does not contain any ruling by the trial court to exclude or strike the evidence in question. Appellant's failure to obtain such a ruling on the record or to proffer the allegedly excluded testimony concerning the conversation appellant had with a newspaper reporter precludes any claim of error. -16- Appellant's third assignment of error is not well taken. Affirmed. -17- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, P.J. and NAHRA, J., CONCUR. DAVID T. MATIA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .