State v. Tucker

[This opinion has been published in Ohio Official Reports at 

81 Ohio St.3d 431

.]




             THE STATE OF OHIO, APPELLANT, v. TUCKER, APPELLEE.
                      [Cite as State v. Tucker, 

1998-Ohio-438

.]
Criminal law—Evidence—Miranda warnings not given—Statement made by
        defendant in county jail implicating himself in murder not the product of an
        interrogation by corrections officers, when—Motion to suppress properly
        denied by trial court, when—Admission of co-defendant’s taped statements
        harmless error, when.
     (No. 96-1627—Submitted December 3, 1997—Decided April 22, 1998.)
       APPEAL from the Court of Appeals for Shelby County, No. 17-95-10.
                                  __________________
        {¶ 1} Defendant-appellee, Louis Allen Tucker, was tried before a jury in the
Court of Common Pleas of Shelby County on charges of aggravated murder, in
violation of R.C. 2903.01, with a death penalty specification, and of aggravated
robbery, in violation of R.C. 2911.01. Tucker also faced gun specification charges
related to the murder and robbery charges.
        {¶ 2} The following facts were adduced at trial:
        {¶ 3} On March 9, 1994, the body of Thomas Herring was found in his
home. Herring’s death resulted from two gunshot wounds, either of which would
independently have caused his death. One of the wounds was a gunshot wound to
the victim’s upper chest; this wound came from a shot fired by a handgun. The
other wound was to the victim’s face; it was determined to have been caused by a
shotgun blast.
        {¶ 4} Shawn Burnham, an acquaintance of Tucker, related an eyewitness
account at Tucker’s trial of events that transpired on March 9, 1994.
        {¶ 5} Early in the morning of that day, at about 5:00 a.m., Burnham received
a phone call from his friend, Daniel Brock, asking Burnham to drive to Brock’s
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residence. Burnham was to transport Brock to an unspecified location, where
Brock wanted to obtain some guns. Burnham soon arrived at Brock’s house, and
picked up Brock and Tucker, who was also there. They went to Tucker’s brother’s
house, where the three got a gun to take with them.
       {¶ 6} They proceeded to Herring’s house, in rural Shelby County. Brock
and Tucker entered the house with Herring, while Burnham waited in his car.
Eventually, Herring, Brock, and Tucker went outside in back of the house with
some guns, and engaged in target shooting. The three reentered the house, with
Burnham still waiting in his car. Brock came outside to tell Burnham to wait, since
they would be a bit longer, and then Brock reentered the house.
       {¶ 7} Burnham, tired of waiting, went up to the house, knocked on the door,
and entered the kitchen of the house after Brock opened the door. When Burnham
went into the house, Brock had taken a seat at the kitchen table. Tucker was
standing across from Brock, holding a pistol. Herring was also seated at the table.
Burnham told Brock he was ready to leave, and Brock showed Burnham a gun,
saying he was going to buy it.
       {¶ 8} Burnham then heard a bang, looked over at Tucker, and realized that
Tucker had shot Herring with the pistol. Immediately after that, Brock stood up
with a shotgun that had been on the table, and also shot Herring, in the face, at close
range. Herring fell to the floor, and Burnham ran from the house to his car.
       {¶ 9} Burnham started his car, but before he could leave, Brock came out
of the house carrying the shotgun and came up to Burnham’s car. Brock told
Burnham that he would kill him if he left. Burnham then waited in the car while
Tucker and Brock brought some guns out and put them into the car. The three left
and went to the home of Tucker’s brother. Tucker carried the guns into the house,
and remained there. Burnham took Brock home, and then went home himself.
       {¶ 10} Shanda Grieves testified at Tucker’s trial that she received a phone
call from Brock around the date of Herring’s murder asking her to take Tucker and




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                                January Term, 1998




Brock that day to southern Kentucky in her car. Prior to their departure, Brock and
Tucker borrowed her car for a time. Then she took them to Kentucky, where Tucker
and Brock retrieved guns from her car and took them into a house. Tucker remained
in Kentucky with relatives while Grieves and Brock returned to Ohio. Tucker later
was arrested in Kentucky, and returned to Ohio by authorities.
        {¶ 11} While awaiting trial, Tucker was held in the Logan County Jail. On
December 4, 1994, Tucker made a statement to Logan County corrections officers
implicating himself in the murder of Thomas Herring, and admitted to taking the
guns.
        {¶ 12} Prior to the start of Tucker’s trial, the trial court, after holding a
hearing, denied Tucker’s motion to suppress the statement made by Tucker to the
Logan County corrections officers.
        {¶ 13} At Tucker’s trial, the state presented evidence, including the
testimony of Shawn Burnham, Shanda Grieves, and other witnesses, regarding
Tucker’s participation in the killing and taking of the guns. The state also presented
the testimony of Deputy Sheriff Larry Garwood, a Logan County corrections
officer, who recited to the jury the statement Tucker had made while in the Logan
County Jail admitting his guilt. In addition, after Brock took the stand outside the
presence of the jury and invoked his Fifth Amendment privilege against self-
incrimination, the state played for the jury, over Tucker’s objection, a taped
question and answer session between Brock and Shelby County deputies made on
March 31, 1994, after Brock’s apprehension. This tape contained statements made
by Brock about the killing and taking of the guns.
        {¶ 14} After the state rested its case, Tucker presented no witnesses on his
behalf, and the case went to the jury, which found Tucker guilty of all charges
against him. The jury declined to recommend death after returning to consider the
imposition of the death penalty, and the trial court sentenced Tucker to life




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imprisonment with parole eligibility after thirty years on the aggravated murder
count and to terms of imprisonment on the other counts.
       {¶ 15} The court of appeals, in a split decision, reversed the convictions and
sentence and remanded for a new trial. That court found that the trial court should
have suppressed Tucker’s statement made in the Logan County Jail because Tucker
was subjected to the “functional equivalent of custodial interrogation” without
being given Miranda warnings. Furthermore, the court of appeals found that the
trial court erred in allowing Brock’s taped statements to be played for the jury as
evidence against Tucker.
       {¶ 16} The dissenter at the court of appeals would have found that Tucker
was not subject to impermissible interrogation, so that the trial court did not err in
denying Tucker’s motion to suppress. In addition, the dissenter would have found
the admission of both Tucker’s statement and Brock’s taped statements to be
harmless error, believing that there was overwhelming evidence introduced at trial
that Tucker was guilty of aggravated murder and aggravated robbery even without
considering those statements.
       {¶ 17} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
                                __________________
       James F. Stevenson, Shelby County Prosecuting Attorney, and Michael F.
Boller, Assistant Prosecuting Attorney, for appellant.
       Elsass, Wallace, Evans, Schnelle & Co., L.P.A., and Thomas A. Ballato, for
appellee.
                                __________________
       ALICE ROBIE RESNICK, J.
       {¶ 18} This case requires us to resolve two issues. The first is whether
Tucker was subjected to an “interrogation” by the corrections officers without being
given the requisite Miranda warnings. The second issue is whether admission of




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                                January Term, 1998




Brock’s taped statements was prejudicial error. For the reasons which follow, we
determine that neither of the trial court’s separate decisions to allow Tucker’s
statement and Brock’s statements into evidence was prejudicial error requiring a
reversal of Tucker’s convictions. We reverse the judgment of the court of appeals
and reinstate Tucker’s convictions.
                                           I
         {¶ 19} After his apprehension in Kentucky, Tucker was brought to the
Logan County Jail on April 12, 1994, and held there while awaiting trial. Tucker
was in a “day room” with several other inmates at the jail on December 4, 1994,
when corrections officers guarding him noticed that he was nervous and “wasn’t
himself.” Tucker had been watching television news coverage of Brock’s separate
trial.
         {¶ 20} The guards, Logan County Deputy Sheriff Larry Garwood and Jail
Corporal Phil Bailey, also with the Logan County Sheriff’s Department, decided to
remove Tucker from the day room and to take him to another room in the jail, away
from other prisoners. The guards gave him a cigarette and a soft drink, in an effort
to calm him down. Tucker had undergone some mental health counseling while
being detained, and the guards asked him if he wanted them to contact a mental
health professional to come to the jail. Tucker told them that he did not want a
counselor. Tucker began talking about Brock’s trial to the guards, telling them he
wished “this would just get over” so he could “start [his] time.” He had in the past
told the guards that it helped him to talk about it and to get it off his chest because
it helped him sleep. Tucker told the guards he was going to plead guilty when he
was tried (unless Brock got the death penalty, because he wouldn’t plead guilty
then). At this point, one of the guards remarked, “when this is all said and done,
I’d like to hear about what happened that day.” Tucker stated that he would tell
them “right now” what happened “if it doesn’t go any further.” One of the guards
said, “you don’t have to talk about it.” Tucker said it helped him to talk about it,




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and proceeded to tell the guards of the plan he and Brock came up with to rob
Thomas Herring’s house of the guns, describing the shootings of Herring in the
kitchen and the taking of Herring’s guns.
       {¶ 21} At the hearing held on Tucker’s motion to suppress, both Deputy
Garwood and Corporal Bailey testified to the circumstances surrounding Tucker’s
statement to them at the Logan County Jail, as well as to the details of the statement
itself. After the trial court denied the motion to suppress the state’s use of this
statement, Deputy Garwood also testified at Tucker’s trial, over renewed defense
objections, about the statement’s factual setting and its contents.
       {¶ 22} At issue is whether Tucker’s motion to suppress the statement should
have been granted by the trial court because he was subjected to an “interrogation”
without being given Miranda warnings at the time, so that the statement should not
have been used against him at his trial.        We must therefore consider what
“interrogation” means in this context.
       {¶ 23} In the course of its opinion in Miranda v. Arizona (1966), 

384 U.S. 436, 444

, 

86 S.Ct. 1602, 1612

, 

16 L.Ed.2d 694, 706

, the United States Supreme
Court, in establishing the well-known “Miranda rules” for advising suspects of
their rights, stated that “[b]y custodial interrogation, we mean questioning initiated
by law enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way.” In Rhode Island v. Innis
(1980), 

446 U.S. 291, 298

, 

100 S.Ct. 1682, 1688

, 

64 L.Ed.2d 297, 306

, the court
undertook to refine the contours of the term “interrogation” in light of the use of
the word “questioning” in Miranda.
       {¶ 24} The Innis court determined that the Miranda rules are not so narrow
as to apply to only “those police interrogation practices that involve express
questioning of a defendant * * *.” Innis, 

446 U.S. at 298

, 

100 S.Ct. at 1688

, 

64 L.Ed.2d at 306

. The Innis court read the term “interrogation” more broadly, to also
include the more subtle “techniques of persuasion” sometimes employed by police




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                                January Term, 1998




officers that do not rise to the level of express questioning, but which also can be
extremely coercive in some situations. 

Id.,

446 U.S. at 299-300

, 

100 S.Ct. at 1689

,

64 L.Ed.2d at 306-307

.
       {¶ 25} However, as the Innis court emphasized, the Miranda rules do not
operate to prevent the use as evidence of every statement made by a person in
custody: “ ‘Confessions remain a proper force in law enforcement. Any statement
given freely and voluntarily without any compelling influences is, of course,
admissible in evidence.      The fundamental import of the privilege [against
compulsory self-incrimination] while an individual is in custody is not whether he
is allowed to talk to the police without the benefit of warnings and counsel, but
whether he can be interrogated.’ ” (Emphasis sic.) 

Id.,

446 U.S. at 299-300

, 

100 S.Ct. at 1689

, 

64 L.Ed.2d at 307

, quoting Miranda, 

384 U.S. at 478

, 

86 S.Ct. at 1630

, 

16 L.Ed.2d at 726

. Moreover, the Innis court determined that                 “
‘[i]nterrogation,’ as conceptualized in the Miranda opinion, must reflect a measure
of compulsion above and beyond that inherent in custody itself.” 

446 U.S. at 300

,

100 S.Ct. at 1689

, 

64 L.Ed.2d at 307

.
       {¶ 26} Thus, to determine whether a suspect has been “interrogated,” the
heart of the inquiry focuses on police coercion, and whether the suspect has been
compelled to speak by that coercion. This compulsion can be brought about by
express questioning, but also can be brought about by the “functional equivalent”
of express questioning, i.e., “any words or actions on the part of the police (other
than those normally attendant to arrest and custody) that the police should know
are reasonably likely to elicit an incriminating response from the suspect.”
(Footnotes omitted.) 

Id.,

446 U.S. at 300-301

, 

100 S.Ct. at 1689-1690

, 

64 L.Ed.2d at 308

. See, also, State v. Williams (1983), 

6 Ohio St.3d 281

, 6 OBR 345, 

452 N.E.2d 1323

, paragraph five of the syllabus (“For purposes of application of the
Miranda rule, custodial interrogation refers not merely to explicit questioning but
also to any words or actions on the part of police officers, excepting those normally




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incident to arrest and custody, that the officers should know are reasonably likely
to induce an incriminating response from the suspect.”); State v. Knuckles (1992),

65 Ohio St.3d 494

, 

605 N.E.2d 54

, paragraph two of the syllabus (“When a
statement, question or remark by a police officer is reasonably likely to elicit an
incriminating response from a suspect, it is an interrogation.”).
        {¶ 27} Initially, there is no evidence in the record of any actual coercive
practices employed by the corrections officers. It is clear that no actual express
questioning, in the sense of the first prong of Miranda regarding “interrogation,”
occurred in this case. Furthermore, the officers cannot be said to have designed
their words or actions in an attempt to elicit an incriminating response from Tucker,
so that it is apparent that the officers did not invite, nor did they expect, a response.
The testimony of the corrections officers regarding the making of Tucker’s
statement reveals that no questions meant to elicit information from Tucker about
the incidents at the Herring home were voiced. However, pursuant to Innis, the
inquiry does not stop there. In this context, what the officers should have known
as to the reasonable impact their statements would have had on Tucker is just as
important.
        {¶ 28} Our inquiry thus focuses on the second, “functional equivalent,”
interrogation prong of Miranda, as discussed in Innis. Even if the words or actions
of the corrections officers were not designed to elicit an incriminating response,
should the officers have realized that their conduct would, in fact, elicit an
incriminating response? In other words, should the officers have realized that their
actions, while not coercive, were being interpreted as coercive by the suspect,
Tucker, so that Tucker felt compelled to speak?
        {¶ 29} Our answer to this question is “no.” The concept of “functional
equivalent of questioning” compulsion would have to be extended beyond its
recognized boundaries as explained in Innis in order that “functional equivalent”
compulsion sufficient to invoke the Miranda principles be found on the facts of this




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                                      January Term, 1998




case.1 On the record before us, the officers reasonably should not have anticipated
that their actions or words would be likely to evoke an incriminating response.
         {¶ 30} Tucker himself is the one who voluntarily turned the conversation to
the subject of Herring’s killing. Tucker told the guards he was going to plead guilty,
because then he could “start [his] time” and get this “over.” Any further interaction
between Tucker and the guards was a continuation of the conversation and flowed
from the initial volunteered incriminating statement of Tucker.
         {¶ 31} Even given the guards’ knowledge of Tucker’s past mental health
counseling, and given their awareness of his uneasiness over seeing coverage of
Brock’s trial on television, their interaction with him has all the earmarks of casual
conversation. The officers were simply looking out for Tucker’s well-being. They
engaged him in casual conversation, as they had in the past when they observed he
was anxious or nervous, and were attempting to calm him.
         {¶ 32} Tucker had never confessed any details in the past to them of his
participation in the events at Herring’s home, and there was no reason for them to
anticipate that he would confess this time. Deputy Garwood testified at the
suppression hearing that he was a Logan County deputy, and that he really did not
know the details of Tucker’s case, because Tucker was a suspect in Shelby County
and was to be tried in Shelby County. Moreover, the musings of Deputy Garwood
that “when this is all said and done, I’d like to hear about what happened that day”
were not “reasonably likely to elicit an incriminating response.”
         {¶ 33} This statement by the corrections officer was similar to the officers’
statements at issue in Innis that were characterized by the United States Supreme
Court as “offhand remarks.” 

446 U.S. at 303

, 

100 S.Ct. at 1691

, 

64 L.Ed.2d at 309

.


1. In Innis, 

446 U.S. at 303

, 

100 S.Ct. at 1691

, 

64 L.Ed.2d at 309

, the Supreme Court pointed out
that “subtle compulsion” must not be equated with interrogation. Even if a suspect can be said to
have been subjected to “subtle compulsion,” “[i]t must also be established that a suspect’s
incriminating response was the product of words or actions on the part of the police that they should
have known were reasonably likely to elicit an incriminating response.” (Footnote omitted.)




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                             SUPREME COURT OF OHIO




“[T]he police surely cannot be held accountable for the unforeseeable results of
their words or actions.” 

Id.,

446 U.S. at 301-302

, 

100 S.Ct. at 1690

, 

64 L.Ed.2d at 308

. We conclude that Tucker was not “interrogated,” so that he was not subjected
to the “functional equivalent” of questioning. Therefore, his entire statement must
be considered to have been voluntarily made. “Volunteered statements of any kind
are not barred by the Fifth Amendment and their admissibility is not affected by
our holding today.” Miranda, 

384 U.S. at 478

, 

86 S.Ct. at 1630

, 

16 L.Ed.2d at 726

.
        {¶ 34} Moreover, there is no requirement that officers interrupt a suspect in
the course of making a volunteered statement to recite the Miranda warnings. As
Tucker himself voluntarily turned the conversation to the Herring killing, and the
rest of the conversation was a continuation in the same vein, Tucker cannot be said
to have been interrogated. The guard’s statement that “you don’t have to talk about
it” (produced in response to Tucker’s statement about talking “if it doesn’t go any
further”) was merely one comment made as part of the ongoing conversation.
        {¶ 35} While it is obvious that the guard’s statement is no substitute for
Miranda warnings, it does not have to be, because Miranda warnings were not
required. This statement, which clearly shows that the guards were not putting
pressure on Tucker, further supports that the entire interaction between Tucker and
the guards was an ongoing casual conversation.
        {¶ 36} For all the foregoing reasons, we reverse the judgment of the court
of appeals on this issue. Tucker’s motion to suppress was properly denied by the
trial court.
                                          II
        {¶ 37} When Daniel Brock was called to the stand outside the presence of
the jury in Tucker’s trial, he invoked his Fifth Amendment rights and did not testify.
The trial court declared Brock to be unavailable as a witness. The state then called
to testify outside the presence of the jury Deputy Sheriff Doug Schlagetter, a




                                         10
                                       January Term, 1998




detective with the Shelby County Sheriff’s Department. Schlagetter recounted how
he had interviewed Brock on the date of Brock’s arrest, March 31, 1994.
         {¶ 38} Schlagetter had advised Brock of his Miranda rights, Brock agreed
to waive those rights, and Schlagetter proceeded to inquire of Brock about the
Herring murder. The more than an hour interview, wherein Brock related a version
of what happened at the Herring house on March 9, 1994, was recorded on audio
tape.
         {¶ 39} Schlagetter told the trial judge of the circumstances surrounding the
making of Brock’s statements, and referred generally to the contents of the tape
without getting into specifics. Schlagetter testified that, from the answers given by
Brock at the time, as well as from later evidence acquired during the investigation
regarding the Herring murder, it became evident that Brock had told him “numerous
lies” during the interview. Schlagetter also agreed on cross-examination that a
constant theme in Brock’s story was an attempt to shift the blame to Tucker and
away from Brock. Schlagetter did not testify to the jury at this point in the trial,
and the question of the tape’s admissibility was deferred to a later time.
         {¶ 40} Later on in the trial, the trial court heard arguments outside the
presence of the jury from the attorneys on whether Brock’s taped statements should
be played for the jury. The trial court ruled the tape admissible under Evid.R.
804(B)(3),2 as a statement against Brock’s interest. Schlagetter took the witness
stand, this time in the presence of the jury, and testified to the circumstances of

2. Evid.R. 804(B) provides:
          “Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant
is unavailable as a witness:
          “* * *
          “(3) Statement against interest. A statement that was at the time of its making so far
contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant
to civil or criminal liability, or to render invalid a claim by the declarant against another, that a
reasonable person in the declarant’s position would not have made the statement unless the declarant
believed it to be true. A statement tending to expose the declarant to criminal liability, whether
offered to exculpate or inculpate the accused, is not admissible unless corroborating circumstances
clearly indicate the trustworthiness of the statement.”




                                                  11
                                  SUPREME COURT OF OHIO




Brock’s taped statements. Brock’s taped statements were then played for the jury,
after the trial judge instructed the jury to listen “with due regard and grave caution.”
         {¶ 41} For much of the tape, Brock repeatedly denied that he had fired
either of the shots at Herring, and claimed that Tucker had shot Herring twice, with
different guns. Brock claimed that Burnham and Tucker were out to pin the Herring
murder on him, and that he was afraid of Tucker. Finally, near the end of the
session, Brock admitted that he shot Herring with a shotgun, after Tucker had shot
Herring first. Brock claimed that Tucker threatened to shoot him if he did not fire
at Herring.
         {¶ 42} After the tape was played, Schlagetter on cross-examination verified
that many of the details in Brock’s story were inconsistent with the other evidence
that had been discovered during the investigation of the Herring case.
         {¶ 43} At issue is whether Brock’s taped statements should have been used
against Tucker. This case potentially raises the questions of whether the trial court
abused its discretion in admitting Brock’s taped statements against Tucker under
Evid.R. 804(B)(3), as well as whether the admission of the taped statements
violated Tucker’s Sixth Amendment right to confront adverse witnesses.
         {¶ 44} Tucker urges that, based on the facts of this case, this court should
“follow the lead” of the United States Supreme Court in Williamson v. United States
(1994), 

512 U.S. 594

, 

114 S.Ct. 2431

, 

129 L.Ed.2d 476

. In Williamson, the
Supreme Court clarified the scope of Fed.R.Evid. 804(b)(3), the federal version of
the hearsay exception for statements against penal interest, and determined that
Fed.R.Evid. 804(b)(3) “does not allow admission of non-self-inculpatory
statements, even if they are made within a broader narrative that is generally self-
inculpatory.” 

512 U.S. at 600-601

, 

114 S.Ct. at 2435

, 

129 L.Ed.2d at 483

.3


3. The Supreme Court in Williamson, 

512 U.S. at 605

, 

114 S.Ct. at 2437

, 

129 L.Ed.2d at 486

, made
clear that its decision was based solely on its interpretation of Fed.R.Evid. 804(b)(3), and was not
dependent on Confrontation Clause analysis.




                                                12
                                     January Term, 1998




        {¶ 45} Tucker argues that this court should divide Brock’s statements into
self-inculpatory (admissible) and self-exculpatory (inadmissible) portions. Tucker
further argues that, if Williamson’s interpretation of Fed.R.Evid. 804(b)(3) is
determined by this court to apply to Ohio’s Evid.R. 804(B)(3), then the trial court
should have admitted only a very small part of Brock’s statements—the part in
which Brock admitted shooting Herring—so that the trial court erred in admitting
the statements in their entirety.4
        {¶ 46} The trial court found the statements to be admissible under the
hearsay exception of Evid.R. 804(B)(3) as being against Brock’s interest, relying
on State v. Gilliam (1994), 

70 Ohio St.3d 17

, 

635 N.E.2d 1242

. In Gilliam, this
court found that the admission of a co-defendant’s taped statement after the co-
defendant became unavailable to testify did not violate the defendant’s Sixth
Amendment right to confront adverse witnesses. The court determined that the trial
court did not abuse its discretion, because the statement at issue was clearly a
statement against interest, in that it clearly tended to subject the declarant to
criminal liability. 

Id.,

70 Ohio St.3d at 20

, 

635 N.E.2d at 1245

. Furthermore, the
Gilliam court found that corroborating circumstances indicated the trustworthiness
of the statement. 

70 Ohio St.3d at 20-21

, 

635 N.E.2d at 1246

.
        {¶ 47} The state urges that “[i]nconsistencies in a co-defendant’s
confession, which confession is otherwise corroborated by extrinsic circumstances,
are relevant to its weight rather than its admissibility.”                  The state, while
acknowledging that Brock’s statements are fraught with inconsistencies, points out
that some of the details included in Brock’s statements, for example that he, Tucker,
and Burnham were all at the Herring house, are accurate. The state argues that,



4. The state points out in its brief that Tucker argued at trial only that Brock’s statements were
inadmissible in their entirety—and that Tucker never argued to the trial court that the statements
could be divided into admissible and inadmissible portions, with only the self-inculpatory
statements of Brock played to the jury.




                                               13
                             SUPREME COURT OF OHIO




pursuant to Gilliam, the best course in this situation is for the trial court to give a
limiting instruction to the jury, and then to admit the full statements, with the jury
itself evaluating which parts of the statements are truthful and which are not.
       {¶ 48} We recognize that there are significant factors present in this case
that arguably were not present in Gilliam. The court of appeals found that the taped
statements should not have been admitted against Tucker because the statements
were not truly against Brock’s interest, and also found, without citation, that “the
corroborating circumstances required for admission of this type of hearsay
statement clearly do not exist.”
       {¶ 49} We need not resolve whether Brock’s taped statements should have
been admitted by the trial court. In State v. Williams, at paragraph six of the
syllabus, this court held that “[w]here constitutional error in the admission of
evidence is extant, such error is harmless beyond a reasonable doubt if the
remaining evidence, standing alone, constitutes overwhelming proof of defendant’s
guilt.” Because the record demonstrates that overwhelming proof of Tucker’s guilt
was presented at trial without reference to Brock’s taped statements, the admission
of those statements, if error, was harmless error.
       {¶ 50} The essentially uncontroverted testimony of other witnesses at
Tucker’s trial, particularly of Shawn Burnham, Shanda Grieves, and Deputy
Garwood, provided overwhelming proof sufficient to convince the jury of Tucker’s
guilt. In addition, physical and circumstantial evidence supported the state’s theory
of events that took place. A unique facet of this case is the amount of credible
evidence available for the jury to use as a basis to evaluate Brock’s statements.
       {¶ 51} It is extremely doubtful that the admission of Brock’s taped
statements actually could have misled the jury in this case. There can be little doubt
after examining the record that no reasonable juror would have accepted Brock’s
versions of events, as related on the tape, as plausible. No rational jury member
could have put much value on Brock’s statements as proving “the truth of the




                                          14
                                   January Term, 1998




matter[s] asserted” by Brock. See Evid.R. 801(C). Most of the tape was so
transparently self-serving toward Brock’s attempts to exonerate himself that it is
doubtful that the tape had much probative value at all.
          {¶ 52} Among the factors that point to the tape’s lack of influence on the
jury verdict are the following:
•         Brock’s statements on the tape directly contradicted the eyewitness
testimony offered by Burnham. While Brock attempted to place blame on Tucker
for orchestrating the robbery and committing the killing, Burnham’s testimony,
already heard by the jury, established that Brock was the organizer of the trip, and
that Brock was by no means an unwilling participant. Rather than making Tucker
appear more guilty, the unlikeliness of Brock’s statements, when contrasted with
Burnham’s testimony, tended to indicate that Brock’s statements were at best an
improbable effort at self-exculpation.
•         The taped statements themselves are a disjointed series of responses to
questions, and are riddled with internal inconsistencies, the most glaring of which
is that Brock repeatedly denies that he shot Herring, until, near the end of the tape,
he does an about face and admits to it (with the hollow claim that Tucker made him
do it).
•         Detective Schlagetter, who testified before and after the tape was played,
stated for the jury that there were obvious inconsistencies in Brock’s versions of
events.
•         The trial court gave the jury a limiting instruction, telling the jurors to listen
to Brock’s statements with caution.
          {¶ 53} For all the reasons detailed above, we determine that Tucker was not
prejudiced by the trial court’s admission of the tape into evidence, so that the trial
court’s decision to allow the tape to be played, if error, was harmless error.




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                                        III
       {¶ 54} In conclusion, we determine that Tucker’s statement was not the
product of an “interrogation,” so that the trial court properly denied the motion to
suppress. In addition, we find that regardless of whether Brock’s taped statements
were improperly admitted into evidence against Tucker, the admission of the
statements was harmless error. Accordingly, we reverse the judgment of the court
of appeals granting Tucker a new trial, reinstate the judgment of the trial court on
the jury’s verdict, and sustain Tucker’s convictions and sentence.
                                                                Judgment reversed.
       DOUGLAS, F.E. SWEENEY, COOK and LUNDBERG STRATTON, JJ., concur.
       MOYER, C.J., and PFEIFER, J., dissent.
                              __________________




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                                 January Term, 1998




        PFEIFER, J., dissenting.
        {¶ 55} I dissent from the majority opinion because allowing both Tucker’s
statement and Brock’s statements into evidence constituted prejudicial error, which
required a reversal of Tucker’s convictions.
                                          I
        {¶ 56} Coercion can occur in places other than the back seat of a police
cruiser or in a stifling hot interrogation room with a single light bulb shining in an
accused’s face. The “good cop/bad cop” treatment is not a necessary ingredient in
coercing an incriminating statement. In this case, we see the coercive effect of the
“good cop/good cop” treatment.
        {¶ 57} In Rhode Island v. Innis (1980), 

446 U.S. 291, 301

, 

100 S.Ct. 1682, 1689-1690

, 

64 L.Ed.2d 297, 308

, the court recognized that subtle persuasion can
constitute a form of interrogation:
        “[T]he term ‘interrogation’ under Miranda refers not only to express
questioning, but also to any words or actions on the part of the police (other than
those normally attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the suspect. The latter
portion of this definition focuses primarily upon the perceptions of the suspect,
rather than the intent of the police.”
        {¶ 58} Tucker’s perception obviously was that he was among friends.
Garwood and Bailey had taken Tucker from the day room, away from the other
prisoners, and into a separate room. They had given him a cigarette and a drink.
Tucker believed his statements would be kept just among the three of them. As the
court stated further in Innis:
        “Any knowledge the police may have had concerning the unusual
susceptibility of a defendant to a particular form of persuasion might be an
important factor in determining whether the police should have known that their




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words or actions were reasonably likely to elicit an incriminating response from the
suspect.” 

Id. at 302

, 

100 S.Ct. at 1690

, 

64 L.Ed.2d at 308, fn. 8

.
       {¶ 59} Tucker was in an agitated state. The guards knew that he was in that
state because he had been viewing Brock’s trial. The majority admits that in the
past Tucker had told the guards that it helped him to talk about the crime to get it
off his chest and help him sleep. Knowing that Tucker was agitated and that telling
his story made him feel better, one guard stated that he would like to hear Tucker’s
story. The guards should have known that the request would likely yield an
incriminating response.    Any doubt should have been resolved when Tucker
prefaced his remarks with the admonition that his story would go no further.
       {¶ 60} The guards’ treatment of Tucker was the functional equivalent of
questioning—they took him to a secluded room, made him comfortable, and
basically asked him to confess. Tucker was clear that he would not talk if he were
not among friends and made it clear that he would tell the guards what happened
only if it went no further, i.e., only if what he said would not be used against him
in a court of law. I would find that Miranda warnings were required, and that
Tucker’s motion to suppress should have been granted.
                                             II
       {¶ 61} The majority seems to agree that the trial court erred in admitting the
entirety of Brock’s statements into evidence. The statements, rather than falling
under the hearsay exception for statements against interest, were almost entirely in
Brock’s interest, blaming the crime on Tucker. Unlike the majority, I do not believe
that the remaining evidence against Tucker is overwhelming, and would affirm the
appellate court’s granting of a new trial.
       MOYER, C.J., concurs in the foregoing dissenting opinion.
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