The opinion
Whiteside, J.,
dissenting. Because I am unable to concur in the overruling of the second assignment of error, I must dissent.
While I agree that the inculpatory statement made by defendant during the in-custodial interrogation was voluntary in the traditional sense — the burden being upon defendant to prove that it was involuntary — I do not believe
*103
that the state has sustained its burden of establishing that defendant knowingly, intelligently and voluntarily waived his right not to make the statement. The distinction to which I refer is well set forth in
State
v.
Kassow
(1971), 28 Ohio St. 2d 141 , the first, third and fourth paragraphs of the syllabus of which read as follows:
“1. The rule of
Miranda
v.
Arizona
(1966), 384 U. S. 436 , which requires proof of the voluntary waiver of the Fifth Amendment
right not to respond
to police questioning, 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.
Harris
v.
New York
(1971), 401 U. S. 222 , 28 L. Ed. 2d 1 ;
Spears
v.
State
(1853), 2 Ohio St. 583 .
“3. Upon the trial of the issues raised by a pre-trial motion to suppress a statement claiming that the statement was compelled by mistreatment, threat of disadvantage, or hope of reward, the burden is upon the accused to prove his claim in that respect.
Rufer
v.
State
(1874), 25 Ohio St. 464 .
“4. Prior to the use of an in-custodial statement, given in response to police interrogation, against the accused in its ease in chief, the state has the burden of establishing that the accused knowingly, intelligently and voluntarily waived his Fifth Amendment right not to make the statement.
Miranda
v.
Arizona
(1966), 384 U. S. 436 .”
Of course, the controlling rule that must be applied is that established by
Miranda
v.
Arizona
(1966), 384 U. S. 436 . Whether we agree or disagree with the
Miranda
rule, we are bound to follow it.
Miranda
has become so well known as to be almost a part of our everyday language of society. The
Miranda
rule was well summed up in
Harris
v.
New York
(1971), 401 U. S. 222, 224 , as follows:
“Miranda
barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel.”
Miranda
itself stated the rule, at page 444:
“* *
* the prosecution may not use statements, wheth
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er exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By 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. * * * Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used' as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. * * *”
The Supreme Court stated further in
Miranda ,
at page 470:
“An individual need not make a preinterrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given. * * *”
The court stated further, at page 475:
“If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. * * *
“An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. * # # Moreover, where in-custody interrogation is invol
*105
ved, there is no room for the contention that the privilege is waived if the individual answers some questions or gives some information on his own prior to invoking his right to remain silent when interrogated.”
The Supreme Court restated the rule at page 479, as follows:
“He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.”
Thus, in addition to the traditional right to remain silent,
Miranda
affords the right to consult with counsel prior to interrogation and to have counsel present during interrogation. Unless such right to counsel is afforded or waived,
Miranda
requires the exclusion of statements made without the presence of counsel.
The issue with which we are confronted is whether the state has sustained its heavy burden of proving that the defendant knowingly and intelligently waived his right to counsel pursuant to
Miranda .
Defendant was advised of his rights in a proper manner as set forth in the majority opinion. However, he immediately thereafter was asked to sign the following waiver :
“I have read the statement of my rights shown above and I understand what my rights are and I’m willing to answer questions and make a statement. I understand and know what I am doing. No promise or threats have been made to me and no pressure of any kind has been used against me,”
*106
Defendant refused to sign the waiver without first consulting with his attorney. "While
he did make
statements during the interrogation, he objected to the taking of notes by the officer conducting the interrogation unless he could, first, talk to his attorney. The officer’s testimony in this regard was, in part, as follows:
“* * * jpe stated, in essence, that he would not sign anything and would not write anything down on paper until he talked to his attorney * * *.
“* * * pjg jj dicated that he would make a statement, but he would not sign a rights waiver, for the matter, would not sign anything, would not put anything down on paper.”
This is not inconsistent with defendant’s testimony that he understood that if he signed a rights waiver and if information were written down it could be used against him, but that he. did not understand that what he was saying orally could be used against him.
Defendant refused to sign a waiver without first consulting with an attorney. One of the lights that defendant was asked to waive was the
Miranda
light to counsel during interrogation. Although such a waiver need not necessarily be in writing,
Miranda
holds that there can be no effective waiver of the right to counsel during interrogation unless it is “specifically made” after the
Miranda
warnings are given. Here, there is no evidence of a specific waiver of the right to counsel during interrogation. Rather, we are asked to imply such a waiver from the facts that defendant did not specifically request an.attorney to be present and continued to make a statement, after he refused +o sign a written waiver of his right without first consulting with an attorney. But,
Miranda
also holds that “his failure to ask for a lawyer does not constitute a waiver” and that “a valid waiver will not be presumed simply from the silence of the accused after warnings are given.”
Two cases from other jurisdictions are of particular significance inasmuch as they both involve situations where the defendant refused to sign a written waiver of his rights without first consulting with his attorney but the interrogation continued gnd a statement was obtained. In
United
*107
States
v.
Nielsen
(C. C. A. 7, 1968), 392 F. 2d 849 , it is stated at page 853:
‘ ‘ There can be no question that when the defendant in the instant case refused to sign anything until he saw his attorney, he indicated a desire to remain
‘
silent. ’ * * *
“Here the defendant’s refusal to sign the waiver form, followed by an apparent willingness to allow further questioning, should have alerted the agents that he was assuming seemingly contradictory positions with respect to his submission to interrogation. Instead of accepting the defendant’s equivocal invitation, the agents should have inquired further of him before continuing the questioning to determine whether his apparent change of position was the product of intelligence and understanding or of ignorance and confusion. However, no further inquiry took place. In the absence of such an inquiry, we are compelled to conclude that the defendant’s negative responses to the questions asked him were not made after a knowing and intelligent waiver of his rights. * * *”
The second case is a decision of the Supreme Court of Indiana in
Brown
v.
State
(1971), 256 Ind. 558 , 270 N. E. 2d 751 . In that case it is stated at page 753:
“Appellee argues that although appellant at first refused to waive his rights, the fact that he later confessed was an implicit waiver of those rights. A heavy burden rested on the appellee at trial to show a voluntary and knowing waiver by appellant. * * *
“We hold that the appellee did not carry this burden. After appellant’s explicit refusal to waive his right to have an attorney present and to remain silent appellant should not have been questioned any further.
*
* *
“It is clear that appellant indicated his desire to talk to an attorney before waiving his rights. Deputy Ferguson testified that appellant refused to sign a waiver of rights because he did not want to sign anything until he had had a chance to talk to an attorney.”
The written waiver, when obtained, constitutes evidence of waiver. A refusal to sign a waiver before first consulting with an attorney is a relevant factor to be considered in determining the validity of an asserted waiver.
*108
Where there is an express refusal to sign a written waiver until an attorney is consulted, to be consistent with
Miranda ,
the evidence of a subsequent oral waiver must be express and cannot be implied merely from the fact that interrogation continued after such refusal and a statement was obtained.
Another case of significance is
United States
v.
Phelps
(C. C. A. 5, 1971), 443 F. 2d 246 , wherein it is stated, at page 249:
“In the present case we are unable to tell whether Phelps validly waived his right to remain silent or not. It is clear that after Phelps refused to sign the waiver, the officers should have ceased interrogating him. It is also clear that subsequent conversation did occur between the investigators and Phelps. The hearing on the motion to suppress does not reveal, however, whether the subsequent questions by the officers were the result of voluntary conversation initiated by Phelps or whether these questions were initiated by the officers themselves without any instigation by Phelps. If the former situation obtains, then under our decision in Hophins, Phelps’ subsequent answers would be admissible. If the latter situation obtains, however,
Miranda
compels that we hold the answers inadmissible. * * *”
In
United States
v.
Van Dusen
(C. C. A. 1, 1970), 431 F. 2d 1278 , although the court held that the prosecution had sustained his burden of proving a knowing and intelligent waiver, the court stated, at page 1280:
“* *
* In the delicate area of advising one of his rights, where testimony is often conflicting, the act of refusing to sign a waiver is concrete and indisputable. When such an act occurs, followed by a willingness to tail*:, this is a signal of some quirk of reasoning which may simply be a dislike of affixing a signature to any document but which may be more. It may indicate a serious misunderstanding on the part of the accused. In such a succession of events, we wish to make it clear to the courts and prosecutors in this circuit that the burden of persuasion resting on the prosecution measurably increases. It would, we think, be folly to try to cast this principle in the form of
*109
a specific required practice. Indeed, were we so to rule, a suspect could, by refusing to sign and subsequently talking freely, enjoy the luxury of an immunity bath at no price at all.”
Also pertinent is
United States
v.
Priest
(C. C. A. 5, 1969), 409 F. 2d 491 , wherein the situation is described by the court, at 492, as follows:
“* * * It is conceded by everyone concerned that at this point Priest said he did not want to sign the form until he had consulted with an attorney. This obvious request for an attorney was ignored, the interrogation proceeded, and in due course a confession was obtained.”
The court further stated, at page 493:
“* * * Situations to which
Miranda
applies, however, are governed not by the general test of voluntariness but rather by the more precise test of whether the constitutionally required warning was given and, if given, whether the rights set out by that warning were knowingly, intelligently, and voluntarily waived. Where there is a request for an attorney prior to any questioning, as in this case, a finding of knowing and intelligent waiver of the right to an attorney is impossible. * * *”
On the other hand,
Klingler
v.
United States
(C. C. A. 8, 1969), 409 F. 2d 299 , appears to support the majority herein and to be inconsistent with the above authority. In that case it is stated, at page 308:
“Klingler again answered that he understood his rights. He read the printed form, but refused to sign it on the ground that he didn’t ‘sign anything without a lawyer.’
6 "
***
“In this case, Klingler was advised both orally and in writing of his constitutional rights. He stated that he understood his rights and he selectively answered Cronin’s questions. Klingler’s refusal to sign the written waiver form without the presence of counsel is not fatal;
Miranda
does not require a written waiver, but only a waiver made ‘voluntarily, knowingly and intelligently/ * * * We believe that Klingler ‘voluntarily, knowingly and intelligently’ waived his right to counsel with regard to the admissions in question. That Klingler chose of his own free will to
*110
speak without the assistance of counsel should give him no cause for complaint.”
Defendant also contends that his statements should not be admissible because he was not, immediately upon his indication of a desire to consult with an attorney, afforded facilities to do so by the police. R. O. 2935.20 does provide, in pertinent part, that:
“After the arrest, detention, or any other taking into custody of a person, with or without a warrant, such person shall be permitted forthwith facilities to communicate with an attorney at law of his choice who is entitled to practice in the courts of this state, or to communicate with any other person of his choice for the purpose of obtaining counsel.
See, also, E. C. 2935.11 which requires facilities by which an accused may communicate with an attorney to be “speedily permitted” prior to the time a person arrested for a felony is “confined or removed from the county of arrest.” In the unreportod decision in
State
v.
Purdie,
Court of Appeals for Franklin County, No. 9793, rendered January 12, 1971, this court held that “R. C. 2935.20 does not require that the police officers affirmatively offer such facilities to a person arrested.” However, when a person arrested indicates a desire to consult with an attorney, he must be “permitted forthwith facilities to communicate with an attorney.” The interrogation here continued for an hour and at least thirty minutes after defendant’s request. He was not denied the right to consult with an attorney, and did not expressly request facilities to communicate with his attorney. R. C. 2935.20 does not condition its operation upon such a request. However, where, as here, an accused indicates a desire to consult with an attorney before he signs a waiver of his
Miranda
rights, the fact that the police do not forthwith furnish facilities to the accused for such a communication with the attorney is a relevant factor to be considered in determining whether or not there has been a knowing, intelligent and voluntary waiver of the
Miranda
right to consult with counsel prior to interrogation. The uncontradicted testimony of defendant herein is that he was not afforded facilities to communicate with an attorney until two days after the interroga/
*111
tion. The officer testified that defendant was not given an opportunity to use the telephone prior to interrogation, apparently because he did not specifically ash to, but was given such an opportunity “after he was slated..” The statement of the officer, in response to a question whether he attempted to call the attorney specified by defendant, that “our office did * * * I personally did not” is entitled to little if any weight. First, it is strictly hearsay. There also is no indication as to when this “attempt” was made or whether it was successful. The officer gave no indication that the “attempt” was made at his request prior to the interrogation, or that defendant was at anytime made aware of such “attempt.”
Of course, even where a statement is obtained in violation of Miranda, its use at trial may be harmless error. As stated in the third and fourth paragraphs of the syllabus of
State
v.
Edgell
(1972), 30 Ohio St. 2d 103 :
“3. The use of a statement against an accused taken in transgression of
Miranda
may be found to be harmless error under the rule of
Chapman
v.
California
(1967), 386 U. S. 18 .
“4. Where the unchallenged evidence against an accused is so overwhelming that a conviction can be said to be inevitable beyond a reasonable doubt a
Miranda
transgression is harmless.”
Part of the statement of defendant introduced into evidence might be so found. The testimony that defendant admitted being in the Henry Street Market at the time of the shooting and that he was in the rear of the store and started towards the front of the store when he saw Carmichael reach in his pocket and that when he was in the area of the front door he heard a shot and turned around and saw Carmichael with a gun in his hand might all constitute harmless error in this case. However, the following cannot constitute harmless error:
‘ •' He stated that while inside the market he told Charles Carmichael that it was not the right time.”
The clear inference from this statement by defendant is that there was some plan of action between him and Carmichael which defendant felt should be postponed. The
*112
prosecutor in his argument before the trial court made repeated reference to this statement.. Furthermore, and more important, the trial court, in its decision made specific reference to the statement as one of the facts proven, stating:
“Immediately before or at the time of the shooting, the Defendant said to Charles Carmichael, This isn’t the time. * *
The trial court further stated:
“From all of the facts thus under consideration, the Court is of the opinion that a robbery was attempted, that the killing of Donald Reed occurred in the course of the attempted robbery and that the three men, including the Defendant herein, were joint participants.”
Furthermore, the third member of the group, Sowell, after specifically being granted immunity from prosecution, testified, uncontradicted except by circumstantial evidence and the alleged statement by the defendant herein, on behalf of the state that there was never a conversation between the three relative to any robbery, that his sole purpose in going to the store was to buy something, and that there was no preplanned meeting between the three. Under such circumstances, it cannot be said that the unchallenged evidence against defendant “is so overwhelming that a conviction can be said to be inevitable beyond a reasonable doubt.” The introduction of the statement was prejudicial and was clearly one of the facts which prompted the trial court to make a finding of guilty.
I concur with the majority that the first and third assignments of error should be overruled. The evidence was sufficient to permit reasonable minds to make a factual finding in weighing the evidence that defendant was guilty. The statement “this isn’t the time” attributed to the accused does not indicate a withdrawal from a prearranged plan but, rather, at most, indicates a desire that the execution of such prearranged plan be postponed.
However, I find that the second assignment of error is well taken and should be sustained. Accordingly, I would reverse the judgment of the Court of Common Pleas and remand tMs case to that court for a new trial.