# State v. Leach > Ohio Court of Appeals · December 6, 2002 · 150 Ohio App. 3d 567 URL: https://www.frixlaw.com/law-library/cases/3757940 ## Case - **Full name:** The STATE of Ohio, Appellee, v. LEACH, Appellant - **Court:** Ohio Court of Appeals - **Decided:** December 6, 2002 - **Citations:** 150 Ohio App. 3d 567; 782 N.E.2d 631 - **Precedential status:** Published - **Opinion:** Dissent by Sundermann - **Judges:** Painter, Gorman, Sundermann - **Cited by:** 34 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3757940 ## Opinion text Sundermann, Judge, dissenting. {¶ 60} I respectfully dissent. On the evening of August 7, 2001, two young ladies were asleep in a bedroom. At about 2:00 a.m., one of them was awakened and found Thomas Leach straddling her and holding a gun to her head. He pointed the gun at both of the young ladies and said, “We can do this the easy way or the hard way.” He put his hand down the shirt of one of the women, *587 touching her breast and nipple area. The majority opinion refers to a man’s doing this. It is clear from the testimony that the man was Thomas Leach. Following a trial, a jury found Leach guilty of attempted rape, gross sexual imposition, two counts of kidnapping, and two firearm specifications. {¶ 61} The majority opinion would overturn these convictions based on the testimony of Sergeant Corbett. The first portion of Corbett’s testimony was as follows: {¶ 62} “Q. Okay. And what was the content of that conversation? {¶ 63} “A. I asked Thomas Leach, I told him that I had been made aware that he wanted to talk to the police about what had occurred at the house that night, and I made arrangements. He said he would come in and talk to me at 2:30 in the afternoon on the 8th. {¶ 64} “Q. Okay. And did he, in fact, do that? {¶ 65} “A. No. {¶ 66} “Q. Did you talk to him any more? {¶ 67} “A. I believe I contacted him. Either I contacted him — I know he left a message on my machine in regards to he wanted to speak with an attorney before talking with the police. {¶ 68} “Q. So at that point in time, once he wanted to talk to an attorney, did you make any attempts to contact him again? {¶ 69} “A. No. {¶ 70} “Q. What did you do next as part of your investigation? {¶ 71} “A. I believe my next step was I had a short conversation with, I believe, another attorney, or a message was left on my machine from another attorney that Mr. Leach had spoke to.” {¶ 72} All of this testimony concerned the period before Leach was brought into the station and given his Miranda warnings. The majority opinion admits that there is no authority from either the United States or the Ohio Supreme Court to exclude this pr e-Miranda testimony. The testimony did not contain any statements made by Leach and does not imply guilt; rather it was merely an explanation of the investigation up to that point. Absent any authority to the contrary from the higher courts, the convictions for the serious offenses committed here should not be overturned based solely on pr e-Miranda testimony. {¶ 73} Sergeant Corbett arrested Leach the day after that conversation. At that time, Leach was given his Miranda rights and signed a form acknowledging that he had received his Miranda warnings. The next portion of the testimony of Sergeant Corbett was as follows: *588 {¶ 74} “Q. And upon his arrest, before you got to District 1, was there any conversation or statements between yourself and the defendant? {¶ 75} “A. No, I don’t believe so. {¶ 76} “Q. And upon arrival at the Sheriffs Department, you then go through a - to a room, I presume? {¶ 77} “A. That’s correct, an interview room {¶ 78} “Q. You go through the form? {¶ 79} “A. That’s correct. {¶ 80} “Q. And that form indicates that he signed it? {¶ 81} “A. That’s correct, yes. {¶ 82} “* * * {¶ 83} “Q. Was anything else said at that point? {¶ 84} “A. At that point he stated he wished to consult an attorney. {¶ 85} “Q. And what do you do, at that point, when a defendant says he wants to talk to an attorney? {¶ 86} “A. We ended the interview except for identification questions.” {¶ 87} This involved, as the majority aptly points out, post-Miranda testimony. The United States Supreme Court held in Doyle v. Ohio 56 that a defendant cannot be impeached with his post -Miranda silence after he has received his Miranda rights, because such impeachment violates the Due Process Clause of the Fourteenth Amendment. Blacks Law Dictionary (7th Ed.1999) 755 defines “impeach” as “[t]o discredit the veracity of (a witness).” In State v. Hill 57 the Ohio Supreme Court distinguished Doyle by noting that “there was no use of [defendant’s] silence for impeachment here, as he did not testify, so this case differs from Doyle in a key particular.” Because Corbett’s second statement came to light during the state’s case-in-chief, it was not used to impeach Leach. Therefore, to the extent that the majority has relied on Doyle, I believe that reliance is misplaced. {¶ 88} Moreover, the post-Mmrocfo statement was not used, as the majority suggests, in the case-in-chief to infer guilt. The testimony was merely used to describe the investigation. Accordingly, I do not believe it was error to admit it. And even if it was error, it was harmless. *589 {¶ 89} Finally, given the overwhelming evidence against Leach, I do not believe that the admission of the contested evidence, even if in error, denied Leach a fair trial. Therefore, I would affirm. 56 . Doyle v. Ohio (1976), 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 . 57 . State v. Hill, 92 Ohio St.3d at 202, 749 N.E.2d 274 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3757940. Public record. Not legal advice.