[Cite as State v. Adkins, 2011-Ohio-5360.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 10CA3367
:
vs. : Released: September 30, 2011
:
CHRISTOPHER ADKINS, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
APPEARANCES:
Gene Meadows, Portsmouth, Ohio, for Appellant.
Mark E. Kuhn, Scioto County Prosecutor, and Julie Cooke Hutchinson, Scioto
County Assistant Prosecutor, Portsmouth, Ohio, for Appellee.
McFarland, J.:
{¶1} Appellant Christopher Adkins appeals his conviction in the Scioto
County Court of Common Pleas after a jury found him guilty of rape, a felony of
the first degree in violation of R.C. 2907.02(A)(2); kidnapping, a felony of the first
degree in violation of R.C 2905.01(A)(4); and felonious assault, a felony of the
second degree in violation of R.C. 2903.11(A)(1)/(D)(1)(a). The trial court found
Appellant guilty of sexually violent predator specifications and repeat violent
offender specifications. On appeal, Appellant raises two assignments of error,
arguing that 1) the trial court erred by failing to suppress Appellant’s statements, as
Scioto App. No. 10CA3367 2
they were obtained in violation of his right to remain silent and right to counsel;
and 2) the trial court erred by failing to suppress Appellant’s statements, as they
were coerced and involuntary. Having reviewed the record, we find that the trial
court did not err in denying Appellant’s motion to suppress and we overrule
Appellant’s two assignments of error. We affirm the judgment of the trial court.
FACTS
{¶2} During the evening hours of August 25, 2009 and the early morning
hours of the following day, Appellant was camping in Scioto County, Ohio. While
there, Appellant met Shirese Sissel (“Sissel”), the victim, and the two began
conversing. Sissel and her friends were consuming alcohol and carousing. At
some point, Sissel prepared to leave and went to her vehicle. Appellant disputes
what happened after that. Law enforcement indicated that Sissel stated Appellant
had raped her, after which she got into her vehicle and immediately drove to get
help.
{¶3} Acting upon Sissel’s allegation that Appellant had raped her, law
enforcement went to the campground and retrieved Appellant. They transported
Appellant to the Scioto County Sheriff’s Office and placed him in an interview
room.
{¶4} Detective Jodi Conkel of the Scioto County Sheriff’s Office began
interviewing Appellant about Sissel’s allegation. The interview was recorded with
Scioto App. No. 10CA3367 3
both audio and video. Detective Conkel read Appellant his Miranda warnings.
Even though Appellant stated that he knew his rights, Detective Conkel advised
him that she had to read them to him regardless. After Detective Conkel finished
reading Appellant his rights, he indicated that he understood them. Detective
Conkel did not obtain a written waiver of Appellant’s rights.
{¶5} Moments after the interview began, Captain David Hall of the Scioto
County Sheriff’s Office notified Detective Conkel that the recording equipment
had malfunctioned and the interview up to that point had not been recorded
properly. Captain Hall reset the recording equipment and the interview resumed
with Detective Conkel informing Appellant that she had spoken with his parole
officer, informed him that she had advised Appellant of his rights, and was
interviewing him. Appellant did not dispute Detective Conkel’s recitation.
{¶6} As we discuss below, Appellant mentioned wanting to speak to an
attorney several times during the interrogation. He also noted a desire not to speak
with law enforcement on several occasions. Conversely, Appellant then
contradicted these statements by continuing to speak to Detective Conkel and
Captain Hall.
{¶7} Throughout the interrogation, Detective Conkel had made several
promises to Appellant. She had promised that because Appellant believed
someone had spiked the snuff he had used the previous night, she would
Scioto App. No. 10CA3367 4
investigate. (Tr. at 72-74.) She had promised that she would personally call his
doctor to get him his proper medication. (Tr. at 76.) She had promised to
determine if Appellant had been drugged. (Tr. at 77.) She had also promised to
check on Appellant while he was incarcerated. At the suppression hearing, it was
determined that Detective Conkel had not upheld any of those promises.
{¶8} Detective Conkel has also assured Appellant that if he was honest, the
process would be easier for him. “I’m just telling you that it’s going to be ten
times easier on you if you’re honest and be a man * * *.” (Tr. at 85.) She
reiterated to Appellant, “[I]f you’re honest and you stand up and say hey, you
know, I’m a man and I made a mistake * * * I will vouch for that[,] then one[,]
you’re going to have me backing you 100 percent because I’m going to say, you
know what, he was honest, he cooperated, he needs help.” (Tr. at 86.) When
Appellant stated his concern of returning to prison if he admitted to raping Sissel,
Detective Conkel explicitly stated that she could not promise Appellant anything
regarding his sentence, but it would still be easier if she was on his side telling
everyone he had been honest. (Tr. at 86-87.)
{¶9} Detective Conkel continued interrogating Appellant about what had
occurred earlier that morning. Appellant eventually admitted that he had
approached Sissel when she went to her car and he had grabbed her. Appellant
then removed Sissel’s clothing, laid her on the ground, and proceeded to have
Scioto App. No. 10CA3367 5
intercourse with her. Appellant abruptly stopped due to “[t]he conscience” and
“[p]rison.” (Tr. at 100.) Appellant had been to prison before for rape. Overall, the
interrogation had lasted nearly four hours.
{¶10} Appellant moved to suppress the statements he made to Detective
Conkel and Captain Hall, which the trial court denied. With the video of the
interrogation admitted at trial, as well as the testimony of several witnesses, the
jury convicted Appellant of rape, kidnapping, and felonious assault. Appellant had
waived his right to trial by jury on the sexually violent predator and repeat violent
offender specifications, which were tried to the court. The trial court found
Appellant guilty of those specifications, too.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT
WHEN THE TRIAL COURT FAILED TO GRANT DEFENDANT-
APPELLANT’S MOTION TO SUPPRESS AND ALLOWING THE
CONFESSION OF DEFENDANT-APPELLANT TO BE USED AGAINST
THE DEFENDANT-APPELLANT WHEN THE CONFESSION WAS
OBTAINED IN VIOLATION OF THE DEFENDANT-APPELLANT’S
CONSTITUTIONAL RIGHTS TO COUNSEL AND TO REMAIN
SILENT.
“II. THE TRIAL COURT ERRED TO THE PREJUDICE OF
DEFENDANT-APPELLANT BY FAILING TO SUPPRESS THE
STATEMENT THAT WAS INVOLUNTARY AND OTBAINED IN
VIOLATION OF THE DEFENDANT-APPELLANT[’]S
CONSTITUTIONAL RIGHTS AS A RESULT OF PROMISES MADE BY
THE INTERROGATING OFFICER RESULTING IN COERCION OF
THE DEFENDANT-APPELLANT.”
Scioto App. No. 10CA3367 6
STANDARD OF REVIEW
{¶11} “Appellate review of a motion to suppress presents a mixed question
of law and fact. When considering a motion to suppress, the trial court assumes
the role of trier of fact and is therefore in the best position to resolve factual
questions and evaluate the credibility of witnesses.” State v. Burnside, 100 Ohio
St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶8, citing State v. Mills (1992), 62
Ohio St.3d 357, 366, 582 N.E.2d 972. “Consequently, an appellate court must
accept the trial court’s findings of fact if they are supported by competent, credible
evidence.” Id., citing State v. Fanning (1982), 1 Ohio St.3d 19, 437 N.E.2d 583.
“Accepting these facts as true, the appellate court must then independently
determine, without deference to the conclusion of the trial court, whether the facts
satisfy the applicable legal standard.” Id., citing State v. McNamara (1997), 124
Ohio App.3d 706, 707 N.E.2d 539. See, also, State v. Roberts, 110 Ohio St.3d 71,
2006-Ohio-3665, 850 N.E.2d 1168, at ¶100.
{¶12} Preliminarily, “[w]here factual issues are involved in determining a
motion, the court shall state its essential findings on the record.” Crim.R. 12(F).
In the case sub judice, the trial court made no explicit findings of fact when it
denied Appellant’s motion to suppress. However, “[t]he extensive record of the
suppression hearing is ‘sufficient to allow full review of the suppression issues.’”
State v. Sapp, 105 Ohio St.3d 104, 822 N.E.2d 1239, 2004-Ohio-7008, at ¶96,
Scioto App. No. 10CA3367 7
quoting State v. Waddy (1992), 63 Ohio St.3d 424, 443, 588 N.E.2d 819; citing
State v. Brewer (1990), 48 Ohio St.3d 50, 60, 549 N.E.2d 491.
ASSIGNMENT OF ERROR I
{¶13} In his first assignment of error, Appellant contends that the trial court
erred by not suppressing his statements made during the interrogation because law
enforcement violated his right to remain silent and his right to counsel. Appellant
argues that there is no evidence he was given his Miranda warnings, nor is there
evidence that he waived his rights. Furthermore, Appellant asserts that he invoked
his right to remain silent and right to counsel, which law enforcement ignored by
continuing to interrogate him. We disagree.
{¶14} Prior to initiating a custodial interrogation, law enforcement must
“inform an accused ‘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.’” State v. Ulery, Athens App. No.
07CA28, 2008-Ohio-2452, at ¶7, quoting Miranda v. Arizona (1966), 384 U.S.
436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694. Neither party in this case argues that
Appellant was not subject to a custodial interrogation or that there was no need to
have given him the Miranda warnings.
Scioto App. No. 10CA3367 8
{¶15} To use a statement made by the accused during a custodial
interrogation, the prosecution must show: “(1) the accused, prior to any
interrogation, was given the Miranda warnings; (2) at the receipt of the warnings,
or thereafter, the accused made ‘an express statement’ that he desired to waive his
Miranda constitutional rights; (3) the accused effected a voluntary, knowing, and
intelligent waiver of those rights.” State v. Edwards (1976), 49 Ohio St.2d 31, 38,
358 N.E.2d 1051 (overruled on other grounds), citing Miranda. However, contrary
to the second prong in Edwards, the Supreme Court recently held that the
prosecution “does not need to show that a waiver of Miranda rights was express.
An ‘implicit waiver’ of the ‘right to remain silent’ is sufficient to admit a suspect’s
statement into evidence.” (Citation omitted.) Berghuis v. Thompkins (2010), __
U.S. __, 130 S.Ct. 2250, 2261, 176 L.Ed.2d 1098. “Where the prosecution shows
that a Miranda warning was given and that it was understood by the accused, an
accused’s uncoerced statement establishes an implied waiver of the right to remain
silent.” Id. at 2262. That is because “the law can presume that an individual who,
with a full understanding of his or her rights, acts in a manner inconsistent with
their exercise has made a deliberate choice to relinquish the protection those rights
afford.” Id.
{¶16} To begin, it is clear from the record in this case that Detective Conkel
advised Appellant of his Miranda rights. Detective Conkel testified that she had
Scioto App. No. 10CA3367 9
read Appellant his rights prior to the start of the recorded portion of the
interrogation. Her notes reflected the same. Captain Hall, who had been watching
the interrogation in an observation room, corroborated that Detective Conkel had
indeed advised Appellant of his Miranda rights. This evidence was
uncontroverted. Thus, the record establishes that Detective Conkel advised
Appellant of his Miranda rights before interrogating him.
{¶17} Addressing whether Appellant had waived his Miranda rights, we
hold that Appellant implicitly waived his rights when he began speaking to
Detective Conkel. Detective Conkel had clearly advised Appellant of his rights.
While Appellant did not execute a written waiver of his rights, he spoke to
Detective Conkel of his own free will. Under Thompkins, because Appellant was
aware of his rights, and his decision to speak to Detective Conkel was inconsistent
with the exercise of those rights, Appellant implicitly waived his rights when he
began speaking. Thus, the record establishes that Appellant initially waived his
right to remain silent and his right to counsel.
{¶18} The next inquiry is whether Appellant invoked his right to counsel
after his initial waiver. Appellant was free to invoke his rights after initially
waiving them, as an “interrogation provides a suspect with additional information
that can put his or her decision to waive, or not to invoke, into perspective.”
Scioto App. No. 10CA3367 10
Thompkins at 2264. Yet even if Appellant later invoked his rights, he can
subsequently waive them and reinitiate the interrogation with law enforcement.
{¶19} When dealing with a claim that law enforcement continued to
interrogate the accused after he invoked his right to counsel, “[f]irst, [we] must
determine whether the accused actually invoked his right to counsel.” Smith v.
Illinois (1984), 469 U.S. 91, 95, 105 S.Ct. 490, 83 L.Ed.2d 48. “It is fundamental
that once a suspect invokes his right to counsel, all interrogation must cease.”
State v. Colquitt, 188 Ohio App.3d 509, 2010-Ohio-2210, 936 N.E.2d 76, at ¶12,
citing State v. Turvey (1992), 84 Ohio App.3d 724, 732, 618 N.E.2d 214; State v.
Jobe, 6th Dist. No. L-07-1413, 2009-Ohio-4066, at ¶ 67. “Invocation of the
Miranda right to counsel ‘requires, at a minimum, some statement that can
reasonably be construed to be an expression of a desire for the assistance of an
attorney.’” Davis v. United States (1994), 512 U.S. 452, 459, 114 S.Ct. 2350, 129
L.Ed.2d 362, quoting McNeil v. Wisconsin (1991), 501 U.S. 171, 178, 111 S.Ct.
2204, 115 L.Ed.2d 158. “But if a suspect makes a reference to an attorney that is
ambiguous or equivocal in that a reasonable officer in light of the circumstances
would have understood only that the suspect might be invoking the right to
counsel, [the Court’s] precedents do not require the cessation of questioning.”
(Emphasis in original.) Id. “Rather, the suspect must unambiguously request
counsel.” Id. As the Supreme Court observed, “‘a statement either is such an
Scioto App. No. 10CA3367 11
assertion of the right to counsel or it is not.’” Id., quoting Smith v. Illinois (1984),
469 U.S. 91, 97-98, 105 S.Ct. 490, 83 L.Ed.2d 48.
{¶20} Second, if we find that the accused did invoke his right to counsel, we
“may admit his responses to further questioning only on finding that he (a) initiated
further discussions with the police, and (b) knowingly and intelligently waived the
right he had invoked.” Id., citing Edwards v. Arizona (1981), 451 U.S. 477, 101
S.Ct. 1880, 68 L.Ed.2d 378. “[A]n accused * * * having expressed his desire to
deal with the police only through counsel, is not subject to further interrogation by
the authorities until counsel has been made available to him, unless the accused
himself initiates further communication, exchanges, or conversations with the
police.” Edwards, 451 U.S. at 484-485. See, also, State v. Van Hook (1988), 39
Ohio St.3d 256, 530 N.E.2d 883. “[I]nquiries or statements, by either an accused
or a police officer, relating to routine incidents of the custodial relationship, will
not generally ‘initiate’ a conversation in the sense in which that word was used in
Edwards [v. Arizona].” Oregon v. Bradshaw (1983), 462 U.S. 1039, 1045, 103
S.Ct. 2830, 77 L.Ed.2d 405. Though the Supreme Court declined to fully define
the term “initiate,” it did note that “a willingness and a desire for a generalized
discussion about the investigation * * * not merely a necessary inquiry arising out
of the incidents of the custodial relationship” was sufficient to show initiation.
Bradshaw at 1045-1046. Because the analysis of whether Appellant invoked his
Scioto App. No. 10CA3367 12
rights is factually dependant, we will address each of his possible invocations
separately.
First Possible Invocation
{¶21} Detective Conkel was interrogating Appellant about the events of that
morning. Appellant denied any wrongdoing and Detective Conkel asked him to
submit to a computer voice stress analysis (“CVSA”). Appellant was willing to
turn over his clothing, but was apprehensive about submitting to the CVSA:
{¶22} “DEFENDANT: Like I said, I will give you guys my clothes, if
that’s what you want. But on something like that [referring to the CVSA], I would
like to ask an attorney.
“DETECTIVE CONKEL: I mean that’s – that’s your right.
“DEFENDANT: You know, because I don’t really know the law that well.
“DETECTIVE CONKEL: Right.
“DEFENDANT: You know, I’m not saying I’m guilty, I’m not saying –
I’m definitely saying I’m not guilty, but you know, I’ve never – it’s just too
much.”
(Tr. at 25.)
{¶23} Detective Conkel then explained the accuracy and purpose of the
CVSA. Appellant responded to Detective Conkel’s explanation by inquiring about
whether Sissel’s DNA would be present on his clothing. Detective Conkel
Scioto App. No. 10CA3367 13
answered Appellant’s questions and he eventually agreed to take the CVSA. “If
you guys want it, I’ll give it to you.” (Tr. at 27.)
{¶24} When Detective Conkel was asking Appellant to submit to the CVSA,
he clearly invoked his right to counsel when he stated he “would like to ask an
attorney” before agreeing to submit to the CVSA. “I would like to ask an
attorney,” is not ambiguous, it is not equivocal, and it is not open to multiple
interpretations.
{¶25} After, the invocation though, Appellant’s discussion about his guilt or
innocence in the pending investigation reinitiated the interrogation. His statement
was not pertinent to the custodial relationship, but rather expressed Appellant’s
willingness to continue discussing the pending investigation. Additionally,
Detective Conkel had honored Appellant’s request to speak to counsel and ceased
questioning him about the investigation. When she reiterated the function and
purpose of the CVSA to Appellant, she was not continuing the interrogation.
Appellant’s question about whether the victim’s DNA would be present on his
clothing reaffirmed his willingness and desire to discuss the pending investigation,
waiving his invocation of his rights. Thus, the interrogation was free to continue.
Second Possible Invocation
{¶26} Captain Hall then prepared to conduct the CVSA. At Appellant’s
request, Captain Hall read aloud the waiver that Appellant was to sign, indicating
Scioto App. No. 10CA3367 14
his willingness to take the CVSA and that he was doing so of his own free will.
Appellant and Captain Hall both signed the form. After Captain Hall administered
the CVSA, he had another person interpret the results. Captain Hall relayed to
Appellant that the results indicated he had been deceitful on his answer denying
that he had penetrated Sissel. Appellant refuted the results and Captain Hall
responded that he was done talking to Appellant and he was taking him to lockup.
After additional dialogue between Captain Hall and Appellant, Appellant asked:
“DEFENDANT: Can I see a lawyer?
“CAPTAIN HALL: Yeah.
“DEFENDANT: Please.
“CAPTAIN HALL: Because you’re going to need one. You decide you
want to talk to me without lying, you let me know.
“DEFENDANT: Honestly sir, I’m not lying to you. I mean, I’m telling
you everything.”
(Tr. at 62.)
{¶27} Here, Appellant again made a clear and unambiguous invocation of
his right to counsel when he asked, “Can I see a lawyer?” Captain Hall assured
Appellant that he would be provided with an attorney. Yet immediately thereafter,
Appellant reinitiated the interrogation by discussing whether he had been forthright
with Captain Hall. Appellant’s statement was not incidental to the custodial
Scioto App. No. 10CA3367 15
relationship, but again expressed “a willingness and a desire for a generalized
discussion about the investigation.” Thus, Appellant had reinitiated the
interrogation and questioning was free to continue.
Third Possible Invocation
{¶28} Appellant continued to profess his innocence to Captain Hall and then
made a phone call to his mother. Captain Hall asked for Appellant to turn off his
phone, as he was going to be booked into the jail. Appellant began to steer the
conversation back to the facts of the investigation and Captain Hall again asked
Appellant if he wished to talk to him without an attorney present:
“CAPTAIN HALL: Do you want to talk to me without an attorney,
because you asked for an attorney?
“DEFENDANT: No, I’d rather have one.
“CAPTAIN HALL: Okay. Well, I can’t talk to you then.”
(Tr. at 64.)
{¶29} As Captain Hall acknowledged, Appellant had clearly invoked his
right to counsel and right to remain silent regarding the investigation. In response
to Captain Hall’s question, appellant unequivocally stated that he did not wish to
continue speaking to Captain Hall about the investigation without an attorney
present.
Scioto App. No. 10CA3367 16
{¶30} Appellant then asked Captain Hall about what items he wanted him to
remove from his person prior to booking. These questions were germane to the
custodial relationship and did not reinitiate the interrogation. Appellant also told
Captain Hall that he had “better put [him] on suicide watch,” but Captain Hall
explained that Appellant could bond out of jail. (Tr. at 65.) None of this
constituted a continuation of the interrogation by Captain Hall nor a reinitiation by
Appellant.
{¶31} However, Appellant then began reiterating his innocence to Captain
Hall. “I’m telling you, I’m telling you, I didn’t do nothing, I swear.” (Tr. at 65.)
Rather than remain silent about the investigation, Appellant wanted to restate his
innocence. Appellant’s discussion of his innocence related to the investigation,
again extinguishing his invocation of his rights, and again reinitiated the
interrogation.
Fourth Possible Invocation
{¶32} Because Appellant had again steered the discussion back to the
investigation, Captain Hall asked Appellant a second time if he wished to continue
talking to him about the investigation, or if he wished to wait until an attorney was
present:
Scioto App. No. 10CA3367 17
“CAPTAIN HALL: I can’t sit here and talk to you because you told me
you wanted an attorney. If you want to tell me – if you want to talk to me without
one, I’ll stand here and talk to you. You want me to stand here and talk to you?
“DEFENDANT: No.”
(Tr. at 65-66.) Captain Hall then asked Appellant whether he had any other items
on his person, continuing the pre-booking search. Detective Conkel then reentered
the room and informed Appellant that his parole officer would be holding him in
jail until the investigation was complete. She then asked Appellant:
“DETECTIVE CONKEL: You’ve had a long night. I know – I think
Tom’s going to hold you for a couple of days until this investigation is completed.
You parole officer, he has the right to do that. Is there any questions you have for
me or anything or –
“DEFENDANT: Did she fight back?
“DETECTIVE CONKEL: – do – I know Dave said something about you
wanting an attorney; do you still want to talk to me, because I mean –
“DEFENDANT: I just want to ask that question.
“DETECTIVE CONKEL: – okay.
“DEFENDANT: If I can.”
(Tr. at 66.)
Scioto App. No. 10CA3367 18
{¶33} Appellant’s response to Captain Hall’s question about whether he
wished to speak to him again re-invoked his rights. It was clear that Appellant did
not want to speak to Hall without an attorney. Yet it is clear that Detective Conkel
was not continuing the interrogation of Appellant, but was instead beginning to ask
Appellant whether he had any questions regarding his parole officer holding him in
jail.
{¶34} Yet before Detective Conkel could even complete her question,
Appellant interrupted her to ask about the investigation: whether the victim had
fought back. This reinitiated the interrogation. Even as Detective Conkel was
attempting to insure that Appellant did not want to stop speaking and consult an
attorney, Appellant interrupted her a second time to get her to answer his question
about whether Sissel had fought back. Clearly, Appellant was willing to discuss
the investigation. Thus, Appellant had reinitiated the interrogation and questioning
could continue.
Fifth Possible Invocation
{¶35} After Appellant had interrupted Detective Conkel, she answered
Appellant’s questions and in turn, posed her own questions to him. After a
significant dialogue, Appellant again mentioned a lawyer:
“DEFENDANT: I know. I asked for a lawyer a while ago, but I don’t
even know where they’re at.
Scioto App. No. 10CA3367 19
“DETECTIVE CONKEL: I mean if you don’t want to talk to me, if
you want a lawyer, I’ll stop talking to you. I mean, it don’t matter to me.
“DEFENDANT: It’s not that, it’s not.
“DETECTIVE CONKEL: It’s your choice, honey. Either –
“DEFENDANT: I know.
“DETECTIVE CONKEL: – you want to talk to me or you don’t. It
doesn’t matter to me.
“DEFENDANT: I know, it’s just, I’m trying to think. I can’t, you know, I
don’t know what to do.”
(Tr. at 81-82.)
{¶36} Here, Appellant did not clearly invoke his right to counsel. While
Appellant referenced a previous invocation of his rights, which he later waived by
reinitiating the interrogation, his reference was not a clear invocation of his right to
counsel at that time. Appellant’s own words show his ambiguity: when told it was
his choice whether to stop the interrogation and speak with an attorney, his
ultimate answer was “I don’t know what to do.” As the Supreme Court noted, a
statement is either an unambiguous request for an attorney or it is not; Appellant’s
statement here was ambiguous. Once again, the interrogation was free to continue.
Scioto App. No. 10CA3367 20
Sixth Possible Invocation
{¶37} As Appellant continued talking to Detective Conkel and worked
through his confusion, Detective Conkel again offered Appellant the opportunity to
request to speak with an attorney:
“DEFENDANT: I don’t know what to do.
“DETECTIVE CONKEL: – I mean, that’s up to you. If you want a
lawyer, I’ll stop right now and you can make calls to get a lawyer and I will just go
ahead and take you over and book you in. That’s your right, honey.
“DEFENDANT: If I do say this, that I do, what happens? I go and get
booked in –
“DETECTIVE CONKEL: You’re going to be booked in regardless.
Okay? Whether you say it or not –
“DEFENDANT: – because Tom [Appellant’s parole officer] wants me on
a holder.
“DETECTIVE CONKEL: That is correct. Okay? So the only
difference is, and is it okay to talk to you because you said –
“DEFENDANT: Yes. Yeah, go ahead.”
(Tr. at 87-88.)
{¶38} Again, Appellant did not clearly invoke his right to counsel.
Appellant reiterated that he did not know what to do and Detective Conkel clarified
Scioto App. No. 10CA3367 21
that Appellant would be booked in to the jail regardless. Appellant then expressly
waived his right to counsel and right to remain silent and indicated that Detective
Conkel could continue speaking with him about the investigation. Thus, it was
again proper for the interrogation to continue.
{¶39} Throughout the interrogation, Appellant vacillated between invoking
and relinquishing his rights several times, with the net result being that Appellant
ultimately waived his rights and submitted to the interrogation by Detective Conkel
and Captain Hall. The record is also clear that law enforcement officers were
respectful of Appellant’s rights and took care to understand whether Appellant was
invoking or relinquishing his rights.
{¶40} As in Thompkins, Appellant understood his rights. Appellant knew
his rights well enough that he had asked Detective Conkel to forego reading them.
Furthermore, the fact that Appellant had invoked his rights numerous times also
indicates that he “knew what he gave up when he spoke.” Thompkins at 2262.
This leads to the conclusion that Appellant knowingly and intelligently waived his
rights when he spoke with law enforcement. Thus, the trial court was correct to
deny this portion of Appellant’s motion to suppress, and we overrule Appellant’s
first assignment of error.
Scioto App. No. 10CA3367 22
ASSIGNMENT OF ERROR II
{¶41} In his second assignment of error, Appellant contends that the trial
court erred by not suppressing his statements made during the interrogation
because law enforcement coerced him and his waiver of his rights and
incriminating statements were involuntary. Appellant argues that Detective
Conkel’s multiple promises, deception, and alleged promise of a lenient sentence,
combined to coerce him into waiving his rights and making incriminating
statements. Because we find no promise of leniency, and the evidence does not
demonstrate that Detective Conkel’s deceptive promises were coercive, we cannot
say, given the totality of the circumstances, that law enforcement was coercive or
overbore Appellant’s will. Thus, we overrule Appellant’s second assignment of
error.
{¶42} “[E]ven if Miranda warnings were required and given, a defendant’s
statements may be made involuntarily and, thus, be subject to exclusion.” State v.
Marshall, Lawrence App. No. 06CA23, 2007-Ohio-6298, at ¶24, citing State v.
Kelly, 2nd Dist. No.2004-CA-20, 2005-Ohio-305, at ¶ 11. “‘A suspect’s decision
to waive his Fifth Amendment privilege is made voluntarily absent evidence that
his will was overborne and his capacity for self-determination was critically
impaired because of coercive police conduct.’” Id. at ¶25, quoting State v. Dailey
(1990), 53 Ohio St.3d 88, 91, 559 N.E.2d 459. “‘In determining whether a
Scioto App. No. 10CA3367 23
suspect’s statement was made voluntarily, a court should consider the totality of
the circumstances. These circumstances include “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 threat or inducement.”’” Id., quoting State v. Sneed, 166 Ohio App.3d
492, 2006-Ohio-1749, 851 N.E.2d 532, at ¶31, quoting State v. Edwards (1976), 49
Ohio St.2d 31, 3 O.O.3d 18, 358 N.E.2d 1051.
{¶43} “[D]eception is ‘a factor bearing on voluntariness. * * *’ However,
this factor, standing alone, is not dispositive of the issue.” State v. Wiles (1991),
59 Ohio St.3d 71, 81, 571 N.E.2d 97, quoting Schmidt v. Hewitt (C.A.3, 1978), 573
F.2d 794, 801. See, also, State v. Burke (1995), 73 Ohio St.3d 399, 406, 653
N.E.2d 242; State v. Cooey (1989), 46 Ohio St.3d 20, 26-27, 544 N.E.2d 895
(superseded on other grounds). Likewise, “‘[u]nder the “totality of circumstances”
standard, the presence of promises does not as a matter of law, render a confession
involuntary.’” State v. Humphrey, Ross App. No. 10CA3150, 2010-Ohio-5950, at
¶17, quoting Edwards, 49 Ohio St.2d at 41. Regarding both deception and
inducement, “‘[t]o support a determination that a confession was coerced, the
evidence must establish that: (1) the police activity was objectively coercive; (2)
the coercion in question was sufficient to overbear defendant’s will; and (3)
Scioto App. No. 10CA3367 24
defendant’s will was, in fact, overborne as a result of the coercive police activity.’”
Id. at ¶18, quoting United States v. Rigsby (C.A.6, 1991), 943 F.2d 631, 635.
{¶44}Here, Appellant was 36 years old. There was no evidence that his
mentality was anything but normal; there was no evidence that he was of below
average intelligence or suffered from a disability. Regarding Appellant’s prior
criminal experience, he had been convicted of rape before and spent eight years in
prison. He was presumably familiar with the criminal justice system, which was
corroborated by his indication that Detective Conkel could skip the Miranda
warnings because he already knew them.
{¶45} As for the interrogation, it was not intense because there were no
raised voices or shouting, there was no banging of fists on the table, and there was
no indication that either Detective Conkel or Captain Hall maintained a close
proximity to Appellant in order to intimidate him. The frequency of the
interrogation was, however, fairly constant. On the other hand, there was no
evidence that anyone mistreated Appellant or subjected him to physical
deprivation. Similarly, no one had threatened Appellant.
{¶46} Regarding inducement, Appellant maintains that Detective Conkel’s
statement that it would be easier on him if he was honest was “the most egregious”
deception and was an implied promise of leniency. We disagree.
Scioto App. No. 10CA3367 25
{¶47} First, the statement was not an implied promise of leniency. Detective
Conkel continually stated that she had no control over Appellant’s sentence. Her
explicit denial that she could affect Appellant’s sentence contradicts any possible
inference that her statement was a promise of leniency.
{¶48} Second, reminding Appellant of the consequences that would flow
naturally from telling the truth was not a promise of leniency, but rather an
admonition to tell the truth. “[A]n admonition to tell the truth” is neither a promise
nor a threat, and is completely permissible during an interrogation. State v. Cooey
(1989), 46 Ohio St.3d 20, 28, 544 N.E.2d 895 (superseded on other grounds). See,
also, State v. Wiles (1991), 59 Ohio St.3d 71, 80-81, 571 N.E.2d 97 (following
Cooey and holding that “admonitions to tell the truth directed at a suspect by police
officers are not coercive in nature.”). Accordingly, Appellant’s chief concern
about “deception” is without merit.
{¶49} In the same context, while Detective Conkel did make promises to
Appellant, which were ultimately unfulfilled, we cannot say that these promises
induced Appellant to waive his rights or were coercive. Promises are not per se
coercive. Nor is deception per se coercive. There was also no indication that
Detective Conkel’s “deceptive promises” factored into Appellant’s decision to
waive his rights and speak to Detective Conkel. Thus, we cannot say that
Detective Conkel’s statements were coercive.
Scioto App. No. 10CA3367 26
{¶50} Given that none of Detective Conkel’s conduct was coercive,
Appellant cannot show that there was coercion “sufficient to overbear [his] will” or
that his “will was, in fact, overborne as a result of the coercive police activity,”
under Humphrey. Considering the totality of the circumstances, we cannot say that
law enforcement engaged in coercive activity that overbore Appellant’s will and
rendered his waiver of rights involuntary, and the trial court was correct in denying
Appellant’s motion to suppress. Therefore, we overrule Appellant’s second
assignment of error and affirm the trial court’s denial of his motion to suppress.
JUDGMENT AFFIRMED.
Scioto App. No. 10CA3367 27
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee
recover of Appellant 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
Scioto County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Exceptions.
Harsha, P.J. and Kline, J: Concur in Judgment and Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.