State v. Adkins

[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.