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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

ADMISSIONS AND CONFESSIONS (004)

Also see Corpus Delicti; Hearsay; Counsel, Right To; Arrest; Fifth Amendment.

 

Admissions in general

Miranda basics

Custody issues

Other circumstances surrounding interrogation

Waiver of rights

Invocation of right to counsel or to remain silent

Police informants and agents

Coerced confessions

Post arrest silence

Codefendant's statements

Suppression hearing issues

Admissibility issues

Other issues

 

Evidence Rule 104 -- Preliminary Questions. [(1) Admissibility of a confession to be determined out of the

hearing of the jury. (2) Testimony by the defendant as to a preliminary matter does not subject him to cross examination as to other issues in the case.]

Evidence Rule 801(D) -- Statements which are not hearsay.

Evidence Rule 804(B)(3) -- Statement against interest.

Admissions in general

State v. Poole, 185 Ohio App. 3d 38, 2009-Ohio-5634 – Generally a court must advise a codefendant who has not pleaded guilty of their privilege against self-incrimination before they testify. Otherwise such advisement is within the court’s discretion. Couple’s car was stopped, drugs were found on their persons, and both were charged. Girlfriend pled. At her boyfriend’s trial she testified that the coat he was wearing was hers, as were the drugs in a pocket. He was acquitted. Subsequently she was charged. Trial court ruled she should have been Mirandized before she testified. Reversed. Having pled guilty she was no longer a codefendant. She retained a privilege against self-incrimination, but not as a codefendant. Court did not abuse its discretion by failing to provide advisement. Dissenting judge believes further prosecution is a double jeopardy violation as original indictment encompassed complicity in possession of all drugs found in the car and on the boyfriend.

State v. Johnson, 163 Ohio App. 3d 132, 2005-Ohio-4243 -- Juvenile admitted to a homicide when interviewed by an employee of a mental health agency that indirectly received federal funds. Statements relating to alcohol or drug abuse in such circumstances would have to be suppressed under federal statutes, but admission to the homicide was not covered. Nor was the admission coerced or obtained in violation of Fifth or Sixth Amendment rights. But further admissions to his juvenile court probation officer without Miranda warnings were properly suppressed.

State v. Hopfer (1996), 112 Ohio App. 3d 521, 538 -- A admission includes any statement made by a party in his individual capacity and offered against that party at trial. A confession is an admission of guilt, and not merely an admission of a fact or circumstance from which guilt may be inferred.

State v. Thompson (1993), 87 Ohio App. 3d 570, 576-578 -- Tape of defendant arranging an uncharged drug deal was properly admitted. Test was not whether tape was a prior inconsistent statement pursuant to Evid. R. 613(B), but rather whether it was relevant as the admission of a party-opponent pursuant to Evid. R. 801(D)(2). Furthermore, under that rule, the statement need not be a confession or against the party's interest, though it must be relevant.

United States v. Barletta (1st Cir. 1981), 652 F. 2d 218, 219 -- A party's own statements, whether inculpatory or exculpatory, are admissible as non hearsay pursuant to Fed. Evid. R. 801.(d)(2). Also see United States v. Matlock (1973), 415 U.S. 164, 172

State v. Slone (March 25, 1975), Franklin Co. Case No. 74AP-577, unreported (1975 Opinions 642) -- Defendant's testimony at previous trial may be read at subsequent trial. Compare In re Neff (1953), 206 F. 2d 149, annotated at 36 A.L.R. 2d 1403. (Fifth Amendment privilege not waived for purposes of trial because defendant testified before the grand jury.) Also see Harrison v. United States (1968), 392 U.S. 219; Smith v. Slayton 369 F. Supp. 1213.

Simmons v. United States (1968), 390 U.S. 377, 389-394 -- When a defendant testifies at a pretrial hearing on a motion to suppress evidence on Fourth Amendment grounds, his testimony may not be admitted against him at the subsequent trial.

State v. Gatewood (1984), 15 Ohio App. 3d 14 -- A party may not use Evid. R. 801(D)(2) to introduce his own prior statement. Also see State v. Brown (1981), 3 Ohio App. 3d 131, 138. Compare State v. Sprawl (1982), 3 Ohio App. 3d 406 -- Headnote: "A statement made by a defendant to police at the time of his arrest is admissible under Evid. R. 801(D)(1)(b) where the statement is consistent with the defendant's testimony at trial and is offered to rebut an express or implied charge against him that such testimony was of recent fabrication."

State v. Riggins (1986), 35 Ohio App. 3d 1,4 -- Party seeking to admit a declaration against interest bears the burden of proving the declarant unavailable.

United Stated v. Alker (3d Cir. 1958), 255 F. 2d 851 -- A statement made in the presence of the defendant under such circumstances as would have required a denial of its correctness had it been untrue may be admissible as an "admission by adoption." See Evid. R. 802(D)(2)(b).

State v. Poole (1976), 50 Ohio App. 2d 204 -- When a defendant has listened to the taped confessions of accomplices and acknowledged what they said to be true, their statements become his own confession by adoption or ratification.

Garrett v. Hanshue (1895), 53 Ohio St. 482 -- A statement authorized by a party is a statement of that party. See Evid. R. 801(D)(2)(c). Also see United States v. McKeon (2nd Cir. 1984), 738 F. 2d 26 (Limited use of defense counsel's contradictory assertions in opening statement at previous trial.)

State v. Billings (1995), 103 Ohio App. 3d 343 -- Statement by attorney to officer in defendant's presence, concerning defendant's whereabouts at time of incident, construed as an admission.

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Miranda basics

Florida v. Powell (2010), 130 S.Ct. 1195 – Miranda advisements that the defendant had the right to speak with counsel before answering questions, and further could exercise his rights at any time during the interview, had been construed by the Florida Supreme Court to suggest that the suspect did not have the right to have counsel in the room during interrogation. Reversed. The advice conveyed the proper message and satisfied Miranda.

State v. Hale, 119 Ohio St. 3d 118, 2008-Ohio-3426, ¶31-34 – Personal history may be taken as a part of routine booking procedures without administering Miranda warnings. Miranda warnings are not ineffective because they were given after such information was obtained.

Missouri v. Seibert (2004), 124 S.Ct. 2601 -- The Miranda may not be circumvented by use of a question-first strategy, whereby a suspect is first questioned without warnings, then, after a pause, is warned and induced to repeat earlier admissions.

United States v. Patane (2004), 124 S.Ct. 2620 -- The remedy for a Miranda violation is suppression of statements. The prosecution may used physical evidence seized as the result of an unwarned voluntary statement.

State v. Farris, 109 Ohio St. 3d 519, 2006-Ohio-3255 -- Continued detention of speeder was justified based on slight odor of burnt marijuana. Questioning in the front seat of a cruiser was custodial. Pre-Miranda admissions were not rendered admissible by repetition following advisement. Under the Ohio Constitution, evidence found in trunk is suppressible. Without admissions, probable cause for search of the car reached the interior but not the trunk. Also see State v. Coston, 168 Ohio App. 3d 278, 2006-Ohio-3961.

Oregon v. Mathiason (1977), 429 U.S. 492, 495 -- "...(P)olice officers are not required to administer Miranda warnings to everyone whom they question." Also see State v. Lynch, 98 Ohio St. 3d 514, 2003-Ohio-2284, ¶ 47.

Dickerson v. United States (2000), 120 U.S. 2236 -- Miranda is constitutionally based and may not be overruled by an act of Congress. Court refuses to overrule Miranda as it has become embedded in routine police practice to the point where the warnings have become a part of our national culture.

State v. Goff, 154 Ohio App. 3d 59, 2003-Ohio-4524, ¶ 14-17 -- Error in obtaining statements in violation of Miranda is mooted by the state not using those statements at trial.

State v. Ramirez (1999), 135 Ohio App. 3d 89 -- Murder suspect spoke only Spanish. Miranda warnings were given through the use of a translator, who had seven quarters of college Spanish and had lived in Mexico for six months. She worked from an English language advice card and made syntax errors, as demonstrated by a defense language expert. The warnings were also incomplete and there was no advice of the right to have the Mexican Consul present during questioning. Suppression required.

State v. Ramirez-Garcia (2001), 141 Ohio App. 3d 185 -- Translator was born in Nicaragua, taught conversational Spanish at Miami University, and provided a sufficient translation of Miranda rights. Defendant had already indicated in English that he understood at least some of his rights. Suppression not required. Probably didn't help that on the way to the station that he told officers, in English, that he had to kill the victim and offered to show them the gun.

State v. Hill (2000), 136 Ohio App. 3d 636 -- A detective testified that during questioning the defendant said: "You do what the fuck you have to, I'm not saying anything." This was tantamount to a Doyle violation. It was plain error to permit the prosecutor to argue or present evidence concerning matters following the assertion of the right to remain silent. Semi-reversed: State v. Hill (2001), 92 Ohio St. 3d 191 -- Syllabus: "When a court of appeals engages in a plain-error analysis, it must conduct a complete review of all relevant assignments of error in order to determine whether a manifest miscarriage of justice has occurred that clearly affected the outcome of the trial." Case remanded for consideration of assignments of error previously treated as moot, then weighing whether the error was harmless.

State v. Person, 167 Ohio App. 3d 419, 2006-Ohio-2889 -- The notion that a Doyle violation may be excused as a single isolated reference does not give the prosecutor one free violation of the defendant's Fifth Amendment rights. Such a violation can be found harmless beyond a reasonable doubt only when there is overwhelming evidence of guilt.

State v. Leach, 150 Ohio App. 3d 567, 2002-Ohio-6654 -- At ¶ 19: "The expressed desire to speak to an attorney before further speaking to a police officer invokes a defendant's Fifth Amendment right to remain silent, and a comment on the request to speak to an attorney is a comment on the defendant's right to remain silent." Court finds error in the prosecutor's substantive use of the defendant's prearrest invocation of rights. Admission of Miranda form was also improper. Cumulative error leads to reversal. Affirmed: State v. Leach, 102 Ohio St. 3d 135, 2004-Ohio-2147 -- Syllabus: "Use of a defendant's pre-arrest silence as substantive evidence of guilt violates the Fifth Amendment privilege against self-incrimination." Opinion sets up an analytical grid: pre-arrest/post arrest; pre-Miranda/post-Miranda; substantive evidence/impeachment. Also see State v. Perez, Defiance App. No. 4-03-49, 2004-Ohio-4007.

State v. Causey (2001), 144 Ohio App. 3d 709 -- Majority finds defendant's statement "you have no witnesses" to be an unexpected response during the taking of booking information. Dissenting judge finds experienced FBI agent was tweaking the defendant, trying to goad him into making an incriminating statement.

State v. Spellman, Champaign App. No. 2003-CA-16, 2003-Ohio-5531 -- (1) No abuse of discretion in proceeding on an untimely motion to suppress where the prosecutor indicated he was ready to proceed. (2) Custody was established where the interview room door was plainly locked and videotape made it clear the defendant was aware of that fact. (3) Suppression upheld where video did not include the defendant's withdrawal of a prior demand for counsel, court did not accept officer's testimony that the demand was withdrawn, and waiver form was not signed until after claimed incriminating statements had been made.

Escobedo v. Illinois (1964), 378 U.S. 478 -- When a police investigation is no longer a general inquiry into an unsolved crime, but has begun to focus on a particular suspect, in police custody, who has been refused an opportunity to consult with counsel and who has not been advised of his right to remain silent, he has been denied his right to counsel under the Sixth and Fourteenth Amendments, and any statements thus obtained may not be used against him at trial. Also see R.C. 120.16(F).

Miranda v. Arizona (1966), 384 U.S. 436 -- Statements of the accused obtained as a result of a custodial interrogation may not be used at trial unless the suspect has been properly advised of his rights. If at any time the individual indicates he wishes to remain silent or speak with counsel, interrogation must cease. When an interrogation is conducted without counsel being present, the prosecution bears the heavy burden of showing the defendant knowingly and intelligently waived his right to counsel.

State v. Buchholz (1984), 11 Ohio St. 3d 24 -- Syllabus: "Miranda warnings must be given prior to any custodial interrogation regardless of whether the individual is suspected of committing a felony or misdemeanor. (State v. Pyle, 19 Ohio St. 2d 64, paragraph two of the syllabus, overruled.)"

State v. Holt (1997), 132 Ohio App. 3d 601 -- Juvenile in custody for a separate offense was questioned, initially as a witness, concerning a homicide. Miranda warnings held to be required any time a person is in custody, whether as a suspect or otherwise. Court relies on Mathis v. United States (1968), 391 U.S. 1 holding warnings were required when IRS agents questioned a state prisoner.

Berkemer v. McCarty (1984), 468 U.S. 420 -- Roadside questioning of motorist as a part of routine traffic stop does not require Miranda warnings but custodial interrogation at station after arrest does. Also see Pennsylvania v. Bruder 488 U.S. 9; Pennsylvania v. Muniz (1990), 496 U.S. 582.

Rhode Island v. Innis (1980), 446 U.S. 291, 300-301 -- "We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should reasonably know are likely to elicit an incriminating response from the suspect." Also see State v. Williams (1983), 6 Ohio St. 3d 281, 289-291. Compare Arizona v. Mauro 481 U.S. 520 -- Open taping of conversation between defendant and his wife (at her insistence) not the equivalent of interrogation. Defendant told her not to answer questions until consulting with lawyer. Tape was used to rebut claim of insanity.

California v. Prysock (1981), 453 U.S. 355 -- There is no specific language which must be used in advising a person of his Miranda rights. Also see Duckworth v. Egan (1989), 492 U.S. 195.

Crane v. Kentucky (1986), 476 U.S. 683 -- If the court overrules a motion to suppress statements, the defendant is still entitled to introduce testimony concerning circumstances under which statement was made, as this also goes to credibility. Also see State v. Bailey (1993), 90 Ohio App. 3d 58, 68-71.

State v. Kassow (1971), 28 Ohio St. 2d 141 -- Prior to any use of a defendant's statement made while in custody, the state has the burden of showing that the statement was made voluntarily within the context of Miranda.

Harris v. New York (1970), 401 U.S. 222 -- On cross-examination, the defendant may be impeached using his own statement which was otherwise inadmissible because of Miranda defects, provided the statement is otherwise trustworthy (i.e. not coerced). Also see Oregon v. Haas (1975), 420 U.S. 714; State v. Butler (1969), 19 Ohio St. 2d 55, paragraph two of the syllabus.

Oregon v. Elstad (1985), 470 U.S. 298 -- Subsequent confession received after proper Miranda warnings may be admissible notwithstanding earlier and improperly obtained confession, provided first confession was not coerced.

In re Johnson (1996), 106 Ohio App. 3d 38 -- Error to permit prosecutor to ask unrepresented juvenile if he would stipulate prior conviction without first advising him of his Miranda rights.

Estelle v. Smith (1981), 451 U.S. 454 -- The Fifth Amendment extends to statements made to an examiner at a court ordered psychiatric evaluation to determine competency to stand trial, and to the use of any statements obtained, at either the guilt or penalty phase of a death penalty prosecution. For statements to be used, Miranda warnings must have been given. Note that R.C. 2945.38(J) states: "No statement made by a defendant in an examination or hearing relating to his competence to stand trial shall be used in evidence against him on the issue of guilt in any criminal action."

State v. Bolan (1971), 27 Ohio St. 2d 15 -- Civilian store security personnel are not required to give Miranda warnings. Also see State v. Gallombardo (1986), 29 Ohio App. 3d 279; State v. Ferrente (1985), 18 Ohio St. 3d 106 (lottery commission security officers are not law enforcement officers).

New York v. Quarles (1984), 467 U.S. 649 -- There is a narrow "public safety" exception to the requirement of Miranda warnings, which allows some questions necessary to secure the safety of the public or the arresting officers and not directed to obtaining testimonial evidence from the suspect.

State v. Lackey (1981), 3 Ohio App. 3d 239 -- In connection with a Terry stop and frisk, for his own protection, officer may ask suspect where the weapon is without giving Miranda warnings.

Schneckloth v. Bustamonte (1972), 412 U.S. 218 -- Miranda warnings are not required to validate a consent search when defendant is not in custody.

State v. Austin (1977), 52 Ohio App. 2d 59 -- Miranda warnings are not required to validate a consent search when defendant is in custody. Also see United States v. Garcia (5th Cir. 1974), 496 F. 2d 670, 673.

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Custody issues

J.D.B. v. North Carolina (2011), 131 S.Ct. 2394 – Determining whether the accused was in custody when questioned turns on an objective assessment of (1) the circumstances surrounding the interrogation, and (2) whether a reasonable person would believe he or she was at liberty to end questioning and leave. A child’s age is to be taken into account making this assessment. Thirteen year old was taken out of class to a conference room where a uniformed officer and a school administrator questioned him for at least 30 minutes.

Maryland v. Shatzer (2010), 130 S.Ct. 1213 – Inmate exercised his Miranda rights in 2003 and was returned to the prison population. Three years later he was questioned by a different detective, waived his rights and incriminated himself. Elaborating upon Edwards v. Arizona (1981), 451 U.S. 577, a break in custody of fourteen days or more resets the clock for further interrogation. This is viewed as time enough following the termination of the Miranda custody for its lingering effects to dissipate. Even though the defendant remained in prison, there was a break in Miranda custody.

State v. Porter, 178 Ohio App. 3d 304, 2008-Ohio-4627 – Jail inmate was suspected of concealing drugs on her person. Pat down revealed a foreign object in the area of her crotch, but she would not cooperate in removal leading to completion of paperwork for a strip search, then the search. Still no evidence was recovered. A detective told the defendant he was going to obtain a warrant for a body cavity search and that unless she cooperated she would be charged to the full extent of the law. Again she refused. While waiting for the warrant to issue the defendant contacted the detective and agreed to hand over drugs. She was not Mirandized until questioned again the following day. (1) For the interrogation of an inmate held on another offense to be custodial there must be a change in the surroundings of the prisoner that result in an added imposition on freedom of movement. That existed here. Statements made before eventual Miranda warnings must be suppressed. Also see Cervantes v. Walker (9th Cir. 1978), 589 F.2d 412; United States v. Cooper (4th Cir. 1986), 800 F.2d 412; State v. Bradley (Sept. 22, 1987), Scioto App. No. 1583; State v. Swinney (July 15, 1989), Pickaway App. No. 87CA41. (2) Prior statements do not taint later statements because they were not the product of what was in effect a continuous interrogation process and the fruit of the poisonous tree doctrine does not apply. (3) Because the initial yielding up of the drugs was the product of a coerced confession, the drugs must be suppressed. Plain error found. (4) Inevitable discovery does not apply because the effort to obtain a warrant for a body cavity search was tainted by the illegality of the coercion.

In re D.F., 193 Ohio App.3d 78, 2011-Ohio-1004 – Juvenile in detention center made statements during initial on the spot investigation of a situation Miranda warnings were nor required unless there was a greater than usual restriction of the juveniles freedom of movement within the institutional setting.

State v. Hatten, 186 Ohio App. 3d 286, 2010-Ohio-499, ¶46-59 – Statements made by the defendant at the door to his house to officers’ investigating a rape were not custodial. “I’m gonna talk to a lawyer” was not an unequivocal demand for an attorney. Though the defendant was detained in a cruiser while a search warrant was obtained, no further statements were made during this time.

State v. Chrzanowski, 180 Ohio App. 3d 324, 2008-Ohio-6993 – Officer first saw car stopped partially blocking a traffic lane, but by the time he turned around and went back to check the car had pulled into a driveway. Majority decides parking the cruiser to block the driveway did not amount to taking the driver into custody, thus requiring Miranda warnings.

Yarborough v. Alvarado (2004), 124 S.Ct. 2140 -- Custody for Miranda purposes is determined objectively, looking to the circumstances surrounding the interrogation, and whether a reasonable person would have felt free to end the interview and leave. Applying AEDPA, state court conclusion that juvenile was not in custody was not unreasonable.

Kaup v. Texas (2003), 123 S.Ct. 1843 -- Teenager was taken from his bedroom to police headquarters in the middle of the night, in hand cuffs and wearing only his underwear. Absent probable cause, this was an illegal arrest. Notwithstanding Miranda warnings, subsequent confession was fruit of the poisonous tree. Opinion summarizes prior case law regarding when a seizure occurs.

State v. Salvatore, Franklin App. No. 02AP-573, 2003-Ohio-957 -- (1) Trial court properly found subject was in custody when she was being held in a secure portion of a mental hospital and was questioned by investigators authorized to be inside the facility. (2) History and nature of mental illness, medication, brevity of Miranda warnings, and termination of a prior interview supported the conclusion that the subject was not competent to waive her Miranda rights.

State v. Pies (2000), 140 Ohio App. 3d 535 -- While the initial detention of the suspect in the back of a cruiser while running license check was OK, continued detention and a demand to know what he had been doing became custodial interrogation. License and pat down had already turned up nothing to justify continued detention. Subsequent consent search of car not found to be an independent act of free will.

State v. Moore (2000), 140 Ohio App. 3d 278 -- When physician informed mother her daughter was dead, mother explained how her injuries had been incurred. Police officer was in the room, but asked no questions. Custody is not established so Miranda warnings were not required.

Akron v. Sutton (2000), 106 Ohio Misc. 46 -- Trial court refuses to construe police department's preferred arrest policy as rendering custodial questioning by an officer responding to a domestic violence situation.

State v. Springer (1999), 135 Ohio App. 3d 767 -- After recanting the claim she had been raped, defendant was convicted of falsification. Miranda warnings were not required at the time she was asked by the sheriff to tell the truth about what happened as she was being treated as a victim and was not in custody.

Rocky River v. Saleh (2000), 139 Ohio App. 3d 313, 320-321 -- Officer told motorist he had been pulled over because computer check of plates indicated he had no driving privileges. Defendant gave his name and said he had no license before any questions were asked. Defendant deemed not in custody.

State v. Thoman, Franklin App. No. 04AP-787, 2005-Ohio-898 -- Statement made to a caseworker, who was not acting as an agent of the police, was not custodial.

Stansbury v. California (1994), 511 U.S. 318, 323 -- "Our decisions make clear that the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." At p. 325: "An officer's knowledge or beliefs may bear upon the custody issue if they are conveyed, by word or deed, to the individual being questioned."

Thompson v. Keohane (1995), 516 U.S. 99 -- Issue of custody for Miranda purposes is a subject for independent review by an appellate court.

Hicks v. United States (C.A.D.C. 1967), 382 F. 2d 158 -- Interrogation is not "custodial" merely because it took place at the police station.

United States v. Jonas (5th Cir. 1981), 639 F. 2d 200, 203 -- Fifth Circuit applies a four part test to determine whether interrogation was custodial: "(1) Whether probable cause for arrest had arisen; (2) whether the officer intended to hold the defendant; (3) whether the defendant believed that his freedom was significantly restricted; and (4) whether the investigation focused on the defendant."

State v. Barker (1978), 53 Ohio St. 2d 135 -- In the context of determining whether interrogation was custodial, arrest is said to depend on four requisite elements: "(1) An intent to arrest, (2) under real or pretended authority, (3) accompanied by an actual or constructive seizure or detention of the person, and (4) which is so understood by the person arrested." (Syllabus, paragraph one.)

State v. Thompson (1995), 103 Ohio App. 3d 498, 502-503 -- Interrogation was custodial, even though defendant was expressly told he was not under arrest, where: (1) defendant believed he would be arrested and taken to jail if did not cooperate by agreeing to search and accompanied officers to station for questioning; (2) defendant was not told he was free to leave during questioning; (3) police had seized defendant's car keys and cash, leaving him dependent on them for ride home; and (4) defendant had health problems and expressed concern about need for an insulin shot.

State v. Wilson (1991), 76 Ohio App. 3d 519 -- Interrogation held custodial where armed officers entered social hall rented by two fraternities, ordered occupants to freeze and raise their hands, then proceeded to check ID's, detaining those who were under age for questioning as to whether they had consumed alcoholic beverages.

State v. Peeples (1994), 94 Ohio App. 3d 34, 40-43 -- Determination whether questioning in a prison setting was custodial focuses on the coercive effect of the circumstances and added restriction on the subject's movements.

State v. Rossiter (1993), 88 Ohio App. 3d 162 -- Interrogation in cruiser, conducted by two officers and focusing on the guilt of the person questioned, was properly found to be custodial. Furthermore, it was clear that the mildly mentally retarded defendant did not make a proper waiver of his Miranda rights, and it is doubtful whether he even understood those rights.

State v. Wilson (1986), 31 Ohio App. 3d 133 -- Defendant was restrained of his freedom in a significant way, making the interrogation custodial, after appearing voluntarily for polygraph, but then being told to complete test after he had indicated his desire not to do so.

State v. Waibel (1993), 89 Ohio App. 3d 522 -- Interview of college student in cruiser was non custodial where he was told he was not under arrest, he was not handcuffed, and weapons were not brandished.

State v. Chism (1993), 92 Ohio App. 3d 317 -- Questioning in cruiser was not custodial where there was no suspicion that the defendant had engaged in wrongdoing before admissions were made.

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Other circumstances surrounding interrogation

State v. Jenkins, 192 Ohio App. 3d 276, 2011-Ohio-754 – Arrestee was concerned about going into heroin withdrawal. Officer’s remarks concerning getting help rendered waiver or rights involuntary. Among the misrepresentations was the possibility of intervention in lieu of conviction, which was not available for the third degree felony the defendant faced.

State v. Colquitt, 188 Ohio App. 3d 509, 2010-Ohio-2210 – Highway Patrol officer investigating the flow of drugs into Chillicothe Correctional Institution had an administrative employee bring the defendant, an inmate, to a room for questioning. Defendant invoked his right to counsel. Officer left, but employee remained. Admissions followed. Motion to suppress properly granted. The employee was an agent of the state, or alternately of the officer. All questioning should have stopped.

In re J.C., 173 Ohio App. 3d 405, 2007-Ohio-5763 – Juvenile was in custody and being questioned about an alleged rape. Only after he acknowledged knowing the victim did the officer interrupt interrogation to give Miranda warnings. Trial court suppressed. Reversed. The trial court failed to address whether midstream Miranda warnings were effective enough to accomplish their object. Coercion may not be presumed. Missouri v. Seibert (2004), 542 U.S. 600, calls for assessment of the completeness and detail in the initial round of questioning, overlapping content, timing and setting, continuity of police personnel, and the degree to which the questions treated the second round as a continuation of the first.

Fellers v. United States (2004), 124 S.Ct. 1019 -- After an indictment was returned, and an arrest warrant issued, officers obtained incriminating statements from the defendant at his home without first providing Miranda warnings. Admissions were repeated at the jailhouse after warnings were given. The Sixth Amendment requires suppression of the statements obtained at the house as they were deliberately elicited in the absence of counsel after judicial proceedings had been initiated. Remanded for determination whether the jailhouse statements were the fruit of this illegality.

State v. Lynch, 98 Ohio St. 3d 514, 2003-Ohio-2284, ¶ 54-61 -- Low intelligence and police deception are factors to be weighed in determining the voluntariness of a statement. But so are level of functioning and benign treatment by officers during questioning. Also see State v. Hughbanks, 99 Ohio St. 3d 365, 2003-Ohio-4121, ¶ 62: Police officers were not required to consult a psychiatrist to determine statements were the product of free will.

In re Goins (1999), 137 Ohio App. 3d 158 -- Eleven year old's mother was present when waiver was signed, but not when statement was made. Absent substantial credible evidence of coercive police conduct, confession should not have been suppressed. A juvenile has no right to have a parent resent during questioning. "The Fifth Amendment is not concerned with moral and psychological pressures emanating from sources other that official coercion."

State v. Sneed, 166 Ohio App. 3d 492, 2006-Ohio-1749 -- Before being Mirandized the defendant acknowledged he had thrown a gun in the bushes after an auto accident. Afterwards he made additional statements establishing he had carried the gun concealed on his person. The initial statements were admissible under the public safety exception. The later statements are deemed not to be the product of a "question first" strategy as the defendant had not been asked the same questions before being advised.

Lanier v. North Carolina (1985), 474 U.S. 25 -- Even though a confession may be voluntary in the sense that Miranda warnings were given and understood, a confession may still be suppressible as the product of an illegal arrest.

Brown v. Illinois (1975), 422 U.S. 590 -- Statement obtained as the product of an illegal arrest is not per se admissible based on use of Miranda warnings before statement was obtained. Must be shown that statement is sufficiently the product of free will purge the taint of the Fourth Amendment violation. Also see Wong Sun v. United States (1963), 371 U.S. 471.

Dunaway v. New York (1979), 442 U.S. 200, 217-219 -- In determining whether a confession is inadmissible because it was the product of an unlawful arrest, a court is to consider the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and in particular, the purpose and flagrancy of the official misconduct.

Taylor v. Alabama (1982), 457 U.S. 687 -- Notwithstanding Miranda warnings having been given, a confession obtained through custodial interrogation following an illegal arrest (not based on probable cause) must be suppressed unless intervening events break the causal connection between the arrest and the confession so that the confession is sufficiently an act of free will to purge the primary taint.

New York v. Harris (1990), 495 U.S. 109 -- When police had probable cause to arrest defendant, but made an illegal entry into his home to take him into custody, the exclusionary rule does not apply to statement made after proper Miranda warnings either outside his home or at the station.

Brewer v. Williams (1977), 430 U.S. 387 -- When the unwillingness to make a statement in the absence of counsel had been established, manipulation of defendant by means of "Christian burial speech" did not render statement voluntary.

State v. Luck (1984), 15 Ohio St. 3d 150 -- Motion to suppress statement for denial of right to counsel properly sustained when a police officer elicits statements from the defendant after (1) refusing to allow an attorney, retained pursuant to the defendant's request, to speak to the defendant on the telephone, (2) failing to inform the defendant either of the attorney's retention by her husband or of the attorney's telephone calls to the police station on her behalf, and (3) assuring the defendant's attorney that the police will not talk to or interrogate the defendant. Compare Moran v. Burbine (1986), 475 U.S. 412.

State v. Roberts (1987), 32 Ohio St. 3d 225 -- Syllabus: "Statements by an in-custody probationer to his probation officer are inadmissible in a subsequent criminal trial, where prior to questioning, the probation officer failed to advise the probationer of his Miranda rights as required by Section 10, Article I of the Ohio Constitution and by the Fifth and Fourth Amendments to the United States Constitution."

State v. Gallagher (1974), 38 Ohio St. 2d 291 -- "Testimony as to utterances made by an accused to his parole officer is inadmissible at trial where the utterances were in response to questions by the parole officer, and prior to the questioning, the parole officer failed to advise the accused of his right to remain silent, of his right to be provided with counsel prior to questioning, and warn him that any utterance may be used as evidence against him." Further explained, but not modified: State v. Gallagher (1976), 46 Ohio St. 2d 225.

Minnesota v. Murphy (1984), 465 U.S. 420 -- Interrogation by probation officer when probationer was a suspect, but had not been charged, was not custodial and admissions could be used.

State v. Cossin (1996), 110 Ohio App. 3d 79 -- Statement made to probation officer without Miranda warnings was admissible in revocation proceedings. Statements would not be admissible in new criminal proceedings. Also see Minnesota v. Murphy (1984), 465 U.S. 420.

State v. Brown (1993), 91 Ohio App. 3d 427 -- Interrogation took place in a Department of Human Services office under the threat that the child would be removed from the home if the parents did not cooperate, and was largely conducted by a 6'5", 330 pound police sergeant whose physical proximity cause the defendant to express discomfort at one point. Circumstances were so coercive that it was not error for the trial court to have found interrogation to be custodial, despite representation that the defendant could leave or refuse to answer questions. Also see State v. Torres (1990), 67 Ohio App. 3d 268.

State v. Uhler (1992), 80 Ohio App. 3d 113 -- Presence of deputy during interview at Children Services office did not render interrogation custodial.

State v. Tucker (1998), 81 Ohio St. 3d 431 -- Defendant with background of mental illness appeared distressed while watching news coverage of codefendant's trial. Deputies took him to another room, when he said he might plead guilty, then gave details of the homicide. Applying Rhode Island v. Innis (1980), 446 U.S. 436, this is held not to be the functional equivalent of interrogation. Statements were admissible though no Miranda warnings were given. See dissent.

State v. Arrington (1984), 14 Ohio App. 3d 111 -- Headnote 2: "Where an accused's decision to speak was motivated by police officers' statements constituting 'direct or indirect promises' of leniency or benefit and other representations regarding the possibility of probation which were misstatements of the law, his incriminating statements, not being freely self-determined, were improperly induced, involuntary and inadmissible as a matter of law." But see Hutto v. Ross (1976), 429 U.S. 28 and State v. Blackwell (1984), 16 Ohio App. 3d 100 concerning admissibility of statements made during actual plea negotiations.

Wyrick v. Fields (1982), 459 U.S. 42 -- If a defendant has waived the right to have attorney present at polygraph examination, and it is clear he understood his rights to stop questioning or to speak with attorney at any time, Miranda rights do not have to be repeated before questioning him about the results of the polygraph. Compare United States v. Jackson (8th Cir. 1982), 690 F. 2d 147.

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Waiver of rights issues

Berghuis v. Thompkins (2010), 130 S.Ct. 2250 – Defendant was given his Miranda rights, did not sign a waiver, and remained silent through most of a three hour integration. At one point he responded yes to an incriminating question. Invocation of right to counsel requires interrogation cease, but waiver is not needed for it to proceed. Prolonged silence is not taken as an assertion of the privilege. Voluntary statement is an implied waiver, provided warnings were given and understood.

State v. Lather, 110 Ohio St. 3d 270, 2006-Ohio-4477 -- A waiver of Miranda rights may be inferred from the totality of the circumstances without an explicit waiver. Circumstances here included age, education, a prior criminal record and the recent signing of a waiver form in another investigation.

State v. Streeter, 162 Ohio App. 3d 748, 2005-Ohio-4000 -- Defendant initialed a waiver form next to each of the enumerated rights and acknowledged he had been advised and understood those rights. He did not sign the waiver line, but later answered questions from a holding cell. Waiver held knowing and voluntary, though it was not express.

State v. Lather, Sandusky App. No. S-03-008, 2005-Ohio-668 -- Defendant was arrested and taken to his apartment to be present during execution of a search warrant. He was given some Miranda advice, but was not asked if he understood or waived. Statements must be suppressed. An understanding of rights may not be presumed. Tague v. Louisiana (1980), 444 U.S. 469, followed.

North Carolina v. Butler (1979), 441 U.S. 369 -- An explicit statement or signed form stating that Miranda rights are waived is not essential. Waiver may be inferred from all of the facts and circumstances. Also see State v. Scott (1980), 61 Ohio St. 2d 155, 161;

State v. Jones (1974), 37 Ohio St. 2d 21 -- Syllabus: "Where a suspect, after being fully apprised of his rights under Miranda v. Arizona, 384 U.S. 436, indicates an understanding of those rights, but subsequently acts in such a way as to reasonably alert the interrogating officer that the warnings given have been misapprehended, the officer must, before any further questioning, insure that the suspect fully understands his constitutional privilege against self-incrimination, as described in Miranda, supra." (Defendant refused to sign waiver form until he spoke with his attorney, but then talked to the detective until notes were taken.) Also see State v. Parker (1975), 44 Ohio St. 2d 171. (Defendant refused to sign waiver.)

Carvey v. LeFevre (2nd Cir. 1979), 611 F. 2d 19 -- Failure to inform arrestee, or to ascertain that he knew he had been indicted, rendered waiver of rights involuntary. Compare Patterson v. Illinois (1988), 487 U.S. 285 (No violation of Sixth Amendment right to counsel where defendant made statement after being informed of indictment and given Miranda warning.)

Colorado v. Spring (1987), 479 U.S. 564 -- A suspect's awareness of all the crimes about which he might be questioned is not relevant to determining the voluntariness of his waiver of his Fifth Amendment privilege.

Connecticut v. Barrett (1987), 479 U.S. 523 -- Limited invocation of rights, by only refusing to provide written statement, did not establish incomplete understanding of rights. Also see State v. Fields (1984), 13 Ohio App. 3d 433.

State v. Mulkey (1994), 98 Ohio App. 3d 773 -- Under the totality of the circumstances, defendant's waiver found to be knowing and voluntary, despite unrefuted expert testimony concerning limited intellect.

State v. Dixon (1995), 101 Ohio App. 3d 552 -- Defendant was deliberately not Mirandized during first interrogation concerning a forgery, but was Mirandized prior to questioning several hours later concerning a related homicide. Court refuses to find second statement suppressible under the fruit of the poisonous tree doctrine. Oregon v. Elestad (1985), 470 U.S. 298 applied.

State v. Lester (1998), 126 Ohio App. 3d 1, 6 -- "In determining whether Miranda warnings became so stale as to dilute their effectiveness because of a significant lapse in the process of interrogation, the following totality-of-the-circumstances criteria should be considered: (1) the length of time between the giving of the first warnings and subsequent interrogation, (2) whether the warnings and the subsequent interrogation were given in the same or different places, (3) whether the warnings were given and the subsequent interrogation conducted by the same or different officers, (4) the extent to which the subsequent statement differed from any previous statements, and (5) the apparent intellectual and emotional state of the suspect."

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Invocation of right to counsel or to remain silent

Montejo v. Louisiana (2009), 129 S.Ct. 2079 -- Michigan v. Jackson (1986), 475 U.S. 625, is overruled. That case held that once a defendant has made a request for counsel at arraignment, any waiver of that right during a subsequent police-initiated interrogation is invalid. Point of departure is that in Michigan counsel is appointed upon request of the defendant, while the defendant in Montejo was appointed counsel without making an affirmative request. The majority finds sufficient protection is afforded by Miranda v. Arizona (1966), 384 U.S. 436, Edwards v. Arizona (1980), 451 U.S. 477, and Mississippi v. Minnick (1998), 498 U.S. 146. The floridly written majority and concurring decisions, and the angry dissent, suggest shifting sands on the application of stare decisis in Fifth and Sixth Amendment cases.

State v. Raber, 189 Ohio App. 3d 396, 2010-Ohio-4066 – Detectives went to the defendant’s door to place her under arrest and to execute a search warrant. Defendant was read her rights when placed under arrest. She appeared to understand, but said nothing. Crossing the yard to a cruiser she sat down for a moment and asked, “Can I have an attorney?” Before the detective could answer, she had further questions concerning her children. Only after she and the detectives were in a cruiser was she told she could have a lawyer. She said she understood and proceeded to talk to the detectives for about two hours. Waiver found. Her question is not construed as an unequivocal request for counsel. Compare concurring opinion which concludes right to counsel was invoked, but error is harmless beyond a reasonable doubt.

Michigan v. Mosley (1975), 423 U.S. 96 -- The police must scrupulously honor a defendant's invocation of Miranda rights and cease questioning. They did so by ending interrogation of a robbery suspect. Subsequent questioning about an unrelated homicide by other officers and fresh Miranda warnings did not violate Miranda principles.

Texas v. Cobb (2001), 121 S.Ct. 1335 -- Invocation of the Sixth Amendment right to counsel is offense specific. Defendant who was represented on a burglary charge was advised of Miranda rights and confessed to murders arising from the same incident. No Sixth Amendment violation found even though the charges were closely related. A violation exists only if the additional charges fall within the Blockburger test used in double jeopardy cases.

State v. Kerby, 162 Ohio App. 3d 353, 2005-Ohio-3734 -- Applying Michigan v. Mosley (1975), 423 U.S. 96, officers did not scrupulously honor the defendant's exercise of Miranda rights. After time had passed the one of the officers involved induced the defendant to talk through an explanation of the benefits he might realize, including reference to information from other suspects. However, subsequent interview by reporters did not require Miranda warnings and the taint of the initial violation did not render those statements inadmissible.

State v. Murphy (2001), 91 Ohio St. 3d 516 -- In a capital case, the majority finds the defendant's statement that he is "ready to quit talking, and * * * go home too" not to be unambiguous. Concurring justice disagrees, but finds harmless error. Dissenting justice would probably reverse. Also see State v. Jackson, 107 Ohio St. 3d 300, 2006-Ohio-1.

State v. Taylor (2001), 144 Ohio App. 3d 255, 260 -- "Do I need and attorney?" found not to be an unambiguous request for an attorney. Officer's failure to read aloud a small portion of the waiver form, which the defendant had before him to read, did not invalidate waiver.

State v. Santini (2001), 144 Ohio App. 3d 396, 409 -- Initial interview stopped when counsel showed up. Defendant later expressed her desire to complete her statement, and did so after (it was claimed) she was reminded of her attorney's advice and signed a waiver form. Suppression not required.

State v. Neely, 161 Ohio App. 3d 99, 2005-Ohio-2342 -- The defendant invoked his right to remain silent when he refused to take a polygraph test, but months later made an incriminating statement after again being advised of his Miranda rights and agreeing to talk. The rule of Edwards v. Arizona is held not to apply to suspects who have not been in continuous custody.

Edwards v. Arizona (1980), 451 U.S. 477 -- Once the right to counsel has been invoked, a valid waiver of that right can not be established merely by showing that the defendant subsequently made a statement after again being advised of his rights, unless the defendant has initiated the contact with the authorities. Also see State v. Van Hook (1988), 39 Ohio St. 3d 256.

Arizona v. Roberson (1988), 486 U.S. 675 -- Edwards rule applies even when police later question defendant about a separate incident.

Davis v. United States (1994), 512 U.S. 452 -- The Edwards requirement that questioning cease when the defendant asks to speak to a lawyer is not triggered when the reference to a lawyer is ambiguous or equivocal. An hour and a half into the interview, the defendant said, "Maybe I should talk to a lawyer." This was not enough to preclude further questioning. Also see State v. Salinas (1997), 124 Ohio App. 3d 379, 385-386; State v. Henness (1997), 79 Ohio St. 3d 53, 63.

Smith v. Illinois (1984), 469 U.S. 91 -- Invocation of right to counsel and any subsequent waiver are separate issues. Response to further questions may not be used to cast doubt on initial invocation of right to counsel.

Minnick v. Mississippi (1990), 498 U.S. 146 -- Invocation of right to counsel remains in effect such that after defendant has initially consulted with counsel, police still may not initiate further questioning and attempt to have defendant waive his rights.

Oregon v. Bradshaw (1983), 462 U.S. 1039 -- Even if it is the defendant who initiates further conversation with the authorities after having invoked the right to counsel, it must be determined that he made a knowing and intelligent waiver of his right to counsel. Compare State v. Stamper (1986), 33 Ohio App. 3d 104.

United States v. Hinckley (C.A.D.C. 1982), 672 F. 2d 115 -- Twenty-five minute "background interview" five hours after arrest and after defendant had invoked right to counsel was designed to elicit incriminating responses and was properly suppressed.

Michigan v. Jackson (1986), 475 U.S. 625 -- Once a defendant has made a request for counsel at arraignment, any waiver of that right during a subsequent police initiated interrogation is invalid.

McNeil v. Wisconsin (1991), 501 U.S. 171 -- Representation by counsel at a bail hearing on an unrelated charge not sufficient to invoke right to counsel for purposes of Edwards and Roberson.

State v. Taylor (1992), 80 Ohio App. 3d 601 -- At initial appearance the defendant was told counsel would be appointed. Subsequently, he mistook a detective for appointed counsel and made admissions. Held that regardless of the defendant's or detective's claims concerning this contact, any interrogation, once the right to counsel had been invoked, was improper unless initiated by the defendant. Minnick v. Mississippi (1990), 498 U.S. 146, applied.

State v. Knuckles (1992), 65 Ohio St. 3d 494 -- Arrest on an outstanding warrant for passing bad checks was a pretense for questioning the defendant about a homicide he was later charged with. The defendant invoked the right to counsel as to the check charges, but signed a Miranda waiver and answered questions about the homicide. The statements should have been suppressed. Syllabus: "(1) Once an accused invokes his right to counsel, all further custodial interrogation must cease and may not be resumed in the absence of counsel unless the accused thereafter effects a valid waiver or himself renews communication with the police. (State v. Williams [1983], 6 Ohio St. 3d 281...paragraph four of the syllabus, followed.) (2) When a statement, question or remark by a police officer is reasonably likely to elicit an incriminating response from a suspect, it is an interrogation. (Rhode Island v. Innis [1980], 446 U.S. 291...)"

Cincinnati v. Gill (1996), 109 Ohio App. 3d 580 -- OMVI arrestee called lawyer from police station, then refused to take test. Call amounted to invocation of right to counsel. Response when asked why test was refused was, therefore, properly suppressed, and could not be characterized as routine booking information.

State v. Geasley (1993), 85 Ohio App. 3d 360 -- OMVI arrestee was videotaped at the police station. Portions relating to advice required under the implied consent law, booking information, and showing general appearance and demeanor were admissible. Portion relating to questioning after Miranda warning, and assertion of such rights, was not. Also see Pennsylvania v. Muniz (1990), 496 U.S. 582.

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Police informants and agents

State v. Conway, 108 Ohio St. 3d 214, 2006-Ohio-791, ¶56-90 -- Prosecutor enlisted a capital defendant's distant cousin as an informant after he had been arrested and indicted. Massiah violation found, but deemed harmless in view of the strength of the evidence. Statements to the informant were properly used in cross-examination of the defendant.

Massiah v. United States (1964), 377 U.S. 201 -- Surreptitious interrogation of defendant during continuing investigation following indictment, at a time when defendant was represented by counsel, was a denial of right to counsel under the Sixth Amendment.

Illinois v. Perkins (1990), 496 U.S. 292 -- Massiah does not apply where no charges have been filed and undercover officer is placed in cellblock to seek incriminating information. Also see Hoffa v. United States (1966), 385 U.S. 293.

United States v. Henry (1980), 447 U.S. 264 -- Statements made to inmate in same cell block inadmissible when paid informant had been contacted by government agents and asked to be alert to incriminating statements made by federal prisoners. Compare Thomas v. Cox (4th Cir. 1983), 708 F. 2d 132 (contact with authorities initiated by snitch); Kuhlmann v. Wilson (1986), 477 U.S. 436, 456-461.

State v. Adkins (1992), 80 Ohio App. 3d 211, 219-220 -- Undercover officer working with an informant in a bar by chance overheard defendant make incriminating statements to an informant concerning pending charges. No Massiah violation found.

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Coerced confessions

Garrity v. New Jersey (1967), 385 U.S. 493 – Under the New Jersey forfeiture of office statute, exercise of the Fifth Amendment privilege against self-incrimination could cost public employees their positions. Police officers complied with the statute, but the resulting statements were made under duress and could not be used against them in a state criminal proceeding.

State v. Groszewski, 183 Ohio App. 3d 718, 2009-Ohio-4062 – City employee showed up for work and left driving a city truck. Reports indicated he might be under the influence, so he was ordered back to the depot and taken to a hospital for testing in accordance with his contract, which specified a refusal could cost him his job. Test results were admissible for Fifth Amendment purposes, but the statements he made at the hospital were coerced and inadmissible, applying Garrity v. New Jersey (1967), 385 U.S. 493. However, the test results are suppressible as a Fourth Amendment violation, as without the statements obtained in violation of the Fifth Amendment, officers did not otherwise have probable cause.

State v. Jackson, 125 Ohio St. 3d 218, 2010-Ohio-621 – Police officer on administrative leave had a gun when he was involved in a bar fight. He made a Garrity statement in the presence of another officer who later testified before the grand jury. Trial prosecutor also had access to the statement. Applying the test of Kastigar v. United States (1972), 406 U.S. 441, the prosecution neither denied any use of the defendant’s immunized testimony, nor affirmatively demonstrated all of the evidence to be used at trial was derived from wholly independent sources. Remedy is dismissal of the indictment.

State v. Perez, 124 Ohio St. 3d 122, 2009-Ohio-6179, ¶62-76 -- Threats to arrest a family member may render a confession involuntary, but not if, in fact, there was probable cause to make such an arrest.

State v. Petitjean (2000), 140 Ohio App. 3d 517 -- False representations to suspect during interrogation so affected his calculus as to the waiver of Fifth Amendment rights as to render confession involuntary. Suggestions that he acted in self-defense were OK, but implication that confession was necessary for lenient treatment, possibly including probation, overbore his will. "Petitjean's testimony that he believed that the officers had an electric chair in the basement they intended to put him in is no more than an attempt to portray his state of fear through hyperbole." Also see State v. Jackson Greene App. No. 01CA0001, 2002-Ohio-4680.

State v. Copley, 170 Ohio App. 3d 217, 2006-Ohio-6478 -- Statements that jail is not for everybody, that everybody deserves a second chance, and that counselling is a way to get that second chance arise to the level of an implied promise of leniency, but the court concludes that under the totality of the circumstances they did not render the defendant's statement involuntary.

State v. Phillips, Clark App. No. 2003-CA-15, 2004-Ohio-4688 -- Kettering officer induced admissions promising only misdemeanor charges would be pursued, but the statements were used in a felony prosecution in a different county. ¶ 25: "...(T)he promise is binding on the State of Ohio with respect to any charges which are filed in its name, irrespective of what representative of the State files them or in what court of the State they are filed." Waiver of Fifth Amendment rights was less than knowing, intelligent and voluntary.

State v. Evans (2001), 144 Ohio App. 3d 539 -- Incarcerated juvenile made two inculpatory statements as a part of a program at the institution where he was held, and a third to the person driving him to a medical appointment. Miranda warnings were not required as the counsellors involved were not law-enforcement officers. They were state agents for purposes of the coerced confession rule, and the surrounding circumstances compelled the juvenile to either make a statement or face a penalty, except for the time he was being transported and responded to a casual question. Two of the three statements were properly suppressed. Though the appeal raised only constitutional issues, court notes that an incarcerated juvenile's statements to counselors may have been inadmissible under R.C. 2317.02(G)(1) or under federal statutes pertaining to confidentiality of patient records in federally assisted substance abuse programs. [See Title 42, U.S.C., Sec. 290dd-2.]

State v. Sess (1999), 136 Ohio App. 3d 689 -- Police officer was required to take a polygraph test as a part of assignment to a regional narcotics unit. Before the test he admitted that in the past he had planted drugs on a suspect. Further information concerning the specifics of this incident was coerced by the threat of losing his job. (1) Admissions were properly suppressed under the coerced confession rule. (2) Court declines to address the immunity issue raised pursuant to Jones v. Franklin County Sheriff (1990), 52 Ohio St. 3d 40. (3) Neither the inevitable discovery exception or the independent source doctrine save the admissibility of information derived from such admissions.

Malloy v. Hogan (1964), 378 U.S. 1 -- Coerced confessions are not admissible in state criminal trials. Also see Arizona v. Fulimanante (1991), 499 U.S. 279.

Colorado v. Connelly 479 U.S. 157 -- Coercive police activity is a necessary requisite to a finding of involuntariness. While the defendant's mental condition is a significant factor to be consider, it is not by itself dispositive. Also see Vance v. Bordenkircher (4th Cir. 1982), 692 F. 2d 978 (voluntary despite IQ of 62); State v. Davis (1984), 14 Ohio App. 3d 416 (statement made after defendant had been adjudicated incompetent to stand trial); State v. Knotts (1995), 111 Ohio App. 3d 753.

State v. Edwards (1976), 49 Ohio St. 2d 31, 40 -- In determining whether a statement was voluntary "...(T)he court should consider the totality of the circumstances, including 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." Also see Brown v. United States (10th Cir. 1966), 356 F. 2d 230, 232.

State v. Jackson (1977), 50 Ohio St. 2d 253 -- When defendant has been advised of his rights not asserted any of them, informing the defendant of the evidence against him does not render questioning coercive. Also see State v. Black (1976), 48 Ohio St. 2d 262; Frazier v. Cupp (1966), 394 U.S. 731 -- Misrepresentation that codefendant had confessed by itself did not render confession involuntary.

State v. Wilson (1996), 117 Ohio App. 3d 290 -- Officer told suspect he would only be charged with theft if he confessed. Otherwise he would be charged with aggravated robbery. Confession was involuntary

State v. Patterson (1993), 95 Ohio App. 3d 255, 260-262 -- Questioning found not to be coercive, though it extended over a prolonged period of time, as there was no showing that fatigue or discomfort produced the confession. Also see State v. Dailey (1990), 52 Ohio St. 3d 88, 92; State v. Barker (1978), 53 Ohio St. 2d 135, 141.

Cleveland Heights v. Stross (1983), 10 Ohio App. 3d 246 -- Confession by store employee to representatives of his employer held inadmissible when it was the product of coercion. Compare State v. Todd (1992), 78 Ohio App. 3d 454.

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State v. Treesh (2001), 90 Ohio St. 3d 460, 479-480 -- Doyle extends to mention of defendant's request for an attorney. However, mistrial was not required as error was harmless beyond a reasonable doubt.

State v. Ruby, 149 Ohio App. 3d 541, 2002-Ohio-5381 -- Though declining to find a Doyle violation plain error, and declining to reverse based on weight and sufficiency, the court finds counsel's failure to object amounted to ineffective assistance of counsel. The reasonable probability the outcome would have been different aspect of Strickland analysis requires this result where the evidence was less than overwhelming, though good enough to survive weight analysis.

State v. Geboy (2001), 145 Ohio App. 3d 706 -- Prosecutor made the defendant's failure to assert his innocence a centerpiece of opening and closing arguments and testimony by state's witnesses. Unlike Doyle, use was not limited to impeachment. This undermined the presumption of innocence. Reversed as plain error.

Doyle v. Ohio (1976), 426 U.S. 610 -- Use of post-arrest silence for impeachment purposes violates the Due Process Clause of the Fourteenth Amendment. Also see State v. Van Meter (19998), 130 Ohio App. 3d 592.

Fletcher v. Weir (1982), 455 U.S. 603 -- Doyle does not apply to post-arrest silence when no Miranda warnings have been given, since the defendant has not received the assurance that silence will not be used against him, which is implicit in the Miranda warnings. Also see State v. Sabbah (1982), 13 Ohio App. 3d 124 -- Evid. R. 403(A) to be applied in weighing admissibility of pre arrest silence; State v. Ospina (1992), 81 Ohio App. 3d 644; State v. Saunders (1994), 98 Ohio App. 3d 355; State v. Price (January 31, 1995), Franklin Co. App. No. 94APA07-1012, unreported (1995 Opinions 243).

Anderson v. Charles (1980), 447 U.S. 404 -- Doyle does not apply when defendant is cross-examined using his prior inconsistent statements to police officers, made after Miranda warnings. Also see State v. Gillard (1988), 40 Ohio St. 3d 226, 231-232; State v. Osborne (1977), 50 Ohio St. 2d 211.

State v. Thompson (1987), 33 Ohio St. 3d 1, 4 -- Prosecutors must take great care...not to equate the defendant's silence to guilt."

Greer v. Miller (1987), 483 U.S. 756 -- If an objection to an improper question about post-arrest silence is sustained and jury is instructed to disregard the question, mistrial or reversal is not required.

Wainwright v. Greenfield (1986), 474 U.S. 284 -- Defendant's post- arrest silence after being advised of Miranda rights may not be used as evidence of his sanity.

State v. Howard (1978), 56 Ohio St. 2d 328 -- Witness not entitled to Fifth Amendment protection may be cross-examined concerning silence at earlier proceedings.

State v. Nichols (June 26, 1979), Franklin Co. Case No. 79AP-57, unreported (1979) Opinions 1699 -- Opinion implies that it is improper to adduce testimony that defendant refused to sign rights waiver form. Also see State v. Motley (1985), 21 Ohio App. 3d 240.

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Codefendant's statements

State v. Adams, Clark App. No. 2003 CA 32, 2004-Ohio-2958 -- Bruton violation claimed where another person was indicted separately based on the facts of a single transaction. (1) No error since a severance is a potential remedy for a Bruton violation. (2) There must be a trial for a Bruton error to occur. Adams pled guilty.

Bruton v. United States (1968), 391 U.S. 123 -- Admission of a codefendant's confession at a joint trial where the codefendant does not take the stand denies defendant the right to cross-examination secured by the Confrontation Clause of the Sixth Amendment. Also see State v. Moritz (1980), 63 Ohio St. 2d 150.

Richardson v. Marsh (1987), 481 U.S. 200 -- If codefendant's confession is redacted so that it is not incriminating on its face, it may be admitted at joint trial, accompanied by instructions that it may not be considered in any way against the defendant.

Gray v. Maryland (1997), 523 U.S. 185 -- Bruton and Gray are not satisfied if in reading the codefendant's statement the word "deleted" or comparable language is substituted for the defendant's name in a manner making it obvious that the defendant is the person referred to, notwithstanding limiting instructions that the confession was to be considered only with respect to the codefendant.

Cruz v. New York (1987), 481 U.S. 186 -- Decision overrules Parker v. Randolph (1979), 442 U.S. 62, where the plurality opinion stated that separate trials may not be required if both defendant have confessed and confessions "interlock" or tend to corroborate each other. Thus, even an interlocking confession of a nontestifying codefendant is inadmissible at a joint trial, even with limiting instructions, unless it is admissible under some other theory.

Tamilo v. Fogg (2nd Cir. 1983), 713 F. 2d 18 -- To be "interlocking" confessions need not be identical, though they must be substantially the same and consistent on the major elements of the crime involved.

United States v. Iron Thunder (8th Cir. 1983), 714 F. 2d 765 -- Statements do not interlock when codefendants incriminate one another but each denies his own culpability.

United States v. Lewis (C.A.D.C. 1983), 716 F.2d 16, 19 -- Use of dual juries discussed and approved. Each jury heard confession of the defendant they were trying, but not that of codefendant.

Nelson v. O'Neil (1971), 402 U.S. 622 -- No Bruton problem where at joint trial codefendant testifies in both his and defendant's favor and is impeached using previous statement to the police.

State v. Martin (1983), 9 Ohio App. 3d 150 -- In order for the out of court statements of a co-conspirator to be admissible, there must be independent proof sufficient to establish a prima facie case fairly raising a presumption or inference of conspiracy. See Evid. R. 801(D)(2)(e); Goins v. State (1889), 46 Ohio St. 457; State v. Thomas (1979), 61 Ohio St. 2d 223.

State v. Duerr (1982), 8 Ohio App. 3d 396 -- The defendant's own admissions may constitute the independent proof establishing the existence of a conspiracy, permitting admission of the hearsay statements of co-conspirators.

State v. Duerr (1982), 8 Ohio App. 3d 404, 407 -- When the crime has been completed, a co-conspirator's confession implicating the defendant is not a statement made "during the course and in furtherance of the conspiracy." See Evid. R. 801(D)(2)(e).

State v. Milo (1982), 6 Ohio App. 3d 19 -- There are five conditions for the admission of the out of court declaration of a co-conspirator: (1) the existence of a conspiracy; (2) the defendant's participation in the conspiracy; (3) the declarant's participation in the conspiracy; (4) the statement was made during the course of that conspiracy; and (5) the statement was in furtherance of the conspiracy. Also see Evid. R.

801(D)(2)(e); State v. Carver (1972), 30 Ohio St. 2d 280.

 

State v. Parson (1983), 6 Ohio St. 3d 442, 445 -- State was under a duty to disclose codefendant's oral statement to a law enforcement officer.

State v. DeLeon (1991), 76 Ohio App. 3d 68, 77-78 -- It was error to allow the prosecutor to introduce the defendant's oral statement to a police officer which had not been furnished in discovery. The fact that the statement had not been recorded did not relieve the state of its duty to provide the statement: "The police and prosecutor may not subvert this requirement by the expedient of not making a note." Also see State v. Gooden (1983), 16 Ohio App. 3d 153.

Lee v. Illinois (1986), 476 U.S. 530 -- Codefendant's confession improperly considered as substantive evidence of guilt. Case involved bench trial of codefendants at which neither testified. Thus, right to confrontation was denied.

State v. Tucker (1998), 81 Ohio St. 3d 431, 438-442 -- Codefendant's recorded statement was played for the jury after he refused to testify and thus became "unavailable" as a witness. Sheriff who did the questioning said some of what was said was not truthful. Opinion defines issues surrounding which portions of statements were admissible, then sidesteps, holding error, if any, was harmless. See Williamson v. United States (1994), 512 U.S. 594 interpreting Fed. R. Evid. 804(b)(3).

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Suppression hearing issues

Wainwright v. Sykes (1977), 433 U.S. 72 -- Miranda issues are usually deemed waived unless raised in a timely manner under state law.

State v. Moody (1978), 55 Ohio St. 2d 64 -- Miranda claims must be raised by pretrial motion unless good cause for failing to do so is shown. Crim. R. 12(B) applied.

Lego v. Twomey (1972), 404 U.S. 477, 487-489 -- Prosecution bears burden of proof at suppression hearing by at least a preponderance of the evidence. Also see State v. Arrington (1984), 14 Ohio App. 3d 111, 114; State v. Garcia (1986), 32 Ohio App. 3d 38.

State v. Gray (1984), 14 Ohio App. 3d 43 -- If the defendant presents credible evidence that a confession was coerced and involuntary, and the state presents nothing in rebuttal, the court cannot reject the defendant's evidence and overrule a motion to suppress.

State v. Talbert (1982) Ohio App, First District, No. C-810389 If state intends to use statement, defendant has a right to a hearing on a motion to suppress even though he denies statement was made.

Nix v. Williams (1984), 467 U.S. 431 -- (Same case as Brewer v. Williams) There is an "inevitable discovery" exception to the exclusionary rule. If evidence which was the fruit of a violation of the defendant's Sixth Amendment rights would have been discovered anyway, it is still admissible. Here the defendant directed the police to body which search teams had been working towards. Also see State v. Mosher (1987), 37 Ohio App. 3d 50.

State v. Sims (1998), 127 Ohio App. 3d 603, 614-616 -- Even though a statement was obtained following a Fourth Amendment violation it may still be admissible, weighing such factors as whether it was gratuitous and unsolicited, the use of Miranda warnings, and whether it was sufficiently an act of free will so as to purge the Fourth Amendment violation.

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Admissibility issues

State v. Jeffries, 119 Ohio St. 3d 265, 2008-Ohio-3865 – Prior to plea negotiations the defendant took and passed a polygraph. As part of a cooperation agreement with the prosecutor, the results of the test were made known and a copy of her statement turned over. She failed a subsequent polygraph and the deal fell apart. Nonetheless, her statement to the first polygraphist was admissible since it was made prior to the commencement of plea negotiations. Syllabus: ―Statements that were not made in the course of plea discussions are not protected by Evid. R. 410, even if the statements were later provided to the state in the course of plea discussions.

South Dakota v. Neville (1983), 459 U.S. 553 -- Testimony concerning defendant's refusal to take test when arrested for OMVI not within the purview of Miranda. Also see State v. Rollyson (1984), 20 Ohio App. 3d 336.

State v. Turvey (1992), 84 Ohio App. 3d 724, 734-735 -- Written and taped confessions are independent. Under the best evidence rule as set forth in Evid. R. 1002, the state may use the written confession without admitting the taped confession. See concurring and dissenting opinions as to why the defendant would have been able to introduce the taped confession during cross-examination.

State v. Crawford (1989), 60 Ohio App. 3d 61 -- When the only objection to the use of a transcript in place of the actual videotape of the defendant's confession is that the transcript is inaccurate, the defendant has waived any objection on the basis of the best evidence rule.

State v. Holmes (1987), 36 Ohio App. 3d 44 -- Headnote 2: "The use of a typed transcript as a visual aid to the jury in listening to the playback of a tape-recorded communication is a matter within the sound discretion of the trial court. (Evid. R. 1002, applied.)" Tape, but not transcript, was sent to the jury room. For the requirement under the best evidence rule that the tape be played see Harleysville Mutual Insurance Co. v. Santora (1982), 3 Ohio App. 3d 257.

State v. Gotsis (1984), 13 Ohio App. 3d 282 -- No error in admitting partially inaudible tape recorded conversations between defendant and undercover agents where there was no indication recording had been altered, agents testified as to content of conversations before tape was played and defendant had opportunity to offer his own version of the inaudible portions.

State v. Loza (1994), 71 Ohio St. 3d 61, 79-80 -- "Generally, the propriety of sending a defendant's confession into the jury room rests within the sound discretion of the trial judge." It is not per se an abuse of discretion to permit a videotaped confession to be replayed during deliberations.

United States v. Walker (7th Cir. 1981), 652 F. 2d 708, 710 -- When a party is entitled to have additional portions introduced which in fairness ought be considered contemporaneously. Fed. Evid. R. 106 applied. Also see United States v. Metcalf (8th Cir. 1970), 430 F. 2d 1197, 1199 (other party to overheard conversation).

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Other issues

Corley v. United States (2009), 129 S.Ct. 1558 – 18 U.S.C. ¶3501 limits, but does not eliminate, the McNabb-Mallory rule. Voluntary confessions made within six hours of arrest are admissible, but the statute does not render all voluntary confessions made after that admissible. Instead statements will generally be inadmissible, subject to McNabb-Mallory analysis.

State v. Clowers (1999), 134 Ohio App. 3d 450 -- Boyfriend and wife both confessed to murder of husband. Wife's confession was suppressed and charges against her were dismissed. Boyfriend was not allowed to use her confession at his trial. While her statements were against her penal interest, it was not established that she was unavailable as a witness, nor was the reliability of her statements established, since her statements were inconsistent and had been suppressed.

State v. Tuck, 146 Ohio App. 3d 505, 2001-Ohio-7017 -- Regardless of whether a defendant has an individually enforceable right under Article 36 of the Vienna Convention on Consular Relations, suppression of statements is not an available remedy. Also see United States v. Tuck (6th Cir, 2000), 232 F.3d 505.

State v. Young, Montgomery App. Nos. 19472 and 19473, 2003-Ohio-2205 -- In seeking joinder of indictments prosecutor claimed the prosecuting witness had been a family or household member of the defendant within the past five years. Court declines accepting this as a judicial admission which would nullify charges the defendant abducted the PW's children.

State v. Smith (1997), 80 Ohio St. 3d 89, 106 -- "Neither the Ohio Constitution nor the United States Constitution requires that police interviews, or any ensuing confessions, be recorded on audio or video machines."

State v. Hamilton (1997), 122 Ohio App. 3d 259 -- Detention of auto passenger appeared to last longer than permitted to accomplish legitimate objectives, and the court believed her claimed consent to search was mere submission to authority. Driver-boyfriend's confession following a second "consent" search of apartment suppressed.

State v. Bey (1999), 85 Ohio St. 3d 487, 491 -- Collateral estoppel applied to prevent defendant from renewing claim that confession to another murder, tried separately, should have been suppressed. Objective was to prevent reference to that murder as similar acts evidence in the trial of another homicide.

State v. Juniper (1998), 130 Ohio App. 3d 219 -- Reversible error where defendant's suppressed statement to the police was mistakenly sent to the jury with other exhibits.

State v. Unger (1981), 67 Ohio St. 2d 65 -- Exclusionary rule will not be applied to keep out a defendant's confession where there has been a failure to follow proper procedure in transferring the defendant from county of arrest to county where charges were pending.

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