IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO. Plaintiff, : Case No. 14CR438. v. : Judge Berens

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IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO

THE STATE OF OHIO, :

Plaintiff, : Case No. 14CR438

v. : Judge Berens

CODY TICHENOR, :

:

ENTRY Overruling Defendant’s Motion to Suppress/Motion in Limine

Defendant. :

This matter is before the Court upon the Defendant Cody Tichenor’s Motion to Suppress/Motion in Limine, filed January 14, 2015. The State filed a Memorandum Contra on February 20, 2015. The Court held an oral hearing concerning Defendant’s Motion on March 23, 2015. After reviewing the written arguments of the parties, the testimony adduced at the oral hearing, and the evidence submitted by the parties, the Court finds Defendant’s motion not well- taken and OVERRULES the same.

FINDINGS OF FACT

The facts of this case are largely undisputed. Based on the testimony of Detective Underwood and evidence produced at the hearing, the Court makes the following findings of fact:

1. On October 23, 2014, Detective Meadows made contact with Defendant for the purposes of questioning him about an incident that occurred on October 22, 2014 between him and his former girlfriend.

2. After starting the recorded statement, Detective Meadows stated that he was trying to get Defendant’s side of the story and proceeded to read Defendant his Miranda rights, whereafter Defendant stated he understood his rights, initialed his rights, and eventually signed the Waiver of Rights.

3. Defendant indicated that he was willing to talk with Detective Meadows in response to an

inquiry about whether he should get an attorney and after being told by Detective

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Meadows that he could not provide legal advice.

4. Detective Meadows explained to Defendant that if he wanted an attorney, he had a right to counsel. Detective Meadows further explained that if he decided that he wanted an attorney, Detective Meadows would not be able to talk about with Defendant any further.

5. Defendant stated that he wanted to explain his side of the story and wanted somebody to understand where he was coming from.

6. During the recorded statement, the Defendant inquired about “a lawyer” or “an attorney”

on two separate occasions. Specifically, the Defendant made the following statements:

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 “I mean, should I get an attorney?”

 “But can I request a lawyer at this point, I mean I’m still, I’m still gonna answer your questions and stuff but.”

7. Despite making these statements, Defendant continued talking with Detective Meadows.

The total duration of the recorded interview was over 50 minutes.

LAW & ANALYSIS

The issue before the Court is whether either of Defendant’s two statements set forth above constitutes a sufficiently unambiguous invocation of Defendant’s right to counsel. After reviewing the facts of this case in conjunction with mandatory and persuasive case law, the Court finds the Defendant knowingly and voluntarily waived his Miranda rights at the outset of the interview and did not clearly invoke his right to an attorney any time thereafter. The Court therefore finds no violation of the Fifth Amendment, or Defendant’s Miranda rights, occurred.

Generally, a suspect who has “expressed his desire to deal with the police only through

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Although a review of the transcript reveals that Defendant also inquired about the possibility of speaking

to the prosecutor about his case, defense counsel did not address this area of the recorded interview during

the oral hearing on the Motion. Defendant’s Motion does not clarify and states only that “[l]aw

enforcement officers continued to question Defendant after he requested an attorney.” Defendant’s

Motion, page 1. As such, the Court finds that any conversation relating to Defendant’s request to speak

with the prosecutor is separate and apart from Defendant’s inquiries regarding an attorney. Therefore, the

Court does not find this area of inquiry to be a part of Defendant’s Motion.

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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.” Edwards v.

Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880 (1981). However, such cessation is only required

if the defendant’s request for an attorney is clear and unambiguous. Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350 (1994). Whether the defendant has clearly invoked his right to counsel is an objective inquiry: courts must ask whether the defendant “articulate[d] his desire to have counsel present sufficiently clear [enough] that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” State v. Brown, 100 Ohio St. 3d 51, 2003-Ohio-5059, 796 N.E.2d 506 (2003).

If the defendant’s request does not amount to a sufficiently clear invocation, the questioning officer is not required to ask clarifying questions, nor are they required to stop the interrogation. See State v. Hatten, 186 Ohio App. 3d 286, 2010-Ohio-499, 927 N.E.2d 632, ¶ 57;

Davis v. United States, at 461–62. (“[W]e decline to adopt a rule requiring officers to ask

clarifying questions. If the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.”). The United States Supreme Court in Davis reasoned that while requiring a clear assertion of the right to counsel might disadvantage some defendants, any coercion that is inherent in a custodial investigation is mitigated by the reading of the Miranda warning:

[I]f a suspect is indecisive in his request for counsel, the officers need not always cease questioning.

We recognize that requiring a clear assertion of the right to counsel might

disadvantage some suspects who-because of fear, intimidation, lack of linguistic

skills, or a variety of other reasons-will not clearly articulate their right to

counsel although they actually want to have a lawyer present. But the primary

protection afforded suspects subject to custodial interrogation is the Miranda

warnings themselves. ‘[F]ull comprehension of the rights to remain silent and

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request an attorney [is] sufficient to dispel whatever coercion is inherent in the interrogation process.’ A suspect who knowingly and voluntarily waives his right to counsel after having that right explained to him has indicated his willingness to deal with the police unassisted.

512 U.S. 452, 460-461, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). (Citations omitted).

Thus, the Court must determine whether a reasonable officer, under circumstances similar to those faced by Detective Meadows, would understand Defendant’s statements to be a clear invocation of the Defendant’s right to counsel. The Court finds that the Defendant’s statements were not objectively unambiguous and did not serve to invoke the Defendant’s right to counsel and require Detective Meadows to cease questioning.

The case of State v. Raber, 9th Dist. Wayne No. 09CA0065, 2010-Ohio-4066, 189 Ohio App.3d 396, 938 N.E.2d 1060, presents a factual scenario similar to the case sub judice. In Raber, after being read her Miranda rights the defendant asked the officer “can I have an

attorney.” Raber, at ¶ 12. However, before the officer could respond, the defendant became emotional and began asking the officer questions about her children. After giving the defendant a moment, the officer stated that she could have an attorney and asked if she understood these rights, whereafter the defendant stated she understood and questioning began. Id. After a thorough examination of caselaw in this area,

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the Ninth District held that the defendant never

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Raber, at ¶ 19 (discussing several Ohio cases wherein the defendant inquired about an attorney): State v.

Knight, 2nd Dist. Clark No. 04-CA-35, 2008-Ohio-4926, ¶ 9, 112 (“Well, can I talk to my lawyer then if there is something wrong like that? Do I need one or something?” was held to be, “at best,” “two equivocal requests for counsel.”); State v. Williams, 10th Dist. Franklin No. 03AP–4, 2003-Ohio-7160, ¶ 51 (“appellant's asking [police], ‘Where's my lawyer?’ is not the same as saying, ‘I want a lawyer.’ It is, in and of itself, an equivocal statement”); State v. Revels, 12th Dist. Butler Nos. CA2001–09–223 and CA2001–09–230, 2002-Ohio-4231, ¶ 16 (defendant who asked, “Do I need to have an attorney before I'm speaking with you guys?” never unambiguously requested counsel); State v. Foster (Dec. 21, 2001), 11th Dist. Trumbull No. 2000–T–0333, 2001-Ohio-8806, 2001 WL 1647177, at *9 (defendant who asked,

“ ‘Well, can I have a lawyer present?’ * * * did not make a request for counsel; he merely asked if he

could have a lawyer present.”).

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invoked her right to counsel. Id., at ¶¶ 22–23. The detective in Raber “engaged in the practice of good police practice” by first clarifying the defendant’s rights such that if the defendant had equivocally and unambiguously wanted a lawyer she knew that she had a right to one. Id., at 22.

Both inquiries regarding an attorney must be examined in the context in which the statements were made. Like the detective in Raber, Detective Meadows restated Defendant’s Miranda rights and clarified his right to an attorney before Detective Meadows engaging in any

inquiry into the events of October 22, 2014. Defendant’s first statement, “I mean should I get an attorney,” did not clearly invoke his right to counsel. Defendant’s statement in no way expresses any intent to stop the interview in order to get an attorney. After Detective Meadows responded that he could not provide legal advice, Defendant stated “I understand that, that’s fine” and proceeded to talk with Detective Meadows. State’s Exhibit A., page 2.

The next statement “[b]ut can I request a lawyer at this point” is less clear, on its face, as the statement could have two different meanings: (1) Defendant was requesting to have a lawyer present; or (2) Defendant was inquiring whether he had a right to have a lawyer present. Both of these interpretations appear reasonable until put into context with the surrounding context.

Before Detective Meadows has a chance to answer Defendant’s inquiry, Defendant cut off his explanation and asserted “I’m not really sure how that works.” State’s Exhibit A., page 3.

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Defendant’s follow-up statement suggests that he had not intended to invoke his right, but rather was inquiring how the process works and whether he had a right to an attorney at the time of the interview. Rather than assuming Defendant’s intent, however, Detective Meadows engages in “good police practice” by clarifying Defendant’s rights. Detective Meadows tells Defendant that it is okay if he wants an attorney, and he clarifies that if Defendant chooses to have an attorney he will not be able to talk about the case any further. Id. (“if you want one that is your right. . . . but if you decide that you want an attorney then I won’t be able to, we won’t be able to talk about this.”). After this exchange Defendant states that he wants to explain his side of the story so that somebody can understand where he was coming from. Shortly thereafter, Defendant proceeds to tell his side of the story without requesting to have an attorney present for the interview.

The Court finds that Defendant’s two inquiries falls short of the unambiguous request as required by Davis. The Court finds that in the context in which the statements were made, a reasonable officer would not consider Defendant’s statements as unequivocal invocations requiring the cessation of all questioning. Defendant was read his Miranda rights, Detective clarified that he would not be able to talk with Defendant if he invoked his right to an attorney;

yet, Defendant proceeded to speak with Detective Meadows. Like Raber, Defendant did not articulate a clear and unambiguous intent to have counsel present. In fact, it was only after Defendant was told that if he wanted to have an attorney present the interview would be terminated that Defendant discussed the events of October 22, 2014.

Finally, Defendant acknowledged his Miranda rights and executed a written waiver. For

these reasons, the Court finds that the Defendant “absolutely,” knowingly and voluntarily waived

his right to counsel after having that right explained to him on multiple occasions, and did not at

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any time thereafter revoke said waiver by unambiguously requesting the representation of an attorney.

CONCLUSION

Therefore, based on the caselaw cited above, the testimony and evidence presented at the oral hearing, and the specific circumstances under which the two inquiries regarding an attorney were made, the Court finds Defendant’s argument not well-taken and thereby OVERRULES his Motion to Suppress.

IT IS SO ORDERED.

________________________

Judge Richard E. Berens

Copies to:

Fairfield County Prosecuting Attorney, ATTN Andrea Green, Esq., Courthouse mailbox Defense Counsel Scott Wood, Esq., Courthouse mailbox

Defendant c/o Defense Counsel

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