State v. Graham, 2012–0338.

Citation991 N.E.2d 1116,136 Ohio St.3d 125
Decision Date29 May 2013
Docket NumberNo. 2012–0338.,2012–0338.
PartiesThe STATE of Ohio, Appellee, v. GRAHAM et al., Appellants.
CourtUnited States State Supreme Court of Ohio

OPINION TEXT STARTS HERE

Jessica A. Little, Brown County Prosecuting Attorney, for appellee.

Gary Rosenhoffer, Batavia, for appellant David Graham.

John Woliver, for appellant Randy Miller.

Michael P. Kelly, Mount Orab, for appellant Michelle Ward–Tackett.

Michael E. Cassity, Mount Orab, for appellant James Lehman.

J. Michael Dobyns, Wilmington, for appellant Todd Haines.

Paul L. Cox, Columbus, and Mike Piotrowski, urging reversal on behalf of amicus curiae, Fraternal Order of Police of Ohio, Inc.

FRENCH, J.

[Ohio St.3d 125]{¶ 1} This appeal asks whether the United States Supreme Court's holding in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967)—that statements obtained from a public employee under threat of job loss are unconstitutionally coerced and inadmissible in subsequent criminal proceedings—required the trial court to suppress statements by employees of the Ohio Department of Natural Resources (“ODNR”) during an investigationconducted by the Ohio inspector general (“OIG”). We hold that it did.

Facts and Procedural History

{¶ 2} At all relevant times, appellants were five upper-level employees of ODNR's Division of Wildlife (“DOW”): Division Chief David Graham, Assistant Chief Randy Miller, Human Resource Manager Michele Ward–Tackett, Law Enforcement Executive Administrator James Lehman, and District Manager Todd Haines.

{¶ 3} In September 2009, a confidential informant contacted the OIG to allege that Brown County DOW wildlife officer Allan Wright had engaged in misconduct that DOW officials had not investigated properly. According to the informant, Wright assisted his nonresident friend, a South Carolina wildlife officer, in obtaining an Ohio-resident hunting license by allowing him to list Wright's home address as his own. This allowed Wright's friend to pay a resident license fee of $19 instead of the nonresident license fee of $125.

{¶ 4} The OIG asked ODNR Director Sean Logan to investigate the alleged 2006 misconduct involving Wright and to prepare a report. The following month, Logan responded that the DOW had already completed an investigation in August 2008. Dissatisfied with the DOW investigation, the OIG assigned Deputy Inspector Ron Nichols to investigate. Nichols interviewed appellants—the DOW [Ohio St.3d 126]personnel involved in the Wright investigation—at different times between December 22, 2009, and February 1, 2010. Prior to the questioning, each appellant signed an oath that included the following statement: “I understand that by affirming my truthfulness under oath, I am subject to criminal sanctions if I provide false information.” Nichols did not advise appellants of any right to counsel before each interview.

{¶ 5} During the interviews, appellants revealed that consistent with reciprocal practices in other states, prior practice within the DOW allowed wildlife officers from other states to obtain Ohio-resident hunting licenses as a way to encourage interstate networking and cooperation, although there are some discrepancies between the appellants' statements as to when the practice began and when it ended. In March and October 2008, appellant Graham issued memoranda reminding division employees about the need to purchase out-of-state licenses; the October memorandum expressly prohibited DOW employees from accepting free or discounted licenses in other states (even if those other states allowed it) and from permitting nonresident friends to obtain free or discounted licenses in Ohio.

{¶ 6} Appellants told Nichols that after learning that Wright had allowed an out-of-state wildlife officer to use Wright's home address, they had decided to handle Wright's misconduct administratively rather than report it to the ODNR director as a possible criminal violation. Collectively, appellants determined that Wright's misconduct fell into the ODNR disciplinary-guidelines category of “failure of good behavior” and decided that a verbal reprimand was the proper sanction.

{¶ 7} During his questioning, Nichols asked each appellant whether Wright's falsification of the license was a crime and why they, collectively, had decided not to pursue a criminal investigation. He asked several of the appellants how they could have disciplined Wright administratively for a 2006 violation of an internal prohibition that did not exist until Graham's 2008 memo. And he suggested to appellants Haines and Graham that perhaps appellants had decided to issue a verbal reprimand for this nonexistent violation under the catchall category of “failure of good behavior” because then Wright could not file a grievance over it and no one would ever know about it. Each appellant testified at length, however, about the various factors that went into his or her decision-making, including the DOW's past practice of allowing nonresident wildlife officers to obtain resident licenses, Wright's history and tenure at the ODNR, and Wright's use of his own home address, which indicated that he was not trying to hide anything.

{¶ 8} In March 2010, the OIG issued an investigative report. The report concluded that Wright had committed wrongdoing by allowing an out-of-state [Ohio St.3d 127]wildlife officer to obtain an Ohio-resident hunting license using Wright's home address. Wright's excuse for doing so, according to the report, was that it was common practice in southwest Ohio to allow out-of-state wildlife officers to obtain resident licenses.

{¶ 9} The report also concluded that appellants had improperly failed to report Wright's criminal conduct to the ODNR director or chief legal counsel, as required by the policies of the governor and the ODNR. The report stated that appellants had not verified whether Wright had been adhering to a common practice that his supervisors were aware of, as Wright claimed, and that appellants used the alleged practice as an “excuse to disregard the criminal violation.” The OIG forwarded the report to the Brown County prosecuting attorney.

{¶ 10} In April 2010, a Brown County grand jury indicted each appellant on one count of obstructing justice and one count of complicity in obstructing justice, each a fifth-degree felony. Appellants filed motions to suppress or, alternatively, dismiss, on the ground that their statements to Nichols were coerced by threat of job loss and were therefore inadmissible under Garrity, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562. The state countered that Garrity did not prevent the state from using the statements in the criminal proceedings, because Nichols had never threatened appellants with job loss or employment-related discipline and because the OIG lacked the authority to discipline appellants.

{¶ 11} At the suppression hearing, Nichols testified that he had contacted appellants by phone to set up the interviews and had not subpoenaed them. Nichols stated that he had never threatened appellants with termination or any form of job-related discipline. Appellants did not testify, although the state introduced transcripts of the statements appellants had made to Nichols.

{¶ 12} ODNR Labor Relations Administrator Bret Benack testified that appellants had known that they could be disciplined for refusing to cooperate with the investigation. Benack explained that under the ODNR disciplinary guidelines in effect at the time, an ODNR employee who failed to cooperate in an administrative investigation would have been subject to discipline ranging from an oral reprimand up to removal, based on the number of prior offenses and the severity of the offense. According to Benack, appellants were aware of these policies and, as employees in “senior leadership” positions, would expect to receive more severe discipline.

{¶ 13} Benack also testified that appellants each received an ODNR “Notice of Investigatory Interview,” which informed them that their refusal to cooperate could subject them to discipline. The notice contained the following warning: “This interview is part of an official investigation and failure to answer questions, completely and accurately, may lead to disciplinary action up to and including [Ohio St.3d 128]termination.” Benack could not remember when appellants had received the interview notice, only that ODNR had issued the notice to appellants.

{¶ 14} The trial court suppressed appellants' statements, declaring them to be compelled statements and therefore inadmissible under Garrity, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562. Acknowledging that Nichols had never expressly threatened appellants with termination, the trial court found that appellants had been “told by State's Exhibit 20 [the ODNR Notice of Investigatory Interview] they had to answer fully and truthfully or risk disciplinary action up to and including termination.” The trial court further determined that appellants had known that ODNR's disciplinary policies and R.C. 121.451 required them to participate in the OIG investigation.

{¶ 15} The court of appeals reversed. Before conducting its legal analysis, the court of appeals rejected the trial court's finding that appellants had received an express threat of discipline via the ODNR Notice of Investigatory Interview. 2012-Ohio-138, 2012 WL 131422, at ¶ 32. Specifically, the court of appeals stated that it could not consider Benack's testimony that appellants had received the notice, because the copy of the notice admitted into evidence was undated and unsigned and because Benack's testimony as to when appellants received the notice had been stricken. Id. The court went on to determine that in the absence of any express threat, appellants had not been compelled within the meaning of Garrity.Id. at ¶ 145.

{¶ 16} We accepted appellants' discretionary appeal. State v. Graham, 131 Ohio St.3d 1539, 2012-Ohio-2025, 966 N.E.2d 893.

Analysis

{¶ 17} We must decide whether ...

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