State of Ohio, City of Tallmadge v. Christopher Geasley

• Decision Date: 17 March 1993
• Docket Number: 93-LW-1487,15803
• Parties: STATE OF OHIO, CITY OF TALLMADGE, Plaintiff-Appellant v. CHRISTOPHER GEASLEY, Defendant-Appellee C.A.
• Court: Ohio Court of Appeals

STATE OF OHIO, CITY OF TALLMADGE Plaintiff-Appellant v. CHRISTOPHER GEASLEY, Defendant-Appellee

No. 15803.

93-LW-1487 (9th)

Court of Appeals of Ohio, Ninth District Summit

March 17, 1993

APPEAL FROM JUDGMENT ENTERED IN THE CUYAHOGA FALLS MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE NO. 92 TRC 4103.

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

DECISION

REECE J.

Shortly after midnight on Sunday, February 16, 1992 defendant-appellee, Christopher A. Geasley, was observed by Officer Douglas of the Tallmadge Police Department driving his automobile at an excessive speed. Radar indicated that Geasley's vehicle was traveling 58 m.p.h. in a 35 m.p.h. zone. After making a routine traffic stop, Officer Douglas detected a strong odor of alcohol on Geasley's breath and took note of his disheveled appearance and watery, bloodshot eyes. Having reason to believe that Geasley was intoxicated, Officer Douglas requested he perform three field sobriety tests. After failing the horizontal gaze nystagmus test, Geasley refused to perform the walk and turn and one leg balancing tests. Thereafter, Geasley was placed under arrest and transported to the Tallmadge Police Station.

At the station, Officer Douglas gave Geasley his Miranda warnings and explained that he was required to ask certain questions from a standardized form. In response Geasley stated: "[y]ou can stop right now...I'm not...going to do them." While acknowledging his refusal, Officer Douglas continued to question Geasley. And, although asserting his right to remain silent, Geasley made numerous statements as the questions were asked. This exchange between Geasley and Officer Douglas was recorded on videotape.

Geasley was charged with speeding and driving under the influence of alcohol. Prior to trial the defense moved to suppress the videotape in its entirety. On June 9, 1992, the Cuyahoga Falls Municipal Court refused to permit any portion of the tape, video or audio, following Geasley's indication that be would not answer any questions. Pursuant to Crim.R. 12(J), the state appeals from this order raising three assignments of error.

Assignment of Error I

"The lower court erred in suppressing the videotape of any questioning which Occur red after the defendant stated he was not going to answer any questions, because such a blanket suppression was not required by Miranda."

In Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, and its companion cases, the United States Supreme Court recognized that the Fifth Amendment privilege against self-incrimination protects individuals not only from any legal compulsion to testify in the courtroom, but extends to "informal compulsion exerted by law enforcement officers during in-custody questioning." Id., 16 L.Ed.2d at 716. To adequately protect this right the Court fashioned what have become popularly known as the Miranda warhings, required to be given every criminal suspect taken into custody. Included within these warnings is the admonishment that a criminal suspect "has the right to remain silent." Id., 16 L.Ed.2d at 720. Although a suspect may waive this right, once asserted the police must "scrupulously" honor the suspect's "right to cut off questioning." Michigan v. Mosley (1975), 423 U.S. 96, 46 L.Ed.2d 313, 321.

Even though a suspect has the right to discontinue an in-custody interrogation at any time, this does not mean that police must cease all questioning. In Pennsylvania v. Muniz (1990), 496 U.S. 582, 110 L.Ed.2d 528, the Court adopted a "routine booking question" exception to the strict prescripts of Miranda. Thus, an arrestee, even after asserting his right to remain silent, may still be asked questions to secure "biographical data necessary to complete booking or pretrial services." Id., 110 L.Ed.2d at 552. While finding that such questioning constitutes interrogation, the Court held it permissible when "reasonably related to the police's administrative concerns." Id.

In addition the right against self-incrimination during custody extends only to interrogation and its "functional equivalent." Rhode Island v. Innis (1980), 446 U.S. 291, 64 L.Ed.2d 297, 308. Under Miranda the term "interrogation" refers-not only to "express questioning" but also "words or actions on the part of the police *** reasonably likely to elicit an incriminating response from the suspect." Id. Police instructions on a state's implied consent law do not fall within this definition of interrogation. Muniz, 110 L.Ed.2d at 554. See, generally, R.C. 4511.191(D) for Ohio's implied consent law and the concomitant requirements placed upon police officials. Such instructions and inquiry of the arrestee as to whether they are understood are "necessarily 'attendant to' the legitimate police procedure" and do not call for an incriminating response. Id. quoting South Dakota v. Nevill (1983), 459 U.S. 553, 74 L.Ed.2d 748, 759, n.15. Accordingly, even after asserting the right to remain silent, statements made by a suspect in response to instructions on a state's implied consent law are admissible.

In response to Geasley's motion to suppress, the state submitted to the trial court, without objection, a transcript of the audio portion of the videotape. In determining what portions, if any, of this videotape are admissible at trial, we have broken this transcript down

[PART ONE]

[By Officer Douglas]

"Tell you what that means here. Well, this one form here has a question section, about 20 questions. I'm going to ask you one at a time. When we get to them, you can either answer them or not, whichever you care to..

[By Defendant Geasley]

"You can stop right now. I'm not going...not going to do them.

Douglas: That's OK cause I'm still going to read them. That's fine.

Defendant: That's fine.

Douglas: I know that's fine. Want to sign here to show that I read this?

Defendant: I ain't signing shit. You had a bad night?

Douglas: Uh huh. Don't matter to me, Bud. Now if you want to get out of here tonight you're gonna have to sign your bond paper.

Defendant: I'll sign that.

Douglas: Thought you weren't going to sign anything.

Defendant: That's a bunch of bull shit. OK, dick head.

Douglas: Fine.

Defendant: With all respect, F--- your attitude.

[Officer Douglas begins reading implied consent statement to Defendant].

Defendant: (Interrupts Douglas while Officer is reading. Defendant mumbles [unintelligible])... I'm not going to do that.

Douglas: What this means is down at the end I'm going to ask you to take the chemical test. You don't have to take the test if you don't want to...

Defendant I don't want to.

Douglas: Oh, I know. But the state will suspend your license...

(Defendant mumbles. Douglas finishes reading implied consent. Sgt. [Diezman] witnesses reading.]

"Douglas: OK uh, there's two questions here, Chris (Geasley]. Is there any physical or medical condition which would not pe-rmit you to take the test?

Defendant: You're Mr. Douglas.

Douglas: Uh huh.

Defendant: No. You're not helping.

Douglas: Do you want to submit to the chemical test?

Defendant: No, no, no, negative. Totally negatory.

Douglas: I want you to understand, the state will suspend your license.

Defendant: I understand, sir. Stick it up you butt, basically. With all due respect.

Douglas: OK, have a seat, all right.if

In this first portion of the transcript Officer Douglas' comments were limited to advising Geasley about the requirement of signing for his bond and information about Ohio's implied consent law. The questions asked by Officer Douglas concerned Geasley's understanding of these instructions and whether there was any medical condition which prevented Geasley from taking a breathalyzer test. Officer Douglas' statements fall either within the "routine booking question" exception to Miranda or statements not "calling" for any incriminating response. Muniz 110 L.Ed.2d at 552-554. Therefore, even though he asserted his right against self-incrimination, it was not admissible. Accordingly, the trial court erred in excluding this portion of the videotape.

[PART TWO]

"Douglas: Well, if you don't think you're drunk you can take the test.

Defendant: I'm sure I'm drunk. That's...it is (mumbles). I'm drunk.

Douglas: OK.

Douglas: How much you weigh now, Chris?

Defendant: You weigh me, sir. It's up to you.

Defendant: I ain't answering your questions.

Douglas: Were you operating this motor vehicle?

Defendant: No.

Douglas: OK. Where were you going?

Defendant: Up you butt. Next line.

Douglas: Where did you start from?

Defendant: Uh, no capish. I'm not going to Cooperate. Just fill in your blanks.

Douglas: I will.

Defendant: Did your mother get killed or what? F--- you.

Douglas: When did you leave tonight?

Defendant: No Negatory. Fill it in, man. Don't waste time. I'm not going to play with you.

Douglas: You been drinking tonight?

Defendant: Oh, no. No. What do you think? If I was sober I'd say yes. Come on. Be realistic.

Douglas: What time is it now? Give me your best guess. Any idea?

Defendant: 10:00

Douglas: What have you been drinking?

Defendant: If it was up you ass you'd know. I'll answer the Sergeant's questions, but as far as you're concerned, Mr. Hot Shot, F--- You.

Douglas: How many drinks?

Defendant: (silence).

Douglas: When did you start?

Defendant: F--- you.

Douglas: What time did you stop?

Defendant: Zero

Douglas: Where were you drinking?

Defendant: Zero."

Part two of the transcript begins with Officer Douglas stating "if you don't think your drunk you can take the test." While not a direct question we find that it falls under the "functionally equivalent" test enunciated in Innis, 64 L.Ed.2d at 308. This statement places Geasley in the trilemma of either...