State v. Bell

• Decision Date: 29 January 2008
• Docket Number: No. 2006 CR 00867.,2006 CR 00867.
• Citation: 882 N.E.2d 502,145 Ohio Misc.2d 55,2008 Ohio 592
• Parties: The STATE of Ohio, v. BELL, Defendant.
• Court: Ohio Court of Common Pleas

882 N.E.2d 502

145 Ohio Misc.2d 55

2008-Ohio-592

The STATE of Ohio, v. BELL, Defendant.

No. 2006 CR 00867.

Court of Common Pleas of Ohio, Clermont County.

Decided January 29, 2008.

Donald White, Clermont County Prosecuting Attorney, and David H. Hoffman and Jason E. Nagel, Assistant Prosecuting Attorneys, for plaintiff.

John Paul Rion, Dayton, Demosthenes Lorandos, and Ashish S. Joshi, Ann Arbor, MI, for defendant.

RINGLAND, Judge.

{¶ 1} Defendant, Jaysen W. Bell, has filed several motions in limine seeking anticipatory rulings on evidentiary matters. Specifically, defendant requests the exclusion of a recorded telephone conversation between himself and a complaining witness, pornographic images allegedly found on computer hard drives seized from his home, and evidence of e-mails and online chats between himself and an alleged victim. He also requests an evidentiary hearing at which to address the scientific reliability of polygraph examinations in an effort to admit the results of two favorable polygraph examinations. Defendant filed his motions on December 14, 2007. At the conclusion of oral arguments on January 24, 2008, the court took the issues under advisement.

FACTUAL BACKGROUND

{¶ 2} Defendant stands accused of one count of rape, three counts each of sexual battery and sexual imposition, and one count of gross sexual imposition stemming from alleged improper sexual conduct involving two foster children, T.T. and T.W., between July 2003 and June 2006.¹ His present motions stem from certain events occurring during the course of the Amelia Police Department's investigation of the children's allegations.²

{¶ 3} On August 9, 2006, Amelia police obtained T.W.'s cooperation in placing a controlled telephone call to defendant at his home. Despite the fact that defense counsel had previously informed the police that defendant was represented by counsel and had asked that he not be contacted outside their presence, the police nevertheless monitored, recorded, and transcribed this conversation with T.W.'s consent. Defendant takes issue with these police actions and further asserts that T.W. misled him during their conversation. He specifically points to T.W.'s statement that he was alone during the call and his assurance that he was not "setting Defendant up." Defendant claims that the state's use of the call at trial would violate his Fourth Amendment right to freedom from unreasonable searches and seizures and his Sixth Amendment right to confrontation.

{¶ 4} During the course of their investigation, police obtained a search warrant for computer equipment located in defendant's home.³ A search of the seized hard drives uncovered stored pornographic images, e-mail messages, and MySpace chat messages. The parties agree that the pornographic images found on the hard drives contain depictions of adult heterosexual and adult male homosexual activities only — no child pornography was found. The state seeks to introduce the images and certain allegedly incriminating e-mail and chat messages between defendant and the complaining witnesses during trial. Defendant disputes the relevancy of this material to the charges against him.

{¶ 5} As authorities continued to investigate the charges against him, defendant voluntarily submitted to two independent polygraph examinations in an effort to demonstrate his innocence. These examinations apparently returned favorable results. He seeks to have the results of these examinations admitted as evidence tending to disprove the allegations in the indictment and claims that their exclusion would violate his due process rights to call witnesses and present exculpatory evidence in his defense.

LEGAL ANALYSIS

{¶ 6} "The purpose of a motion in limine is to avoid the injection into the trial, of matters which are irrelevant, inadmissible and prejudicial. * * * It also serves the useful purpose of raising and pointing out before trial, certain evidentiary rulings that the Court may be called upon to make." State v. Maurer (1984), 15 Ohio St.3d 239, 259, 15 OBR 379, 473 N.E.2d 768. An order granting or denying a motion in limine is a tentative, preliminary or presumptive ruling about an evidentiary issue that is anticipated. State v. Grubb (1986), 28 Ohio St.3d 199, 203, 28 OBR 285, 503 N.E.2d 142. Accordingly, the courts decisions on the various issues addressed herein are not final and are subject to review during the conduct of defendants upcoming trial. Each of defendant's motions is addressed separately below.

A. Defendant's Motion to Exclude Recorded Telephone Conversations Between Himself and an Alleged Victim

{¶ 7} Defendant first seeks to exclude the recorded telephone conversation between himself and T.W. In support of his position, he claims that admitting the recorded conversation at issue — surreptitiously made at the behest of and in the presence of the Amelia Police Department — would violate his Sixth Amendment right of confrontation and his Fourth Amendment right of freedom from unreasonable searches and seizures.

{¶ 8} The court will address each of defendant's arguments in turn. However, it wishes to first address the circumstances surrounding the recorded call and the potential constitutional concerns that arise from them.⁴ Defendant states that the conversation between himself and T.W. occurred on August 9, 2006, approximately a month after he retained counsel. Counsel had previously notified Amelia police of the representation on July 12, 2006, and had specifically requested that officers not contact defendant outside the knowledge and presence of his attorneys. T.W. nonetheless thereafter initiated a telephone call with defendant in the presence of police, potentially implicating defendant's Fifth Amendment's right against self-incrimination and Sixth Amendment right to counsel.

1. Fifth Amendment Right to Freedom from Self-incrimination

{¶ 9} The controlled call at issue potentially implicates defendant's Fifth Amendment right to freedom from self-incrimination. Prior to instances of custodial interrogation, persons must be warned of those basic rights mandated by the United States Supreme Court's seminal decision in Miranda v. Arizona (1966), 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694. The Supreme Court defines "custodial interrogation" as any questioning initiated by law enforcement officers after an individual has been taken into custody or otherwise deprived of his freedom in some significant way. Id.; Berkemer v. McCarty (1984), 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317. Failure of law enforcement officials to adhere to the strictures of the Fifth Amendment requires the exclusion of inculpatory statements obtained through the defective procedures.

{¶ 10} It may be persuasively argued that T.W. acted as a police investigator in the present case by seeking to elicit incriminating information from defendant, who was unquestionably a police suspect at the time the controlled call was made. The transcript of the telephone call accompanying defendant's motion reveals that he was never informed of his Miranda rights. Notwithstanding the fact that the conversation with defendant was indeed initiated by law enforcement, the Fifth Amendment nonetheless provides an improper vehicle for a suppression of such calls.

{¶ 11} "[T]he scope of * * * Miranda interrogations is limited to police custodial interrogations [and] where the accused is `otherwise deprived of his freedom of action in any significant way.'" State v. Miller (Apr. 26, 1993), Stark App. No. CA-8951, 1993 WL 135703, at *2; citing Miranda, supra. Ohio appellate courts, including the Twelfth District, uniformly hold that controlled telephone conversations between suspects and agents of the police (including alleged victims of sexual crimes) do not require a reading of Miranda rights because the suspects are not in custody and are not deprived of their freedom of movement or action. See, e.g., State v. Stout (1987), 42 Ohio App.3d 38, 40-41, 536 N.E.2d 42; State v. Frost (Dec. 21, 1999), Richland App. No. 99-CA-42, 2000 WL 1620, at *2; State v. Whaley (Mar. 25, 1997), Jackson App. No. 96CA779, 1997 WL 142711, at *7; Miller, supra, at *2; State v. Peak (Jan. 16, 1992), Cuyahoga App. No. 59726, 1992 WL 6046, at *7.

{¶ 12} Here, as in these previous cases, defendant was not under arrest when he received the call from T.W. He was not in the presence of police officers, He was not physically restrained in any way, nor was he compelled to speak to T.W. Defendant remained free to end their conversation at any time by simply hanging up the phone and, by the court's reading of the transcript, he believed he was free to do so. See State v. Gumm (1995), 73 Ohio St.3d 413, 429, 653 N.E.2d 253. The facts of the present case are simply inconsistent with custodial interrogations, which require the protection Miranda provides.

{¶ 13} Defendant's status as a suspect regarding the sexual crimes allegedly perpetrated against the minors changes nothing. Miranda does not require warnings upon a person's mere suspicion of criminal activity, but only upon their custodial interrogation. Frost, supra, at *2. Furthermore, Ohio courts have rejected a broad definition of custodial interrogation encompassing all "action[s] `that the [questioning] officers should know are reasonably likely to induce an incriminating response from the suspect.'" State v. Bowens, Summit App. No. 22896, 2006-Ohio-4721, 2006 WL 2614262, at ¶ 6. For these reasons, the Fifth Amendment does not bar admission of the controlled telephone call at issue.

2. Sixth Amendment Right to Counsel

{¶ 14} Defendant's request for the presence of counsel during any subsequent police contact may also arguably implicate his fundamental right to counsel under the Sixth Amendment. This right attaches during critical stages of a criminal prosecution that might jeopardize the defendant's right to a fair trial. State v. Constable, Clermont App. No....