State v. Brewster, 2004 Ohio 2993 (OH 6/11/2004)
| Decision Date | 11 June 2004 |
| Docket Number | Appeal No. C-030024.,Appeal No. C-030025. |
| Citation | 2004 Ohio 2993 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Garry Brewster, Defendant-Appellant. |
| Court | Ohio Supreme Court |
Michael K. Allen, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Garry Brewster, pro se.
DECISION.
{¶1} Defendant-appellant, Garry Brewster, was convicted of one count of possessing criminal tools pursuant to R.C. 2923.24(A), one count of tampering with evidence pursuant to R.C. 2921.12(A)(1), and thirty counts of forgery pursuant to R.C. 2913.31(A)(2), under two separate indictments. He appeals those convictions, raising thirteen assignments of error, which we address out of order. We find no merit in these assignments of error.
{¶2} In his sixth assignment of error, Brewster states that the trial court erred in failing to grant his motion to dismiss for lack of a speedy trial. He argues that the state violated his constitutional and statutory rights because four hundred and thirteen days had run from his arrest until the time he was tried. This assignment of error is not well taken.
{¶3} R.C. 2945.71 et seq., Ohio's speedy-trial statutes, are the state's method of implementing the right to a speedy trial in the United States and Ohio Constitutions. State v. Adams (1989), 43 Ohio St.3d 67, 68, 538 N.E.2d 1025. R.C. 2945.71(C)(2) provides that a person charged with a felony shall be brought to trial within two hundred seventy days after arrest. For computing time, each day during which the accused is held in jail in lieu of bail counts as three days. R.C. 2945.71(E).
{¶4} Despite Brewster's arguments to the contrary, the triple-count provision did not apply in this case. The record contains a holder on Brewster from the state of Colorado. It also shows that he was wanted on open warrants in other jurisdictions. Consequently, the record demonstrates that his detention was not solely due to the pending charges in Hamilton County. See State v. MacDonald (1976), 48 Ohio St.2d 66, 70-71, 357 N.E.2d 40; State v. Phillips (1990), 69 Ohio App.3d 379, 381, 590 N.E.2d 1281.
{¶5} Consequently, the state had two hundred seventy days in which to bring Brewster to trial. Because he showed that he was not tried within two hundred and seventy days of his arrest, Brewster established a prima facie case of a violation of the speedy-trial statutes. State v. Hirsch (1998), 129 Ohio App.3d 294, 315, 717 N.E.2d 789; State v. Geraldo (1983), 13 Ohio App.3d 27, 28, 468 N.E.2d 328.
{¶6} R.C. 2945.72(H) states that "[t]he period of any continuance granted on the accused's own motion, and the period of any reasonable continuance granted upon other than the accused's own motion" can extend the time within which the state must bring the accused to trial. The state bears the burden to show that actions or events chargeable to the defendant have tolled enough time so that the defendant is tried within the speedy-trial period. Hirsch, supra, at 315-316, 717 N.E.2d 789; Geraldo, supra, at 28, 468 N.E.2d 328.
{¶7} We accept, for argument's sake, Brewster's contention that the speedy-trial period for all charges, including those in the second indictment, ran from the time of his arrest because the second indictment was based on the same facts as the first indictment. See State v. Adams (1989), 43 Ohio St.3d 67, 68-70, 538 N.E.2d 1025; State v. Cooney (1997), 124 Ohio App.3d 570, 572-573, 706 N.E.2d 854. Nevertheless, the record shows that continuances granted due to the voluminous number of motions Brewster filed and reasonable continuances granted by the court sufficiently tolled the time so that he was tried within two hundred and seventy days.
{¶8} The record shows that Brewster repeatedly demanded his right to a speedy trial. Yet he continued to file numerous motions, often repeatedly attempting to relitigate issues the trial court had already decided. His repeated demands for a speedy trial did not mean that the time was not tolled during the period it took to determine his many motions. As this court has recently stated, State v. Wiest, 1st Dist. No. C-030674, 2004-Ohio-2577.
{¶9} The record amply supports the trial court's finding that Brewster's conduct "contributed to the unnecessary delay of the trial." Consequently, the court did not err in overruling his motion to dismiss for lack of a speedy trial, and we overrule his sixth assignment of error.
{¶10} In his first three assignments of error, Brewster contends that the trial court erred in overruling his various motions to suppress. He argues that the police used an unwarranted entry into a hotel room occupied by Brewster and his brother and co-defendant, Michael, to gather evidence to support a search warrant. He also argues that the police proceeded to conduct a warrantless search of the hotel room prior to obtaining a search warrant. These assignments of error are not well taken.
{¶11} The record shows that the police received a tip from a confidential informant, whom they knew to be reliable, that Michael and Garry Brewster were staying in a hotel room in Springdale, Ohio, and were making counterfeit checks and identification. The informant also stated that they used fake names and identifications and that they were wanted in other jurisdictions. The police officers confirmed that open warrants existed on both of them.
{¶12} The officers obtained a photograph of Brewster and a description of Michael. They spoke with hotel employees, who stated that Brewster was paying for a room and that he was in the company of another individual who matched Michael's description. The employees also stated that Brewster and Michael were driving a red compact car.
{¶13} Then, the officers watched the room from a hotel across the street. They saw two individuals get out of a red compact car. One of these individuals was carrying a black briefcase that could be used to carry a laptop computer. Also, one of the individuals looked like the photograph of Brewster and the other matched the description of Michael.
{¶14} As the officers approached the hotel room, they walked past an open window and saw an individual they believed to be Brewster lying on the bed, alongside a number of checks. They also saw computer equipment in the room.
{¶15} Detective Jerrod Livermore knocked on the door and Michael answered it. As he opened it, Brewster rose from the bed and went toward the bathroom. After the detective identified himself, Michael voluntarily let him in the room.
{¶16} Livermore and another officer walked approximately three to four feet inside the room and told the occupants why they were there. Brewster said his name was Ronald Brewster, but refused to provide identification or to give any other information. He told the officers, "I don't want you here." He also attempted to go back towards the bathroom, but the officers stopped him. Michael said that his name was Larry Nowlin, but that he did not have any identification, as he had left it in the car. The officers noticed that the checks on the bed had disappeared.
{¶17} At that time, the officers placed Brewster and Michael under arrest. One officer did a quick sweep of the main room and the bathroom to make sure no one else was hiding there. The officer saw pieces of paper floating in the toilet. Livermore removed them and placed them on a counter to dry, without examining them.
{¶18} Then, the officers had a hotel employee secure the door to the room and left an officer to guard it. They obtained a warrant to search the room. During the search, they discovered counterfeit checks and other evidence.
{¶19} The occupants of a hotel room have a reasonable expectation of privacy that the Fourth Amendment protects. Stoner v. California (1964), 376 U.S. 483, 490, 84 S.Ct. 889; State v. Smith (1991), 73 Ohio App.3d 471, 475, 597 N.E.2d 1132; State v. Day (1976), 50 Ohio App.2d 315, 319, 362 N.E.2d 1253. Warrantless searches and seizures are unreasonable under the Fourth Amendment except for a few well-delineated exceptions. Horton v. California (1990), 496 U.S. 134, 110 S.Ct. 2301; State v. Willoughby (1992), 81 Ohio App.3d 562, 567, 611 N.E.2d 937.
{¶20} First, Brewster contends that the police officers who initially approached his hotel room had no arrest or search warrant. This argument ignores the evidence in the record that open warrants existed for both Michael and Garry Brewster. The warrants gave the officers authority to arrest both Michael and Garry Brewster wherever they found them. They did not need to have actual warrants in their possession. See Crim.R. 4(D); State v. Thomas (Nov. 19, 1997), 9th Dist. No. 96CA006504; State v. Bishop (Mar. 20, 1997), 8th Dist. No. 70177. Though the individuals in the hotel room gave false names, the officers had probable cause to believe they were Michael and Gary Brewster. Since arrest warrants existed, the officers had authority to enter the hotel room to arrest the Brewsters. SeeState v. Pierson (1998), 128 Ohio App.3d 255, 258, 714 N.E.2d 461; State v. Campana (1996), 112 Ohio App.3d 297, 302, 678 N.E.2d 626. Compare Steagald v. United States (1981), 451 U.S. 204, 101 S.Ct. 1642; Payton v. New York (1980), 445 U.S. 573, 100 S.Ct. 1371.
{¶21} Even if no warrants had existed, one exception to the warrant requirement is a search or seizure conducted by consent. Schneckloth v. Bustamonte (1973), 412 U.S....
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