State v. Dixon, L-94-223

• Decision Date: 03 March 1995
• Docket Number: No. L-94-223,L-94-223
• Citation: 101 Ohio App.3d 552,656 N.E.2d 1
• Parties: The STATE of Ohio, Appellant, v. DIXON, Appellee. *
• Court: Ohio Court of Appeals

Page 552

101 Ohio App.3d 552

656 N.E.2d 1

The STATE of Ohio, Appellant, v. DIXON, Appellee. ^*

No. L-94-223.

Court of Appeals of Ohio Sixth District, Lucas County.

Decided March 3, 1995.

Certiorari Denied Jan. 16, 1996.

See 116 S.Ct. 784.

Anthony G. Pizza, Lucas County Pros. Atty., and Lawrence J. Kiroff, Assistant Prosecuting Attorney, for appellant.

Mark Geudtner and Joseph Scalzo, Jr., Toledo, for appellee.

MELVIN L. RESNICK, Judge.

This interlocutory appeal comes before the court from the Lucas County Common Pleas Court, wherein appellee's, Archie Dixon's, motion to suppress was granted. Appellant, the state, asserts the following assignment of error:

"The trial court erred by suppressing a properly Mirandized voluntary statement on the grounds that police had failed to administer Miranda warnings to the defendant during an earlier custodial interrogation. Failure to administer Miranda warnings during a custodial interrogation does not bar admission of a subsequent properly warned and voluntary statement. Oregon v. Elstad (1985), 470 U.S. 298 [105 S.Ct. 1285, 84 L.Ed.2d 222]."

A suppression hearing commenced on March 18, 1994 with witnesses testifying to the following facts.

In the fall of 1993, Toledo police were investigating the disappearance of Christopher Hammer. He had periodically lived in a house with several people including appellee, Archie Dixon. In October 1993, Hammer's friends found his 1987 Dodge Daytona for sale on a used car lot located in Sylvania Township. On October 25, 1993, Detective Ron Scanlon of the Toledo police department went to the car lot. A salesman told Scanlon that they had bought the car from an individual who said he was Christopher Hammer. The salesman's physical description of the seller, however, did not match Hammer's description.

On November 4, 1993, Detective Scanlon returned to the used car lot. Two salesman immediately identified Dixon, from a single photograph, as the man who, on September 30, 1993, sold them the 1987 Dodge Daytona. Detective Scanlon next went to Dixon's residence to ask him some questions about Hammer. Dixon claimed he knew nothing of Hammer's disappearance. Later that day, Detective Scanlon paid a visit to the Sylvania Township Police Department to talk to Sylvania Township Detective Vern Snow. While the two detectives were talking, they overheard an individual at the front desk announce himself to be Archie Dixon. Dixon was attempting to get his impounded car released. The detectives went to the front counter and asked Dixon if he would mind talking to them about the disappearance of Hammer, and Dixon agreed. Detective Scanlon read Dixon his Miranda rights although Dixon was not under arrest. Before any questions were asked, Dixon stated he wanted to first talk to his attorney. Dixon made an appointment to come back to the station, with his attorney, on the following day. Dixon did not keep his November 5 appointment.

On November 8, 1993, Detective Scanlon went to the used car lot armed with a photographic array. Car lot owner Ron Parker selected Dixon's photo, out of eight photos, and identified him as the man who had claimed to be Christopher Hammer, the seller of the 1987 Dodge Daytona. On September 30, Parker had issued a check for the vehicle in the amount of $2,800 payable to Christopher Hammer. The check was cashed that same day.

On November 9, 1993, Dixon was arrested for forgery. Detective Phil Kulakowski of the Toledo police department wanted to talk to Dixon about Hammer's disappearance. Before Dixon was initially interrogated, at approximately 11:30 a.m., Detective Snow spoke to Kulakowski about Snow's prior dealings with Dixon. Snow explained that Dixon was difficult to talk to at times and that he might not talk at all if he were Mirandized. Kulakowski decided not to read Dixon his Miranda rights. During the interrogation, Dixon referred to the fact that he had previously, on November 4, invoked his right to an attorney. He also admitted the forgery. Shortly after the interrogation concluded, Detective Kulakowski was notified that police had found the body of Christopher Hammer. At approximately 7:30 p.m. on November 9, Detective Kulakowski once again brought Dixon over to the police station from the jail for a second interrogation. Before any questions were asked of him, Dixon stated, "I heard you guys found a body." He went on to tell Kulakowski and another Detective present that he had talked to his attorney and his attorney had advised him to "tell everything." Kulakowski read Dixon his Miranda rights and Dixon agreed to sign a written waiver of those rights. Dixon then told the detectives that in September he had assaulted, restrained and buried Christopher Hammer alive. Both interrogations were tape-recorded.

On November 16, 1993, Dixon was indicted on three counts of aggravated murder with specifications, one count of kidnapping, one count of aggravated robbery, and three counts of forgery. On August 2, 1994, the trial court granted Dixon's motion to suppress the statements he made to the detectives in the two November 9, 1993 interrogations.

The state contends, in its sole assignment of error, that the trial court erred in suppressing the tape-recorded statements Dixon made to police in his second interrogation of November 9, 1993.

A suspect subjected to questioning in police custody must first be warned that (1) he or she has the right to remain silent, (2) anything he or she says can be used against him or her in a court of law, (3) he or she has the right to the presence of an attorney, and (4) if he or she cannot afford an attorney, if desired, one will be appointed for him or her prior to any questioning. Miranda v. Arizona (1966), 384 U.S. 436, 444, 479, 86 S.Ct. 1602, 1612, 1630, 16 L.Ed.2d 694. An individual may waive his or her right to remain silent and to have a lawyer as long as the waiver is knowingly and intelligently made. Id.

In support of its assignment of error, the state cites Oregon v. Elstad (1985), 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222. Elstad addressed the issue of whether the initial failure of law enforcement officers to administer Miranda warnings, without more, taints subsequent admissions made by a suspect after he or she has been fully advised of and waived his or her rights. The facts of Elstad are as follows. In 1981, the Salem, Oregon home of the Gross family was burglarized. The local sheriff's department received a tip that eighteen-year-old Michael Elstad was involved. Two law enforcement officers obtained an arrest warrant for Elstad and went to his home. Elstad's mother let the officers into the home and directed them to her son's room. The officers asked Elstad to get dressed and come out to the living room. One of the officers asked Elstad's mother to go into the kitchen, where he explained to her that her son was a burglary suspect. The other officer remained in the living room with Elstad. He asked Elstad if he knew why the officers wanted to talk to him. Elstad answered "no." The officer asked him if he knew a family named Gross. Elstad responded affirmatively and added that he had recently heard there had been a burglary at their house. The officer said that he believed Elstad was involved. Elstad responded, "[Y]es, I was there." Approximately one hour later at the Sheriff's department, the officer advised Elstad of his Miranda rights, which Elstad promptly waived. He then signed a confession.

Elstad was charged with first-degree burglary. He moved to suppress both his oral and written statements. He argued that his initial unwarned oral statement "let the cat out of the bag" and tainted his written confession as "fruit of the poisonous tree" of the Miranda violation. The United States Supreme court disagreed, holding that "a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from...