State v. Gideon

• Decision Date: 15 December 2020
• Docket Number: No. 2019-1104,2019-1104
• Citation: 165 Ohio St.3d 156,176 N.E.3d 720
• Parties: The STATE of Ohio, Appellant and Cross-Appellee, v. GIDEON, Appellee and Cross-Appellant.
• Court: Ohio Supreme Court

165 Ohio St.3d 156

176 N.E.3d 720

The STATE of Ohio, Appellant and Cross-Appellee,

v.GIDEON, Appellee and Cross-Appellant.

No. 2019-1104

Supreme Court of Ohio.

Submitted August 4, 2020

Decided December 15, 2020

Reissued December 31, 2020¹

Nicole M. Smith, Lima Assistant City Prosecuting Attorney, and Anthony M. DiPietro, Deputy Law Director, for appellant and cross-appellee.

Dennis C. Belli, Columbus, for appellee and cross-appellant.

Stewart, J. {¶ 1} In Ohio, a medical doctor has a statutory duty to answer truthfully questions posed by an investigator of the state medical board. The question presented in this appeal is whether the state may use incriminating answers given by a doctor during a medical-board investigation in a subsequent criminal prosecution of that doctor. We conclude that a medical license is a property right and that the threatened loss of the license is a form of coercion that can compromise the United States Constitution's Fifth Amendment privilege against self-incrimination. That said, in order for coercion to be sufficient to warrant the suppression of statements made during a medical-board investigative interview, first, the person making the statements must subjectively believe that asserting the privilege against self-incrimination could cause the loss of the person's medical license, and second, that belief must be objectively reasonable. In this case, the doctor's belief that he could lose his medical license if he refused to answer truthfully questions posed by the medical-board investigator was not objectively reasonable. Because the court of appeals reached a contrary conclusion and held that statements made by the doctor were inadmissible at trial, we reverse.

{¶ 2} We also conclude that the court of appeals erred by determining that its remand order mooted an assignment of error relating to the sufficiency of the evidence. An assignment of error challenging the sufficiency of the evidence is potentially dispositive of a defendant's conviction and may not be rendered moot by a remand on any other assignment of error.

Factual Background

{¶ 3} Appellee and cross-appellant, James Gideon, was licensed as a physician by the State Medical Board of Ohio and maintained a practice in rheumatology. In 2017, three of his patients accused him of inappropriately touching them during office visits. Two investigations were opened: one by the local police and one by an investigator working for the state medical board. Although Gideon told the police that he did not inappropriately touch any patients, the investigator told the police that Gideon had admitted to misconduct. The investigator shared that information with the police as the medical board is authorized to do under R.C. 4731.22(F)(5).

{¶ 4} The state charged Gideon with three third-degree misdemeanor counts of sexual imposition in three separate cases that were consolidated for trial. Gideon moved to suppress the statements that he had made to the investigator as having been illegally compelled in violation of the Fifth Amendment to the United States Constitution. He argued that because he believed he was required to submit to the interview by the medical board and answer the investigator's questions or risk losing his medical license, the medical-board investigator coerced his admissions with the threat of losing his medical license. The trial judge denied the motion to suppress, concluding that Gideon "made voluntary statements during a noncustodial interview." A jury found Gideon guilty in all three cases. The trial court imposed a jail term of 60 days in each case and ordered the sentences to run consecutively to each other.

{¶ 5} On appeal, the Third District Court of Appeals reversed the convictions. The court of appeals determined that the trial court should have granted Gideon's motion to suppress consistent with Garrity v. New Jersey , 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), which held that statements obtained from a public employee under threat of job loss are unconstitutionally coerced and inadmissible in subsequent criminal proceedings. The court noted that Gideon had a statutory duty to answer truthfully all questions posed by the medical-board investigator and that the investigator "created an impression that Gideon's refusal to cooperate with his investigation would result in the type of penalty prohibited under Garrity ," 2019-Ohio-2482, 130 N.E.3d 357, ¶ 51.

{¶ 6} Both the state and Gideon appealed the appellate court's judgment. The state offers this proposition of law:

When a non-government employee gives a statement to an administrative board/licensing agency governed by the state, and when there is no threat of loss of employment or removal from office, that statement is not subject to Garrity v. New Jersey , 385 U.S. 493 [87 S.Ct. 616, 17 L.Ed.2d 562] (1967).

{¶ 7} Gideon offers two cross-propositions of law:

(1) A licensing board investigator's intent to assist law enforcement in obtaining a criminal conviction for the purpose of influencing the outcome of an administrative-sanction proceeding against a licensee is a factor strongly weighing in favor of a finding that the licensee had an objectively reasonable belief that assertion of his Fifth Amendment Privilege Against Self-Incrimination would expose him to revocation of his license and loss of his livelihood.

(2) Under App.R. 12(A)(I)(C), a court of appeals has a duty to adjudicate any assignment of error that raises a claim of insufficiency of the evidence to support a criminal conviction or that involves a claim of error that is likely to again become an issue during proceedings upon remand.

The Privilege Against Self-Incrimination

{¶ 8} We will first address the state's proposition of law together with Gideon's first cross-proposition of law. The Fifth Amendment to the United States Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself." Article I, Section 10 of the Ohio Constitution provides the same protection: "No person shall be compelled, in any criminal case, to be a witness against himself * * *." "The Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings."

Lefkowitz v. Turley , 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973).

{¶ 9} Because a witness may voluntarily testify to matters that may be incriminating, the privilege against self-incrimination is not self-executing. The witness seeking the privilege must "claim it." United States v. Monia , 317 U.S. 424, 427, 63 S.Ct. 409, 87 L.Ed. 376 (1943). If the witness answers a question, the answer will be considered voluntary. See Minnesota v. Murphy , 465 U.S. 420, 427, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984). Gideon did not assert the privilege against self-incrimination during his interview with the medical-board investigator.

{¶ 10} At times, when it is necessary to "safeguard the core constitutional right protected by the Self-incrimination Clause," an assertion of the privilege against self-incrimination is not required. Chavez v. Martinez , 538 U.S. 760, 770, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) (plurality opinion). An exception to asserting the privilege exists for statements made during custodial interrogations in which the state undermines the privilege by physically or psychologically coercing a suspect. See Miranda v. Arizona , 384 U.S. 436, 448-450, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

{¶ 11} The right to remain silent can also be infringed by coercion when there is a penalty for asserting the right. In Garrity , the New Jersey Attorney General investigated police officers for fixing traffic tickets. Although advised of their right to remain silent, the officers also were told that refusing to answer questions would lead to the termination of their employment. The officers answered questions, and the state used some of their answers against them in a subsequent criminal case. The United States Supreme Court observed that "[t]he option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent." Garrity , 385 U.S. at 497, 87 S.Ct. 616, 17 L.Ed.2d 562. The court thus held that the confessions were not voluntary but coerced and that the Fourteenth Amendment prohibited the use of the statements in subsequent criminal proceedings. Id. at 497-498, 500, 87 S.Ct. 616.

{¶ 12} Unlike the officers in Garrity , Gideon is not a public employee. He was a medical doctor in private practice. As a practicing physician, he was subject to licensure by the state medical board. See R.C. 4731.17(B) (state medical board shall issue licenses to practice medicine). Gideon's medical license constitutes a liberty and property interest subject to due-process protections. Watts v. Burkhart , 854 F.2d 839, 842 (6th Cir.1988) ("the freedom to pursue a career is a protected liberty interest, and * * * state regulation of occupations through a licensing process gives rise to protected property interests"); see also Flynn v. State Med. Bd ., 2016-Ohio-5903, 62 N.E.3d 212, ¶ 45 (10th Dist.).

{¶ 13} The medical board has disciplinary authority over medical doctors and may "limit, revoke, or suspend a license or certificate to practice or certificate to recommend, refuse to issue a license or certificate, refuse to renew a license or certificate, refuse to reinstate a license or certificate, or reprimand or place on probation the holder of a license or certificate." R.C. 4731.22(B). Among the reasons listed for exercising the authority to impose such sanctions is the "[f]ailure to cooperate in an investigation" and the "failure to answer truthfully a question presented by the board in an investigative...