State v. Martinez

• Decision Date: 25 August 2016
• Docket Number: No. 103572,No. 103573,103572,103573
• Citation: 2016 Ohio 5515
• Parties: STATE OF OHIO PLAINTIFF-APPELLANT/CROSS-APPELLEE v. ANTHONY M. MARTINEZ DEFENDANT-APPELLEE/ CROSS- APPELLANT
• Court: Ohio Court of Appeals

2016 Ohio 5515

STATE OF OHIO PLAINTIFF-APPELLANT/CROSS-APPELLEE v. ANTHONY M. MARTINEZ DEFENDANT-APPELLEE/ CROSS- APPELLANT

No. 103572

No. 103573

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

August 25, 2016

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-14-591086-A

BEFORE: E.A. Gallagher, P.J., S. Gallagher, J., and Laster Mays, J.

ATTORNEYS FOR PLAINTIFF-APPELLANT/CROSS-APPELLEE

Timothy J. McGinty

Cuyahoga County Prosecutor

BY: Daniel T. Van

Assistant Prosecuting Attorney

The Justice Center, 9th Floor

1200 Ontario Street

Cleveland, Ohio 44113

ATTORNEY FOR DEFENDANT-APPELLEE/CROSS APPELLANT

Russell S. Bensing

600 IMG Building

1360 East Ninth Street

Cleveland, Ohio 44114

EILEEN A. GALLAGHER, P.J.:

{¶1} In this consolidated appeal, defendant Anthony Martinez appeals his conviction for importuning in violation of R.C. 2907.07(B)(1). He argues that the trial court erred in denying his motion to suppress statements he made (1) while being questioned by law enforcement officers at his home and (2) during a subsequent interrogation at the police station. The state appeals the trial court's decision to stay execution of the sex offender registration requirements imposed as part of Martinez's sentence pending resolution of this appeal. For the reasons that follow, we affirm the trial court's judgment and remand the matter for execution of the sentence imposed.

Factual and Procedural Background

{¶2} On the morning of November 7, 2014, Parma Police Detective David Sheridan and Parma Police Sergeant David Zarzeczny went to Martinez's home to question him regarding an incident that had allegedly occurred two days earlier at Parma High School. Detective Sheridan was investigating a complaint by a 15-year-old female student that Martinez, age 66, a hall monitor at Parma High School, had placed his arm around her shoulder and made several inappropriate sexual comments to her while escorting her to class. The student alleged that Martinez had asked when she would let "an old man like him have sex with [her]" and whether he could "lick her p****." Martinez was placed on administrative leave following the incident. Sergeant Zarzeczny, who worked part-time at the high school, completed the incident report.

{¶3} After reviewing the case file and incident report, Detective Sheridan spoke with Sergeant Zarzeczny regarding the allegations. Given his familiarity with Martinez and the fact that he had a "rapport" with him, Sergeant Zarzeczny thought Martinez would be more "comfortable" discussing the allegations if he were present and offered to accompany Detective Sheridan to question Martinez regarding the allegations. Sergeant Zarzeczny testified that he had known Martinez for "[a] couple years," interacted with him frequently and "got along very well" with him. Detective Sheridan accepted the offer and the two officers drove to Martinez's residence in an unmarked police car. Detective Sheridan was in plainclothes; Sergeant Zarzeczny was in his police uniform.

{¶4} When the officers arrived at Martinez's residence, Martinez answered the door and invited them inside. Detective Sheridan brought a recording device with him and secretly recorded his interaction with Martinez beginning when Martinez opened the door. Detective Sheridan testified that it was not unusual for him to record an interview and that, "typically," all of his interviews are recorded.

{¶5} Once inside, Detective Sheridan introduced himself and asked Martinez whether he would prefer to talk at home or somewhere else. Martinez replied that they could talk there, offered the officers coffee and led them to the kitchen where the officers sat down at the kitchen table with Martinez and his wife, Diane Martinez ("Diane").

{¶6} After asking some basic questions regarding Martinez's background, Detective Sheridan informed Martinez of the allegations against him. Martinez acknowledged knowing the student involved but initially denied that he put his arm around her shoulder or made any inappropriate sexual comments to her. Approximately 11 minutes into the interview, Diane left the kitchen and went into a bedroom, located 20-30 feet from the kitchen, to get her 18-year-old daughter.

{¶7} After Diane left the room, Detective Sheridan told Martinez, "man to man," that he knew Martinez was not being truthful and that he was "digging [himself] into a hole [he] was not going to be able to get out of." The officers told Martinez that he was not under arrest and that it was only because Sergeant Zarzeczny had told Detective Sheridan that Martinez was a "good guy" that they had come to his house to question him rather than arrest him and bring him to the police station for questioning. Detective Sheridan said that he "didn't want to do that" but that Martinez was going to have to "man up" and tell him "what really happened." Detective Sheridan testified that, at this point, Martinez had his head down in his hands, was "pale as a ghost" and was sweating. Sergeant Zarzeczny similarly testified that Martinez appeared "[v]ery nervous" and sweating, "[h]ad a hard time maintaining eye contact" and was "[s]ubtly trembling with his hands at the table."

{¶8} Detective Sheridan continued with the interrogation. He told Martinez that the student was prepared to testify in court against him and that they had video surveillance showing Martinez put his arm around the student and other evidence, which he declined to disclose, "that proves her story." Approximately 15 minutes into the interrogation, Martinez admitted to putting his arm around the student and making the alleged inappropriate sexual comments to her. At no point, either prior to or during the interrogation, did Detective Sheridan inform Martinez of his Miranda rights.

{¶9} After Martinez confessed, the officers told Martinez that they needed to go down to the police station so that Martinez could give a "more formal statement." Detective Sheridan and Sergeant Zarzeczny drove Martinez to the police station in Detective Sheridan's unmarked police vehicle.

{¶10} When they arrived at the police station approximately ten minutes later, Martinez was placed into an interview room. He was advised of his Miranda rights and gave a second statement in which he again admitted that he had placed his arm around the student's shoulder and had made the specific inappropriate sexual comments the student alleged he had made. The relevant information and admissions elicited in the second interrogation were the same as those elicited in the first interrogation. Following the conclusion of the second interrogation, Martinez was arrested.

{¶11} On November 21, 2014, a Cuyahoga County Grand Jury indicted Martinez on a single count of importuning in violation of R.C. 2907.07(B)(1), a fifth-degree felony. Martinez pled not guilty.

{¶12} Before trial, Martinez filed a motion to suppress the statements he made during the two interrogations based on the officers' failure to advise him of his Miranda rights before the first interrogation. Following an evidentiary hearing, the trial court denied the motion to suppress, reasoning as follows:

I've given careful analysis and consideration to the facts presented during the course of the proceedings thus far. I am going to deny the motion to suppress the oral and recorded statement.

My review of the case law in this area suggests that, irrespective of my personal feelings about whether or not this is the best practice, the case law in our district and at the U.S. Supreme Court level on these facts does not support suppression.

The case [law] is significantly — or gives great significance to where these interrogations take place. This questioning of Mr. Martinez was at his home.

There is a point in the questioning at his home where the questioning by the detective is aggressive. Mr. Martinez is told that he is sweating bullets, or words to that effect, and that he might not be telling the truth and should admit to his behavior.

My initial thought was that at that juncture the law might trigger Miranda warnings and advisement that he need not make any further statement, that he consult a lawyer. But I must report that the case law in the Eighth District [does not] seem to require that. It might be a question to ask the Eighth District, once again, but that is up to the parties. * * * When he arrives at the police station, reference is made to the statements that he had already given. He is given his Miranda warnings, his advisement, if you will. He engages in further colloquy with the police. As that point he had a right to assert his Fifth Amendment rights and did not.

Case law in our district seems to allow that. It doesn't prohibit the admissibility of the statement. * * *

{¶13} Martinez waived his right to a jury trial and the case was tried to the bench. After hearing all the evidence and the arguments of counsel, the trial court found Martinez guilty of importuning. The trial court ordered a presentence investigation report and scheduled the matter for sentencing.

{¶14} Prior to sentencing Martinez filed a motion to stay the execution of his sentence, including the sex offender registration requirements, pending his appeal. The state opposed the motion.

{¶15} On September 1, 2015, the trial court sentenced Martinez to five years of community control and ordered him to register as a Tier I sex offender/child victim offender. The trial court granted the motion to stay, ordering that execution of Martinez's sentence be stayed "until the case is sent back from the court of appeals."

{¶16} This court granted the state leave to appeal the trial court's order staying execution of Martinez's sentence, raising the following assignment of error for review:

ASSIGNMENT OF ERROR I:

A trial court may not stay execution of sex offender registration requirements pending appeal.

ASSIGNMENT OF ERROR II:

Even if the trial court had authority to stay execution

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