State v. Rossiter

• Decision Date: 03 June 1993
• Docket Number: No. 1892,1892
• Citation: 623 N.E.2d 645,88 Ohio App.3d 162
• Parties: The STATE of Ohio, Appellant, v. ROSSITER, Appellee.
• Court: Ohio Court of Appeals

Page 162

88 Ohio App.3d 162

623 N.E.2d 645

The STATE of Ohio, Appellant, v. ROSSITER, Appellee.

No. 1892.

Court of Appeals of Ohio, Fourth District, Ross County.

Decided June 3, 1993.

Scott W. Nusbaum, Chillicothe, for appellant.

Daniel L. Silcott, Chillicothe, for appellee.

PETER B. ABELE, Judge.

This is an appeal from a judgment of conviction and sentence entered by the Ross County Common Pleas Court. The state of Ohio, plaintiff below and appellant herein, appeals the trial court's judgment granting a motion to suppress filed by Gary Rossiter, defendant below and appellee herein.

Appellant assigns the following errors:

"First Assignment of Error:

"The trial court erred in its determination that appellee was questioned in a custodial setting and therefore required to receive Miranda warnings."

"Second Assignment of Error:

"The trial court erred by failing to use the totality of the circumstances test in determining whether appellee voluntarily gave a confession to a police detective."

"Third Assignment of Error:

"The state of Ohio proved beyond a preponderance of the evidence that appellee voluntarily and freely waived his Miranda rights rendering his confession admissible."

"Fourth Assignment of Error:

"The trial court erred by excluding evidence where there is not [sic] indication that future police conduct would be deterred by applying the exclusionary rule."

On March 13, 1992, the grand jury indicted appellee on two counts of arson in violation of R.C. 2909.03.

On June 11, 1992, appellee filed a motion to suppress any statements he made to law enforcement officers. Appellee argued he did not make a knowing and intelligent waiver of his constitutional rights prior to the time the law enforcement officers elicited a statement from him.

On July 2, 1992, appellant filed a memorandum contra appellee's motion to suppress. Appellant argued that although the detective who questioned appellee thought he was "slow," the detective had no indication that appellee could not understand his constitutional rights. Appellant further argued that appellee remained free to leave the police cruiser at any time during the questioning.

On July 8, 1992, the court sustained appellee's motion to suppress. The court wrote in its decision:

"This Court further finds that a custodial interrogation occurred and that Detective Nichols provided the Miranda warning to Defendant on two occasions. * * *

"The Defense called Dr. James Hagen, a Clinical Psychologist whose qualifications were stipulated by the parties and who testified that Defendant was mentally retarded and had an IQ of approximately 65. Dr. Hagen further reported that the Defendants intellectual abilities were judged to be below average and the he was mildly mentally retarded. Dr. Hagen further testified that abstract concepts would be difficult for Defendant particularly those describing his Constitutional Rights and the concept of waiving those rights.

" * * *

"Although it is doubtful that Defendant fully and truly understood his Constitutional Rights as provided to him by Detective Nichols, it is abundantly clear to this Court that the Defendant did not give a knowing and voluntary waiver of those rights.

" * * *

"It is quite clear to this Court after observing Defendant on the stand, observing his demeanor, observing his facial expressions, observing his method of answering and the hesitancy and answers given, the Defendant in all likelihood did not understand his Constitutional Rights and clearly did not waive those rights before making the oral statement to Detective Nichols. * * * "

Appellant filed a timely notice of appeal with the required Crim.R. 12(J) certification.

I

In its first assignment of error, appellant asserts the trial court erred by finding that the detective questioned appellee in a custodial setting.

During proceedings on a motion to suppress evidence, the trial court generally assumes the role of trier of facts. See State v. Simmons (Aug. 25, 1992), Pike App. No. 473, unreported, 1992 WL 208958; State v. Kingery (Mar. 18, 1992), Ross App. No. 1792, unreported, at 5, 1992 WL 56769; State v. Cramblit (Mar. 4, 1992), Hocking App. No. 91CA7, unreported, at 5, 1992 WL 42783. The trial court must determine the credibility of the witnesses and weigh the evidence presented at hearings on motions to suppress evidence. State v. Smith (1991), 61 Ohio St.3d 284, 288, 574 N.E.2d 510, 515; State v. Fanning (1982), 1 Ohio St.3d 19, 20, 1 OBR 57, 437 N.E.2d 583, 584. As a reviewing court, we should defer to the trier of fact who had an opportunity to view the witnesses and observe their demeanors, gestures, and voice inflections. A reviewing court should not disturb the trial court's findings on the issue of credibility. Id. Accordingly, in our review we are bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. DePalma (Jan. 18, 1991), Ross App. No. 1633, unreported, 1991 WL 13824. Accepting these facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the appropriate legal standard. See State v. Shelpman (May 23, 1991), Ross App. No. 1632, unreported, 1991 WL 87312; State v. Simmons (Aug. 30, 1990), Washington App. No. 89CA18, unreported, 1990 WL 127065.

In the case sub judice, we find the record contains sufficient credible evidence to support the trial court's conclusion that a custodial interrogation occurred. We note that the only relevant inquiry in determining whether an interrogation is custodial is how a reasonable man in the suspect's position would have understood the situation. Berkemer v. McCarty (1984), 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317. A suspect is considered to be "in custody" when the suspect's freedom of action is limited to a "degree associated with formal arrest." Id. See, also, In re Smalley (1989), 62 Ohio App.3d 435, 575 N.E.2d 1198; State v. Warrell (1987), 41 Ohio App.3d 286, 534 N.E.2d 1237; California v. Beheler 1983), 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275; State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768.

A review of the record reveals that Detective Ron Nichols asked appellee to enter a police cruiser for questioning. Detective Nichols called a second officer into the cruiser for assistance with the questioning. Detective Nichols testified he advised appellee of his Miranda rights "since he was sitting in my car." Detective Nichols asked appellee many questions implicating his guilt. We find sufficient credible evidence in the record to support a determination that a reasonable person being questioned under the circumstances of this case would have understood that his or her freedom of action was limited to a "degree associated with formal arrest."

Accordingly, based upon the foregoing reasons, we overrule appellant's first assignment of error.

II

In its second assignment of error, appellant asserts the trial court erred by failing to apply the totality of the circumstances test to determine whether appellant voluntarily confessed to the commission of the crimes. See State v. Brewer (1990), 48 Ohio St.3d 50, 549 N.E.2d 491. In Brewer, at 58, 549 N.E.2d at 499, the court wrote:

"Whether a confession is voluntary depends upon ' * * * the totality of the circumstances, including the age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment, and the existence of threat or inducement.' State v. Edwards (1976), 49 Ohio St.2d 31, 3 O.O.3d 18, 358 N.E.2d 1051, paragraph two of the syllabus, vacated as to death penalty, Edwards v. Ohio (1978), 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155."

In the instant case, we find no evidence in the record that the trial court failed to apply the totality of the circumstances test. Although appellant contends the trial court based its decision solely on appellee's IQ, the trial court's decision mentions additional factors that influenced the decision. In the absence of evidence to the contrary, we must presume the trial court correctly decided the case. See State v. Coombs (1985), 18 Ohio St.3d 123, 18 OBR 153, 480 N.E.2d 414.

Accordingly, based upon the foregoing reasons, we overrule appellant's second assignment of error.

III

In its third assignment of error, appellant asserts the evidence proves appellee voluntarily and freely waived his constitutional rights prior to making his statement. Appellee disagrees.

In State v. Simmons (Aug. 25, 1992), Pike App. No. 473, unreported, 1992 WL 208958, we commented:

"The analysis of a waiver's validity has two distinct aspects: First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being waived and the consequences of the decision to abandon it. * * * "

In Colorado v. Spring (1987), 479 U.S. 564, 573, 107 S.Ct. 851, 857, 93 L.Ed.2d 954, 965, the court wrote:

"Only if the 'totality of the circumstances surrounding the interrogation' reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." (Emphasis added.) See, also, Moran v. Burbine (1986), 475 U.S. 412, 421, 106 S.Ct. 1135, 1140, 89 L.Ed.2d 410, 420.

In the case sub judice, the trial court suppressed appellee's confession based upon its finding that appellant did not have an awareness both of the nature of his rights and of the consequences of waiving those rights. The court wrote that appellee "in all likelihood did not understand his constitutional rights and clearly did not waive those rights." Our review of the record uncovers sufficient evidence to sustain that...