State v. Velliquette

• Decision Date: 09 October 2020
• Docket Number: No. L-19-1232,L-19-1232
• Parties: STATE of Ohio, Appellee v. Dyllan VELLIQUETTE, Appellant
• Court: Ohio Court of Appeals

160 N.E.3d 414

2020 Ohio 4855

STATE of Ohio, Appellee

v.Dyllan VELLIQUETTE, Appellant

No. L-19-1232

Court of Appeals of Ohio, Sixth District, Lucas County.

Decided: October 9, 2020

Julia R. Bates, Lucas County Prosecuting Attorney, Toledo, and Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.

Autumn D. Adams, for appellant.

DECISION AND JUDGMENT

ZMUDA, P.J.

I. Introduction

{¶ 1} This matter is before the court on appeal from the August 30, 2019 judgment, denying the motion to suppress of appellant Dyllan Velliquette, and the September 12, 2019 judgment, sentencing appellant to an aggregate prison term of 3 to 4½ years in prison, ordered consecutive to the balance of post release control remaining for a separate conviction. We affirm as to the trial court's ruling on appellant's motion to suppress, and dismiss regarding sentencing, finding the issue is not ripe for review.

II. Facts and Procedural Background

{¶ 2} On June 17, 2019, appellant and two co-defendants, Gustavo Tapia and Darrien Davis, forced their way into a home, pointed a gun at one of the occupants and demanded cash and access to a safe. The three fled after another occupant called for help. Later in the evening, police stopped a vehicle driven by S.W.,¹ with Tapia and Davis as passengers. S.W. cooperated with the investigation and admitted that she waited outside in the car while appellant, Tapia, and Davis were inside the victims' home. She also told police where she had dropped appellant off afterwards, at appellant's mother's home. Police went to his mother's house and conducted a search with her consent, locating dark clothing and a firearm possibly connected to the incident.

{¶ 3} Police later apprehended appellant and took him to the Safety Building for an interview. Prior to the interview, Detective Kaczmarek asked appellant his name and date of birth. He also asked appellant where he was currently staying, and appellant indicated he stayed at both his mother's and father's homes and verified his mother's address. Detective Kaczmarek advised appellant of his Miranda rights, went over the waiver of rights form, and appellant signed the waiver.

{¶ 4} At the start of the interview, Detective Kaczmarek noted appellant looked ill, and asked appellant how he was feeling. Appellant told the detective that he had been roofing all day and was tired. Aside from appellant's weariness, the detective did not note any other conditions that suggested intoxication. Appellant spoke without slurring and gave thought-out answers to the detective's questions. Appellant admitted he was with Tapia, Davis, and S.W. the evening of the incident but denied involvement in any crime. After learning that police searched his mother's home with her consent, appellant asked for an attorney and ended the interview.

{¶ 5} On August 2, 2019, appellant was indicted on one count of aggravated robbery in violation of R.C. 2911.01(A)(1) and (C), a felony of the first degree, and one count of aggravated burglary in violation of R.C. 2911.11(A)(2) and (B), a felony of the first degree.² Each count included a firearm specification pursuant to R.C. 2941.145(A), (B), (C), and (F). Appellant was arraigned on August 7, with appointed counsel, and entered a plea of not guilty. Appellant also filed a motion to suppress his statements from his police interview, arguing he was too intoxicated to properly waive his Miranda rights and the detective elicited an incriminating statement prior to having him sign the waiver. Additionally, appellant argued that he was improperly coerced into giving statements, rendering his statements involuntary.

{¶ 6} On August 26, 2019, the trial court held a hearing on the motion to suppress, and determined appellant was not too intoxicated to make a knowing and intelligent waiver of his Miranda rights, noting appellant's ability to respond to questions and terminate the questioning by asking for a lawyer. The trial court further found that Detective Kaczmarek's questions about where appellant was staying were identifying questions, typical of preliminary questions preceding an interrogation, and appellant again identified his mother's house as his house after signing the Miranda waiver. Finally, the trial court determined that any misrepresentation by Detective Kaczmarek, regarding the number of people confessing to the crime, did not render appellant's statements involuntary.

{¶ 7} On September 9, 2019, the scheduled trial date, appellant entered a no contest plea to aggravated robbery and aggravated burglary, with the state dismissing the firearm specifications. The parties agreed to a jointly recommended sentence of 3 to 4.5 years.

{¶ 8} On September 11, 2019, the trial court held a sentencing hearing, and over appellant's objection to the imposition of indefinite sentencing under the Reagan Tokes law, imposed the jointly recommended sentence of a minimum term of 3 years in prison and a maximum term of 4.5 years in prison on each count, and ordered the sentences to be served concurrently to each other, but consecutively to any remaining time imposed as post release control in a prior conviction.³ The trial court further determined that each count was an offense of violence pursuant to R.C. 2901.01(A)(9)(a)-(d), and imposed post release control as to each count for the 5-year mandatory period, with proper notice to appellant.

{¶ 9} From this judgment, appellant filed a timely appeal.

III. Assignments of Error

{¶ 10} In his appeal, appellant raises the following issues as error for our review:

I. The Trial Court erred in denying Appellant's Motion to Suppress.

II. The Reagan Tokes Act is unconstitutional.

IV. Analysis

{¶ 11} In his first assignment of error, appellant argues his statements to police should have been suppressed, as he did not make a knowing, intelligent, and voluntary waiver of his rights prior to speaking with police. The statements at issue include preliminary information supplied by appellant regarding where he lived and admissions during the interview regarding his activities with Tapia, Davis, and S.W.

{¶ 12} Our review of the trial court's decision, denying appellant's motion to suppress "presents a mixed question of law and fact." State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 40, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. We must accept the trial court's factual findings if they are supported by competent credible evidence, and "independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." Wesson at ¶ 40, quoting Burnside at ¶ 8.

{¶ 13} Prior to a custodial interrogation, the Fifth Amendment requires that a suspect "receive Miranda warnings to protect against self-incrimination." Wesson at ¶ 34, citing Miranda v. Arizona, 384 U.S. 436, 478-479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). As a result, the prosecution may not use statements obtained through a custodial interrogation that lacked the requisite Miranda safeguards. State v. Dailey, 53 Ohio St.3d 88, 90, 559 N.E.2d 459 (1990), citing Miranda at 444, 86 S.Ct. 1602.

{¶ 14} In this case, after some preliminary, biographical questions, appellant waived his rights, executed a waiver form, and spoke with the detective. After the detective informed appellant that police had searched his mother's home with her consent, appellant ended the interview by asking for a lawyer. Appellant now challenges the admissibility of his preliminary statements, made prior to being advised of his Miranda rights, as well as the validity of his written waiver and the use of statements made after he executed the waiver form.

{¶ 15} As to the first category of statements, appellant argues that eliciting his address prior to advising him of his Miranda rights was improper, because where he stayed was used against him as incriminating information. In rejecting this argument, the trial court reviewed the recorded interview and determined the preliminary questions, including where appellant was staying, were "simply general, identifying questions which are asked of all individuals in custody prior to conducting an interview." We agree.

{¶ 16} Identifying questions, like the ones asked in this case, do not require Miranda warnings, as they are not asked to elicit an incriminating response. See State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 32-33, citing Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990), quoting United States v. Horton , 873 F.2d 180, 181, fn. 2 (8th Cir. 1989). Here, Detective Kaczmarek testified that he identified himself to appellant and then asked appellant identifying questions, including name and address, which was routine "in case we have to do a follow up investigation, or if we have to serve a subpoena through the court system."

{¶ 17} Appellant spelled out his name and confirmed his mother's address, and after noting this information, the detective proceeded to inform appellant of his Miranda rights. After waiving those rights and speaking with the detective, appellant again referred to his mother's home as a place where he stayed. Therefore, appellant's address as "incriminating" information, was conveyed both before and after appellant was given the Miranda warning, diminishing any argument relative to the preliminary, biographical questions. Accordingly, we find no basis to suppress appellant's preliminary statement regarding his address.

{¶ 18} As to statements made after appellant executed the waiver form, appellant argues his waiver was invalid because he was too intoxicated to make a knowing, intelligent, and voluntary waiver of his rights. He also argues that Detective Kaczmarek improperly coerced admissions by misstating the number of co-defendants who confessed and implicated appellant.

{¶ 19} "An accused's signed waiver form is strong proof that such waiver was valid." State v. Nields, 93...