Verdell v. Buchanan

• Decision Date: 21 June 2019
• Docket Number: Case No. 3:19-cv-188
• Parties: JOSHUA VERDELL, Petitioner, v. TIM BUCHANAN, Warden, Noble Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

JOSHUA VERDELL, Petitioner,
v.
TIM BUCHANAN, Warden, Noble Correctional Institution, Respondent.

Case No. 3:19-cv-188

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

June 21, 2019

District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se by Petitioner Joshua Verdell to obtain relief from his conviction in the Common Pleas Court of Montgomery County and consequent imprisonment in Respondent's custody. The case was referred to the undersigned under the Dayton General Order of Assignment and Reference, Day 13-01.

Under Rule 4 of the Rules Governing § 2254 Cases, the clerk must promptly forward the petition to a judge under the court's assignment procedure, and the judge must promptly examine it. If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.

Verdell pleads two grounds for relief:

Claim One: Failure to exclude incriminating statements that are obtained without valid waiver of of [sic] the rights against self-incrimination constitutes illegal seizure.

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Claim Two: Denial of right to confront thee [sic] medic that took a part in the on-the-scene interrogation and recorded conversation rendered admitted evidence unconstitutional.

(Petition, ECF No. 1, PageID 4, 5.)

Litigation History

Verdell was indicted by the Montgomery County, Ohio, grand jury on December 29, 2016, on one count of murder, two counts of felony murder, two counts of felonious assault, and one count of tampering with evidence, along with several firearm specifications. State v. Verdell, 2^nd Dist. Montgomery No. 27786, 2018-Ohio-4766, ¶ 2 (Nov. 30, 2018), appellate jurisdiction declined, 154 Ohio St. 3d 1522, 2019-Ohio-769. Verdell pleaded not guilty and filed a motion to suppress his statements on grounds they were taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966). Id. at ¶ 3. After his motion to suppress was denied, Verdell pleaded no contest to all charges and was sentenced to eighteen years to life imprisonment. Id. at ¶ 18.

Claim One: Violation of Privilege Against Self-incrimination

In his First Claim for Relief, Verdell asserts his Fifth Amendment privilege against self-incrimination was violated both by Officer Stewart's actions as the scene of the crime and Detective Roberts later questioning at the Dayton Safety Building.

On appeal, Petitioner presented these claims in his two assignments of error:

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I. STATEMENTS OBTAINED ON THE SCENE WERE INADMISSIBLE AS THE OFFICER CIRCUMVENTED MIRANDA BY ASKING QUESTIONS DURING THE APPELLANT'S CONVERSATION WITH THE MEDIC.

II. MR. VERDELL DID NOT KNOWINGLY AND VOLUNTARILY WAIVE HIS MIRANDA RIGHTS AT THE SAFETY BUILDING.

Verdell, 2018-Ohio-4766, ¶ 19.

Part One: Incriminating Statements to Officer Stewart

The Second District decided the First Assignment of Error as follows:

{¶ 21} Under his First Assignment of Error, Verdell contends the incriminating statements he made in response to Officer Stewart's questions at the crime scene should have been suppressed by the trial court because those statements were not preceded by Miranda warnings. We disagree with Verdell's claim.

{¶ 22} "The right to [Miranda] warnings is grounded in the Fifth Amendment's prohibition against compelled self-incrimination." State v. Strozier, 172 Ohio App.3d 780, 2007-Ohio-4575, 876 N.E.2d 1304, ¶ 16 (2d Dist.), citing Moran v. Burbine, 475 U.S. 412, 420, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). "It is well established, however, that the police are not required to administer [Miranda] warnings to every individual they question." Id., citing State v. Biros, 78 Ohio St.3d 426, 440, 1997-Ohio 204, 678 N.E.2d 891 (1997). "Rather, only custodial interrogations trigger the need for [Miranda] warnings." Id., citing Biros at 440. (Other citations omitted.)

{¶ 23} "Custodial interrogation' means questioning initiated by the police after the person has been taken into custody or otherwise deprived of his freedom to the degree associated with a formal arrest." (Citations omitted.) State v. Vineyard, 2d Dist. Montgomery No. 25854, 2014-Ohio-3846, ¶ 32; California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983), quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) ("the ultimate inquiry is simply whether there is a

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'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest").

{¶ 24} Although Verdell argues that he was deprived of his freedom of movement to a degree associated with a formal arrest, in order to trigger the need for Miranda warnings, Verdell must have been subject to an interrogation at the time his freedom was so restrained. "'Interrogation' includes express questioning as well as 'any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.'" Strozier at ¶ 20, quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Accord State v. Knuckles, 65 Ohio St.3d 494, 1992- Ohio 64, 605 N.E.2d 54 (1992), paragraph two of the syllabus ("[w]hen a statement, question or remark by a police officer is reasonably likely to elicit an incriminating response from a suspect, it is an interrogation").

{¶ 25} "'Interrogation' must reflect 'a measure of compulsion above and beyond that inherent in custody itself.'" State v. Haynes, 2018-Ohio-607, 106 N.E.3d 342, ¶ 16 (2d Dist.), quoting Innis at 300. "[S]ince the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." (Emphasis sic.) Innis at 301-302. Therefore, "[p]olice officers are not responsible for unforeseeable incriminating responses." (Citation omitted.) State v. Waggoner, 2d Dist. Montgomery No. 21245, 2006-Ohio-844, ¶ 14.

{¶ 26} In Waggoner, the defendant was traveling in a vehicle with some companions when he was stopped and arrested on an outstanding warrant. Id. at ¶ 2-3. After the defendant's arrest, the arresting officer saw a cell phone and jacket on the seat of the vehicle where the defendant had been sitting and asked the defendant whether the items were his belongings. Id. at ¶ 4. The defendant replied that the items were his, and the officer asked "if there was any other property (of his) in the vehicle." Id. In response, the defendant said there was a gun in the vehicle. Id. After the gun was found, the defendant was charged with carrying a concealed weapon. Id. at ¶ 5.

{¶ 27} The trial court in Waggoner suppressed evidence of the gun and the defendant's statement concerning the gun on grounds that an un-Mirandized custodial interrogation occurred. Id. In so holding, the trial court found the arresting office's question was an

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interrogation because it was reasonably likely to elicit the incriminating response given by the defendant. Id. The State appealed from the trial court's decision and we reversed it. Specifically, we found that the record did not support finding that the arresting officer should have known that when he asked the defendant whether there was "any other property (of his) in the vehicle," he would have elicited an incriminating response from the defendant. Id. at ¶ 20. Thus, we held that Miranda warnings were not required to precede the officer's question as to whether the defendant had any other property in his vehicle. Id. See also State v. Reindel, 2017-Ohio-28, 80 N.E.3d 1098 (2d Dist.), ¶ 19 (holding there was "no basis to conclude that [the officer] should have known that his innocuous questions were reasonably likely to elicit an incriminating response from [the defendant]").

{¶ 28} The situation in the present case is similar to that in Waggoner. In this case, the record does not support finding that Officer Stewart should have known that when he asked Verdell "Who hit you in the fight?" and "Then what happened?" that Verdell would have confessed to shooting Shyne. The fact that Stewart's questions were asked during a medic's evaluation and that the questions did not reference the shooting indicate that Stewart was trying to determine how Verdell was injured, not to elicit an incriminating response. This conclusion is supported by Stewart's testimony that he did not suspect Verdell was involved in the shooting at the time he questioned him. Because the record indicates there was no way for Stewart to know that his questions would elicit Verdell's incriminating response, we do not find that Stewart's questions rose to the level of interrogation. Rather, the record indicates that Stewart's questions amounted to general on-the-scene fact finding, which generally does not constitute a custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 477-478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

{¶ 29} Given that Verdell was not interrogated by Officer Stewart, there was clearly no custodial interrogation that triggered the need for Miranda warnings. Therefore, Verdell's claim that the trial court erred in failing to suppress the incriminating statements because they were not preceded by Miranda warnings lacks merit, as Miranda warnings were not required.

{¶ 30} Verdell's First Assignment of Error is overruled.

Verdell, 2018-Ohio-4766.

When a state court decides on the merits a federal constitutional claim later presented to a

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federal habeas court, the federal court must defer to the state court decision unless that decision is contrary to or an objectively unreasonable application of clearly established precedent of the United States Supreme Court. 28...