State v. McDougald
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[Cite as State v. McDougald, 2004-Ohio-4512.] IN THE COURT OF APPEALS FOR MIAMI COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee vs. : : C.A. CASE NO. 03CA44 T.C. CASE NO. 02CR385 JEROME L. MCDOUGALD : (Criminal Appeal from Common Pleas Court) Defendant-Appellant : . . . . . . . . . O P I N I O N Rendered on the 27th day of August, 2004. . . . . . . . . . James D. Bennett, Prosecuting Attorney; Anthony E. Kendell, Asst. Pros. Attorney, 201 West Main Street, Troy, Ohio 45373 Attorney for Plaintiff-Appellee Ann Catherine Harvey, 5335 Far Hills Avenue, Suite 313, Dayton, Ohio 45429, Atty. Reg. No. 0054585 Attorney for Defendant-Appellant . . . . . . . . . GRADY, J. {¶1} Defendant, Jerome McDougald, was indicted on one count of attempted tampering with evidence in violation of R.C. 2923.02, 2921.12(A)(1). Defendant filed a motion to suppress the statements he made to police. Following a hearing, the trial court overruled Defendant s motion to suppress. Pursuant to a plea agreement, Defendant entered a 2 In exchange, the parties plea of no contest to the charge. jointly recommended a six month prison sentence, concurrent with the time Defendant was already serving, hundred fifty days of jail time credit. plus one The trial court accepted Defendant s plea, found him guilty, and imposed the six months sentence jointly recommended by both parties. {¶2} Defendant timely appealed to this court from his conviction and sentence. Defendant s appellate counsel filed an Anders brief, Anders v. California (1967), 386 U.S. 738, stating that she could not find any meritorious issues for appellate review. her Anders unknown brief to her, Defendant. that and Defendant s counsel has present been location unable to is contact This court is likewise unaware of Defendant s whereabouts. potential Appellate counsel further states in Accordingly, errors raised in we will address appellate the counsel s three Ander s brief, as well as conduct our own independent review of the trial record for any errors having arguable merit. {¶3} Appellate counsel claims that one potential argument that could be raised on appeal is that the trial court erred in concluding that the statements Defendant made at the crime scene to police were not the product of custodial interrogation and therefore Miranda warnings were not required. {¶4} When considering a motion to suppress, the trial court assumes the role of the trier of facts and, as such, is in the best position to resolve conflicts in the evidence and determine the credibility of the weight to be given to their testimony. (1994), 93 Ohio App.3d 586. accept the trial court s witnesses and 3 the State v. Retherford The court of appeals must findings of fact if they are supported by competent, credible evidence in the record. Id. Accepting those facts as true, the appellate court must then independently determine, as a matter of law and without deference to the trial court s legal conclusion, whether the applicable legal standard is satisfied. Id. {¶5} The facts found by the trial court are as follows: {¶6} The State called Steven Lord as a witness. credible. On September Sheriff s Detective Sargent The Court finds his testimony 11, 2002 at around 4:00 p.m., Detective Lord and other Deputy Sheriffs were in the process of executing a search warrant which authorized a search for evidence of trafficking in crack cocaine at Room 215 at the Howard Johnson Hotel in Piqua, Miami County, Ohio. {¶7} This location is known by law enforcement persons as a high crime area for drug trafficking in cocaine. least two confidential informants had informed At Detective Lord of the high incidence of drug trafficking at the motel. Recently, there trafficking deal had been gone a bad homicide at that related to location. a drug When Detective Lord informed Piqua Police Department that he was going to be executing a search warrant at the motel, the Piqua police officer informed him that it was a location where high levels of drug trafficking took place. {¶8} Detective Lord and Detective Dave Duchak 4 were interviewing Steven Johnson the occupant of the motel room being searched, in an unmarked car when two vehicles approached. {¶9} A Chevrolet parked next to Lord s vehicle. As a Mazda automobile parked on the other side of the Chevrolet, Lord recognized the passenger in the Mazda, Steven Karnhem. Lord knew him as a user of crack cocaine. Lord asked Johnson if he knew the passenger (Karnhem) and Johnson said that he was one of his crack cocaine customers. The Defendant was seated in the front passenger seat of the Chevrolet. {¶10} Lord observed Steve Karnhem walk to the driver of the Chevrolet. Lord watched Karnhem receive money from the driver Chevrolet. of the Then Karnhem walked into the motel. {¶11} Duchak got out of the car and approached the Mazda, held up his badge, and identified himself as a Deputy Sheriff. Lord wore a vest which identified him as a Deputy Sheriff. Lord approached the Chevrolet. As Lord told the occupants of the Chevrolet to put their hands up where Lord could see them he saw the driver and the Defendant engaging in furtive hand and arm movement. In the meantime, Lord had drawn his pistol and saw the Defendant throw some stuff out of the passenger side window of the vehicle. {¶12} As Lord approached the Defendant he saw pieces of tobacco all over the Defendant s lap. 5 After the Defendant was removed from the vehicle, Lord observed a blunt and some tobacco laying on the concrete about eighteen inches from the car. A blunt is a hollowed out cigar which has been refilled with marijuana. {¶13} The Defendant told Lord that his name was Charles Strickland and gave Lord a corresponded to that name. Social Security number that After the Defendant was removed from the car, he was patted down for weapons. Also, with his consent, Lord searched him, but found nothing. {¶14} Lord expanded the search of the area around the Chevrolet and found a bag containing suspected crack cocaine on the side walk about five to seven feet from the blunt on the Defendant s side of the Chevrolet. After the Defendant had been detained, but prior to the time Lord placed the Defendant under arrest, he admitted throwing the blunt out of the car, but denied throwing the crack cocaine. This statement was not made under circumstances which are the equivalent to custodial interrogation as envisioned in Miranda v. Arizona. {¶15} In discussing whether police questioning constitutes custodial interrogation and therefore requires Miranda warnings, in State v. Hopfer (1996), 112 Ohio App.3d 521, 545-546, this court stated: {¶16} The United States Supreme Court in Miranda v. Arizona (1966), 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706, defined a custodial interrogation as 6 questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Custodial interrogation is measured by an objective standard, not by the subjective understanding of the suspect. {¶17} " A policeman's unarticulated plan has no bearing on the question whether a suspect was "in custody" at a particular time; reasonable man the in only the relevant suspect's understood his situation. inquiry position is how would a have Berkemer v. McCarty (1984), 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317, 336. {¶18} Accordingly, we must determine whether a reasonable person in Hopfer's position would have believed that she was not free to leave the presence of the sheriff's deputies and forgo further questioning. {¶19} After reviewing the record of the suppression hearing and accepting as true the facts as found by the trial court, Defendant s we believe position, that having a been reasonable ordered person by a in police officer holding a gun to get out of his vehicle, would not have believed that he was free to walk away from police and not cooperate with their investigation. In that regard, Detective Lord specifically testified that Defendant was not free to typical leave. While the traffic stop or comparatively detainee is atmosphere Terry non-threatening not in in custody which surrounds investigative character for such purposes of a stop is that the Miranda, 7 Berkemer v. McCarty (1984, 468 US. 420, 439, that is not the case given the particular facts here. serious reservations about the Accordingly, we have correctness of the trial court s legal conclusion that Defendant s statement made in the motel parking lot, admitting that he threw the blunt out of the car window when officers approached, which appears to have been made in response to police questioning, nevertheless was interrogation, not and the product therefore Miranda of custodial warnings were not erred in required. {¶20} Even assuming that the trial court failing to suppress Defendant s incriminating statement he made at the necessary scene Miranda because warnings, it was not subsequent preceded events error and rendered it completely harmless. arrested Office, Defendant he was and transported interrogated. him Before to by cured the that After police the being Sheriff s questioned, Defendant was read his Miranda rights, acknowledged that he understood his rights, and agreed to waive them and speak with police. During the questioning that followed Defendant made the exact same incriminating admission he had earlier made at the scene, that he threw the blunt out of the car window when officers approached. admissible evidence. trial court incriminating harmless. in This latter admission was Thus, any error on the part of the not statement suppressing Defendant s he the made This potential issue at crime earlier scene lacks any arguable merit. is 8 {¶21} Another possible argument that appellate counsel claims could be raised on appeal is that there was no lawful basis for the arrest of Defendant. Clearly, neither Defendant nor the vehicle he was riding in were the subjects of the search warrant police executed at room 215 of the Howard Johnson s motel, looking for crack cocaine and other evidence of illegal drug activity. However, while police were interviewing the man they discovered inside room 215, Steven Johnson, a Mazda and a Chevrolet pulled into the motel parking lot and parked next to the unmarked police vehicle where the questioning of Johnson was taking place. Johnson identified for police the passenger of the Mazda as Steven Karnehm, one of his crack cocaine customers. Karnehm exited of the Mazda and went over to Chevrolet who gave Karnehm some money. the motel. the driver the Karnehm then entered At that point police had reasonable suspicion to believe that criminal activity might be afoot: that the men in the two vehicles might have come to the motel to engage in illegal drug investigative stop. {¶22} When Chevrolet in transactions. justified an Terry v. Ohio (1968), 392 U.S. 1. officers which That approached Defendant was the a Mazda passenger, and the officers observed Defendant throw something out the passenger window. Officers recovered a blunt, a hollowed out cigar that had been refilled with marijuana, from the ground next to the passenger side of the Chevrolet. Defendant s covered with what appeared to be tobacco. lap was About five to 9 seven feet away from that blunt, police also discovered a bag with crack cocaine inside. {¶23} On these facts and circumstances, police clearly had probable cause to arrest Defendant. This potential issue for appeal lacks any arguable merit. {¶24} As a final potential issue for appeal, appellate counsel claims that it was error to permit Defendant to waive a preliminary hearing without counsel. However, in cases such as this one where Defendant has been charged with a felony offense, which may only be done by indictment, neither the complete absence of a preliminary hearing nor the failure to appoint counsel before the preliminary hearing denies Defendant any constitutional rights. v. Maxwell (1963), 175 Ohio St. 317. 5(B), 7(A). This potential issue Douglas See also: Crim.R. for appeal lacks any potential errors raised by arguable merit. {¶25} In addition to the appellate counsel, we have conducted an independent review of the trial court s proceedings and have found no error having arguable merit. Accordingly, Defendant s appeal is without merit and the judgment of the trial court will be affirmed. Judgment affirmed. BROGAN, J. and YOUNG, J., concur. Copies mailed to: 10 Anthony E. Kendell, Esq. Anne Catherine Harvey, Esq. Hon. Jeffrey M. Welbaum
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