State v. Ward

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[Cite as State v. Ward, 2012-Ohio-3446.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY STATE OF OHIO, Plaintiff-Appellee, v. KEITH WARD, Defendant-Appellant. : : : : : : : : : Case No: 10CA3370 DECISION AND JUDGMENT ENTRY July 27, 2012 APPEARANCES: Bryan Scott Hicks, Lebanon, Ohio, for Appellant. Mark E. Kuhn, Scioto County Prosecutor, Portsmouth, Ohio, for Appellee. Kline, J.: {¶1} Keith Ward (hereinafter Ward ) appeals the judgment of the Scioto County Court of Common Pleas, which convicted him of numerous crimes related to the robbery of a pharmacy. On appeal, Ward contends that his trial counsel was ineffective for failing to file a motion to suppress. Because Ward cannot prove that there was a basis to suppress the evidence in question, we disagree. Accordingly, we overrule Ward s assignments of error and affirm the judgment of the trial court. I. {¶2} On March 9, 2010, David Nelson (hereinafter Nelson ) robbed Gahm s pharmacy in West Portsmouth, Ohio. After being apprehended, Nelson implicated Scioto App. No. 10CA3370 2 Ward as the getaway driver. Ward was then located and placed into custody in Lancaster, Ohio. {¶3} On March 15, 2010, Detective Jodi Conkel traveled to Lancaster to transport Ward back to Scioto County. Detective Conkel retrieved Ward, placed him in her vehicle, and gave Ward his Miranda warnings. There is no evidence that Ward acknowledged an understanding of his Miranda rights at that time. Nevertheless, during the drive back to Scioto County, Ward gave an unrecorded statement that implicated himself as a willing participant in the robbery of Gahm s pharmacy. {¶4} The following morning, Detective Conkel interviewed Ward at the Scioto County Sheriff s Office. This time, the interview was recorded, and Ward acknowledged that he understood his Miranda rights. But during the March 16, 2010 interview, Ward denied being a willing participant in the robbery of Gahm s pharmacy. Instead, Ward claimed that Nelson forced him to participate. {¶5} Based on the incident at Gahm s pharmacy, a Scioto County Grand Jury returned a ten-count indictment against Ward. {¶6} On May 4, 2010, the state filed a response to Ward s request for discovery. The state s response included information about both of Ward s statements to Detective Conkel -- the one on March 15, 2010, and the one on March 16, 2010. {¶7} At Ward s jury trial, Detective Conkel testified about Ward s two different statements. Other witnesses also testified on the state s behalf. And eventually, the jury found Ward guilty of all ten counts. Later, after merging the appropriate counts, the trial court sentenced Ward accordingly. Scioto App. No. 10CA3370 {¶8} 3 Ward appeals and asserts the following assignments of error: I. THE DEFENDANT WAS INEFFECTIVELY REPRESENTED AS DEFENSE COUNSEL DID NOT FILE A MOTION TO SUPPRESS THE CAR STATEMENT. And II. HAD DEFENSE COUNSEL FILED A MOTION TO SUPPRESS, THE CAR STATEMENT SHOULD HAVE BEEN SUPPRESSED AS THERE WAS NO EVIDENCE PRESENTED THAT IT WAS A KNOWING, INTELLIGENT, AND VOLUNTARY WAIVER OF WARD S CONSTITUTIONAL RIGHTS[.] II. {¶9} Ward s two assignments of error address the same fundamental issue. Therefore, we will address his assignments of error together. Ward contends that his March 15, 2010 statement to Detective Conkel should have been suppressed. And because his trial counsel did not file a motion to suppress the March 15, 2010 statement, Ward claims that he received ineffective assistance of counsel. We find, however, that Ward cannot prove that there was a basis to suppress the March 15, 2010 statement. Therefore, Ward has failed to demonstrate that his trial counsel was ineffective. {¶10} In Ohio, a properly licensed attorney is presumed competent. * * * The appellant bears the burden of proving that his trial counsel was ineffective. State v. Hamblin, 37 Ohio St.3d 153, 155-156, 524 N.E.2d 476 (1988); accord State v. Norman, 4th Dist. Nos. 08CA3059 & 08CA3066, 2009-Ohio-5458, ¶ 65. To secure reversal for the ineffective assistance of counsel, one must show two things: (1) that counsel s performance was deficient * * *[,] which requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by Scioto App. No. 10CA3370 4 the Sixth Amendment[;] and (2) that the deficient performance prejudiced the defense * * *[,] which requires showing that counsel s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Norman at ¶ 65. Failure to satisfy either prong is fatal as the accused s burden requires proof of both elements. State v. Hall, 4th Dist. No. 07CA837, 2007 Ohio 6091, ¶ 11, citing State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205. {¶11} Ward bases his ineffective-assistance-of-counsel claim on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Essentially, Ward argues that the March 15, 2010 statement would have been suppressed because there was no evidence that he acknowledged understanding his Miranda rights. Ward s argument relies upon the United States Supreme Court s decision in Tague v. Louisiana, 444 U.S. 469, 100 S.Ct. 652, 62 L.Ed.2d 622 (1980). In Tague, the defendant filed a motion to suppress a statement that he gave to law enforcement. The trial court denied the defendant s motion, but the United States Supreme Court held the following: In this case no evidence at all was introduced to prove that petitioner knowingly and intelligently waived his rights before making the inculpatory statement. The statement was therefore inadmissible. Id. at 471. More recently, the United States Supreme Court stated the following: If the State establishes that a Miranda warning was given and the accused made an uncoerced statement, this showing, standing alone, is insufficient to demonstrate a valid waiver of Miranda rights. The prosecution must make the additional showing that the accused understood these rights. (Internal Scioto App. No. 10CA3370 5 citation omitted.) Berghuis v. Thompkins, 560 U.S. ___, 130 S.Ct. 2250, 2261, 176 L.Ed.2d 1098 (2010). {¶12} Because there was no evidence that Ward acknowledged understanding his Miranda rights, Ward argues that he could not have voluntarily, knowingly, and intelligently waived those rights. Therefore, Ward claims that his March 15, 2010 statement to Detective Conkel would have been suppressed if his trial counsel had filed the appropriate motion. But, under Miranda, law enforcement officers are not required to ask whether a suspect understands his or her rights[.] State v. Lather, 110 Ohio St.3d 270, 2006-Ohio-4477, 853 N.E.2d 279, ¶ 13. Furthermore, the Supreme Court of Ohio has held that a court may infer from the totality of the circumstances that a defendant voluntarily, knowingly, and intelligently waived his rights. State v. Clark (1988), 38 Ohio St.3d 252, 261, 527 N.E.2d 844, 853; State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 52. The totality of the circumstances includes e.g., 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. Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d 1042, ¶ 25, quoting State v. Eley (1996), 77 Ohio St.3d 174, 178, 672 N.E.2d 640. By definition of totality, a court is to look to all of the evidence Scioto App. No. 10CA3370 6 to determine a suspect s understanding, which can be implied by his conduct and the situation. (Emphasis sic.) Lather at ¶ 9. {¶13} With an understanding of the totality-of-the-circumstances approach, we note that [f]ailing to file a motion to suppress does not constitute ineffective assistance of counsel per se. State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 65, citing State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000). Instead, [t]o establish ineffective assistance of counsel for failure to file a motion to suppress, a defendant must prove that there was a basis to suppress the evidence in question. Brown at ¶ 65, citing State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 35. {¶14} Here, after considering the totality of the circumstances, we find the following: Ward cannot prove that there was a basis to suppress his March 15, 2010 statement to Detective Conkel. If Ward s trial counsel had filed a motion to suppress, we believe the state could have demonstrated that Ward understood his Miranda rights. First, Ward has an extensive felony record -- the prosecutor, in fact, called it the worst he had seen in 16 years of being prosecutor. Transcript at 349. This is significant because previous contact with police is a factor for determining whether suspects understood their Miranda rights. See Lather at ¶ 13. Next, there is no evidence to suggest that [Ward] was intellectually or emotionally impaired so as to affect his ability to understand his rights as they were presented to him by [Detective Conkel]. See State v. Smith, 2d Dist. No. 2004 CA 90, 2005-Ohio-3757, ¶ 21. And finally, in giving his March 16, 2010 statement, Ward acknowledged that he understood his Miranda Scioto App. No. 10CA3370 7 rights. There is no evidence that law enforcement officials did anything special on or before March 16, 2010, to assist Ward in understanding his Miranda rights, and Ward has not even attempted to explain away this seemingly implausible scenario -- that is, the implausibility of failing to understand the Miranda rights one day but, with no further assistance, understanding those same rights the very next day. Accordingly, the totality of the circumstances demonstrates that Ward understood his Miranda rights before giving the March 15, 2010 statement. The evidence, therefore, did not justify a motion to suppress. Consequently, appellant cannot meet his burden to prove trial counsel failed an essential duty in neglecting to file it. State v. Fryerson, 8th Dist. No. 82940, 2003-Ohio-6041, ¶ 18. {¶15} Accordingly, because Ward cannot demonstrate ineffective assistance of counsel, we overrule Ward s two assignments of error and affirm the judgment of the trial court. JUDGMENT AFFIRMED. Scioto App. No. 10CA3370 8 JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs herein taxed. The Court finds that there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Harsha, J. and McFarland, J.: Concur in Judgment & Opinion. For the Court BY:_____________________________ Roger L. Kline, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.

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