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State v. Pickens

Court of Appeals of Ohio, Third District, Marion

April 3, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
HAROLD PICKENS, DEFENDANT-APPELLANT.

         Appeal from Marion County Common Pleas Court Trial Court No. 16-CR-034

          Robert E. Cesner, Jr. for Appellant.

          Kevin P. Collins for Appellee.

          OPINION

          PRESTON, J.

         {¶1} Defendant-appellant, Harold A. Pickens ("Pickens"), appeals the June 7, 2016 judgment entry of sentence of the Marion County Court of Common Pleas. He argues that the trial court erred by denying his motion to suppress evidence and by concluding that the victim, who was under the age of ten, was competent to testify. For the reasons that follow, we affirm.

         {¶2} On January 28, 2016, the Marion County Grand Jury indicted Pickens on Count One of gross sexual imposition in violation of R.C. 2907.05(A)(4), a third-degree felony, and Count Two of rape in violation of R.C. 2907.02(A)(1)(b), a first-degree felony. (Doc. No. 2).

         {¶3} On February 1, 2016, Pickens appeared for arraignment and entered pleas of not guilty. (Doc. No. 7). The State filed a bill of particulars on February 26, 2016. (Doc. No. 17).

         {¶4} On March 24, 2016, Pickens filed a motion to suppress evidence. (Doc. No. 38). After a hearing on April 19-20, 2016, the trial court denied Pickens's motion to suppress evidence on May 3, 2016. (Doc. No. 50).

         {¶5} On May 27, 2016, the parties stipulated that "the school records, including mental and achievement evaluations" are "to be considered in the competency hearing of the alleged child victim" "in lieu of calling as witnesses those school administrators, teachers, and other officials to testify at the time of said hearing." (Doc. No. 53). On June 6, 2016, after a hearing on June 2, 2016, the trial court filed an entry concluding that the alleged child victim is competent to testify. (Doc. No. 68).

         {¶6} On June 3, 2016, Pickens withdrew his pleas of not guilty and entered a no-contest plea to Count Two of an amended indictment. (Doc. No. 66).[1] In exchange for his change of plea, the State agreed to dismiss Count One of the original indictment and amend Count Two to remove the allegation that "the victim is under the age of 10 years old." (Id.). That same day, the trial court amended the indictment and dismissed Count One. (Doc. No. 69). Also that day, the trial court accepted Pickens's plea to the amended indictment, found him guilty, and sentenced him to "an indefinite prison term consisting of a minimum term of 10 years and a maximum term of life imprisonment, " and concluded that he is a Tier III sex offender. (Id.). The trial court filed its judgment entries of sentence and sex-offender classification on June 7, 2016. (Id.).

         {¶7} Pickens filed his notice of appeal on June 30, 2016. (Doc. No. 73). He raises two assignments of error for our review.

         Assignment of Error No. I

         The Trial [sic] Erred by Denying the Motion to Suppress Statements and Admissions Made by the Defendant at Police Headquarters on January 14 and 15, 2016. Specifically, Defendant Was Not Advised of His Miranda Rights While in a Custodial Setting on January 14th. When the Interrogation Was Resumed on 15th [sic], the Defendant Was Given No Opportunity to Exercise or Waive His Miranda Rights Either Orally or in Writing. Under the Totality of the Circumstances, Defendant's Statements and Admissions Were Therefore Involuntary.

         {¶8} In his first assignment of error, Pickens argues that the trial court erred by denying his motion to suppress evidence. Specifically, Pickens argues that his statements to law enforcement on January 14, 2016 are inadmissible because those statements were provided during a custodial interview, and he was not advised of his Miranda rights. Further, Pickens argues that his statements to law enforcement on January 15, 2015 are inadmissible because he did not knowingly, intelligently, or voluntarily waive his Miranda rights.

         {¶9} "Appellate review of a motion to suppress presents a mixed question of law and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact and, as such, is in the best position to evaluate the evidence and the credibility of witnesses. Id. See also State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a ruling on a motion to suppress, deference is given to the trial court's findings of fact so long as they are supported by competent, credible evidence. Burnside at ¶ 8, citing State v. Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court's conclusions of law, however, our standard of review is de novo; therefore, we must decide whether the facts satisfy the applicable legal standard. Id., citing State v. McNamara, 124 Ohio App.3d 706, 710 (4th Dist.1997).

         {¶10} "The Fifth Amendment to the U.S. Constitution provides a privilege against self-incrimination." State v. Edmond, 10th Dist. Franklin No. 15AP-574, 2016-Ohio-1034, ¶ 11, citing State v. Hall, 179 Ohio App.3d 727, 2008-Ohio-6228, ¶ 12 (10th Dist.), citing Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136 (1984). "To protect this right, the United States Supreme Court has held that 'the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.'" Id., quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602 (1966). "Thus, Miranda warnings are required when a suspect is subjected to custodial interrogation." Id., citing State v. Garnett, 10th Dist. Franklin No. 09AP-1149, 2010-Ohio-5865, ¶ 30. "Custodial interrogation is defined in Miranda as '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.'" Id., quoting Miranda at 444.

         {¶11} "Recently, the United States Supreme Court has provided further guidance on the meaning of custody for purposes of Miranda." Id. at ¶ 12. "'"[C]ustody" is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion.'" Id., quoting Howes v. Fields, 565 U.S. 499, 508-509 132 S.Ct. 1181 (2012). "'"In order to determine whether a person is in custody for purposes of receiving Miranda warnings, courts must first inquire into the circumstances surrounding the questioning and, second, given those circumstances, determine whether a reasonable person would have felt that he or she was not at liberty to terminate the interview and leave."'" State v. Gartrell, 3d Dist. Marion No. 9-14-02, 2014-Ohio-5203, ¶ 62, quoting State v. Billenstein, 3d Dist. Mercer No. 10-13-10, 2014-Ohio-255, ¶ 38, quoting State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, ¶ 27. "In considering a suspect's freedom of movement, a court must consider the totality of the circumstances, including the following relevant factors: (1) the location of the questioning, (2) its duration, (3) statements made during the interview, (4) the presence or absence of physical restraints during the questioning, and (5) the release of the interviewee at the end of the questioning." Edmond at ¶ 12, citing Howes at 509. "However, freedom of movement is not a solely determinative factor, and courts must consider 'whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.'" Id., quoting Howes at 509.

         {¶12} A suspect may knowingly and intelligently waive his Miranda rights and agree to make a statement. State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, ¶ 35, citing Miranda at 479. "If a defendant later challenges a confession as involuntary, the state must prove a knowing, intelligent, and voluntary waiver by a preponderance of evidence." Id., citing Miranda at 475 and Colorado v. Connelly, 479 U.S. 157, 168-169, 107 S.Ct. 515 (1986). "To determine whether a valid waiver occurred, we 'consider 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.'" Id., quoting State v. Edwards, 49 Ohio St.2d 31 (1976), paragraph two of the syllabus, and citing Arizona v. Fulminante, 499 U.S. 279, 285, 111 S.Ct. 1246 (1991).

         {¶13} The trial court denied Pickens's motion to suppress evidence after concluding that Pickens was not in custody for purposes of the January 14, 2016 interview at the police station, and after concluding that Pickens on January 15, 2016 "knowingly, intelligently, and voluntarily waived his Miranda rights based on the totality of the circumstances." (Doc. No. 50).

         {¶14} In particular, the trial court concluded that Pickens was not in custody on January 14, 2016 after weighing the totality of the circumstances.[2] Weighing in favor of the conclusion that Pickens was in custody, the trial court found that the "interview took place at a police station, that [Pickens] was taken there in the back of a police cruiser, and that his initial contact with the officers was due to them coming to his house with a search warrant." (Id.). Weighing against the conclusion that Pickens was in custody, the trial court found that Pickens "made a voluntary decision to go with the officers to the police station and was motivated by an effort to exonerate himself from any accusations" as well as that "the officers clearly explained to [Pickens] that he was not required to go with them, that he was not being arrested, and that the interview was voluntary on his part." (Id.). Further, weighing against the conclusion that Pickens was in custody, the trial court found that "at no time were any physical restraints used and, following the interview, the officers did take [Pickens] back to his house." (Id.).

         {¶15} With respect to the January 15, 2016 interview, the trial court concluded that Pickens "knowingly, intelligently, and voluntarily waived his Miranda rights based on the totality of the circumstances." (Id.). Weighing in favor of the conclusion that Pickens knowingly, intelligently, and voluntarily waived his Miranda rights, the trial court found that law enforcement (1) "read [Pickens] his Miranda rights, " (2) "had [Pickens] sign a Miranda rights form, " and (3) "explained the rights separately and took care to inquire regarding [Pickens's] educational level and ability to understand the rights." (Id.). Weighing against that conclusion, the trial court found that law enforcement "did not specifically ask [Pickens] if he wished to waive his rights or have him sign the waiver of rights portion of the form." (Id.). The trial court further weighed, "[w]hile [law enforcement] assertively challenged [Pickens's] statements, there is no evidence that his will was overborn." (Id.). As such, the trial court concluded that Pickens's statements were not involuntary.

         {¶16} Our review of the record, including the suppression-hearing transcript and the interview video, reveals that the trial court's factual findings regarding the January 14 and 15, 2016 interviews are supported by competent, credible evidence. See State v. Luke, 3d Dist. Allen No. 1-06-103, 2007-Ohio-5906, ¶ 12, citing State v. Ransom, 3d Dist. Van Wert No. 15-06-05, 2006-Ohio-6490, ¶ 17.

         {¶17} At the suppression hearing, Lieutenant Chris Adkins ("Lieutenant Adkins") of the Marion Police Department testified that he interviewed Pickens on January 14 and 15, 2016 at the Marion Police Station. (Apr. 20, 2016 Tr. at 9). The video recording of Lieutenant Adkins's interviews with Pickens on January 14 and 15, 2016 were played for the trial court. (Id. at 6, 8-9); (State's Exs. 1, 2).

         {¶18} Lieutenant Adkins testified that he did not advise Pickens of his Miranda rights on January 14, 2016 because Pickens came to the police station "[v]oluntarily and [because law enforcement] had no plans to arrest him that day." (Apr. 20, 2016 Tr. at 13). Lieutenant Adkins also informed Pickens that day that he did not plan to arrest him. (Id.).

         {¶19} Regarding the January 15, 2016 interview, Lieutenant Adkins testified that Pickens executed a "Rights Waiver Form." (Id. at 10-11); (State's Ex. 4). Lieutenant Adkins read Pickens the "Waiver Rights" on the form one-by-one to ensure that he understood his rights. (Apr. 20, 2016 Tr. at 11). Lieutenant Adkins testified that he was satisfied that Pickens understood his rights based on Pickens's ninth-grade education, that Pickens can read and write the English language, and that Lieutenant Adkins read the waiver form to Pickens line-by-line and asked after each line whether Pickens understood his rights. (Id. at 18).

He further testified, He waived 'em [sic] at the top [of the form]. He signed he acknowledged his rights. He never said he wanted an attorney. He said he would talk to me. He never refused to answer any questions I asked him. So, to me, he waived his Miranda Rights at the time.

(Id. at 25).

         {¶20} Moreover, Lieutenant Adkins testified that his interview of Pickens on January 15, 2016 was not a continuation of his January 14, 2016 interview of Pickens because the January 14, 2016 interview was not

an interrogation. It was a pure gathering of information for the sole fact that [the victim] needed to be interviewed again. So, the 14th we had absolutely no plans to arrest him. We made it perfectly clear with him on the 15th, at that point in time, I felt that thee [sic] interview would turn into what we called an interrogation to try to get more information out of him and that's why - - and the possibility of him not walking out there, that's why I read him his Miranda Rights.

(Id. at 19). According to Lieutenant Adkins, "If [Pickens] would have said, 'I wanna [sic] leave' [during the January 14, 2016 interview], we would of walked him out and let him leave." (Id. at 20). Lieutenant Adkins did not have any concerns as to whether Pickens was coherent during either interview on January 14 or 15, 2016. (Id. at 12).

         {¶21} Patrolman Michael Woods ("Patrolman Woods") of the Marion Police Department testified that he was present when a search warrant was executed at Pickens's residence on January 14, 2016. (Apr. 19, 2016 Tr. at 78). Patrolman Woods testified that he remained in the garage with Pickens, Patrolman Sam Walter ("Patrolman Walter"), and two case workers from Marion County Children's Services-Mandy Davis ("Davis") and Ellen Thrush ("Thrush"), -while detectives from the Marion Police Department searched Pickens's house. (Id. at 79). Patrolman Woods testified that he spoke with Pickens in the garage with the garage door open. (Id. at 79-80). He testified that Patrolman Walter, Davis, and Thrush were present while he spoke with Pickens, and that Pickens's son was present for a portion of that conversation. (Id. at 80). According to Patrolman Woods, the conversation lasted 20 to 25 minutes, and Pickens was willing to answer his questions. (Id. at 80-81). Pickens was not handcuffed during the conversation. (Id. at 81-82).

         {¶22} Later in the conversation, Patrolman Woods asked Pickens "if he'd come down willingly to do a - - a voluntary interview at the Police Department, " to which Pickens agreed. (Id. at 82-83). As a result, Patrolman Woods transported Pickens to the police station with Pickens seated in the backseat of Patrolman Woods's cruiser. (Id. at 83). Pickens rode in the backseat of the cruiser because Patrolmen Woods and Walter rode in the front seats of the cruiser. (Id. at 84). According to Patrolman Woods, Patrolman Walter conducted a "precautionary" pat-down search of Pickens for weapons prior to allowing him in the cruiser. (Id. at 83-84).

         {¶23} Prior to arriving at the police station, Patrolman Woods stopped at Pickens's son's house for "[n]ot long. Five, maybe ten minutes at the most" to look for an item that was described in the search warrant. (Id. at 83-84, 111). From Pickens's son's house, Patrolman Woods drove to the police station, where Pickens was directed to the "Interview Room." (Id. at 85). The interview of Pickens with Patrolman Woods, Davis, and Thrush on January 14, 2016 at the police station was recorded, and that recording was played for the trial court at the suppression hearing. (Id. at 85, 89, 98, 101, 103, 106); (State's Ex. 1).

         {¶24} Patrolman Woods informed Pickens that "being there was voluntary [and that h]e was free to leave at any time." (Apr. 19, 2016 Tr. at 85). According to Patrolman Woods, he "didn't coerce [Pickens] or there wasn't any threats or anything like that made towards him or promises for him" coming to the police station for the interview. (Id.). That interview lasted approximately 40 minutes. (Id. at 86).

         {¶25} According to Patrolman Woods, Pickens did not ask to leave the interview or make any movement indicating that he wanted to leave the interview. (Id. at 87). Pickens did not refuse to answer any questions. (Id.). Neither Patrolman Woods nor Davis or Thrush raised their voices. (Id.). The door to the interview room was closed but not locked. (Id. at 87-88). After the 40-minute interview, Lieutenant Adkins spoke with Pickens in the same interview room at the police station, and then Patrolman Woods returned Pickens to his residence. (Id. at 86-87, 90).

         {¶26} After speaking with Pickens, Lieutenant Adkins, Davis, and Thrush again interviewed the victim, which revealed additional questions that they wanted to ask of Pickens. (Id. at 90-91). As such, Patrolman Woods testified that he and Patrolman Walter went to Pickens's residence on January 15, 2016, saw Pickens in the driveway, and asked Pickens if he would be willing to again go to the police station, to which Pickens agreed. (Id. at 91-92).

         {¶27} Next, Patrolman Walter testified that he was present for "most" of the conversation with Pickens at Pickens's residence on January 14, 2016. (Id. at 117). He testified that he conducted a pat-down search of the outside of Pickens's clothing for weapons prior to transporting Pickens to the police station that day. (Id. at 118). Patrolman Walter recalled that Pickens was "willing to come down to the Station for an interview." (Id. at 121).

         {¶28} He testified that he accompanied Patrolman Woods to Pickens's residence on January 15, 2016. (Id. at 119). According to Patrolman Walter, Pickens was again willing to go with them to the police station for another interview. (Id. at 122).

         {¶29} Davis testified that she accompanied law enforcement to Pickens's residence for the January 14, 2016 search-warrant execution "to speak with [Pickens] regarding the allegations." (Id. at 16-17). According to Davis, Pickens was willing to speak with them but denied the allegations. (Id. at 22). According to Davis, Pickens was willing to go to the police station because "he had nothing to hide and he wanted to clear his name." (Id. at 32). Davis testified that law enforcement told Pickens on January 14, 2016 while at his residence that he did not have to go to the police station for the interview and that he was not under arrest. (Id. at 52, 54). Davis testified that, during the January 14, 2016 interview at the police station, Pickens was informed that he was not under arrest; Pickens was not threatened; no one raised their voice; and the interview lasted 25 minutes. (Id. at 34). She testified that she asked him the majority of the questions, while Thrush and Officer Woods asked a few questions. (Id.). Davis characterized the interview as "conversational." (Id. at 35). She testified that the door to the interview room was closed but not locked. (Id.).

         {¶30} Thrush testified that she accompanied Davis to Pickens's residence to speak with Pickens while law enforcement executed the search warrant. (Id. at 57). She testified that Pickens "was very willing to speak with us. He just kept telling us * * * he had nothing to hide. We were more than welcome to come to his home. That he didn't know why we had a search warrant cause [sic] we just could of came. He has nothing to hide. * * * He was very cooperative with us." (Id. at 58-59).

         {¶31} Thrush testified, regarding the January 14, 2016 interview at the police station, that Pickens was "very willing to go. Said he had no issue. * * * He was absolutely willing to go. Said he would talk to us however long we wanted to * * * and that he would, you know, tell us whatever we needed to do [sic] to get his name cleared." (Id. at 59-60). Thrush recalled that Patrolmen Woods and Walter "made it very clear to [Pickens] that * * * he didn't have to come [to the police station]. It was absolutely on his willingness to come." (Id. at 60). She testified that, during the January 14, 2016 interview at the police station, Pickens did not indicate at any time that he wanted to end the interview or leave the interview room. (Id. at 63-65). According to Thrush, no one raised their voice during the interview or expressed "displeasure" with Pickens's responses. (Id. at 65).

         {¶32} We will first address whether Pickens was in custody on January 14, 2016; then, we will address whether Pickens knowingly, intelligently, and voluntarily waived his Miranda rights on January 15, 2016.

         {¶33} Pickens was interviewed twice on January 14, 2016-at his home and at the police station. Because Pickens does not challenge on appeal the interview conducted at his residence, we will not address it. Weighing the totality of the trial court's factual findings regarding whether Pickens was in custody on January 14, 2016, we conclude that a reasonable person in Pickens's position would believe that he was free to ...


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