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State v. Villegas

Court of Appeals of Ohio, Second District, Montgomery

May 19, 2017

STATE OF OHIO Plaintiff-Appellant
JASON VILLEGAS Defendant-Appellee

         Trial Court Case No. 2016-CR-0336/4 (Criminal Appeal from Common Pleas Court)

          MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Attorney for Plaintiff-Appellant.

          PAUL E. WAGNER, Atty. Reg. No. 0067647, Attorney for Defendant-Appellee.


          FROELICH, J.

         {¶ 1} The State of Ohio appeals from an order of the Montgomery County Court of Common Pleas, which sustained in part the motion of Jason Villegas to suppress evidence. The State contends the trial court erred in suppressing all of the statements Villegas made to a detective at the Huber Heights police station. Although Villegas initially invoked his right to remain silent, the State argues that Villegas subsequently initiated conversation with the detective by asking questions about the case and manifested an intent to waive his right to remain silent. For the following reasons, the trial court's judgment will be affirmed.

         I. Background and Procedural History

         {¶ 2} The record reflects that Villegas was charged with 73 counts of forgery and 13 counts of identity fraud for his role, along with three other people, in allegedly using stolen or fraudulent credit cards. When Villegas was arrested outside of a Huber Heights shopping center, the police found dozens of counterfeit or cloned credit cards in the car he shared with his co-defendants. Villegas and his co-defendants were transported to the police department, where they were initially taken to holding cells on the first floor of the building.

         {¶ 3} Officer Robert Bluma and Detective James Gebhart brought Villegas upstairs to an interview room in the detective section of the police department, and Gebhart read Villegas his Miranda rights using a pre-interview form. Villegas declined to speak to the detective, and he did not initial or sign the form. Gebhart asked no additional questions, and Villegas did not request an attorney. At that point, Bluma and Gebhart escorted Villegas back downstairs to a holding cell.

         {¶ 4} As they approached the holding cell, Villegas asked the detective what the "process" or "procedure" would be from there. Gebhart responded that Villegas did not have a bond and would remain detained. The detective stated that he would speak with the prosecutor about the case the next day, and if the prosecutor approved the charges, then there would be some court proceedings. Gebhart testified that he "may have told" Villegas that his bond would be higher because Villegas was from out-of-state.

         {¶ 5} After Gebhart answered the procedural question, Villegas asked, "What if I sign your paper?" Gebhart understood Villegas to be referring to the waiver of rights form. Gebhart responded that it would not change the process, but that it would give Villegas an opportunity to tell his side of the story, which could make things better by minimizing or mitigating his involvement. Villegas then spoke to the detective and made potentially incriminating statements before again exercising his right to remain silent.[1]

         {¶ 6} Villegas subsequently filed a motion to suppress and an amended motion to suppress. The trial court held evidentiary hearings on the motions in April and May 2016, during which Gebhart and other law enforcement officers involved in the case testified. Villegas did not testify.

         {¶ 7} Based on the testimony presented, the trial court granted Villegas's motion to suppress. The trial court summarized its factual findings as to what had occurred, stating: "During the walk, Villegas reinitiated conversation, asking about the procedure and making a statement that the vehicle was a rental. Det. Gebhart then asked Villegas a series of questions and informed Villegas he had a chance to make it better before Villegas again refused to answer any other questions. No further questions were asked of Villegas." Citing State v. Kerby, 162 Ohio App.3d 353, 2005-Ohio-3734, 833 N.E.2d 757 (2d Dist), the court suppressed all of the statements Villegas made to Gebhart, finding that the detective did not "scrupulously honor" Villegas's right to remain silent. The trial court declined, however, to suppress evidence found in the vehicle in which Villegas was a passenger, concluding that he lacked standing to challenge a search of the vehicle.

         {¶ 8} Pursuant to R.C. 2945.67(A) and Crim.R. 12(K), the State appeals from the trial court's suppression ruling.

         II. Waiver of Right to Remain Silent

         {¶ 9} In its sole assignment of error, the State claims that Villegas made "unprompted" statements, that he freely reinitiated conversation with the detective, and that he knowingly, intelligently, and voluntarily waived his right to remain silent after initially invoking it. The State argues that the police "scrupulously honored" Villegas's Miranda rights by not interrogating him when he initially indicated that he did not want to talk and, after Villegas reinitiated the conversation, by again ceasing any questioning after Villegas stated that he no longer wished to talk.

         {¶ 10} In response, Villegas contends the trial court correctly relied on Kerby to find that Gebhart did not "scrupulously honor his right to remain silent. Villegas asserts that his discreet question about the process or procedure going forward did not evince a desire for generalized discussion about the case. He argues that Gebhart improperly used that question to entice him to talk by making statements about telling his side of the story, making things better, and minimizing his involvement. Villegas asserts that these comments by Gebhart were the functional equivalent of unlawful interrogation. Finally, Villegas claims that, even if he did initiate conversation with the detective, the record does not show a knowing, intelligent, and voluntary waiver of his rights.

         {¶ 11} When ruling on a motion to suppress, " 'the trial court assumes the role of trier of facts and is in the best position to resolve questions of fact and evaluate the credibility of witnesses.' " State v. Hopfer, 112 Ohio App.3d 521, 548, 679 N.E.2d 321 (2d Dist.1996), quoting State v. Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th Dist.1994). We must accept the trial court's findings of fact if they are supported by competent, credible evidence in the record. State v. Isaac, 2d Dist. Montgomery No. 20662, 2005-Ohio-3733, ¶ 8, citing State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994). Accepting those facts as true, we then must determine as a matter of law, without deference to the trial court's legal conclusion, whether the applicable legal standard is satisfied. Id.

         {¶ 12} Gebhart's cross-examination testimony makes clear that when Gebhart concluded his explanation of the process going forward, Villegas asked what would happen if he signed "your paper, " which Gebhart understood to mean the waiver of rights form. In response to that question, Gebhart made the statements to which Villegas objects about Villegas's then having an opportunity to make things better by telling his side of the story and minimizing or mitigating his involvement. It is these statements by Gebhart that Villegas contends were the functional equivalent of unlawful interrogation and that prompted him to make his own incriminating statements.

         {¶ 13} Under the Fifth Amendment to the United States Constitution, no person shall be compelled to be a witness against himself or herself. In order to ensure that this right is protected, statements resulting from custodial interrogations are admissible only after a showing that the procedural safeguards described in Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), have been followed. State v. Earnest, 2d Dist. Montgomery No. 26646, 2015-Ohio-3913, ¶ 21. To counteract the coercive pressure of custodial interrogations, police officers must warn a suspect, prior to questioning, that he or she has a right to remain silent and a right to the presence of an attorney. Maryland v. Shatzer, 559 U.S. 98, 103-104, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010), citing Miranda. "The opportunity to exercise these rights exists throughout the interrogation, and thus, the interrogation must cease when the defendant exercises his 'right to cut off questioning, ' which must be scrupulously honored." State v. Miller, 7th Dist. Mahoning No. 13 MA 12, 2014-Ohio-2936, ¶ 41, citing Miranda at 473-474 and Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) (recognizing that a defendant's right to "cut off questioning" must be "scrupulously honored"). See Shatzer at 104 ("After the warnings are given, if the suspect indicates that he wishes to remain silent, the interrogation must cease. Similarly, if the suspect states that he wants an attorney, the interrogation must cease until an attorney is present.").

         {¶ 14} A defendant may waive his or her Miranda rights. As stated by the Ohio Supreme Court:

If custodial interrogation continues in the absence of an attorney after a police officer advises a suspect of his rights, the government bears "a heavy burden" to demonstrate by a preponderance of the evidence that the suspect "knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel" before speaking to the police. * * * A court may not presume a valid waiver either from the suspect's silence after warnings are given or from the fact that the suspect eventually confessed. Rather, the record must show " 'that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.' " If the state does not satisfy its burden, "no evidence obtained as a result of interrogation can be used."

(Citations omitted.) State v. Barker, Ohio Sup. Ct. Slip Opinion No. 2016-Ohio-2708.

         {¶ 15} An individual may waive his or her Miranda rights after previously invoking them. But, it is well established that, once a defendant in custody invokes his Miranda rights, no further interrogation is permitted unless the defendant initiates further conversation with police. State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 51, citing Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Oregon v. Bradshaw, 462 U.S. 1039, 1043-1044, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) (plurality opinion); see also Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313.

         {¶ 16} A defendant "initiates" conversation when his statements show "a willingness and a desire" for further discussion about the crime. Gapen at ¶ 51 ("the police did not improperly obtain Gapen's confession during questioning, because Gapen initiated further discussion about the crime after invoking his Miranda rights"); State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 123; see Bradshaw at 1045-1046. Some inquiries, however, "such as a request for a drink of water or a request to use a telephone" are "so routine that they cannot be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation." Id. at 1045. Even when further conversation is initiated by the defendant, if re-interrogation follows then the prosecution bears the burden to show a knowing, intelligent, and voluntary waiver of the defendant's Fifth Amendment rights under the totality of the circumstances. Id. at 1044, 1046.

         {¶ 17} In Bradshaw, the defendant asserted his right to counsel and his right to remain silent, and police stopped questioning him. While being transported to jail, the defendant then asked, "Well, what is going to happen to me now?" Id. at 1045. A plurality of the United States Supreme Court reasoned that this question was sufficient to constitute initiation of generalized discussion about the case:

Although ambiguous, the respondent's question in this case as to what was going to happen to him evinced a willingness and a desire for a generalized discussion about the investigation; it was not merely a necessary inquiry arising out of the incidents of the custodial relationship. It could reasonably have been interpreted by the officer as relating generally to the investigation. * * *

Id. at 1045-1046.

         {¶ 18} We note that, as a plurality opinion, Bradshaw is not binding precedent, see Texas v. Brown, 460 U.S. 730, 737, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), and we question whether the generic question, "What is the process from here?" reflects anything more than curiosity about post-interview booking and other custodial procedures. As noted by Justice Powell in his concurring opinion in Bradshaw, the justices had varying interpretations of the meaning of "initiation" in Edwards, with Justice Marshall (who authored the four-member dissenting opinion) reading Edwards as requiring that the communication be "about the subject matter of the criminal investigation, " whereas Justice Rehnquist (who authored the plurality opinion) would require only that the suspect "evinc[e] a willingness and a desire for a generalized discussion about the investigation." Bradshaw at 1048 (Powell, J., concurring).

         {¶ 19} Although not directly addressing the standard for "initiation, " the Ohio Supreme Court has twice stated that a defendant initiated further conversations with the police when he " 'evinced a willingness and a desire' to talk further about the crime." Powell at ¶ 123, quoting Bradshaw at 1045-1046; Gapen at ¶ 51. But see State v. Jackson, 57 Ohio St.3d 29, 35, 565 N.E.2d 549 (1991) ("The evidence supports the conclusion that Jackson 'evinced a willingness and a desire for a generalized discussion about the investigation.' "). In both Powell and Gapen, the Ohio Supreme Court implied that, in order to initiate further conversations, the defendant's statements needed to be directed to the subject of the criminal investigation.

         {¶ 20} In the present case, after invoking his right to remain silent, Villegas asked Gebhart what the "process" or "procedure" would be going forward. Although a similar question as in Bradshaw, we do not find that this question by Villegas was sufficient to show a willingness and a desire to discuss the subject of his criminal case with the police. Rather, it expressed a desire to know what the process would be from then on out.

         {¶ 21} However, even if Villegas's initial question constituted an initiation of conversation, we must determine whether "a valid waiver of the right to counsel and the right to silence had occurred, that is, whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities." Edwards, 451 U.S. at 486, fn. 9; Gapen at ¶ 52. The fact that Villegas reopened the dialogue with Gebhart is a relevant, but not dispositive, consideration. See Gapen at ¶ 52; Edwards, 451 U.S. at 486, fn. 9; Bradshaw at 1046.

         {¶ 22} In Bradshaw, the police officer's response to the defendant's question, "Well, what's going to happen to me now?" was to remind the defendant of the crux of his Miranda rights. The officer said, "You do not have to talk to me You have requested an attorney and I don't want you talking to me unless you so desire because anything you say - because - since you have requested an attorney, you know, it has to be at your own free will" Bradshaw at 1042 Bradshaw had responded that he understood, and a discussion followed A majority of the Supreme Court agreed that Bradshaw had knowingly and intelligently waived his right to counsel Id. at 1046-47 (plurality), 1051 (Powell, J, concurring).

         {¶ 23} In Jackson, the Ohio Supreme Court concluded that a defendant knowingly and intelligently waived his Miranda rights when, two days after invoking his right to an attorney, he sent for a detective (who was unaware that Jackson had twice previously invoked his right to counsel) and made incriminating statements. Jackson had contacted the detective, because he was worried about his mother's health and how his mother would be told of his arrest. Before speaking with Jackson, the detective advised Jackson of his Miranda rights; Jackson stated that he was willing to talk to the officer, but "did not want to sign the form or anything else." The Ohio Supreme Court stated:

In this case, Jackson clearly understood his right not to talk to the police and exercised that right on September 5 and 6. However, on September 7, Jackson freely chose to send for Newkirk [the detective] and start a conversation with him. Newkirk again advised Jackson fully of his rights, and Jackson said he understood them. Newkirk did not threaten or force Jackson to make any statement. Jackson wanted to talk about his mother, and he was willing to talk about the murder investigation. * * * Jackson knowingly and intelligently waived his right to have counsel present and decided to talk freely with Newkirk. Since the waiver issue is factual, we defer " * * * to the judgment of the trial court that has had the benefit of hearing the evidence and assessing the weight and credibility of testimony."

(Citation omitted.) Jackson at 35.

         {¶ 24} Here, immediately after Gebhart explained the procedures going forward, Villegas asked, "What if I sign your paper?" (Emphasis added.) Villegas's question simply asked the detective about the consequences of signing the waiver of rights form; it did not express a desire to waive his Fifth Amendment rights. Gebhart responded that if Villegas signed the form, he would have an opportunity to tell his side of the story and help himself by minimizing or mitigating his involvement. Gebhart's answer went beyond answering that the process would be the same, but that Villagas would be waiving his rights. Instead, it encouraged Villegas to waive his constitutional rights by emphasizing that Villegas could help himself by talking with the police. Unlike Bradshaw or Jackson, the detective said nothing to remind Villegas of his Miranda rights or to ensure that Villegas intended to waive those rights.

         {¶ 25} In concluding that the police did not scrupulously honor Villegas's rights, the trial court relied on State v. Kerby,162 Ohio App.3d 353, 2005-Ohio-3734, 833 N.E.2d 757 (2d Dist.). In Kerby, the defendant and two others were arrested for a robbery and shooting. Kerby was brought to police headquarters, where officers advised him of his Miranda rights. Kerby acknowledged and waived his rights, and an interview commenced. Shortly thereafter, Kerby invoked his right to remain silent, the interview was terminated, and Kerby was returned to his holding cell. Several hours later, the police interview resumed, ostensibly at Kerby's request to speak to the officers, and after again being informed of and waiving his Miranda rights, Kerby made incriminating statements. Kerby later moved to suppress the ...

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