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State v. Thompson-Shabazz

Court of Appeals of Ohio, Second District, Montgomery

September 1, 2017

STATE OF OHIO Plaintiff-Appellee

         Criminal Appeal from Common Pleas Court T.C. NO. 14-CR-3732

          HEATHER N. JANS, and MICHAEL J. SCARPELLI, Assistant Prosecuting Attorneys, Attorneys for Plaintiff-Appellee.

          WILLIAM O. CASS, JR., Attorney for Defendant-Appellant.


          FROELICH, J.

         {¶ 1} Tabaree L. Thompson-Shabazz was found guilty after a jury trial in the Montgomery County Court of Common Pleas of murder (proximate result of felonious assault) and felonious assault. The trial court found after a bench trial that he was a repeat violent offender, a specification for each offense. The trial court merged the felony murder and felonious assault charges and specifications and sentenced Thompson-Shabazz to 15 years to life for the murder with an additional term of 10 years for the repeat violent offender specification, to be served consecutively.

         {¶ 2} Thompson-Shabazz appeals from his conviction, raising four assignments of error. He claims that his conviction was based on insufficient evidence and against the manifest weight of the evidence, that the trial court erred in admitting statements he made while in police cruisers, that the trial court erred in admitting a call made by the victim to the police, and that the trial court erred in allowing evidence that the victim had accused him of theft and that he was arrested for theft. For the following reasons, the trial court's judgment will be affirmed.

         I. Factual and Procedural History

         {¶ 3} In July 2014, Thompson-Shabazz was in a relationship with Sheila Gibson, and he lived with her at her two-story single-family home in Dayton. Thompson-Shabazz was known to drink alcohol, and on numerous occasions, Dayton police officers had driven an intoxicated Thompson-Shabazz to Gibson's home; several officers were familiar with both Thompson-Shabazz and Gibson.

         {¶ 4} During the nighttime hours of Sunday, July 13, 2014, Officer Harry Dilley was driving an intoxicated Thompson-Shabazz to Gibson's residence, when he heard a report from another officer that Gibson's neighbors had not seen her or her dogs since Friday (July 11) and were concerned about her welfare. With Thompson-Shabazz seated in his cruiser, Officer Dilley made several unsuccessful attempts to contact Gibson. Eventually, Officer Dilley and other officers entered Gibson's home to conduct a welfare check. They located Gibson, deceased, on her bed in her bedroom; Gibson had died from numerous blows to her head with an object. After a police investigation, Thompson-Shabazz was arrested for her murder.

         {¶ 5} Initially, a grand jury issued a no true bill on the murder charge against Thompson-Shabazz. However, on February 6, 2015, Thompson-Shabazz was indicted for purposeful murder, felony murder (proximate result of felonious assault), and felonious assault. Later that month, Thompson-Shabazz was re-indicted on the same three charges, with the addition of a repeat violent offender specification for each count.

         {¶ 6} Thompson-Shabazz subsequently moved to suppress evidence obtained from the residence, arguing that the evidence was the product of an unlawful initial entry into the home. He also sought to suppress statements that he made to police officers on the grounds that the statements were involuntary and obtained in violation of Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The court held hearings on the motion on three separate dates in June, July, and August 2015. On December 1, 2015, the trial court overruled the motion to suppress in its entirety.

         {¶ 7} The charges were tried to a jury in June 2016; the repeat violent offender specifications were tried to the court. The jury found Thompson-Shabazz guilty of felony murder and felonious assault; it acquitted him of purposeful murder. The trial court correspondingly found Thompson-Shabazz guilty as to the repeat violent offender specifications for felony murder and felonious assault and not guilty of the specification as to purposeful murder.

         {¶ 8} At sentencing, the trial court merged the felonious assault count into the murder and sentenced Thompson-Shabazz to 15 years to life in prison for the murder. The court imposed an additional term of ten years for the repeat violent offender specification, to be served consecutively to the sentence for murder.

         {¶ 9} Thompson-Shabazz appeals from his conviction, raising four assignments of error. We will address them in an order that facilitates our analysis.

         II. Motion to Suppress Statements Made to the Police

         {¶ 10} In his second assignment of error, Thompson-Shabazz claims that "the trial court erred when it admitted the Appellant's statements made while in the police cruiser." Thompson-Shabazz focuses on two sets of statements: (1) the statements made to Officer Nicholas Brienza in the early morning hours of July 13, 2014, and (2) the statements made to Officer Dilley during the nighttime hours of the same day.

         {¶ 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} 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 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 generally 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.

         {¶ 13} Even when Miranda warnings are not required, a defendant's statement may be involuntary and subject to exclusion. State v. Zan, 2d Dist. Montgomery No. 24600, 2013-Ohio-1064, ¶ 18. "In deciding whether a defendant's confession is involuntarily induced, the court should 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." State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus, overruled on other grounds, 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978). A defendant's statement to police is voluntary absent evidence that his will was overborne and his capacity for self-determination was critically impaired due to coercive police conduct. Colorado v. Spring, 479 U.S. 564, 574, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987); State v. Otte, 74 Ohio St.3d 555, 562, 660 N.E.2d 711 (1996).

         A. Statements Made to Officer Brienza

         {¶ 14} According to Officer Brienza, at approximately 1:20 a.m. on Sunday, July 13, 2014, he and other officers were on foot patrol in the Oregon District area of downtown Dayton, maintaining a safe area around the bars. Brienza was wearing a bike patrol uniform. Brienza observed Thompson-Shabazz, who appeared to be "slightly intoxicated." Brienza had seen Thom pson-Shabazz on two or three other occasions, and the officer had transported Thompson-Shabazz back to Gibson's residence once previously. Officer Brienza offered to give Thompson-Shabazz a ride home, and Thompson-Shabazz accepted. Brienza described the conversation as "very casual" and "lighthearted."

         {¶ 15} Thompson-Shabazz sat (without handcuffs) in Officer Brienza's cruiser; the officer did not ask Thompson-Shabazz for information about his identity. After Brienza buckled Thompson-Shabazz's seat belt, the officer began to drive Thompson-Shabazz home. The officer asked for the location of the residence, and Thompson-Shabazz provided an intersection. Thompson-Shabazz started singing along to the country music that was playing in the cruiser, and the two men had a "very basic conversation" about Thompson-Shabazz's taste in music and their girlfriends/wives. As they continued driving, Thompson-Shabazz mentioned that his prior wife had been murdered. Officer Brienza did not ask any follow-up questions.

         {¶ 16} The trial court found that Thompson-Shabazz's statements to Officer Brienza were admissible. It found that the interaction between the officer and Thompson-Shabazz was "casual and cordial" and that "[n]o police questioning occurred." The court found that Thompson-Shabazz made "spontaneous statements about country music and a previous wife that had been murdered." The trial court concluded that the statements during this encounter were not subject to exclusion because no police interrogation occurred; "All of Defendant's comments were voluntary, spontaneous declarations."

         {¶ 17} We have reviewed the cruiser's recording of the interaction between Thompson-Shabazz and Officer Brienza, and we agree that Thompson-Shabazz's statements were not the product of custodial interrogation. " '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.' " State v. Strozier, 172 Ohio App.3d 780, 2007-Ohio-4575, 876 N.E.2d 1304, ¶ 20 (2d Dist.), quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). "Interrogation" must reflect "a measure of compulsion above and beyond that inherent in custody itself." Innis, 446 U.S. at 300.

         {¶ 18} "Police officers are not responsible for unforeseeable incriminating responses." State v. Waggoner, 2d Dist. Montgomery No. 21245, 2006-Ohio-844, ¶ 14; Strozier at ¶ 20. "A suspect who volunteers information, and who is not even asked any questions, is not subject to a custodial interrogation and is not entitled to Miranda warnings." State v. Fair, 2d Dist. Montgomery No. 24120, 2011-Ohio-3330, ¶ 39, citing State v. McGuire, 80 Ohio St.3d 390, 401, 686 N.E.2d 1112 (1997). In other words, "Miranda does not affect the admissibility of '[volunteered statements of any kind.' " McGuire at 401, citing Miranda, 384 U.S. at 478; State v. Montgomery, 2d Dist. Montgomery No. 23870, 2010-Ohio-5047, ¶ 15.

         {¶ 19} Most of the statements made by Thompson-Shabazz while in Officer Brienza's cruiser were voluntary, spontaneous statements and not in response to any police questioning. Moreover, nothing in the casual conversation between Officer Brienza and Thompson-Shabazz involved a level of compulsion such that the officer should have known that Thompson-Shabazz would likely make an incriminating remark in response. The trial court properly concluded that Thompson-Shabazz's statements to Officer Brienza were admissible.

         B. Statements Made to Officer Dilley

         {¶ 20} Several witnesses gave testimony related to the police officers' entry into Gibson's home on July 13, 2014, and the beginnings of the police investigation. Those witnesses included Officers Lindsay Warner, Officer Dilley, Officer James Campolongo, Officer Kyle Watts, and four of Gibson's neighbors. (Additional witnesses provided testimony related to other portions of Thompson-Shabazz's motion to suppress.) The State also presented the recording from Officer Dilley's cruiser. For purposes of Thompson-Shabazz's claim that his statements to Officer Dilley should have been suppressed, we focus primarily on the testimony of Officers Dilley and Warner and the cruiser video.

         {¶ 21} By July 2014, Officer Dilley had had six or seven prior interactions with Thompson-Shabazz, mostly involving citations for drunkenness. Officer Dilley knew where Thompson-Shabazz lived (Gibson's residence), that Thompson-Shabazz had a relationship with Gibson, and that Thompson-Shabazz referred to Gibson as his wife. Thompson-Shabazz had previously advised Officer Dilley and other officers that a prior spouse and child had been murdered.

         {¶ 22} At approximately 10:22 p.m. on July 13, 2014, Officer Dilley stopped Thompson-Shabazz due to an open container violation. Thompson-Shabazz was highly intoxicated, slurring his speech, smelling of alcohol, and having trouble walking. Upon inquiry by Dilley, Thompson-Shabazz said that he had no weapons and consented to a pat down. Officer Dilley placed Thompson-Shabazz, without handcuffs, in the cruiser so that the officer could drive him home; Thompson-Shabazz was not free to leave. Officer Dilley cited Thompson-Shabazz for the alcohol violations and drove him to Gibson's residence; as they were driving, Thompson-Shabazz told Dilley that he no longer lived there.

         {¶ 23} En route to Gibson's residence, Officer Dilley learned over the radio from Officer Lindsay Warner that Gibson's neighbors "were used to all the drama over there, " but that they had not seen Gibson since Friday and were concerned about Gibson's welfare. Warner asked Dilley to check if Gibson were "there and breathing." After arriving at Gibson's home, Officer Dilley knocked on the front door and waited, but received no human response; dogs barked from inside. Dilley knocked on the front door two additional times, waiting 30 seconds between each set of knocks. There were lights on at the residence, but no one responded either time. In addition to the neighbors' concerns, Officer Dilley knew Gibson to be overweight, causing him to have additional concerns for her health.

         {¶ 24} After receiving no response to his knocks, Officer Dilley contacted Officer Warner over his radio. Officer Warner told Officer Dilley that she had been flagged down by Gibson's neighbors, who had not seen Gibson since Friday and wanted the officer to go over and check on Gibson. The neighbors had told Officer Warner that Gibson had filed theft charges against Thompson-Shabazz, that Thompson-Shabazz had gone to jail, and that they (the neighbors) were worried that Thompson-Shabazz had hurt Gibson after he got out of jail.

         {¶ 25} Officer Dilley returned to his cruiser and asked Thompson-Shabazz where Gibson was and when he (Thompson-Shabazz) had last seen her. Thompson-Shabazz responded that he had last seen Gibson "a couple days ago." Dilley next asked where he (Thompson-Shabazz) had slept the previous night; Thompson-Shabazz answered that he had slept on the front porch of the residence. In response to another question by Officer Dilley, Thompson-Shabazz indicated that he had "no keys" to the house. Dilley asked Thompson-Shabazz whether Gibson had been home then and when Thompson-Shabazz had last seen her; Thompson-Shabazz responded that he had last seen Gibson "yesterday" (Saturday) at 6:00 a.m.

         {¶ 26} Officer Dilley returned to the house and continued knocking on the door. After a few minutes, he went back to the cruiser and asked Thompson-Shabazz for Gibson's telephone number. The officer's call to that number went straight to voicemail. Officer Dilley spent 20 to 25 minutes trying, unsuccessfully, to contact Gibson at the residence. Officer Warner, who had come to the scene following another call for service, was also concerned about Gibson's welfare; based on Warner's prior encounters with Gibson and Thompson-Shabazz, Warner knew that it was unusual for Gibson not to answer her door and that Gibson frequently spent time on her porch. Both officers had a growing concern for Gibson's welfare, and they asked other officers to come to the house. Officers Watts and Campolongo responded.

         {¶ 27} Officers Dilley, Warner, Watts, and Campolongo walked around the property and found an unlocked window. An officer slid it open, and the officers yelled inside for Gibson; they received no response. Officer Dilley entered the residence through the unlocked window and then unlocked the front door to allow the other three officers to enter to assist in the welfare check. Officers Dilley and Campolongo performed a protective sweep on the first floor as Officers Warner and Watt went upstairs. Officers Warner and Watts found Gibson's body upstairs. The officers left the residence and called for a supervisor.

         {¶ 28} Thompson-Shabazz was later handcuffed and transported to the police station. Thompson-Shabazz had not been given Miranda warnings while he was seated in Dilley's cruiser outside of Gibson's residence.

         {¶ 29} The trial court found that the statements that Thompson-Shabazz made in response to Officer Dilley's questions were admissible under the public safety exception to Miranda. The court reasoned, "This public safety exception to Miranda arises where there is an overriding need to save human life or rescue those in danger. Here, the custodial, non-Mirandized questions to Defendant in Officer Dilley's cruiser, limited in scope to assessing Ms. Gibson's status and whereabouts given the reasonable concern for her welfare, fall within the exigent circumstances exception." (Citations omitted.)

         {¶ 30} We agree with the trial court that Thompson-Shabazz was not entitled to Miranda warning prior to his being questioned by Officer Dilley. "The public safety doctrine excuses compliance with Miranda, where exigent circumstances exist and where there is an immediate need to protect the general public, an individual person, or the officer involved." State v. Luke, 5th Dist. Stark No. 2003CA00413, 2004-Ohio-6137, ¶ 12. "Under the 'public safety' exception, a suspect's answers to questions from a police officer are admissible in the absence of a Miranda warning so long as the questions asked of the suspect are 'reasonably prompted by a concern for the public safety.' " State v. Morgan, 2d Dist. Montgomery No. 20987, 2005-Ohio-6542, ¶ 14, quoting New York v. Quarles, 467 U.S. 649, 656, 104 S.Ct. 2626, 81 L.E.2d 550 (1984).

         {¶ 31} This court has repeatedly applied the public safety exception to permit police officers to question a suspect about the unknown location of a firearm, e.g., State v. Brown, 2d Dist. Montgomery No. 26035, 2014-Ohio-3257, as well as to permit officers to question an individual, prior to a pat down, about whether the individual might have something that could injure the officer, e.g., State v. Hughes, 2d Dist. Montgomery No. 25152, 2013-Ohio-808. Other appellate districts have interpreted the public safety situations to include when "there is an overriding need to save a human life or to rescue persons whose lives are in danger." Luke at ¶ 12; see also, e.g., State v. Spence, 12th Dist. Butler No. CA2002-05-107, 2003-Ohio-4237; State v. Santiago, 9th Dist. Lorain No. 01CA007798, 2002 WL 388901 (Mar. 13, 2002); State v. Nitenson, 4th Dist. Highland No. 796, 1992 WL 226325, * 3 (Sept. 9, 1992).

         {¶ 32} In Santiago, for example, the police responded to the defendant's apartment, pursuant to a 911 hang-up call. After Santiago told the officers to come in, the officers found the defendant lying face down with his arms covered in blood. Santiago told the officers that he had just killed his girlfriend. When asked how, Santiago stated, "with a hammer." The officers placed Santiago in handcuffs and asked where his girlfriend was located; Santiago indicated that she was in the bathroom-kitchen area and nodded in that direction.

         {¶ 33} On appeal, the Ninth District rejected Santiago's assertion that the trial court should have suppressed all statements that he made after the police entered the apartment. The appellate court concluded that the officers' questions "were clearly designed to secure their safety and the public's safety." Id. at *4. The court reasoned:

Officer Fairbanks first asked what happened, and Mr. Santiago responded that he had just killed his girlfriend. At that point, the officers did not know if there were other people involved, who could still be in the apartment lying in wait, and did not know the type and location of weapon used, if any. Officer Fairbanks next asked who else was in the apartment. Mr. Santiago responded, "[j]ust my girlfriend. I just killed her." When asked how, Mr. Santiago stated, "with a hammer." Immediately after obtaining the information necessary to secure their own safety, the police placed Mr. Santiago in handcuffs. However, the police still did not know the actual condition of the victim and her location. As Ms. Yucka may still have been alive and in need of immediate medical care, it was important for the officers to find her as quickly as possible. Thus, the questions regarding the location of Ms. Yucka arose out of concern for the victim's safety and wellbeing. See Taylor, supra, at 5-6 (finding that questioning directed at locating the baby-victim justified the application of the Quarles exception to Miranda, as the baby may still have been alive ...

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