Court of Appeals of Ohio, Second District, Montgomery
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.
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.
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
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.
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.
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),
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).
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
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
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
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
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
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
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
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
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
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 ...