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Verdell v. Buchanan

United States District Court, S.D. Ohio, Western Division, Dayton

June 24, 2019

JOSHUA VERDELL, Petitioner,
v.
TIM BUCHANAN, Warden, Noble Correctional Institution, Respondent.

          Thomas M. Rose, District Judge.

          REPORT AND RECOMMENDATIONS

          Michael R. Merz, United States Magistrate Judge

         This is a habeas corpus case brought pro se by Petitioner Joshua Verdell to obtain relief from his conviction in the Common Pleas Court of Montgomery County and consequent imprisonment in Respondent's custody. The case was referred to the undersigned under the Dayton General Order of Assignment and Reference, Day 13-01.

         Under Rule 4 of the Rules Governing § 2254 Cases, the clerk must promptly forward the petition to a judge under the court's assignment procedure, and the judge must promptly examine it. If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.

         Verdell pleads two grounds for relief:

Claim One: Failure to exclude incriminating statements that are obtained without valid waiver of of [sic] the rights against self-incrimination constitutes illegal seizure.
Claim Two: Denial of right to confront thee [sic] medic that took a part in the on-the-scene interrogation and recorded conversation rendered admitted evidence unconstitutional.

         (Petition, ECF No. 1, PageID 4, 5.)

         Litigation History

         Verdell was indicted by the Montgomery County, Ohio, grand jury on December 29, 2016, on one count of murder, two counts of felony murder, two counts of felonious assault, and one count of tampering with evidence, along with several firearm specifications. State v. Verdell, 2ndDist. Montgomery No. 27786, 2018-Ohio-4766, ¶ 2 (Nov. 30, 2018), appellate jurisdiction declined, 154 Ohio St.3d 1522, 2019-Ohio-769. Verdell pleaded not guilty and filed a motion to suppress his statements on grounds they were taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966). Id. at ¶ 3. After his motion to suppress was denied, Verdell pleaded no contest to all charges and was sentenced to eighteen years to life imprisonment. Id. at ¶ 18.

         Claim One: Violation of Privilege Against Self-Incrimination

         In his First Claim for Relief, Verdell asserts his Fifth Amendment privilege against self-incrimination was violated both by Officer Stewart's actions as the scene of the crime and Detective Roberts later questioning at the Dayton Safety Building.

         On appeal, Petitioner presented these claims in his two assignments of error:

I. STATEMENTS OBTAINED ON THE SCENE WERE INADMISSIBLE AS THE OFFICER CIRCUMVENTED MIRANDA BY ASKING QUESTIONS DURING THE APPELLANT'S CONVERSATION WITH THE MEDIC.
II. MR. VERDELL DID NOT KNOWINGLY AND VOLUNTARILY WAIVE HIS MIRANDA RIGHTS AT THE SAFETY BUILDING

Verdell, 2018-Ohio-4766, ¶ 19.

         Part One: Incriminating Statements to Officer Stewart

         The Second District decided the First Assignment of Error as follows:

{¶ 21} Under his First Assignment of Error, Verdell contends the incriminating statements he made in response to Officer Stewart's questions at the crime scene should have been suppressed by the trial court because those statements were not preceded by Miranda warnings. We disagree with Verdell's claim.
{¶ 22} “The right to [Miranda] warnings is grounded in the Fifth Amendment's prohibition against compelled self-incrimination.” State v. Strozier, 172 Ohio App.3d 780, 2007-Ohio-4575, 876 N.E.2d 1304, ¶ 16 (2d Dist), citing Moran v. Burbine, 475 U.S. 412, 420, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). “It is well established, however, that the police are not required to administer [Miranda] warnings to every individual they question.” Id., citing State v. Biros, 78 Ohio St.3d 426, 440, 1997-Ohio 204, 678 N.E.2d 891 (1997). “Rather, only custodial interrogations trigger the need for [Miranda] warnings.” Id., citing Biros at 440. (Other citations omitted.)
{¶ 23} “Custodial interrogation' means questioning initiated by the police after the person has been taken into custody or otherwise deprived of his freedom to the degree associated with a formal arrest." (Citations omitted.) State v. Vineyard, 2d Dist. Montgomery No. 25854, 2014-Ohio-3846, ¶ 32; California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983), quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (“the ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest”).
{¶ 24} Although Verdell argues that he was deprived of his freedom of movement to a degree associated with a formal arrest, in order to trigger the need for Miranda warnings, Verdell must have been subject to an interrogation at the time his freedom was so restrained. “‘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.'” Strozier at ¶ 20, quoting Rhode Island v. Innis,446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Accord State v. Knuckles,65 Ohio St.3d 494, 1992- Ohio 64, 605 N.E.2d 54 (1992), paragraph two of ...

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