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State v. Scullin

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 8, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
JEFFREY W. SCULLIN, JR., Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-622929-A.

         JUDGMENT: AFFIRMED.

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Christopher D. Schroeder, Assistant Prosecuting Attorney, for appellee.

          Patituce & Associates, L.L.C., Joseph C. Patituce, and Megan Patituce, for appellant.

          JOURNAL ENTRY AND OPINION

          FRANK D.CELEBREZZE, JR, JUDGE.

         {¶ 1} Defendant-appellant, Jeffrey Scullin, Jr., brings the instant appeal challenging his convictions for aggravated murder, murder, felonious assault, tampering with evidence, making false alarms, and endangering children. Specifically, appellant argues that the trial court erred in denying his motion to suppress and motion to compel discovery. After a thorough review of the record and law, this court affirms.

         I. Factual and Procedural History

         {¶ 2} The instant matter arose from the murder of Melinda Pleskovic (hereinafter "victim") on October 23, 2017, at her residence in Strongsville, Ohio. The victim was a 49-year-old school teacher.

         {¶ 3} On October 23, 2017, police were dispatched to the victim's residence regarding a possible stabbing. Upon arriving at the home, officers found the victim laying on the kitchen floor. The victim was unresponsive and bleeding profusely. She had sustained approximately 35 stab wounds and two gunshot wounds. The victim was transported to Southwest General Hospital where she was pronounced dead at approximately 9:00 p.m. (Tr. 156.)

         {¶ 4} The responding officers also encountered the victim's husband Bruce Pleskovic, the victim's son, [1] and appellant at the residence. Appellant was engaged to the victim's daughter, and he was living in the basement of the victim's home at the time of the murder. Officers spoke with the victim's husband and appellant at the scene. Furthermore, officers obtained and executed search warrants for the residence, three vehicles that were parked in the driveway when officers arrived on scene, and cell phones belonging to the victim, her husband, and appellant.

         {¶ 5} The following day, officers searched one of the vehicles that was parked in the driveway, a Chevrolet Silverado truck, that appellant had been driving at the time of the incident. Officers discovered a knife inside the truck that had "some red staining" on the blade. (Tr. 101.) Preliminary testing of the red substance confirmed that it was human blood.

         {¶ 6} The knife was submitted to the medical examiner's office for DNA analysis. DNA testing revealed that the victim's DNA was present on the knife's blade and handle, and appellant's DNA was present on the knife's handle. After receiving the results of the DNA testing, officers obtained a warrant for appellant's arrest.

         {¶ 7} On October 31, 2017, after obtaining the DNA testing results and a warrant for appellant's arrest, officers asked appellant to come to the Strongsville Police Department. Appellant was initially interviewed by Strongsville Police Detective Ron Stolz. During this interview, appellant was placed under arrest.

         {¶ 8} Subsequently, Lance Fragomeli, an FBI special agent and polygraph examiner, interviewed appellant and also administered a polygraph examination. After taking the polygraph examination, appellant ultimately confessed to stabbing and shooting the victim. Appellant informed the police that he put the gun with which he shot the victim in a Buick LeSabre, and that the vehicle was parked in the driveway of his parents' house. Appellant provided officers with consent to search the LeSabre.

         {¶ 9} Officers searched the LeSabre and recovered a .357 revolver and a pair of sweatpants containing blood stains inside. Ballistic testing confirmed that the victim had been shot by the .357 revolver that was recovered from the LeSabre. DNA testing of the revolver indicated that appellant's DNA was on the handle, barrel, and trigger of the gun. Furthermore, DNA testing of the sweatpants recovered from the LeSabre indicated that appellant's DNA was present on the waistband and the blood stains on the pants were the victim's blood. (Tr. 232.)

         {¶ 10} On November 8, 2017, the Cuyahoga County Grand Jury returned a seven-count indictment against appellant charging him with (1) aggravated murder, in violation of R.C. 2903.01(A); (2) murder, in violation of R.C. 2903.02(B); (3) felonious assault, in violation of R.C. 2903.11(A)(1); (4) felonious assault, in violation of R.C. 2903.11(A)(2); (5) tampering with evidence, in violation of RC. 2921.12(A)(1), with a forfeiture specification; (6) making false alarms, in violation of R.C. 2917.32(A)(3); and (7) endangering children, in violation of RC. 2919.22(A). Counts 1 through 4 contained one- and three-year firearm specifications. Appellant was arraigned on November 14, 2017. He pled not guilty to the indictment.

         {¶ 11} On December 19, 2017, appellant filed a motion for leave to file a suppression motion after the exchange of discovery. The trial court granted the motion on December 20, 2017, ordering defense counsel to file a motion to suppress within 30 days of the exchange of discovery.

         {¶ 12} On August 16, 2018, appellant filed a motion to compel discovery. Therein, appellant sought an order compelling the state to turn over any and all evidence related to the polygraph examination that was administered to appellant on October 31, 2017.

         {¶ 13} The state filed a brief in opposition to appellant's motion to compel on August 27, 2018. Therein, the state argued that the results of the polygraph examination were not subject to discovery under Crim.R. 16. The trial court denied appellant's motion to compel on August 28, 2018.

         {¶ 14} In addition to the motion to compel, appellant filed a motion to suppress on August 16, 2018. Appellant filed a supplemental motion to suppress on August 22, 2018.

         {¶ 15} In his motions to suppress, appellant requested an order suppressing the following evidence: (1) the evidence obtained from the search of appellant's Chevrolet Silverado truck, which was parked in the driveway of the victim's residence on the night of the murder (knife), (2) the evidence obtained from the search of appellant's cell phone and phone records, (3) the statements appellant made to police, and (4) the evidence obtained from the search of the Buick LeSabre, which was parked in the driveway of appellant's parents' house (.357 revolver and sweatpants containing blood stains). With the exception of the LeSabre, all of these searches were conducted pursuant to a search warrant. After appellant admitted to stabbing and shooting the victim during Special Agent Fragomeli's October 31, 2017 interview, appellant provided officers with consent to search the LeSabre. (Tr. 203.)

         {¶ 16} On August 27, 2018, the state filed a motion for an extension of time to respond to appellant's suppression motion. The trial court granted the motion for an extension of time. The state filed its brief in opposition to appellant's motion to suppress on September 18, 2018.

         {¶ 17} The trial court held a hearing on October 12, 2018. The state placed the terms of a plea agreement on the record that had been offered to appellant. Defense counsel indicated that appellant rejected the plea offer. The trial court proceeded to hold a hearing on appellant's motion to suppress.

         {¶ 18} The following six witnesses testified during the suppression hearing: (1) Dr. Nasir Butt, DNA technical manager and supervisor with the Cuyahoga County Regional Forensic Science Laboratories; (2) Strongsville Police Officer Patrick O'Sullivan; (3) Strongsville Police Sergeant Steven Piorkowski; (4) Strongsville Police Detective Steve Borowske; (5) Detective Stolz; and (6) Special Agent Fragomeli.

         {¶ 19} The suppression hearing concluded on October 16, 2018. After considering the parties' arguments and the testimony adduced during the hearing, the trial court denied appellant's motion to suppress.

         {¶ 20} On October 17, 2018, appellant withdrew his not guilty plea and entered a plea of no contest to the seven offenses charged in the indictment. Based on the evidence proffered, the trial court found appellant guilty on all seven counts and the underlying specifications. The trial court ordered a presentence investigation report and set the matter for sentencing.

         {¶ 21} On October 29, 2018, the trial court held a sentencing hearing. The trial court determined that Counts 1 through 4 merged for sentencing purposes. The state elected to sentence appellant on Count 1. The trial court also merged the underlying firearm specifications and elected to sentence appellant on the three-year firearm specification. The trial court imposed an aggregate prison sentence of life with the possibility of parole after 33 years: life in prison on Count 1, consecutive to the three-year firearm specification; three years on Count 5 to be served concurrently with Count 1; 180 days in jail on both Count 6 and Count 7, to be served concurrently with Count 1.

         {¶ 22} On November 2, 2018, appellant filed the instant appeal challenging the trial court's judgment. He assigns four errors for review:

I. The trial court erred in improperly shifting the burden from the state to the defense in ruling that the defense did not prove misconduct.
II. The trial court erred in denying appellant's motion to compel because the evidence sought was material to the defense and relied upon by the state of Ohio.
III. The trial court erred in denying appellant's motion to suppress because no reasonable person would have believed that the consent to search exceeded beyond the brief period necessary to remove a diaper bag.
IV. The trial court erred in finding the search warrants for appellant's cell phone and cellular data were supported by probable cause and included particularized descriptions.

         {¶ 23} For ease of discussion, appellant's assignments of error will be addressed out of order.

         II. Law and Analysis

         A. Motion to Suppress

         {¶ 24} Appellant's first, third, and fourth assignments of error pertain to the trial court's ruling denying his motion to suppress.

         1. Standard of Review

         {¶ 25} This court reviews a trial court's ruling on a motion to suppress under a mixed standard of review.

"In a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate witness credibility." State v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994). The reviewing court must accept the trial court's findings of fact in ruling on a motion to suppress if the findings are supported by competent, credible evidence. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. With respect to the trial court's conclusion of law, the reviewing court applies a de novo standard of review and decides whether the facts satisfy the applicable legal standard. Id., citing State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997).

State v. Miller, 8th Dist. Cuyahoga No. 106946, 2018-Ohio-4898, ¶ 22.

         2. Confession

         {¶ 26} In his first assignment of error, appellant argues that the trial court erred in denying his motion to suppress with respect to the statements he made to the police. Specifically, appellant argues that the trial court erred in finding that (1) Detective Stolz's initial interrogation on October 31 was noncustodial in nature, and thus, Miranda warnings were not required, and (2) appellant's statements were not coerced and voluntarily made.

         a. Detective Stolz's Initial Interview

         {¶ 27} First, appellant challenges the trial court's finding that Detective Stolz's initial interrogation on October 31 was noncustodial in nature and thus Miranda warnings were not required.

Prior to a custodial interrogation, the accused must be apprised of his or her right against self-incrimination and right to counsel. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda defines "custodial interrogation" as any "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. at 444.

Cleveland v. Oles, 2016-Ohio-23, 45 N.E.3d 1061, ¶ 13 (8th Dist).

         {¶ 28} During the suppression hearing, Detective Stolz testified that on the morning of October 31, 2017, he received the results of the DNA testing from Dr. Butt. The results indicated that the victim's DNA was present on the blade and the handle of the knife that was found in appellant's pickup truck, and appellant's DNA was present on the knife's handle. After receiving the testing results, police obtained an arrest warrant for appellant.

         {¶ 29} After obtaining a warrant for appellant's arrest, Detective Stolz contacted appellant around 10:30 a.m. and asked him to come to the police station. Appellant arrived at the police station around noon, and Detective Stolz brought him into the interview room in the police station's detective bureau.

         {¶ 30} Detective Stolz explained that appellant had previously came into the police station, on his own free will, earlier that week on October 24 and 26, 2017. When appellant came into the station on the 24th and the 26th, he was not under arrest or detained in any way, and he was free to leave at any time. Detective Stolz interviewed appellant on the 24th and 26th in the same interview room in the detective bureau.

         {¶ 31} During the interview on October 31, Detective Stolz testified that when appellant was initially brought inside the interview room, he was not placed under arrest or handcuffed. However, he explained that unlike the previous interviews on October 24 and 26, if appellant attempted to terminate the interview and leave the police station during the October 31 interview, he would have been placed under arrest.

         {¶ 32} During the October 31 interview, before appellant was advised of his Miranda rights, Detective Stolz began going over appellant's previous statements about his whereabouts on the day of the murder. The officers were asking appellant the same questions they had previously asked him: "[s]imple, open-ended questions; who, what, where, why. We went over ascertaining change [in appellant's responses]." (Tr. 245.) Detective Stolz asserted that he was asking appellant "to corroborate where he was [on October 23, 2017], not specific questions about the murder itself." (Tr. 246.) He confirmed that during this initial interview, he was not asking appellant whether he murdered the victim or the location of any weapons that had been used.

         {¶ 33} Approximately 20 minutes into the interview, Detective Stolz began confronting appellant with information and evidence that contradicted appellant's statements. After he confronted appellant with the evidence that he received from Dr. Butt, Detective Stolz placed appellant under arrest and advised appellant of his Miranda rights.

         {¶ 34} After reviewing the record, we find no merit to appellant's argument regarding Detective Stolz's initial interview. Appellant did not confess during Detective Stolz's initial interview, nor during the post-arrest phase of Detective Stolz's interview. Appellant denied any wrongdoing during Detective Stolz's interview, and did not confess to stabbing and shooting the victim until much later in the day during Special Agent Fragomeli's post-polygraph interview.

         {¶ 35} Assuming, arguendo, that the trial court erred in finding that Detective Stolz's initial interview was noncustodial in nature, any error in this regard would be harmless. See State v. Nelson, 2017-Ohio-5568, 93 N.E.3d 472, ¶ 72 (8th Dist). "Harmless error is an error that does 'not affect substantial rights.' Crim.R. 52(A). The harmless error standard asks whether the rights affected are substantial and, if so, whether a defendant has suffered any prejudice as a result. State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 36." State v. Lindsey, 8th Dist. Cuyahoga No. 106111, 2019-Ohio-782, ¶ 88; see also State v. Durham, 2016-Ohio-691, 60 N.E.3d 552, ¶ 172 (8th Dist.), citing State v. Lytle, 48 Ohio St.2d 391, 358 N.E.2d 623 (1976) (applying harmless error doctrine to a purported Miranda violation).

         {¶36} In this case, appellant did not make any incriminating statements during the initial interview with Detective Stolz, nor did he confess to having any involvement in the murder. Even after Detective Stolz arrested appellant and advised appellant of his Miranda rights, appellant repeatedly insisted that he did not do anything wrong, that the victim took him in and was like a mother to him, and that he would not hurt anyone.

         {¶ 37} For all of these reasons, we find no merit to appellant's argument that the trial court erred in concluding that the initial interview conducted by Detective Stolz was not a "custodial interrogation" implicating Miranda. Appellant's first assignment of error is overruled in this respect.

         b. Police Misconduct

         {¶ 38} Second, appellant argues that he did not voluntarily waive his Miranda rights and that his confession was coerced. In support of this argument, appellant asserts that (1) Detective Stolz manipulated him using his infant daughter; (2) Special Agent Fragomeli psychologically coerced him using his infant daughter, and manipulated appellant into compiling an apology letter addressed to his daughter; and (3) Detective Stolz repeatedly threatened him with the death penalty and threatened to charge him with a crime that does not exist in the state of Ohio.

         {¶ 39} In denying appellant's motion to suppress, the trial court concluded that (1) appellant knowingly, intelligently, and voluntarily waived his Miranda rights and spoke to the police, and (2) appellant's statements were voluntarily made and not the result of coercion or police misconduct. The trial court emphasized that officers read appellant his Miranda rights multiple times, including when he was in custody, and each time, appellant voluntarily spoke with the officers and never indicated he did not understand the Miranda rights. The trial court also ...


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