Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-17-622929-A.
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
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.
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,
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
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
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
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.
Law and Analysis
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.
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.
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
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
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
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
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
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
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).
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.
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
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 ...