IN THE MATTER OF: T.W., ALLEGED DELINQUENT CHILD, [STATE OF OHIO, APPELLANT].
CASE NO. 9-10-63
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
May 29, 2012
2012-Ohio-2361
Appeal from Marion County Common Pleas Court Family Division, Trial Court No. 10 DL 633; Judgment Affirmed
Brent W. Yager and Megan K. Frericks for Appellant
Raymond A. Grogan, Jr. for Appellee
{¶1} Plaintiff-Appellant, State of Ohio, appeals from the judgment of the Court of Common Pleas of Marion County, Family Division, granting Defendant-Appellee‘s, T.W., motion to suppress. On appeal, the State contends that the trial court erred and abused its discretion in granting T.W.‘s motion to suppress. Based on the following, we affirm the judgment of the trial court.
{¶2} In July 2010, a complaint was filed against T.W. charging him with a single count of gross sexual imposition in violation of
{¶3} On September 27, 2010, T.W. filed a motion to suppress his interview and written statement made at Marion County Children Services (“Children Services“) on April 5, 2010. T.W. argued that he was in custody during the interview, but was not administered Miranda warnings.
{¶4} On November 17, 2010, the matter proceeded to a suppression hearing. Prior to hearing testimony, the parties stipulated that T.W. was fourteen-years-old during the interview, and that T.W. had no prior involvement with law enforcement. The following facts and testimony were subsequently adduced.
{¶6} On April 5, 2010, Shimp and T.W.‘s step-father drove T.W. to Children Services for the interview. Page met with T.W. and his parents in the lobby, where she advised T.W.‘s parents that the agency prеferred to interview children alone, but that the parents may accompany T.W. in the interview or watch the interview in an adjacent conference room, via a live video feed. Page testified that T.W. was present when she advised T.W.‘s parents that they could accompany him in the interview, but that she did not communicate the same directly to T.W. Page continued that she gave T.W.‘s parents a “consumer brochure” that explained their rights, and that Shimp signed a paper memorializing receipt of the brochure.
{¶8} Page continued that she, Officer Rowe, and T.W. were the only individuals present in the interview room, and that she and Officer Rowe were present for the entire interview. The interview lasted approximately one hour. Page testified that T.W. was neither placed nor told that he was under arrest before, during, or after the interview; that she did not advise T.W. about the possible charges; and, that T.W. never asked for his parents to be present during the interview. Fifty-five minutes into the interview T.W. admitted that he
{¶9} Officer Rowe testified that he is employed as a police officer with the Marion Police Department, and that he has held that position for twenty-one years. Officer Rowe testified that he had conducted approximately a dozen juvenile interviews at Children Services, and received training in juvenile interview techniques.
{¶10} On the day of the interview, Officer Rowe wore his police uniform and firearm. Officer Rowe testified that, prior to the interview, he met with T.W. and his parents in the lobby, where he advised them that T.W. was not under arrest and that he was free to leave. Officer Rowe further testified that he never directly advised T.W., prior to or during the interview, that he could have his parents accompany him in the interview room or that he could have an attorney present, but did testify that T.W. was present when he informed T.W.‘s parents that they could accompany T.W. in the interview room.
{¶11} The interview lasted approximately one hour. Officer Rowe testified that the interview‘s duration was average considering the allegation. Officer Rowe testified that T.W. appeared somewhat relaxed during the interview. Based
{¶12} Throughout the interview, Officer Rowe repeatedly asked T.W. whether he inappropriately touched C.W.‘s genital region. In response, T.W. repeatedly denied the allegation. T.W. denied the allegation approximately fifteen (15) times before admitting that he inappropriately touched C.W.2 Officer Rowe testified that he continued questioning T.W. despite the repeated denials because his experience and training lead him to believe that T.W. was not being truthful. Particularly, Officer Rowe testified that T.W. demonstrated signs of deception throughout the interview including, but not limited to, shifting his weight in the seat, рausing after questions, looking off to the side, and dry lips.
{¶13} Officer Rowe continued that T.W.‘s freedom of movement was not restricted during the interview; that T.W. never asked to leave; that T.W. never asked to stop the interview; that T.W. never asked for his parents to be present during the interview; and, that T.W. was never told that he was under arrest. Officer Rowe advised T.W., at approximately eight minutes and twenty-seven minutes into the interview, that he was “not going to be arrested,” and that he was “free to go, and [he is] not going to be arrested” that day, respectively.
{¶15} Shimp testified that several days prior to the interview Page contacted her via telephone. During their conversation, Page advised her of the allegation against T.W., the possible charges T.W. may face if the allegation was substantiated, and scheduled T.W. for an interview at Children Services. On April 5, 2010, Shimp and T.W.‘s step-father drove T.W. to Children Services for the interview. Upon arriving at Children Services, Shimp spoke with Page. Shimp testified that Page only advised her that she and Officer Rowe were going to interview T.W. Shimp also spoke with Officer Rowe before the interview, but could not recall the contents of that conversation. As Page and Officer Rowe escorted T.W. to the interview room, Shimp testified that she and T.W.‘s step-father stood up to follow, but Officer Rowe advised them that they could not accompany them in the interview room. Shimp further testified that she and T.W.‘s step-father were never presented with an opportunity to watch a live video feed of the interview.
{¶17} It is from this judgment the State appeals, presenting the following assignment of error for our review.
Assignment of Error No. I
THE JUVENILE COURT ERRED AND ABUSED ITS DISCRETION IN GRANTING APPELLEE‘S MOTION TO SUPPRESS EVIDENCE.
{¶18} In its sole assignment of error, the State contends thаt the trial court erred in granting T.W.‘s motion to suppress his interview at Children Services. Specifically, the State contends that there was no need to administer Miranda warnings because T.W. was not in custody during the interview. We disagree.
{¶19} Initially, we note that the State also contends that T.W.‘s inculpatory statements were made voluntarily, and were not the product of coercion. Upon review of the record, particularly T.W.‘s motion to suppress, there is no discussion concerning the voluntary nature of T.W.‘s statements. Additionally, the trial court‘s judgment entry does not address whether T.W.‘s statements were voluntary or involuntary. Because this issue was not raised by either party below or addressed by the trial court we decline to address the issue at this time.
{¶21} The Fifth Amendment to the United States Constitution provides individuals with protection against self-incrimination. See Chavez v. Martinez, 538 U.S. 760, 123 S.Ct. 1994 (2003). “Juveniles are entitled both to protection against compulsory self-incrimination under the Fifth Amendment and to Miranda warnings where applicable.” In re Forbess, 3d Dist. No. 2-09-20, 2010-Ohio-2826, ¶ 27, citing In re Gault, 387 U.S. 1, 55, 87 S.Ct. 1428 (1967).
{¶22} “[W]hen an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to
{¶23} “In order to determine whether a person is in custody for purposes of receiving Miranda warnings, courts must first inquire into the circumstances surrounding the questioning and, second, given those circumstances, determine whether a reasonable person would have felt that he or she was not at liberty to terminate the interview and leave.” State v. Hoffner, 102 Ohio St.3d 358, 362, 2004-Ohio-3430, ¶ 27, citing Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457 (1995). The first inquiry is distinctly factual. Keohane at 112. “Once the factual circumstances surrounding the interrogation are reconstructed, the court must apply an objective test to resolve ‘the ultimate inquiry’ of whether there was
Reconstruction of Facts
{¶24} The facts of the present case are relatively undisputed. After receiving an allegation that T.W. had inappropriate sexual contact with C.W., Page, an intake investigator with Children Services, contacted T.W.‘s mother, Shimp, to schedule T.W. for an interview at Children Services. During this conversation Shimp was informed of the possible charges T.W. could facе if the allegation was substantiated and that Children Services would be conducting a full investigation into the allegation. On the day of the interview, Shimp and T.W.‘s step-father drove T.W. to the interview at Children Services. At this time T.W. was fourteen-years-old and had no prior experience with law enforcement.
{¶26} After meeting in the lobby, T.W. was escorted by Officer Rowe and Page to the interview room. Shimp and T.W.‘s step-father attempted to follow T.W. back to the interview room, but Officer Rowe advised them that they could not accompany them in the interview room. The interview room was small and could accommodate approximately three to four people. The interview room had two doors; one door opened into an interior hallway, the second door opened into an adjoining conference room. Upon entering the interview room T.W. took a seat facing Officer Rowe. Additiоnally, either Page or Officer Rowe was seated near the door through which they entered the interview room.
{¶27} Officer Rowe, Page, and T.W. were the only individuals present in the interview room, and were present throughout the entire interview. The interview lasted approximately one hour. T.W.‘s admission, however, did not occur until fifty-five (55) minutes into the interview. Officer Rowe was the only
Totality of the Circumstances
{¶28} At the outset, we note that the instant case contains facts that both weigh in favor of and against a finding that T.W. was in custody. Upon considering all of the facts surrounding T.W.‘s interview, we find that a
{¶29} We begin with a discussion of those facts that weigh in favor of a finding that T.W. was in custody. Recently, the United States Supreme Court held that a juvenile‘s age may be considered in the Miranda analysis, so long as the juvenile‘s age was known to the officer at the time of questioning or would have been objectively apparent to a reasonable officer. J.D.B. v. North Carolina, ___ U.S. ___, 131 S.Ct. 2394 (2011). The Supreme Court recognized that in the specific context of police questioning, events that “would leave a man cold and unimpressed can overawe and overwhelm a” teen. Id. at 2397, quoting Haley v. Ohio, 332 U.S. 596, 599, 68 S.Ct. 302 (1948). While a juvenile‘s age may be considered in the Miranda custody analysis, the Supreme Court cautioned that “this does not mean that a child‘s age will be a determinative, or even a significant, factor in every case * * *” J.D.B., 131 S.Ct. 2394, syllabus. Bearing this in mind, at fourteen years of age, a reasonable juvenile in T.W.‘s position would, in all likelihood, be intimidated and overwhelmed. There is no evidence that T.W. volunteered to go to Children Services. Rather, the evidence reveals that T.W.‘s mother, at Page‘s request, agreed to bring T.W. to Children Services, limiting the extent of his control over his being there, and rendering his presence
{¶30} While the foregoing facts tend to weigh in favor of a finding that T.W. was in custody, other facts tend to weigh against a finding that T.W. was in custody. T.W. was not transported to the interview by a police officer. See Yarborough at 664. The interview occurred at Children Services as opposed to a police department. But see In re K.W., 3d Dist. 9-08-57, 2009-Ohio-3152, ¶ 14 (child found tо be in custody during interview at children services agency). The
{¶31} Upon balancing the foregoing facts, we find that the trial court did not err in granting T.W.‘s motion to suppress. In so finding, we recognize that fair-minded jurists could disagree over whether T.W. was in custody, as evidenced by the dissent‘s opinion. However, under the circumstances of the instant case we agree with the trial court, that a reasonable juvenile in T.W.‘s position would not have felt free to terminate the interview and leave the premises. Accordingly, we find that the trial court did not err in determining that T.W. was in custody.
{¶32} Since T.W. was in custody during the interview he should have been administered Miranda warnings. Upon review of the record, there is no evidence that T.W. was administered Miranda warnings or voluntarily waived the same.
{¶33} Accordingly, we overrule the State‘s sole assignment of error.
{¶34} Having found no error prejudicial to the State herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, J., concurs in Judgment Only.
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SHAW, P.J., DISSENTS
{¶35} I respectfully dissent from the majority‘s decision to affirm this case based upon its determination that T.W. was in custody. I would reverse the decision of the trial court, not because its findings of fact were unsupported by the record, but because its decision to suppress T.W.‘s statements was based upon misconceptions of the law and T.W.‘s rights thereunder. Furthermore, I believe the majority in reviewing this case has also relied upon erroneous suppositions in order to draw conclusions which are not consistent with the actual evidence presented in this case. Having reviewed the record and the law, I would find that
The Trial Court‘s Findings
{¶36} As the majority correctly notes, our review of a trial court‘s decision on a motion to suppress presents a mixed question of law and fact, which requires that we accept the trial court‘s findings of facts as long as they are supported by competent, credible evidence and that we then conduct a de novo review of the trial court‘s application of the law to those fаcts.
{¶37} In this case, the audio of the interview was recorded and its content is unchallenged. There is no dispute that T.W. was brought to Children Services by his mother and step-father, that the mother and step-father were not present for the actual interview, or about the description of interview room and what Officer Rowe was wearing at the time. The only facts in dispute between T.W. and the State concerned what was said by Page and/or Officer Rowe to T.W. and his mother and step-father regarding whether his mother could be present for the interview and T.W.‘s right to an attorney.
{¶38} In resolving this dispute, the trial court found that T.W.‘s mother was advised of her ability to be present for the interview and of T.W.‘s right to an attorney. However, the trial court found that these were T.W.‘s rights, not his
{¶39} In determining that T.W. was in custody, the trial court relied upon T.W.‘s age of fourteen, lack of prior criminal history, and the length of the interview and repeated denials by T.W. of any wrongdoing. The trial court also concluded that T.W. was not given an opportunity to end the interview or to consult with his mother or an attorney and that his mother should have been present along with an attorney (or a written waiver of his right to an attorney).
Problems with the Trial Court‘s Determination of Custody
{¶40} Contrary to the foregoing factors relied upon by the trial court, the law provides no right to have a parent present when a juvenile is questioned by law enforcement about a possible delinquency prosecution. See In re Watson (1989), 47 Ohio St.3d 86, 89-90, 548 N.E.2d 210. Nor does the trial court or the majority identify any authority that renders an interview “custodial” because a
{¶41} As noted by the majority, a “determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.” Stansbury, 511 U.S. at 323. In addition, as noted by the majority, while the juvenile‘s age, when an officer is aware of it or it is objectively apparent to a reasonable officer, may be taken into consideration in determining custodial status, a person‘s prior inexperience with law enforcement may not. See Alvarado, supra; J.D.B., supra. However, the primary question remains whether the circumstances surrounding the interrogation would lead a reasonable person to believe that he was not at liberty to terminate the interview and leave. Stansbury, supra.
Problems with the Majority‘s Analysis
{¶42} Here, the majority finds it unreasonable to conclude that a child brought to Children Services by parents and then interviewed by a uniformed officer wearing a firearm would believe he had the option of terminating the interview and leaving the premises. The majority further finds that a collective advisement to the juvenile and his parent prior to the intеrview that the juvenile was free to leave and not under arrest, was not sufficient to support a finding that a
{¶43} First, T.W.‘s mother brought him to Children Services, not a police station, and, unlike the mothers in In re T.F., 9th Dist. No. 08CA009449, 2009-Ohio-3141, and In re K.W., supra, she did not testify that she felt she had no other choice but to bring him for the interview.
{¶44} Second, although the majority relies upon the fact that Officer Rowe was armed, which he testified he was, there is no evidence in the record to indicate where his gun was located on his person, that the weapon was visible to T.W., or that Officer Rowe otherwise displayed and/or brandished it. Rather, Officer Rowe testified that he was on light duty so he was not wearing his gun belt or outsidе vest but that he did have his weapon on him. In fact, Page testified that she did not believe that Officer Rowe was wearing his gun during the interview, so she most
{¶45} Third, the majority apparently questions, absent any direct evidence, whether a fourteen-year-old, such as T.W., who is in a lobby with his mother and step-father and is collectively advised along with his mother and step-father that he is free to leave and is not under arrest, could have heard and appreciated such advisements. However, under these circumstances outlined above, I find that the record amply supports an inference that T.W. was able to hear and comprehend such advisements.3
{¶46} For example, there is no evidence that T.W. was far away from this conversation or to otherwise indicate that he somеhow would not be paying attention to what was said regarding an interview he was about to give with “two
{¶47} In sum, there is simply no basis in the record for the majority to conclude that a fourteen-year-old, who is the object of this type of discussion, under these circumstances would somehow not be paying attention and fail to understand that he is not under arrest and is free to leave. This case does not involve a young child who may not appreciate the naturе of the interview or what it means to be free to leave and not under arrest. In fact, throughout the interview, T.W. was able to easily follow the conversation, answer questions without any problems, repeatedly assert his innocence, and in no way seemed incapable of hearing and understanding the conversation.
{¶48} Fourth, the majority‘s conclusion that a reasonable juvenile would not feel free to stand, walk past the authoritarian figures, and out of the interview room also ignores the evidence in the record. Page testified that during the conversation she had with the family that T.W. was instructed that if he ever felt uncomfortable or wanted to leave the room, he was welcome to do that. T.W. was also told that if he needed to take a break because things got too emotional for him, he could take a break. Additionally, T.W. knew his mother and step-father
{¶49} Lastly, the majority concludes that Officer Rowe‘s statements to T.W. during the interview at eight minutes and again at twenty-seven minutes, respectively, informing T.W. for the third time that day that he was not going to be arrested and that he was free to go, was still not sufficient to convince a reasonable juvenile that he was actually free to leave the interview. Such a conclusion is pure conjecture and is not remotely supported by the record in this case.
{¶50} These statements, while in the midst of a line of questioning, were not rushed or made in a way that was confusing or misleading. They were plain and simple statements made to a fourteen-year-old who was more than capable of following along with the conversation, answering questions thoroughly, asking
{¶51} In addition, when Officer Rowe made the second statement during the interview regarding T.W.‘s custodial status, he not only told T.W. that he was free to go but that he was not going to be arrested and would return home with his parents or to school that day, or “wherever your day takes you.” He then told T.W. that he would like for him to tell him the truth today before he went to the trouble of a lie detector test in a couple of weeks. He advised him, however, that he was not threatening T.W. and was not telling T.W. that he was going to take T.W. “to jail or anything like that.” To find that a reasonable juvenile would not feel free to terminate the interview and leave after being told in no uncertain terms that he was not under arrest and free to leave prior to an interview in the company of his parents and again at two separate and distinct points in an intеrview presumes that fourteen-year-olds are incapable of discerning sincerity or
{¶52} More importantly, under the majority‘s view, an officer would have to essentially engage in a Miranda-like analysis to determine whether a juvenile is in custody, i.e. like each right of Miranda, the officer would have to ask whether the juvenile understood he was not in custody. Neither the Constitutions of the United States or Ohio nor the case law interpreting them requires that an officer make such an affirmative determination.
{¶53} In this case, the record reflects that T.W. was fourteen, that he was brought to Children Services by his mother and step-father, that the family was told that his mother could be present and that T.W. was not under arrest and was free to leave, and that his mother and step-father waited for him in the lobby while he was interviewed for just over an hour. In addition, T.W.‘s voice sounded relaxed and he appeared able to understand what was being said during the interview. T.W. was able to respond to the questions without any problems, and Officer Rowe never raised his voice or otherwise acted uncivilized towards T.W.
{¶54} More importantly, T.W. was told prior to the interview that he could take a break if he needed to do so and was tоld during the interview at two separate times in plain words that he was free to leave and was not under arrest.
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