State v. BakerState v. Baker
Lyons & Lyons, Jeffrey C. Meadows, 8310 Princeton-Glendale Road, West Chester, Ohio 45069, for defendant-appellant
HENDRICKSON, J.
{¶1} Defendant-appellant, Kristina M. Baker, appeals a decision of the Mason Municipal Court partially overruling her motion to suppress evidence obtained in connection with a traffic stop. For the reasons outlined below, we affirm in part, reverse in part, and remand.
{¶2} In the early morning hours of November 23, 2008, Trooper Sidney Michael
{¶3} Trooper Steele exited his cruiser and made contact with the driver, appellant, from the passenger side of the vehicle. He tapped on the passenger window, which appellant rolled down about halfway. Trooper Steele informed appellant that he pulled her over for poor driving, at which time appellant replied “it‘s okay, I‘m a police officer.” The trooper observed an unopened 12-pack of beer on the passenger side floorboard. When he asked if appellant had been drinking, she responded in the affirmative. The trooper testified that he detected a strong odor of an alcoholic beverage on or about appellant. He also noticed that her speech was very slurred, her movements were slow, and she had a puzzled, blank look on her face. According to Trooper Steele, appellant implored him to “just take her home” a number of times. When appellant exited her vehicle, the trooper observed that she was very uneasy on her feet.
{¶4} After conducting a brief field investigation, Trooper Steele placed appellant under arrest. He transported her to the Ohio State Highway Patrol Post in Lebanon, where she consented to a breath alcohol content test (“BAC test“). The result of the test indicated that the sample provided by appellant contained 0.258 grams of alcohol per 210 liters of breath.
{¶5} Appellant was charged with one count of operating a vehicle while under the influence of alcohol (hereinafter “OVI impaired“) in violation of
{¶6} On February 6, 2009, appellant moved to suppress the evidence obtained against her in connection with the traffic stop. Following a hearing, the trial court partially granted and partially overruled the motion. Thereafter, appellant pled no contest to the OVI blood alcohol content charge in exchange for the dismissal of the OVI impaired and marked lane violation charges. The trial court entered a finding of guilty and sentenced appellant accordingly. Appellant timely appeals, raising three assignments of error.
{¶7} Assignment of Error No. 1:
{¶8} “THE TRIAL COURT ERRED IN GRANTING STATE‘S MOTION TO QUASH APPELLANT‘S SUBPOENA DUCES TECUM FOR THE BREATH INSTRUMENT AND ITS’ [SIC] RECORDS.”
{¶9} On February 5, 2009, appellant served Trooper Steele with a subpoena duces tecum. The subpoena commanded Trooper Steele to appear in the Mason Municipal Court on the date set for a hearing on appellant‘s motion to suppress and to bring the following items with him: “The BAC DataMaster serial #130675, along with all operator‘s manuals, [the] Department of Health DataMaster Training Manual, and ALL maintenance records for said instrument.” (Emphasis in original.)
{¶10} On the morning of February 17, 2009, the day of the suppression hearing, the state filed a written motion to quash appellant‘s subpoena duces tecum. The state argued that it was unreasonable to request that the BAC DataMaster be brought to the municipal court because the absence of the machine would prohibit the Ohio State Highway Patrol from testing other suspects. In addition, the state was concerned that the machine could be damaged during transport. The state also indicated that it was “willing to satisfy any
{¶11} At the commencement of the suppression hearing, defense counsel attempted to argue in favor of appellant‘s subpoena duces tecum. Rather than permitting arguments on the subject, the trial court indicated that it would review the state‘s motion to quash and issue a ruling at a later time. The court then proceeded with the hearing on appellant‘s motion to suppress. At the close of the hearing, defense counsel again revisited the topic of the subpoena duces tecum and expressed his desire to argue against the state‘s motion to quash at that time. Instead, the trial court instructed the parties to submit written arguments addressing the issues raised at the suppression hearing.
{¶12} In a decision rendered on February 27, 2009, the trial court granted the state‘s motion to quash appellant‘s subpoena duces tecum with respect to the BAC DataMaster. The court expressly limited its decision to the BAC machine, but did not directly address the subpoena duces tecum regarding the documentary evidence demanded by appellant.
{¶13} In her first assignment of error, appellant argues that the trial court improperly granted the state‘s motion to quash her subpoena duces tecum. Appellant concedes that she filed a boilerplate motion to suppress, and insists that the trial court‘s decision quashing the subpoena undermined her effort to raise the burden on the state by utilizing formal discovery.
{¶14} A court may require the production of books, papers, documents, or other objects through its subpoena power. City of Findlay v. Reichenbach (Dec. 29, 1992), Hancock App. No. 5-92-30, 1992 WL 389991 at * 2. Under
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{¶16} After reviewing the circumstances surrounding the present appeal, we find a case issued by the Ohio Supreme Court to be controlling over this issue. In the case of In re Subpoena Duces Tecum Served Upon Atty. Potts, 100 Ohio St.3d 97, 2003-Ohio-5234, the high court reviewed a lower court decision finding attorney John Potts in contempt of court for failing to comply with a subpoena duces tecum. The subpoena commanded Potts to appear as a state‘s witness at a trial featuring one of Potts’ clients as the defendant. The defendant was charged with multiple counts of money laundering. The subpoena commanded Potts to convey to trial certain documents pertaining to legal fees paid to him by the defendant over a specified period of time.
{¶17} Potts filed motions to quash the state‘s subpoena duces tecum on behalf of himself and his client. In support, Potts argued that the state failed to show that the documents were relevant or unavailable, that the state did not establish that an in-camera review of the documents was necessary, and that the documents were privileged. The trial court subsequently ordered Potts to bring a portion of the requested documents for an in-camera review. Potts appeared on the schedule date without the documents. He was found guilty of criminal contempt and fined. The court of appeals upheld the judgment ordering the
{¶18} After accepting a discretionary appeal, the Ohio Supreme Court reversed the decision of the appellate court. Noting the substantive uniformity between
{¶19} In deciding to reverse the lower court‘s ruling, the Ohio Supreme Court determined that the lower court did not properly conduct the requisite analysis in disposing of Potts’ motions to quash. The high court explicitly adopted a four-part test enunciated by the United States Supreme Court in United States v. Nixon (1974), 418 U.S. 683, 94 S.Ct. 3090, for determining whether a subpoena duces tecum is “unreasonable or oppressive” within the meaning of
{¶20} “At the hearing, which may be held in camera, the proponent of the subpoena must demonstrate that the subpoena is not unreasonable or oppressive by showing ‘(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general “fishing expedition.” ’ ” In re Subpoena Duces Tecum Served Upon Atty. Potts at ¶16, quoting Nixon at 699-700. See, also, State v. Geis (1981), 2 Ohio App.3d 258, 260.
{¶21} Pursuant to
{¶22} The Ohio Supreme Court further decreed that the proponent of a subpoena duces tecum bears the burden to demonstrate that the subpoena is not unreasonable or oppressive by demonstrating that the four elements in the Nixon test are satisfied. Id. at ¶16. Due to the use of the coordinating conjunction “and” in the Nixon Court‘s formulation of the test, all four elements must be met in order for the proponent of the subpoena duces tecum to avoid a motion to quash. Cf. State v. Williams, Fayette App. No. CA2005-11-030, 2006-Ohio-5660, ¶21.
{¶23} In the present matter, the record indicates that the trial court neither conducted a separate evidentiary hearing on the state‘s motion to quash appellant‘s subpoena duces tecum, nor solicited evidence from appellant, the proponent of the subpoena, on the four Nixon elements. In view of the high court‘s directives in the Potts decision, we find that the trial court erred in ruling on the state‘s motion to quash.
{¶24} Appellant‘s first assignment of error is sustained.
{¶25} Assignment of Error No. 2:
{¶26} “THE TRIAL COURT ERRED BY DENYING APPELLANT‘S MOTION TO SUPPRESS.”
{¶27} Appellant contends that the results of the field sobriety tests should have been
{¶28} Appellate review of a ruling on a motion to suppress evidence presents a mixed question of law and fact. State v. Long (1998), 127 Ohio App.3d 329, 332. The trial court, as the trier of fact, is in the best position to resolve questions of fact and evaluate witness credibility. State v. Mai, Greene App. No. 2005-CA-115, 2006-Ohio-1430, ¶9. A reviewing court must accept the trial court‘s findings of fact if they are supported by competent, credible evidence. Id. The appellate court then determines as a matter of law, without deferring to the trial court‘s conclusions, whether the trial court applied the appropriate legal standard. Id.
{¶29} Our resolution of appellant‘s second assignment of error necessarily invokes consideration of the respective burdens on the parties when a motion to suppress evidence is filed in an OVI case. This court has repeatedly attempted to refine the law on this subject in the interests of expediency and fairness.
{¶30}
{¶32} This court has encouraged criminal defendants to engage in formal discovery to raise the slight burden on the state generated by a boilerplate motion to suppress. See id. at ¶13. See, also, State v. Eyer, Warren App. No. CA2007-06-071, 2008-Ohio-1193, ¶12; Plunkett at ¶26; State v. Embry, Warren App. No. CA2003-11-110, 2004-Ohio-6324, ¶28. Indeed, where timely and efficiently utilized, discovery can act as a catalyst for stimulating a more meaningful and revealing suppression hearing. A defendant may employ formal discovery to gather facts to raise the state‘s burden before the suppression hearing by filing a more specific motion to suppress. Embry at ¶28. Alternatively, a defendant may use discovery to gather facts to raise the state‘s burden by way of cross-examination of the state‘s witnesses at the suppression hearing itself. Id. at ¶27. See, also, Plunkett at ¶26.
{¶33} Regardless of which of these methods is chosen, the state has an affirmative
{¶34} The procedure we advocate in these cases is designed to narrow down the fact-specific issues facing a trial court, ideally before the hearing on a motion to suppress evidence. As reiterated above, we have placed the impetus on the defendant to raise the burden on the state imposed by a boilerplate motion to suppress, preferably by engaging in formal discovery. When a defendant avails herself of this tool and discovery conflicts arise, the state cannot sit idly by and expect the defendant to be the sole actor in resolving such conflicts. Both sides must put forth a good faith effort to resolve discovery conflicts in a reasonable and timely manner. Where the parties cannot reconcile discovery disputes, it is incumbent upon them to inform the trial court in an effort to reach a resolution, if possible, before the suppression hearing. Ways to inform the trial court of discovery conflicts include, but are not limited to, a defendant filing a motion to compel discovery or the state filing a motion to exclude evidence.
{¶35} We now turn to the merits of the present matter. In order for the results of standardized field sobriety tests to be admissible, the state must prove by clear and
{¶36} First, appellant insists that the results of the HGN test should have been suppressed because the rotating overhead lights on Trooper Steele‘s police cruiser interfered with the test. Appellant‘s boilerplate motion to suppress generally referenced the rotating cruiser lights, stating: “[T]he test was administered in conditions that interfered with the defendant‘s performance of the Horizontal Gaze Nystagmus; namely; the defendant was facing rotating lights, strobe lights and traffic passing in close proximity, and in dusty and windy conditions.” The suppression motion did not enumerate facts specific to appellant‘s case regarding Trooper Steele‘s administration of the HGN test to appellant. In addition, appellant did not specifically address this issue at the suppression hearing by questioning Trooper Steele about it on cross-examination. Thus, the slight burden imposed on the state by appellant‘s boilerplate motion to suppress regarding this issue was not heightened.
{¶37} Appellant belatedly raises specific facts about the cruiser lights for the first time on appeal, insisting that she was not facing away from the rotating cruiser lights whenever Trooper Steele brought the stimulus to her left side. Appellant notes that the 2006 NHTSA Student Manual cautions an officer conducting the HGN test to “always face a suspect away from rotating lights, strobe lights and traffic in close proximity.” Due to her allegation that the cruiser lights were visible in her periphery during parts of the test, appellant concludes that the state failed to prove by clear and convincing evidence that the HGN was administered in substantial compliance with the 2006 NHTSA standardized procedures.
{¶39} Next, appellant protests that the trial court erred in denying her motion to suppress the results of the walk-and-turn test. Immediately prior to the walk-and-turn test, Trooper Steele bypassed the one-legged stand test after appellant informed him she had bad knees. The trooper then attempted to conduct the walk-and-turn test. The test was never actually administered, however, because appellant fell twice while in the starting position. Even so, appellant argues that the trial court erred in declining to suppress the results of the walk-and-turn test because Trooper Steele failed to adapt the test for her knee problems, as required by NHTSA.
{¶40} We find appellant‘s arguments and the trial court‘s rulings on these two field sobriety tests to be curious. The trial court expressly suppressed the results of both the one-legged stand and walk-and-turn tests, citing State v. Lange, Butler App. No. CA2007-09-232, 2008-Ohio-3595, ¶16 (upholding the suppression of the results of a walk-and-turn field sobriety test where the administering officer failed to consider or adapt the test for the defendant‘s leg problems). However, as the record indicates, neither of these tests was actually administered. Technically, then, there were no results and nothing to suppress
{¶41} Even where the results of field sobriety tests are properly suppressed, this does not prohibit a police officer from testifying about his observations of a suspect while administering or attempting to administer field sobriety tests. State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, ¶15. NHTSA dictates the manner in which a police officer is to conduct field sobriety tests. NHTSA does not, however, constrain an officer‘s observations of a suspect during field sobriety tests. State v. Johnson, Columbiana App. No. 05 CO 67, 2007-Ohio-602, ¶25. This is because “observations are within the province of ordinary persons testifying as lay witnesses and should be admissible evidence regarding whether [a defendant] appeared intoxicated.” State v. Kirby, Butler App. No. CA2002-06-136, 2003-Ohio-2922, ¶17. It follows that the state had no burden to show substantial compliance with NHTSA standards regarding Trooper Steele‘s observations while attempting to conduct the one-legged stand and walk-and-turn tests with appellant.
{¶42} Next we turn to appellant‘s argument challenging the BAC test. In order for the results of a BAC test to be admissible, the state must prove that the instrument was in proper working order and that the officer who administered the test met the requisite qualifications. City of Mentor v. Giordano (1967), 9 Ohio St.2d 140, paragraph six of the syllabus. The state must also establish that the BAC test was administered in substantial compliance with the applicable ODH regulations. City of Defiance v. Kretz (1991), 60 Ohio St.3d 1, 3. On appeal, appellant argues that the state did not establish that the BAC DataMaster was in proper working order. Appellant also contends that, as a result of the quashed subpoena, the state did not meet its burden to show substantial compliance with the ODH regulations requiring three years of recordkeeping regarding the breath instrument records.
{¶43} Our decision to sustain appellant‘s first assignment of error necessarily precludes us from addressing the merits of the trial court‘s decision declining to suppress the
{¶44} In sum, we conclude that the HGN, the only viable field sobriety test, was conducted in substantial compliance with NHTSA standards. Insofar as appellant‘s second assignment of error challenges the trial court‘s decision denying her motion to suppress the results of the field sobriety tests, the assignment is overruled. The portion of the second assignment of error which disputes the trial court‘s refusal to suppress the results of the BAC test is sustained to the extent that the trial court‘s decision on the BAC test was premature in view of our disposition of appellant‘s first assignment of error.
{¶45} Appellant‘s second assignment of error is overruled in part and sustained in part.
{¶46} Assignment of Error No. 3:
{¶47} “THE TRIAL COURT ERRED IN DENYING APPELLANT‘S MOTION TO SUPPRESS AS TO THE VALIDITY OF THE STOP AND ARREST.”
{¶48} Appellant maintains that the trial court erred in failing to grant her motion to suppress because Trooper Steele did not have probable cause to initiate the traffic stop or to arrest her for OVI.
{¶49} It is well settled that there are two types of traffic stops, each requiring a
{¶50} In the present matter, Trooper Steele testified that he observed appellant‘s vehicle while he was on patrol and that her vehicle appeared to have come to a complete stop in the middle of the road. When he drew near to the vehicle, he noticed that it was moving but opined that its speed was rather slow for the area, pacing it at about 20 m.p.h. in a 45 m.p.h. zone. Appellant insists that her slow speed was reasonable in view of the fact that she was navigating a winding road in darkness, and notes that slow speed does not constitute a violation of traffic laws. Contrary to the trooper‘s testimony, appellant contends that the video from the trooper‘s cruiser camera demonstrates prudent driving and no traffic violations on her part. Appellant concludes that the totality of circumstances do not establish probable cause to support Trooper Steele‘s initiation of the traffic stop.
{¶51} Despite the alleged discrepancy between Trooper Steele‘s testimony and the cruiser video, we find that the totality of the circumstances support that the trooper had probable cause to initiate a stop of appellant‘s vehicle. “Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.” State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, ¶73, quoting Henry v. United States (1959), 361 U.S. 98, 102, 80 S.Ct. 168. On direct examination at the
{¶52} With regard to a traffic stop, the focus is not on whether an officer could have stopped the suspect because a traffic violation had in fact occurred, but whether the arresting officer had probable cause to believe a traffic violation had occurred. State v. Pfeiffer, Butler App. No. CA2003-12-329, 2004-Ohio-4981, ¶22-23. Trooper Steele‘s testimony establishes that he believed appellant committed several marked lane violations. Accordingly, the stop was not unreasonable under the Fourth Amendment, even if the trooper “had some ulterior motive for making the stop, such as a suspicion that the violator was engaging in more nefarious criminal activity.” Dayton v. Erickson, 76 Ohio St.3d 3, 1996-Ohio-431, syllabus.
{¶53} We also find that there was overwhelming evidence establishing probable cause in support of appellant‘s arrest for OVI. Trooper Steele testified that he based appellant‘s arrest on his observations. As stated, he observed appellant commit several marked lane violations and almost hit another vehicle. Appellant rolled the car window down just halfway when the trooper approached, which could have been construed as suspicious. Other observations relayed by Trooper Steele were the unopened 12-pack of beer in the car, appellant‘s admission that she had been drinking, the strong odor of an alcoholic beverage on or about appellant, as well as appellant‘s exceedingly slurred speech, slow movements, and puzzled facial expression. In addition, appellant repeatedly asked if he would just take her home. Trooper Steele also testified that appellant was very unsteady on her feet when
{¶54} In addition to the above evidence, the record contains Trooper Steele‘s observations during the field sobriety tests. While administering the HGN, the trooper noticed that appellant was weaving back and forth towards him and was unable to stand still. The trooper had to have appellant place her hands on her cheeks to help keep her from moving her head during the test. As stated, Trooper Steele testified that appellant completed the HGN test, that he followed the proper procedure for the test, and that appellant demonstrated six out of six clues on the test. While attempting to begin the walk-and-turn test, appellant fell twice and the test was not completed. After falling the second time, appellant looked at Trooper Steele and said “take me in.”
{¶55} Even without considering the results of the BAC test, we conclude that the trial court did not err in denying appellant‘s motion to suppress because, in view of the totality of the circumstances, Trooper Steele had probable cause to initiate the traffic stop and to arrest appellant for OVI.
{¶56} Appellant‘s third assignment of error is overruled.
{¶57} The portion of the trial court‘s decision denying appellant‘s motion to suppress the results of the HGN test is affirmed. The portion of the trial court‘s decision declining to suppress the results of the BAC test is reversed. Appellant‘s conviction is vacated and this matter is remanded for the trial court to conduct an evidentiary hearing on the state‘s motion to quash appellant‘s subpoena duces tecum. At the hearing, appellant, as the proponent of the subpoena duces tecum, bears the burden to convince the court that the information sought in the subpoena satisfies all four elements of the Nixon test. In re Subpoena Duces Tecum Served Upon Atty. Potts, 2003-Ohio-5234 at ¶16.
{¶58} Following the Nixon hearing, the trial court shall issue a new decision on the state‘s motion to quash appellant‘s subpoena duces tecum. If the trial court grants the
{¶59} Judgment affirmed in part, reversed in part, and remanded.
YOUNG, P.J., and BRESSLER, J., concur.