State v. Jelks, 17-08-18 (11-10-2008)State v. Jelks, 17-08-18 (11-10-2008)
OPINION
{¶ 1} Defendant-appellant, Gloria A. Jelks (hereinafter “Jelks“), appeals the Shelby County Court of Common Pleas judgments overruling her motion to suppress statements made to the police and her motion to dismiss pursuant to
{¶ 2} On May 11, 2006, the Gas America station in Sidney, Ohio was robbed by several individuals. The case was assigned to Lt. Jerry Tangeman, a Sidney Police Department Detective. (Jan. 30, 2008 Tr. at 6). During the course of his investigation, Lt. Tangeman contacted Jelks five separate times. On Wednesday, August 22, 2007, Lt. Tangeman contacted Jelks at her residence for the purpose of scheduling an interview with regard to the robbery. (Id. at 8-9). The duration of this contact was approximately two (2) minutes and twenty-seven (27) seconds. (Id.); (State‘s Ex. 3).
{¶ 3} On Friday, August 24, 2007, Jelks arrived at the Sidney Police Department for a scheduled interview. Jelks, however, terminated the interview because she did not want to sign a waiver of rights without talking with “her friend.” (Id. at 16); (State‘s Exs. 1, 3). Jelks asked Lt. Tangeman if she could talk to him off the record, but he refused to talk with her unless she signed the waiver. Jelks left the police station without completing the interview.
{¶ 4} On Wednesday, August 29, 2007, Jelks telephoned Lt. Tangeman and informed him that she had spoken with her friend, subsequently identified as local attorney Kara Blake, and that Ms. Blake could not come to the police department that day due to a scheduling conflict. (Id. at 18).1
{¶ 5} On Wednesday, September 5, 2007, Lt. Tangeman, again, contacted Jelks for the purpose of scheduling an interview. (Id. at 19). During this conversation, Lt. Tangeman informed Jelks that the case was proceeding to the Grand Jury and that he would like to talk with her before that happened. (Id.). Jelks agreed to an interview scheduled for the next day. The conversation lasted approximately two (2) minutes and five (5) seconds. (Id.); (State‘s Ex. 3).
{¶ 6} On Thursday, September 6, 2007, Jelks arrived at the Sidney Police Department for the interview. Jelks was advised of her Miranda rights, signed a waiver of those rights, and made incriminating statements admitting to her involvement in the robbery.
{¶ 7} On October 5, 2007, the Shelby County Grand Jury indicted Jelks on one count of aggravated robbery in violation of
{¶ 8} On April 14, 2008, Jelks filed a
{¶ 9} On June 10, 2008, Jelks filed her notice of appeal and now asserts two assignments of error for our review.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED, TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANT, GLORIA A. JELKS IN OVERRULING HER MOTION TO SUPPRESS, THUS VIOLATING HER RIGHTS UNDER THE UNITED STATES AND OHIO CONSTITUTIONS.
{¶ 10} In her first assignment of error, Jelks argues that the trial court erred in overruling her motion to suppress the statements she made to the police during her September 6, 2007 interview. Specifically, Jelks argues that her statements were not voluntarily made due to several of Lt. Tangeman‘s statements, including: (1) that she was not the “big fish” or “big potato” the police were after; (2) that she could lessen the impact of her crime by cooperating; (3) that she could lessen the charges she faced if she talked with him before Grand Jury; and (4) that if she
{¶ 11} A review of the denial of a motion to suppress involves mixed questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact and, as such, is in the best position to evaluate the evidence and the credibility of witnesses. State v. Carter (1995), 72 Ohio St.3d 545, 552, 651 N.E.2d 965. When reviewing a ruling on a motion to suppress, deference is given to the trial court‘s findings of fact so long as they are supported by competent, credible evidence. Burnside, 2003-Ohio-5372, at ¶ 8. With respect to the trial court‘s conclusions of law, however, our standard of review is de novo and we must decide whether the facts satisfy the applicable legal standard. State v. McNamara (1997), 124 Ohio App.3d 706, 710, 707 N.E.2d 539.
{¶ 12} “When the admissibility of a defendant‘s confession has been challenged, the prosecution bears the burden of proving by a preponderance of the evidence that the confession was voluntary.” State v. Hazlett, 3d Dist. No. 8-06-04, 2006-Ohio-6927, ¶ 13, citing State v. Melchior (1978), 56 Ohio St.2d 15, 25, 381 N.E.2d 195; Lego v. Twomey (1971), 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.E.2d 618. In order to determine whether a pretrial statement is involuntary, a court `“should consider the totality of the circumstances, including the age, mentality, and prior criminal experience of the accused; the length, intensity, and
{¶ 13} The trial court found that Lt. Tangeman‘s statement “* * * you‘ll have to answer for your part, but you can lessen that,” made during the August 24, 2007 interview, did not overcome Jelks’ will since she declined to talk without first consulting an attorney. (Mar. 6, 2008 JE at 3-4). The trial court also found that Lt. Tangeman‘s statement that Jelks’ cooperation “could lessen the impact of what you‘re facing,” likewise, did not overborne Jelks’ will, because Tangeman also informed Jelks that he did not control the ultimate sentence. (Id. at 4).
{¶ 14} The trial court, on the other hand, found Lt. Tangeman‘s September 5, 2007 statement more troubling. Lt. Tangeman told Jelks, “* * * if the case goes to the Grand Jury before I have a chance to talk to you, then we are going to have
{¶ 15} This Court has independently reviewed the entire record in this case and finds that competent, credible evidence supports the trial court‘s findings of fact. Burnside, 2003-Ohio-5372, at ¶ 8. Furthermore, this Court agrees that the overall record in this case demonstrates that Jelks’ will was not overborne by coercive police conduct. Hazlet, 2006-Ohio-6927, at ¶ 13, citations omitted. In addition to the trial court‘s findings, the record also demonstrates that, at the time of the police interviews, Jelks: was thirty-six (36) years of age; had several prior contacts with law enforcement; could read and write English; was not under the
{¶ 16} This Court also finds that Lt. Tangeman‘s statements, including the Grand Jury remarks, were suggestions of leniency or promises regarding disposition. A suggestion of leniency, however, is not enough to invalidate a confession, but is only one factor to be considered by the court in determining whether the confession was voluntarily made. State v. Wilson (1996), 117 Ohio App.3d 290, 294, 690 N.E.2d 574, citing State v. Cooey (1989), 46 Ohio St.3d 20, 544 N.E.2d 895. “Promises that a defendant‘s cooperation will be considered in disposition of the case, or that a confession will be helpful, do not invalidate an otherwise legal confession.” Id., citing State v. Loza (1994), 71 Ohio St.3d 61,
{¶ 17} Jelks’ first assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED, TO THE SUBSTANTIAL PREJUDICE OF THE DEFENDANT-APPELLANT, IN DENYING HER MOTION TO DISMISS, PURSUANT TO OHIO CRIMINAL RULE 29, THUS VIOLATING HER RIGHTS UNDER THE OHIO CONSTITUTION.
{¶ 18} In her second assignment of error, Jelks argues that the trial court erred in denying her motion to dismiss, because her indictment failed to include the applicable mental state of recklessness pursuant to State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917. The State argues that Colon is inapplicable to the present case because Jelks was charged with an
{¶ 19} The Court in Colon found that a defendant‘s indictment on one count of robbery in violation of
{¶ 20} In this case, Jelks was indicted on one count of aggravated robbery in violation of
{¶ 21} Jelks’ second assignment of error is, therefore, overruled.
{¶ 22} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed.
WILLAMOWSKI and ROGERS, JJ., concur.