State v. JobeState v. Jobe
Spiros P. Cocoves, for appellant.
* * * * *
SINGER, J.
{¶ 1} Appellant appeals his conviction for murder following a jury trial in the Lucas County Court of Common Pleas. For the reasons that follow, we affirm, in part, and reverse, in part.
{¶ 3} Shortly before 2:00 a.m., the officers observed two males who appeared to be juveniles walking down the street. One of the two was on a cell phone. The officers pulled up next to the two youths and asked what they were doing. In the meantime, the youth on the cell phone began describing the officers SUV to whomever he was speaking. The officers later testified that they suspected the two were on the street to meet someone for a drug deal.
{¶ 4} When the detectives left their car and identified themselves as police, one of the men bolted and ran. Two of the detectives pursued him, leaving Detective Dressel with the other suspect. The pursuing officers later testified that while they were running they heard a rapid series of gunshots, perhaps nine. One of the detectives broke off pursuit and returned to the SUV, where he found Detective Dressel on the ground firing at the fleeing suspect. Detective Dressel told the other detective that he had been shot. Detective Dressel would die of his wound a short time later.
{¶ 5} Police captured the first suspect to run, 19-year-old Sherman Powell. Powell would later identify his companion that night as “Bobby White,” the street name for appellant, 15-year-old Robert Jobe.
{¶ 6} Police went to appellant‘s home and while they were there appellant‘s mother received a call from him. One of the officers spoke to appellant, explaining to
{¶ 7} When police attempted to question appellant, he requested a lawyer even before detectives began to read him his Miranda rights. At that point, the interview was terminated. A short time later, appellant was permitted to visit with his mother. Following this conversation, appellant agreed to waive his Miranda rights and be interviewed. Appellant would eventually tell police that he had shot Detective Dressel once with a .38 caliber Smith & Wesson revolver that appellant carried that night.
{¶ 8} Appellant was arrested and, following a hearing in the Lucas County Court of Common Pleas, Juvenile Division, was certified to be tried as an adult. Following certification, a Lucas County grand jury named appellant in a two count indictment, charging him with aggravated murder and murder, both counts carrying a firearm specification.
{¶ 9} Appellant was tried before a jury and found guilty of murder with a firearm specification. Following a presentence investigation, the court imposed upon appellant a sentence of 15 years to life incarceration, with an additional consecutive three-year term for the firearm specification. The court also ordered that appellant be responsible for the costs of his prosecution, confinement and appointed attorney fees.
{¶ 10} From this judgment of conviction, appellant now brings this appeal. Appellant sets forth the following four assignments of error:
{¶ 12} “Assignment of Error Number Two: In the alternative to Assignment of Error Number One, the juvenile court abused its discretion in finding Mr. Jobe is not amenable to treatment in the juvenile system by failing to consider all relevant evidence in violation of his due process rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and the applicable portions of the Ohio Constitution.
{¶ 13} “Assignment of Error Number Three: The trial court erred to the prejudice of Mr. Jobe by denying his motion to suppress statements made to law enforcement officers in violation of his due process rights under the Fifth, Sixth, and Fourteenth amendments to the United States Constitution and the applicable portions of the Ohio Constitution.
{¶ 14} “Assignment of Error Number Four: The trial court erred to the prejudice of Mr. Jobe when it ordered him to pay unspecified costs, including court appointed fees, without first determining the ability to pay those costs.”
I. Amenability
{¶ 15} In his first two assignments of error, appellant asserts that the trial court abused its discretion when finding him not amenable to rehabilitation in the juvenile
{¶ 16}
{¶ 17} “In any proceeding in which transfer of a case for criminal prosecution is permitted, but not required, by statute, and in which probable cause is found at the preliminary hearing, the court shall continue the proceeding for full investigation. The investigation shall include a mental examination of the child by a public or private agency or by a person qualified to make the examination. When the investigation is completed, an amenability hearing shall be held to determine whether to transfer jurisdiction. The criteria for transfer shall be as provided by statute.”
{¶ 18} The criteria for a non-mandatory transfer are articulated in
{¶ 20} “(1) The victim of the act charged suffered physical or psychological harm, or serious economic harm, as a result of the alleged act.
{¶ 21} “(2) The physical or psychological harm suffered by the victim due to the alleged act of the child was exacerbated because of the physical or psychological vulnerability or the age of the victim.
{¶ 22} “(3) The child‘s relationship with the victim facilitated the act charged.
{¶ 23} “(4) The child allegedly committed the act charged for hire or as a part of a gang or other organized criminal activity.
{¶ 24} “(5) The child had a firearm on or about the child‘s person or under the child‘s control at the time of the act charged, the act charged is not [carrying a concealed weapon], and the child, during the commission of the act charged, allegedly used or displayed the firearm, brandished the firearm, or indicated that the child possessed a firearm.
{¶ 25} “(6) At the time of the act charged, the child was awaiting adjudication or disposition as a delinquent child, was under a community control sanction, or was on parole for a prior delinquent child adjudication or conviction.
{¶ 26} “(7) The results of any previous juvenile sanctions and programs indicate that rehabilitation of the child will not occur in the juvenile system.
{¶ 28} “(9) There is not sufficient time to rehabilitate the child within the juvenile system.”
{¶ 29} The factors favoring amenability are stated in
{¶ 30} “(1) The victim induced or facilitated the act charged.
{¶ 31} “(2) The child acted under provocation in allegedly committing the act charged.
{¶ 32} “(3) The child was not the principal actor in the act charged, or, at the time of the act charged, the child was under the negative influence or coercion of another person.
{¶ 33} “(4) The child did not cause physical harm to any person or property, or have reasonable cause to believe that harm of that nature would occur, in allegedly committing the act charged.
{¶ 34} “(5) The child previously has not been adjudicated a delinquent child.
{¶ 35} “(6) The child is not emotionally, physically, or psychologically mature enough for the transfer.
{¶ 36} “(7) The child has a mental illness or is a mentally retarded person.
{¶ 37} “(8) There is sufficient time to rehabilitate the child within the juvenile system and the level of security available in the juvenile system provides a reasonable assurance of public safety.”
{¶ 39} In a non-mandatory certification, the decision to bind over a juvenile to be tried as an adult rests within the sound discretion of the juvenile court and will not be reversed absent an abuse of that discretion. State v. Wilson (May 19, 2000), 6th Dist. No. L-99-1124; State v. Carmichael (1973), 35 Ohio St.2d 1, paragraph two of the syllabus. An abuse of discretion is more than an error of judgment or a mistake of law, the term connotes that the court‘s attitude is arbitrary, unreasonable or unconscionable. State v. Adams (1970), 62 Ohio St.2d 151, 157.
{¶ 40} Testimony at the amenability hearing portrayed appellant as a study in contradiction. His teachers in juvenile detention described him as courteous, respectful and anxious to please. To some extent, his probation officers agreed, but suggested that such good behavior lasted only so long as appellant was in their presence. Other witnesses told of a youth who, after the eighth grade, simply refused ever again to attend school, who became a drug user and, in his fourteenth year, a drug dealer.
{¶ 41} According to testimony at the amenability hearing, a year before Detective Dressel‘s shooting appellant was charged with being unruly after having been arrested in a drug house. Appellant was directed to a diversion program which he failed to complete. In June and again in August 2006, appellant was arrested and adjudicated delinquent for drug possession.
{¶ 43} Following a search, the probation officer found appellant at a friend‘s house. When the probation officer asked appellant to accompany him, appellant went to collect his coat, but instead left by a side door. Appellant disappeared for nearly two months.
{¶ 44} On December 29, 2006, police responded to a complaint of a young man shooting a pistol into the air outside a carryout store. When police arrived they found appellant, intoxicated, attempting to hide a .22 caliber revolver in the store. When police attempted to arrest appellant, he resisted to the point that it required four officers to subdue him. Appellant was charged with carrying a concealed weapon and several misdemeanors. Appellant was again adjudicated delinquent and placed on level II
{¶ 45} Pursuant to
{¶ 46} Psychiatrist Dr. Thomas Sherman of the Court Diagnostic and Treatment Center testified that he found appellant immature and unsophisticated, but without signals that appellant was a psychopathic offender who is unlikely to change. Dr. Sherman opined that appellant was amenable to rehabilitation in the juvenile system.
{¶ 47} Psychologist Dr. Wayne Graves agreed, noting that he believed that appellant had a significant, but largely unaddressed, drug problem. Dr. Graves testified that he concurred with Dr. Sherman that appellant had a conduct disorder which could be addressed in the juvenile system. Moreover, Dr. Graves concluded that appellant was not mature enough to be transferred to the adult system.
{¶ 48} Psychologist Dr. David Connell disagreed with his colleagues, finding that appellant exhibited a maturity in street sense beyond his years. Moreover, according to Dr. Connell, appellant exhibited psychopathic tendencies which made rehabilitation unlikely.
{¶ 50} After the hearing, the court issued its judgment, transferring the case for adult prosecution. The court stated that it found the
{¶ 51} “In making this finding the Court finds that [R.C.] 2152.12(D)(1) applies, i.e., Officer Dressel died as the result of a gunshot wound. (4) applies as is evidenced by the fact that the alleged incident took place at about 2:00 am on a street where [appellant] was allegedly engaged in drug selling activity which the Court finds is loosely organized criminal activity. (5) applies because a firearm was used by [appellant.] (6) applies because [appellant] at the time of the incident was on Juvenile Probation. (7) applies because [appellant] has willingly disobeyed the Court‘s orders and the terms of his probation. (8) applies notwithstanding the expert opinion of two mental health professionals (a third said that he was mature enough for transfer.) The Court finds, regarding (8), that [appellant‘s] ability to cope when on the streets selling drugs, on the run from probation supervision for at least eight weeks, and when in detention, constitutes a level of maturity that permits the Court to order his transfer. (9) applies and the Court finds that, in light of the totality of the circumstances in the case and [appellant‘s] willful refusal to correct his attitude, values, beliefs and behavior when
{¶ 52} “The Court further finds that community safety from this [appellant] may require that he be subject to adult sanctions.
{¶ 53} “The Court further finds, based on the findings relative to [R.C.] 2152.12(D), that none of the factors in [R.C.] 2152.12(E) apply.”
{¶ 54} Appellant insists that, because the trial court summarily rejected the
{¶ 55} Moreover, appellant maintains, a court binding over a juvenile to be tried as an adult should be required to state with specificity its findings as to the existence of any mitigating factors in the same manner as is required by
{¶ 56} Had the legislature intended to make the analysis required for a juvenile bindover the same as that for imposition of the death penalty, as
{¶ 57} The only requirement that the legislature did impose with respect to the juvenile court articulating its analysis is contained in the last sentence of
{¶ 58} In this matter, in its judgment entry, the court found that seven of the nine factors favoring transfer were applicable and that none of the mitigating factors were applicable. Even if there was evidence in the hearing by which the court could have found that the crime was victim induced, or that appellant was not the principal actor or that appellant was not psychologically mature enough for transfer, it is clear from the record and the judgment entry that the court considered the evidence on the
II. Suppression
{¶ 60} Following his surrender, police transported appellant to police headquarters where he was placed in an interrogation room equipped for videotaping. As recordings made that day clearly show, appellant requested an attorney even before detectives began to read him his rights as mandated by Miranda v. Arizona (1966), 384 U.S. 436. In conformity with Miranda, at 474, once appellant invoked his right to counsel, police ceased questioning. Appellant was removed to a holding cell.
{¶ 61} A short time later, appellant‘s mother arrived and was permitted to speak with appellant privately. Following this conversation, appellant asked to again speak with detectives. With his mother in the room, detectives again advised appellant of his Miranda rights. Appellant acknowledged that he understood his rights and executed a written waiver. Appellant eventually admitted to detectives that he had shot Detective Dressel.
{¶ 62} After indictment, appellant moved to suppress his statements during police questioning. Appellant insisted that, after he had unambiguously requested an attorney, police persuaded his mother that things would go easier on him if he made a statement. Appellant argued that police co-opted appellant‘s mother as their agent to deliver
{¶ 63} Additionally, appellant maintained, when he requested an attorney, police had an obligation to get one for him. He noted that the public defender‘s office was nearby and staffed with attorneys when he made his request. With no more than a telephone call, police could have summoned an attorney and had counsel present to advise him prior to his waiver. With such counsel he would likely not have confessed.
{¶ 64} The trial court held an extensive hearing on appellant‘s motion, eventually finding it not well-taken. In his third assignment of error, appellant asserts that this decision was erroneous.
{¶ 65} When considering a motion to suppress, the trial court assumes the role of the trier of fact and is, therefore, in the best position to resolve factual questions and evaluate the credibility of a witness. State v. Mills (1992), 62 Ohio St.3d 357, 366. Consequently, in its review, an appellate court must accept the trial court‘s findings of fact if they are supported by competent, credible evidence. State v. Guysinger (1993), 86 Ohio App.3d 592, 594. Accepting the facts as found by the trial court as true, the appellate court must then independently determine as a matter of law, without deferring to the trial court‘s conclusions, whether the facts meet the applicable legal standard. State v. Klein (1991), 73 Ohio App.3d 486, 488.
{¶ 67} Once a suspect invokes his or her right to counsel, police must cease interrogation and may make no further attempts at questioning. The suspect “* * * is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police,” Edwards v. Arizona (1981), 451 U.S. 477, 484-485, and there are indices that the suspect subsequently voluntarily waived his or her rights. Oregon v. Bradshaw (1983), 462 U.S. 1039, 1045, see, also, State v. Knuckles (1992), 65 Ohio St.3d 494, paragraph one of the syllabus. A waiver obtained by intimidation, coercion or deceit by police is not voluntary. Moran v. Burbine (1986), 475 U.S. 412, 421.
{¶ 68} Nevertheless, the prohibition against further questioning after invocation of the right to counsel goes to government action only. There is no prohibition that would prevent friends and family from attempting to persuade a suspect to talk to police. See
{¶ 69} Appellant crafts a scenario wherein police, thwarted by appellant‘s invocation of his right to counsel, sent for appellant‘s mother and enlisted her in an effort to get appellant to talk. In this circumstance, appellant insists, his mother became an agent of police for the purpose of persuading him to rescind his request for counsel and to submit to further interrogation. Appellant argues that police effected this plan by promising appellant‘s mother that they would “go easy” on him if he talked.
{¶ 70} As the trial court noted, the only evidence supporting appellant‘s version of these events is the suppression hearing testimony of his mother. Every police officer who testified denied making any promises. There is nothing on the videotape of appellant‘s interview to suggest that there were any promises made. Indeed, after his confession and alone in the interrogation room, appellant‘s mother approached him and asked if telling the truth didn‘t feel better. In our view, on this evidence, the trial court properly found that appellant‘s mother was not an agent of the state and appellant‘s decision to resume the interview without counsel was voluntary.
{¶ 71} Appellant alternatively claimed that police deliberately delayed obtaining a public defender for him. Had such counsel arrived in a timely manner, appellant insists, counsel would have advised against further submission to questioning.
{¶ 72} Here, as in the trial court, appellant fails to provide any authority that would suggest that police have any duty to obtain counsel for a defendant within a
III. Costs
{¶ 73} The trial court found that appellant had, “* * * or reasonably may be expected to have, the means to pay all or part of the applicable costs of supervision, confinement, assigned counsel, and prosecution, as authorized by law. [Appellant] ordered to reimburse the State of Ohio and Lucas County for such costs. * * * [Appellant] further ordered to pay the cost assessed pursuant to
{¶ 74} In his fourth assignment of error, appellant asserts that the imposition of these costs, without a hearing or evidence of his ability to pay appearing elsewhere in the record, is erroneous. Appellant concedes that
{¶ 76} A sentencing court may waive these costs for an indigent defendant, but, to preserve the issue, a motion for a waiver of costs must be made at the time of sentencing. State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, paragraph two of the syllabus; State v. Phillips, supra, ¶ 14. In this matter, there is nothing in the record to suggest that appellant moved to waive the
{¶ 77}
{¶ 78}
{¶ 79}
{¶ 80} The recovery of appointed counsel fees is governed by
{¶ 81} Although the trial court entered the requisite findings in this matter, no hearing was held on appellant‘s ability to pay and the state essentially concedes that, except for an affidavit of indigency, there was no evidence presented after the bind-over1 of appellant‘s ability to pay. The state suggests that such evidence might be found in the non-disclosable portions of the presentence investigation report prepared for sentencing.
{¶ 82} We have carefully examined the presentence investigation report and find the only information contained therein, material to this issue, are the facts that appellant completed the eighth grade, did not obtain a GED and has never held a job. We fail to see how any of this information would weigh in favor of appellant‘s ability to pay for either his cost of confinement or his appointed counsel.
{¶ 83} Absent evidence in the record supporting the trial court‘s finding that appellant had, or could reasonably in the future be expected to have, the ability to pay the cost of his confinement or his appointed attorney fees, appellant‘s fourth assignment is found well-taken to the extent that these fees were imposed.
{¶ 84} On consideration whereof, the judgment of the Lucas County Court of Common Pleas is affirmed, in part, and reversed, in part. The portion of the court‘s
JUDGMENT REVERSED, IN PART, AND AFFIRMED, IN PART.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J. _______________________________
Richard W. Knepper, J. JUDGE
CONCUR.
_______________________________
JUDGE
Judge Richard W. Knepper, retired, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.