STATE OF OHIO v. ANTONIOS E. LASTER
Appellate Case No. 27762
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
September 7, 2018
[Cite as State v. Laster, 2018-Ohio-3601.]
Triаl Court Case No. 2016-CR-1814 (Criminal Appeal from Common Pleas Court)
Rendered on the 7th day of September, 2018.
MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorney, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
J. DAVID TURNER, Atty. Reg. No. 0017456, P.O. Box 291771, 101 Southmoor Circle NW, Kettering, Ohio 45429 Attorney for Defendant-Appellant
WELBAUM, P.J.
{¶ 2} Laster contends that the trial court‘s decision on his motion to suppress is voidable, and should be voided, because the certificate of assignment from the Supreme Court of Ohio did not authorize the visiting judge to preside over the suppression hearing. In addition, Laster contends that the trial court erred in overruling his suрpression motion because he was denied his right to be free from unreasonable searches and seizures and to be free from self-incrimination during custodial interrogation.
{¶ 3} For the reasons discussed below, we conclude that no prejudicial error occurred in the trial court, concerning either the assignment of the trial judge or the decision overruling the motion to suppress. Accordingly, the judgment of the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 4} On August 18, 2016, the State filed an indictment charging Laster with one сount of improper handling of a firearm in a motor vehicle (loaded/no license), and one count of carrying a concealed weapon (loaded/ready at hand), both fourth-degree felonies. After pleading not guilty, Laster filed a motion to suppress on November 15, 2016, and the trial court scheduled a hearing for December 9, 2016.
{¶ 5} A visiting judge heard the evidence and filed a decision on December 16,
II. Failure to Correctly Appoint Visiting Judge
{¶ 6} Laster‘s First Assignment of Error states that:
The Certificate of Assignment From Chief Justice O‘Conner Assigning the Honorable William H. Wolff, Jr., to Preside for the Period of August 8, 2016 through August 12, 2016 Did Nоt Authorize Judge Wolff to Preside Over the Suppression Hearing Held December 9, 2016 and Therefore Renders the Decision Overruling the Motion to Suppress Voidable.
{¶ 7} Under this assignment of error, Laster notes that the suppression hearing began at 1:30 p.m. on December 9, 2016, prior to the filing of the Supreme Court of Ohio‘s certificate of assignment of Judge Wolff later that day. In addition, the date on which the hearing was held was outside the time period that the certificate filed in the trial court speсified for the assignment. Laster acknowledges that he failed to object to the fact that Judge Wolff presided over the suppression hearing. However, Laster contends that trial counsel could not possibly have objected because the certificate was not journalized until after 3:00 p.m. on the same day that the hearing was held. Laster further argues that even if he were considered to have waived the point, we should conclude that plain
{¶ 8}
{¶ 9} The certificate of assignment from the Supreme Court of Ohio that was filed in the trial court on December 9, 2016, assigned Judge Wolff, “effective April 18, 2016 to preside in the Montgomery County Court of Common Pleas, General Division, for the period of August 8, 2016 through August 12, 2016 and to conclude any proceedings in which he participated that are pending during that period.” Doc. #27, p.1. The number on the certificate of assignment is 16JA0929, and as the State notes, the above information conflicts with what is reflected on the website of the Supreme Court of Ohio. An assignment search on the website of the Supreme Court of Ohio for the listed number (16JA0929) indicates that Judge Wolff‘s assignment was effective April 18, 2016, and was a general assignment for the period of December 5, 2016 through December 9, 2016. See http://www.supremecourt.ohio.gov/judgeassignmentsearch/, accessed August 13, 2018. The supрression hearing fell within this latter period.
{¶ 11} Laster acknowledges that the incorrect assignment would make the decision only voidable, not void. We agree. However, Laster failed to object in the trial court. In J.J., the Supreme Court of Ohio concluded that the appellee (a father who had lost custody) had waived the procedural irregularity by failing to object. J.J., 111 Ohio St.3d 205, 2006-Ohio-5484, 855 N.E.2d 851, at ¶ 16-17 (noting that “[a] party may timely object to the authority of a visiting judge on the basis of an imрroper case transfer or assignment, but failure to timely enter such an objection waives the procedural error“). Accord State v. Stansell, 2d Dist. Montgomery No. 23630, 2010-Ohio-5756, ¶ 29.
{¶ 12} The purpose of making timely objections is to alert trial courts to potential errors at a time when they can be corrected. See, e.g., State v. Blakeman, 2d Dist. Montgomery No. 18983, 2002 WL 857659, *3 (May 3, 2002).
{¶ 13} We also reject the argument that Laster‘s counsel could not have known to object because the certificate of assignment was not filed until after the hearing. As the State notes, counsel met with the judge in chambers prior to hearing. See Transcript of Suppression Hearing, p. 39 (indicating that the judge met with counsel before the hearing). Since a certificate of assignment was obviously not in the record at that time,
{¶ 14} More importantly, Laster did not enter a plea until October 6, 2017, almost ten months after the suppression decision was filed. Notably, rulings on suppression motions are interlocutory and may be reconsidered before final judgment. State v. Ross, 2014-Ohio-2867, 15 N.E.3d 1213, ¶ 47 (9th Dist.); State v. Donley, 2017-Ohio-562, 85 N.E.3d 324, ¶ 148 (2d Dist.). Therefore, if the certificate of assignment were truly an issue, Laster could have objected during the lengthy time that elapsed between the suppression dеcision and his no contest plea. Accordingly, we conclude that Laster waived this alleged error.
{¶ 15} Even if we decided otherwise, and considered the issue on the basis of plain error, Laster failed to advance any argument concerning what exceptional circumstances or miscarriage of justice exist that would justify noticing plain error. See State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. Consequently, even if we applied the plain error doctrine, there is no reason to find plain error.
{¶ 16} Based on the preceding discussion, the First Assignment of Error is overruled.
III. Suppression Decision
{¶ 17} Laster‘s Second Assignment of Error states that:
Appellant [Was] Denied His Fourth Amendment Right [Against] Unreasonable Search and Seizure and His Fifth Amendment Right Prohibiting Self-Incrimination During Custodial Interrogation.
{¶ 18} Laster advances three arguments under this assignment of error, and we will consider them separately.
A. The Anonymous Tip
{¶ 19} Laster first contends that an anonymous tip did not justify his stop and that subsequent events did not corroborate the tip, making the stop and seizure unlawful under the Fourth Amendment. Laster hаs waived this argument, however, because he failed to raise it in his suppression motion or at the suppression hearing. See Doc. #23, Motion to Suppress (seeking to suppress only oral and written statements due to lack of Miranda warnings and failure to fully inform of Miranda rights); and Transcript of Suppression Hearing, p. 6 (defense counsel indicates that the issue is the failure of the police to provide Miranda warnings before asking questions during a custodial interrogation, and perhaps a defect in the Miranda warnings that were subsequently given). Again, arguments not made in the trial court are waived. Blakeman, 2d Dist. Montgomery No. 18983, 2002 WL 857659, at *3; State v. Sibole, 2d Dist. Clark No. 2017-CA-68, 2018-Ohio-3203, ¶ 9.
{¶ 20} Laster has not claimed a basis for plain error; he has simply presented case law indicating that that in situations involving anonymous tips, the State must show that subsequent events corroborated the tip. Appellant‘s Brief, p. 12.
{¶ 21} As was noted, we take notice of plain error “with the utmost caution, under
{¶ 22} As to the facts, the only witnesses who testified at the suppression hearing were a University of Dayton (“UD“) Police Officer, Joseph Wilhelm, and a city of Dayton Detective, Mark Gundelfinger. Furthermore, the facts were essentially undisputed
{¶ 23} According to the evidence, the police received an anonymous call about weapons on June 10, 2016. The caller stated that an individual with a gun was sitting in a black car near a Cold Stone Creamery. The gun was described as being in the man‘s lap, and the caller indicated that the person did not look as if he should have a gun. In addition, the caller described the car as a black Nissan Versa and gave the police the vehicle‘s license plate. Finally, the caller reported something about loudness.
{¶ 24} UD Officer Joseph Wilhelm was the first individual on the scene. He arrived at 149 Jasper Street, in Dayton, Ohio, at around 6:00 p.m., which was about five minutes after the call was broadcasted. The area around 149 Jasper contains local restaurants and businesses, including a pizza place and an ice cream shop (Cold Stone Creamery). The location was directly adjacent to the UD campus, and numerous people were in the area.
{¶ 25} At the time, Wilhelm was working by himself and was in uniform, in a marked police cruiser. When Wilhelm arrived, he looked for the described vehicle and sаw it parked on the street, close to the sidewalk. Wilhelm parked his cruiser in the middle of the street, about fifteen feet away, with the overhead lights on and the engine running. Wilhelm then got out and made contact with the driver, Laster, who was beginning to eat
{¶ 26} Wilhelm testified that Laster was not under arrest when the initial contact was madе. Wilhelm did not yell at Laster, did not have his firearm out, and did not tell Laster that he was under arrest. However, Wilhelm did testify that at the point of his initial contact with Laster, Laster was not free to leave.
{¶ 27} Based on the caller‘s remarks and the fact that a gun may have been on the scene, Wilhelm ordered Laster to put his hands on the steering wheel. He testified that, if a gun were present, he did not want Laster to reach for it. This was for his own safety and the safety of bystanders. Wilhelm was also standing quite clоse to the driver‘s side window of Laster‘s car.
{¶ 28} After ordering Laster to put his hands on the wheel, Wilhelm asked if a gun were in the vehicle, and Laster responded affirmatively. Wilhelm asked where the gun was, and Laster said it was under the seat. Wilhelm then asked Laster if he had a CCW permit, and Laster said no. No Miranda warnings had been administered before Wilhelm asked Laster these questions. Wilhelm testified that while he was asking Laster these questions, he was trying to investigate the situation.
{¶ 29} At that point, Wilhelm asked Laster to step out of the vehicle so that he could separate Laster from the gun. After patting Laster down, Wilhelm placed him in handcuffs and seated him in the rear of his police cruiser. Wilhelm did not ask Laster any further questions.
{¶ 30} After Wilhelm removed Laster from the Nissan, another UD officer, Officer Fong, arrived on the scene. Fong did not ask Laster any questions. Three Dayton
{¶ 31} At that time, the Nissan‘s doors were open, and Gundelfinger peeked inside. When he did so, he saw the gun. He then made contact with Laster, who was sitting inside a police cruiser. Gundelfinger administered Miranda warnings using a card that the prosecutor supplies to the police. When the warnings were administered, Laster answered affirmatively to each question. Laster then said thаt he wanted to speak to Gundelfinger. No testimony was offered about what Laster said to Gundelfinger.
{¶ 32} As was noted, Laster was subsequently charged with improperly handling a firearm in a vehicle and with carrying a concealed weapon. Laster then pled no contest to the first charge after the court overruled his motion to suppress.
{¶ 33} “A police officer may rely on outside information provided directly to him, such as tips from informants, or on information relayed to him via a flyer or radio dispatch.” State v. Hamilton, 1st Dist. Hamilton No. C-160247, 2017-Ohio-8140, ¶ 13, citing Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). “Where an informant‘s tip is relied upon, the informant‘s veracity and reliability and his basis for knowledge must be assessed under the totality of the circumstances to determine whether the tip establishes reasonable suspicion.” Id., citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
{¶ 34} While ” ‘an anonymous tip alone seldom demonstrates the informant‘s basis of knowledge or veracity,’ * * * under appropriate circumstances, an anonymous tip can demonstrate ‘sufficient indicia of reliability to provide reasonable suspicion to make [an]
{¶ 35} In Navarette, a caller described having been run off the road by a vehicle, and also identified the make and license plate of the truck. Id. at 395. The court noted that by reporting this, the caller “necessarily claimed eyewitness knowledge of the alleged dangerous driving. That basis of knowledge lends significant support to the tip‘s reliability.” Id. at 399. This is similar to the tip in the case before us, where the caller described the vehicle, including the license plate, reported seeing a gun in the suspect‘s lap, and indicated that the suspect was sitting in his vehicle near Cold Stone Creamery.
{¶ 36} In Navarette, the Supreme Court also relied on the timeline of events, which suggested that the caller had reported the incident soon after she had been run off the road. The court stressed that this “sort of contemporaneous report has long been treated as especially reliable.” Id. at 399. Again, in the case before us, the police arrived on the scene about fivе minutes after the broadcast and observed the car that had been identified. In addition, the car was still sitting in the location the caller had described, near Cold Stone Creamery.
{¶ 37} The court further observed in Navarette that “[e]ven a reliable tip will justify an investigative stop only if it creates reasonable suspicion that ‘criminal activity may be afoot.’ ” Id. at 401, quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This standard requires law enforcement officers to have ” ‘a particularized and objective basis for suspecting the particular person stopped of сriminal activity.’ ” Id. at 396, quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).
{¶ 38} Given the caller‘s description that the individual had a gun visible on his lap while sitting in a motor vehicle located in a highly populated retail area and that there was loud behavior, Officer Wilhelm had reasonable suspicion that criminal activity was afoot. In any event, the record indicates that Officer Wilhelm‘s actions constituted a lawful, consensual encounter.
{¶ 39} Based on the preceding discussion, there are no exceptional circumstances that apply here, and the record does not demonstrate manifest injustice that would warrant notice of plain error.
B. Whether the Detention Was Custodial or Investigatory
{¶ 40} Laster‘s second argument is that he was restrained in a way that would have led reasonable persons to believe that they were under arrest. The trial court overruled Laster‘s motion to suppress based on its conclusion that Laster‘s statements to the police were the product of an investigatory detention, not custodial interrogation.
{¶ 41} In ruling on a motion to suppress, a trial court “assumes the role of the trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate the credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994). Accordingly, when we review suppression decisions, we must “accept the trial court‘s findings of fact if they are supported by competent, credible evidence.” Id. “Accepting those facts as true, we must independently determine as a matter of law, without deference to the trial court‘s cоnclusion, whether they meet the applicable legal standard.” Id.
{¶ 43} In order to “protect the
{¶ 44} For purposes of deciding if “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 leavе.” State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, ¶ 27, citing Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). “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 a ’ “formal arrest or restraint on freedom of movement” ’ of the degree associated with a formal arrest.” Id., quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983). (Other citation omitted.)
{¶ 46} In deciding whether Laster was functionally, if not formally, under arrest when he was being questioned by Officer Wilhelm, the trial court cited State v. Sell, 2d Dist. Montgomery No. 26458, 2015-Ohio-1940. See Doc. #29, Decision and Entry Overruling Defendant‘s Motion to Suppress, p. 2, citing Sell at ¶ 18. After discussing the facts, the court concluded that Wilhelm‘s order for Laster to put his hands on the wheel, without more, would not have led a reasonable person to believe he or she were under arrest. Id. at pp. 2-3.
{¶ 47} We agree with the trial court. Although Wilhelm testified that Laster was not free to leave, the officer‘s subjective intent was irrelevant. Sell at ¶ 17. Instead, “the issue is whether a reasonable person in the suspect‘s situation would have understood that he was in custody.” Id., citing State v. Cross, 2d Dist. Montgomery No. 25838, 2014-Ohio-1534, ¶ 13.
{¶ 48} In Sell, we also observed that during typical investigatory detentions like routine traffic stops, individuals are not ” ‘in custody’ for purрoses of Miranda.” Id. at ¶ 18, quoting State v. Cundiff, 2d Dist. Montgomery No. 24171, 2011-Ohio-3414, ¶ 60. Although the detention in the case before us was not a routine traffic stop, it was similar to the stop involved in State v. Keggan, 2d Dist. Greene No. 2006-CA-9, 2006-Ohio-6663.
{¶ 49} In discussing the detention, we noted that “police officers may briefly stop and/or temporarily detain individuals in order to investigate possible criminal activity if the officers have a reasonable, articulable suspicion that criminal activity has occurred or is about to occur.” Id. at ¶ 30, citing Terry, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.
{¶ 50} In Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), the Supreme Court stated that ” ‘[T]he stop and inquiry must be “reasonably related in scope to the justification for their initiation.” ’ * * * Typically, this means that the officer may ask the detainee a modеrate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer‘s suspicions. But the detainee is not obliged to respond. And, unless the detainee‘s answers provide the officer with probable cause to arrest him, he must then be released.” Id. at 439-440, quoting United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). (Footnotes omitted.)
{¶ 51} As the trial court noted, Wilhelm was alone when he approached the car, ordered Laster to put his hands on the steering wheel, and questioned Laster about the gun. We agree with the trial court that this wоuld not have led reasonable persons to conclude that they were under arrest. Wilhelm asked only a few brief questions to obtain information that could have dispelled his suspicions, and he did not subject Laster to
C. Interrogation After Miranda Warnings
{¶ 52} Finally, Laster contends that the trial court erred in refusing to suppress any statements that were made to Detective Gundelfinger. As was noted, Gundelfinger administered Miranda warnings to Laster after he arrived on the scene.
{¶ 53} In this regard, Laster relies on State v. Cook, 2d Dist. Montgomery No. 24524, 2012-Ohio-111. Cook involved a claim of successive interrogations where the first interrogation was unwarned, and the second contained Miranda warnings. Id. at ¶ 14-17, discussing Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 642 (2004). In addressing this issue, the trial court concluded that any statements made to Detective Gundelfinger did “not run afoul” of Seibert because Laster was not in custody when he made his initial statements to Wilhelm. Doc. #29 at p. 3. Again, we agree with the trial court.
{¶ 54} Seibert involved “a police protocol for custodial interrоgation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession,” and an “interrogating officer who follows it with Miranda warnings and then leads the suspect to cover the same ground a second time.” Id. at 604. The Supreme Court held that “[b]ecause this midstream recitation of warnings after interrogation and
{¶ 55} The fact that a police protocol was involved in Seibert was not the decisive point, becausе “the intent of the officer doing the questioning is not relevant in a Miranda analysis.” State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985, ¶ 35. As the Supreme Court of Ohio noted, ”Seibert presented the rare case in which the officer admitted that the two-part questioning was intentionally coercive.” Id.
{¶ 56} Nonetheless, in order for Seibert to apply, there must be a custodial interrogation. See State v. Hayes, 2d Dist. Montgomery No. 25940, 2015-Ohio-1043, ¶ 23-24 (finding defendant was in custody, but was not interrogated for purposes of applying Seibert, because she initiated the conversation with a detective and there was no indication that the detective “made any effort, calculated or otherwise, to elicit incriminating statements“).
{¶ 57} Other cases have made similar conclusions. See State v. Zan, 2d Dist. Montgomery No. 24600, 2013-Ohio-1064, ¶ 28 (distinguishing Seibert because the defendant was not in custody when she made pre-Miranda statements to the police); State v. Sosnoskie, 2d Dist. Montgomery No. 22713, 2009-Ohio-2327, ¶ 61-62 (Seibert did not apply becаuse the defendant was not in custody during her first interview and police were not required to read her Miranda warnings); State v. Lux, 2d Dist. Miami No. 2010-CA-30, 2012-Ohio-112, ¶ 33 (pre-Miranda statements were made in a non-custodial context and did not make the defendant‘s later statements inadmissible under Seibert). See also State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, 964 N.E.2d 1037, ¶ 24
{¶ 58} Based on the preceding discussion, the trial court did not err in overruling Laster‘s motion to suppress evidence.
IV. Conclusion
{¶ 59} All of Laster‘s assignments of error having been overruled, the judgment of the trial court is affirmed.
FROELICH, J. and TUCKER, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Michael J. Scarpelli
J. David Turner
Hon. Dennis J. Langer