STATE OF OHIO, PLAINTIFF-APPELLANT/CROSS-APPELLEE vs. ANTHONY M. MARTINEZ, DEFENDANT-APPELLEE/CROSS- APPELLANT
Nos. 103572 and 103573
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 25, 2016
2016-Ohio-5515
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-14-591086-A
BEFORE: E.A. Gallagher, P.J., S. Gallagher, J., and Laster Mays, J.
ATTORNEYS FOR PLAINTIFF-APPELLANT/CROSS-APPELLEE
Cuyahoga County Prosecutor
BY: Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEY FOR DEFENDANT-APPELLEE/CROSS APPELLANT
Russell S. Bensing
600 IMG Building
1360 East Ninth Street
Cleveland, Ohio 44114
{1} In this consolidated appeal, defendant Anthony Martinez appeals his conviction for importuning in violation of
Factual and Procedural Background
{2} On the morning of November 7, 2014, Parma Police Detective David Sheridan and Parma Police Sergeant David Zarzeczny went to Martinez‘s home to question him regarding an incident that had allegedly occurred two days earlier at Parma High School. Detective Sheridan was investigating a complaint by a 15-year-old female student that Martinez, age 66, a hall monitor at Parma High School, had placed his arm around her shoulder and made several inappropriate sexual comments to her while escorting her to class. The student alleged that Martinez had asked when she would let “an old man like him have sex with [her]” and whether he could “lick her p****” Martinez was placed on administrative leave following the incident. Sergeant Zarzeczny, who worked part-time at the high school, completed the incident report.
{3} After reviewing the case file and incident report, Detective Sheridan spoke with Sergeant Zarzeczny regarding the allegations. Given his familiarity with Martinez and the fact that he had a “rapport” with him, Sergeant Zarzeczny thought Martinez would be more “comfortable” discussing the allegations if he were present and offered to accompany Detective
{4} When the officers arrived at Martinez‘s residence, Martinez answered the door and invited them inside. Detective Sheridan brought a recording device with him and secretly recorded his interaction with Martinez beginning when Martinez opened the door. Detective Sheridan testified that it was not unusual for him to record an interview and that, “typically,” all of his interviews are recorded.
{5} Once inside, Detective Sheridan introduced himself and asked Martinez whether he would prefer to talk at home or somewhere else. Martinez replied that they could talk there, offered the officers coffee and led them to the kitchen where the officers sat down at the kitchen table with Martinez and his wife, Diane Martinez (“Diane“).
{6} After asking some basic questions regarding Martinez‘s background, Detective Sheridan informed Martinez of the allegations against him. Martinez acknowledged knowing the student involved but initially denied that he put his arm around her shoulder or made any inappropriate sexual comments to her. Approximately 11 minutes into the interview, Diane left the kitchen and went into a bedroom, located 20-30 feet from the kitchen, to get her 18-year-old daughter.
{7} After Diane left the room, Detective Sheridan told Martinez, “man to man,” that he knew Martinez was not being truthful and that he was “digging [himself] into a hole [he] was not going to be able to get out of.” The officers told Martinez that he was not under arrest and that
{8} Detective Sheridan continued with the interrogation. He told Martinez that the student was prepared to testify in court against him and that they had video surveillance showing Martinez put his arm around the student and other evidence, which he declined to disclose, “that proves her story.” Approximately 15 minutes into the interrogation, Martinez admitted to putting his arm around the student and making the alleged inappropriate sexual comments to her. At no point, either prior to or during the interrogation, did Detective Sheridan inform Martinez of his Miranda rights.
{9} After Martinez confessed, the officers told Martinez that they needed to go down to the police station so that Martinez could give a “more formal statement.” Detective Sheridan and Sergeant Zarzeczny drove Martinez to the police station in Detective Sheridan‘s unmarked police vehicle.
{10} When they arrived at the police station approximately ten minutes later, Martinez was placed into an interview room. He was advised of his Miranda rights and gave a second statement in which he again admitted that he had placed his arm around the student‘s shoulder and had made the specific inappropriate sexual comments the student alleged he had made. The
{11} On November 21, 2014, a Cuyahoga County Grand Jury indicted Martinez on a single count of importuning in violation of
{12} Before trial, Martinez filed a motion to suppress the statements he made during the two interrogations based on the officers’ failure to advise him of his Miranda rights before the first interrogation. Following an evidentiary hearing, the trial court denied the motion to suppress, reasoning as follows:
I‘ve given careful analysis and consideration to the facts presented during the course of the proceedings thus far. I am going to deny the motion to suppress the oral and recorded statement.
My review of the case law in this area suggests that, irrespective of my personal feelings about whether or not this is the best practice, the case law in our district and at the U.S. Supreme Court level on these facts does not support suppression.
The case [law] is significantly — or gives great significance to where these interrogations take place. This questioning of Mr. Martinez was at his home.
There is a point in the questioning at his home where the questioning by the detective is aggressive. Mr. Martinez is told that he is sweating bullets, or words to that effect, and that he might not be telling the truth and should admit to his behavior.
My initial thought was that at that juncture the law might trigger Miranda warnings and advisement that he need not make any further statement, that he consult a lawyer. But I must report that the case law in the Eighth District [does not] seem to require that. It might be a question to ask the Eighth District, once again, but that is up to the parties. * * *
When he arrives at the police station, reference is made to the statements that he had already given. He is given his Miranda warnings, his advisement, if you will. He engages in further colloquy with the police. As that point he had a right to assert his Fifth Amendment rights and did not.
Case law in our district seems to allow that. It doesn‘t prohibit the admissibility of the statement. * * *
{13} Martinez waived his right to a jury trial and the case was tried to the bench. After hearing all the evidence and the arguments of counsel, the trial court found Martinez guilty of importuning. The trial court ordered a presentence investigation report and scheduled the matter for sentencing.
{14} Prior to sentencing Martinez filed a motion to stay the execution of his sentence, including the sex offender registration requirements, pending his appeal. The state opposed the motion.
{15} On September 1, 2015, the trial court sentenced Martinez to five years of community control and ordered him to register as a Tier I sex offender/child victim offender. The trial court granted the motion to stay, ordering that execution of Martinez‘s sentence be stayed “until the case is sent back from the court of appeals.”
{16} This court granted the state leave to appeal the trial court‘s order staying execution of Martinez‘s sentence, raising the following assignment of error for review:
ASSIGNMENT OF ERROR I:
A trial court may not stay execution of sex offender registration requirements pending appeal.
ASSIGNMENT OF ERROR II:
{17} Martinez also filed an appeal, raising the following assignment of error for review:
ASSIGNMENT OF ERROR:
The Trial Court erred to the prejudice of Defendant by denying Defendant‘s Motion to Suppress his statements, in derogation of Defendant‘s right against self-incrimination and his right to counsel, as protected by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Article I, Section 10 of the Ohio Constitution.
For ease of discussion, we address Martinez‘s assignment of error first.
Law and Analysis
Motion to Suppress
{18} In his assignment of error, Martinez argues that the officers’ failure to advise him of his Miranda rights prior to questioning rendered the confession he made to the officers during his at-home interrogation inadmissible. Martinez further argues that because the second interrogation at the police station was a virtual “repeat” of the first interrogation, the officers’ failure to advise Martinez of Miranda rights prior to the first confession “voids the second” such that Martinez‘s second confession should have been inadmissible as well.
Standard of Review
{19} Appellate review of the denial of a motion to suppress involves a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. Therefore, when considering a trial court‘s denial of a motion to suppress, our standard of review is “divided into two parts.” State v. Preztak, 181 Ohio App.3d 106, 2009-Ohio-621, 907 N.E.2d 1254, ¶ 22 (8th Dist.). In a hearing on a motion to suppress, “the trial court assumes the role of
“Custodial” Interrogation
{20} Pursuant to Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), statements “stemming from a custodial interrogation of the defendant” must be suppressed unless the defendant was informed, prior to any questioning, of his “right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” Id. at 479; see also State v. Treesh, 90 Ohio St.3d 460, 470, 739 N.E.2d 749 (2001). “Custodial interrogation” is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda at 444. The determination of whether a “custodial” interrogation has occurred requires an inquiry into “how a reasonable man in the suspect‘s position would have understood his situation.” State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985, ¶ 14, quoting Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). An individual is in “custody” for Miranda purposes if, “under the totality of the circumstances, a reasonable person would not feel free to end the encounter and leave.” See, e.g., State v. Griffith, 8th Dist. Cuyahoga No. 97366, 2012-Ohio-2628, ¶ 18, citing Yarborough v. Alvarado, 541 U.S. 652, 664-665, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004); see also State v. Gilbert, 7th Dist. Mahoning No. 08 MA 206, 2012-Ohio-1165, ¶ 66-76 (identifying the ten-factor test certain courts have used “to help decide whether a suspect is in custody for purposes of a Miranda analysis,” which includes the location of the questioning; whether the defendant was a suspect when the interview began; whether the defendant‘s freedom to leave was restricted; whether the defendant was handcuffed or told he was under arrest; whether threats were made or the defendant was physically intimidated during the interrogation; whether the police verbally dominated the defendant; the defendant‘s purpose in being at the location where the questioning occurred; whether any neutral parties were present and whether the police took any action to overpower, trick or coerce the defendant into making a statement), citing State v. Tate, 7th Dist. Mahoning No. 07 MA 130, 2008-Ohio-3245, ¶ 46-66. Thus, in this case, we must determine whether a reasonable person in Martinez‘s position would have felt that he was free to terminate the interrogation by Detective Sheridan and Sergeant Zarzeczny at his home.
{21} Martinez contends that the interrogation was “custodial” because he was “ambushed in his own home” by the two police officers, “intent on secretly recording him [and] persistently questioning him” until they secured a confession. He claims that Sergeant Zarzeczny‘s presence was designed to “lull” Martinez — who, by that time, was clearly a suspect — “into a false sense of security” and that his presence, combined with the secret recording of his interrogation, created a “police-dominated atmosphere” that deprived Martinez of his freedom in a significant way. We disagree. Although it may have been the better practice for the law enforcement officers to have informed Martinez of his Miranda rights prior to questioning him, we cannot say that their failure to do so rendered Martinez‘s statements inadmissible.
{23} In general, questioning by law enforcement officers is less likely to rise to the level of a custodial interrogation when it occurs in a defendant‘s home. See, e.g., Griffith,
{24} The “ultimate inquiry” when determining whether an individual is in “custody” for Miranda purposes is “whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” State v. Duhamel, 8th Dist. Cuyahoga No. 102346, 2015-Ohio-3145, ¶ 22, quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983). Where a defendant has not been placed under arrest, there must be some objective, “affirmative signs of coercion” or restraint to transform a police interview into a “custodial” interrogation. See, e.g., Griffith at ¶ 20. Martinez cites no authority supporting his claim that a law enforcement officer‘s surreptitious recording of an interrogation — which would not be known to the suspect — or a suspect‘s familiarity with one of the interrogating officers would be of decisive significance when determining, under the totality of the circumstances, whether an interrogation was “custodial.” Indeed, where one of the interrogators is well known to the suspect, a reasonable person in the suspect‘s position might very well feel more “free to leave” or terminate an interrogation than if his interrogators were unfamiliar law enforcement officers.
{26} Even assuming — as appears to be the case — that the officers went to Martinez‘s home with the express purpose of attempting to elicit a confession from him, it would not impact our determination of whether Martinez was in “custody” for Miranda purposes. The subjective intent of the suspect and the officers is irrelevant in determining whether a suspect is in “custody” for Miranda purposes. Petriashvili, 2009-Ohio-6466, at ¶ 17; Duhamel, 2015-Ohio-3145, at ¶ 22 (determination of whether a defendant is in “custody” for purposes of Miranda “does not depend on the subjective feelings of the accused or the subjective, unarticulated goals of police“); see also Cleveland v. Oles, 2016-Ohio-23, 45 N.E.3d 1061, ¶ 20 (8th Dist.) (“[a] policeman‘s unarticulated plan [to arrest a suspect] has no bearing on the question whether a suspect was ‘in custody’ at a particular time; the only relevant inquiry is how a reasonable man in the suspect‘s position would have understood his situation“), quoting Berkemer, 468 U.S. at 442, 104 S.Ct. 3138, 82 L.Ed.2d 317.
Whether Confession During Interrogation at Home Was Voluntary
{28} Martinez also challenges the voluntariness of his confession during his at-home interrogation. Martinez contends that the “totality of the circumstances” — specifically, the fact that Martinez had no prior experience with the criminal justice system, was “confronted unexpectedly by the police” and was “repeatedly questioned” until he confessed — shows that his statements were “the product of the psychologically coercive atmosphere arranged by the police” and rendered his statements involuntary. Once again, we disagree.
{29} The issue of whether a confession is involuntary is separate from the issue of whether Miranda warnings should have been given. See, e.g., State v. Fouts, 4th Dist. Washington No. 15CA25, 2016-Ohio-1104, ¶ 35 (“Voluntariness of a confession and compliance with Miranda are analytically two separate inquires.“), citing Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). Even when Miranda warnings are not required, a confession may be involuntary if the defendant‘s “‘will was overborne‘” and his “‘capacity for self-determination was critically impaired because of coercive police conduct.‘” See, e.g., State v. Driggins, 8th Dist. Cuyahoga No. 98073, 2012-Ohio-5287, ¶ 41, quoting State v. Dailey, 53 Ohio St.3d 88, 91-92, 559 N.E.2d 459 (1990); State v. Stringham, 2d Dist. Miami No. 2002-CA-9, 2003-Ohio-1100, ¶ 11. The voluntariness of a confession is a question of law subject to de novo review. Fouts at ¶ 35; State v. Bohanon, 8th Dist. Cuyahoga No. 89443, 2008-Ohio-1087, ¶ 9, citing Arizona v. Fulminante, 499 U.S. 279, 287, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
{30} As the Ohio Supreme Court explained in State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588:
“In deciding whether a defendant‘s confession is involuntarily induced, the court should consider the totality of the circumstances * * *” State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus, vacated on other grounds, 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978). Nevertheless, “the use of an inherently coercive tactic by police is a prerequisite to a finding of involuntariness.” State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 71, citing Colorado v. Connelly, 479 U.S. 157, 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Consequently, unless the detectives used a coercive tactic, we need not assess the totality of the circumstances. State v. Treesh, 90 Ohio St.3d 460, 472, 2001 Ohio 4, 739 N.E.2d 749 (2001); Perez at ¶ 71. “Evidence of use by the interrogators of an inherently coercive tactic (e.g., physical abuse, threats, deprivation of food, medical treatment, or sleep) will trigger the totality of the circumstances analysis.” State v. Clark, 38 Ohio St.3d 252, 261, 527 N.E.2d 844 (1988).
{31} The evidence presented at the suppression hearing supports the trial court‘s decision to allow Martinez‘s statements during his at-home interrogation to be admitted into evidence as a voluntary confession. We have carefully reviewed both the transcript from the suppression hearing and the audio recording of Martinez‘s at-home interrogation. While the recording demonstrates that officers used various interrogation tactics to encourage Martinez to “tell the truth” during the interrogation, including minimizing the conduct involved, acknowledging what a “good guy” he is, discussing the “evidence” supporting the victim‘s story,
{32} Admonitions to tell the truth are not coercive in nature. State v. Jones, 2015-Ohio-4116, 43 N.E.3d 833, ¶ 19 (2d Dist.), citing State v. Porter, 178 Ohio App.3d 304, 2008-Ohio-4627, 897 N.E.2d 1149, ¶ 34 (2d Dist.); State v. Loza, 71 Ohio St.3d 61, 67, 641 N.E.2d 1082 (1994) (“Admonitions to tell the truth are considered to be neither threats nor promises and are permissible.“); State v. Bradley, 3d Dist. Logan No. 8-95-15, 1996 Ohio App. LEXIS 5685, *21 (Dec. 5, 1996) (“Repeated requests to tell the truth do not constitute coercion so as to invalidate a confession.“), citing State v. Wiles, 59 Ohio St.3d 71, 81, 571 N.E.2d 97 (1991); State v. Western, 2015-Ohio-627, 29 N.E.3d 245, ¶ 42 (2d Dist.) (“[a] police officer‘s assertion to the suspect that he or she is lying or that the suspect would not have another chance to tell his or her side of the story does not automatically render a confession involuntary“). Likewise, a police officer‘s statement to a suspect that a confession “will be helpful” or a police officer‘s offer to “help” the suspect if he confesses is “not improper” and does not “invalidate an otherwise legal confession.” Jones at ¶ 19, citing Stringham, 2003-Ohio-1100, at ¶ 16 (officer‘s attempt to “downplay the seriousness of the offense, by explaining that the situation might not be as bad as [defendant] thought” and statements that “the situation was not going away” and that defendant should tell the truth and “help’ himself out of a bad situation” did not cause defendant‘s free will to be overborne or otherwise result in a coerced confession); State v. Simms, 10th Dist. Franklin No. 10AP-1063, 2012-Ohio-2321, ¶ 59 (where detectives “encourage[d] honesty, stating it could help [defendant],” detectives’ actions “did not rise to the level of
{33} Moreover, the “totality of the circumstances” does not support the conclusion that Martinez‘s will was overborne. For purposes of evaluating the voluntariness of a confession, the “totality of the circumstances” includes: “‘the age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement.‘” State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, ¶ 54, quoting State v. Mason, 82 Ohio St.3d 144, 154, 694 N.E.2d 932 (1998). The record reflects that Martinez was 66 at the time of his confession, was a high school graduate and had been working regularly as a hall monitor at the high school for several years. Martinez makes no claim that he suffered from any type of physical disability or mental impairment that impacted the voluntariness of his confession. As detailed above, the at-home interrogation, from the moment the officers entered Martinez‘s home until they left the home, lasted less than 30 minutes, with Martinez confessing after speaking with the officers for approximately 15 minutes. This was the first time Martinez had been
{34} Because the trial court correctly ruled Martinez‘s statements were not the result of custodial interrogation and were voluntary, we overrule his assignment of error.
Stay of Sex Registration Requirements Pending Appeal
{35} We now turn to the state‘s assignments of error. Because the state‘s assignments of error are related, we address them together. In its first assignment of error, the state argues that the trial court lacked authority to stay the sex offender registration requirements imposed as part of Martinez‘s sentence under
If a person is convicted of any bailable offense, including, but not limited to, a violation of an ordinance of a municipal corporation, in a municipal or county court or in a court of common pleas and if the person gives to the trial judge or magistrate a written notice of the person’s intention to file or apply for leave to file an appeal to the court of appeals, the trial judge or magistrate may suspend, subject to division (A)(2)(b) of section 2953.09 of the Revised Code, execution of the sentence or judgment imposed for any fixed time that will give the person time either to prepare and file, or to apply for leave to file, the appeal. In all bailable cases, except as provided in division (B) of this section, the trial judge or magistrate may release the person on bail in accordance with Criminal Rule 46, and the bail shall at least be conditioned that the person will appeal without delay and abide by the judgment and sentence of the court.
(Emphasis added.)
{¶37}
If a notice of appeal is filed pursuant to the Rules of Appellate Procedure by a defendant who is convicted in a municipal or county court or a court of common pleas of a felony or misdemeanor under the Revised Code or an ordinance of a municipal corporation, the filing of the notice of appeal does not suspend execution of the sentence or judgment imposed. However, consistent with divisions (A)(2)(b), (B), and (C) of this section, Appellate Rule 8, and Criminal Rule 46, the municipal or county court, court of common pleas, or court of appeals may suspend execution of the sentence or judgment imposed during the pendency of the appeal and shall determine whether that defendant is entitled to bail and the amount and nature of any bail that is required. The bail shall at least be conditioned that the defendant will prosecute the appeal without delay and abide by the judgment and sentence of the court.
(Emphasis added.) See also
{¶38} Thus, under
{40} The state also argues that the trial court‘s decision to stay execution of sex offender registration requirements in this case was contrary to
{|41}
In determining the types, amounts, and conditions of bail, the court shall consider all relevant information, including but not limited to:
- The nature and circumstances of the crime charged, and specifically whether the defendant used or had access to a weapon;
- The weight of the evidence against the defendant;
- The confirmation of the defendant‘s identity;
- The defendant‘s family ties, employment, financial resources, character, mental condition, length of residence in the community, jurisdiction of residence, record of convictions, record of appearance at court proceedings or of flight to avoid prosecution;
- Whether the defendant is on probation, a community control sanction, parole, post-release control, bail, or under a court protection order.
{42} The state argues that because the defendant‘s identity was not in dispute and Martinez was found guilty after a bench trial,
{44} The offense giving rise to Martinez‘s sentence, importuning in violation of
{45} On the record before us, although we do not believe it would have been an abuse of discretion for the trial court to have denied Martinez‘s motion to stay execution of the sex offender registration requirements imposed as part of his sentence, we cannot say that the trial court acted arbitrarily, unreasonably or unconscionably in granting Martinez‘s motion to stay
{46} Judgment affirmed; case remanded to the trial court for execution of the sentence imposed.
It is ordered that the state and Martinez share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and ANITA LASTER MAYS, J., CONCUR