State v. MastonState v. Maston
{¶ 1} William J. Maston was convicted after a bench trial in the Kettering Municipal Court of possession of a controlled substance (Xanax), a third-degree misdemeanor, and possession of marijuana (less than 100 grams), a minor misdemeanor. For the possession of a controlled substance, the trial court sentenced him to 60 days in jail, of which 54 days were suspended, ordered him to pay a $25 fine and courts costs, and placed him on unsupervised probation for two years. The trial court ordered Maston to pay a $10 fine for possession of marijuana. The trial court stayed Maston‘s sentences pending appeal.
{¶ 2} Maston raises three issues on appeal: (1) the trial court‘s denial of his pre-trial motion to suppress; (2) the State‘s use of a laboratory report in lieu of testimony from the analyst at trial; and (3) ineffective assistance of counsel. For the following reasons, Maston‘s conviction for possession of a controlled substance will be reversed, and the case will be remanded for further proceedings on that charge. His conviction for possession of marijuana will be affirmed.
I. Background and Procedural History
{¶ 3} At approximately 2:00 a.m. on March 28, 2016, Maston was a passenger in a vehicle driven by Hannah Tincher. As Tincher was driving on East Dorothy Lane in Kettering, Officer Devin Maloney initiated a traffic stop due to a traffic violation. After back-up arrived, Maloney conducted a free-air sniff by his canine partner, Jax. Jax alerted to an odor of narcotics, and the officer discovered a small amount of marijuana and some Xanax pills in the center console. Maston told the officer that the marijuana belonged to him, but he denied possession of the Xanax pills. Officer Maloney issued
{¶ 4} Maston moved to suppress the physical evidence against him and the statements he made to the officer. He argued that he was unlawfully detained, that the stop was unlawfully extended by the free-air canine sniff, and that the officer unlawfully searched the vehicle. Maston further claimed that he was entitled to Miranda warnings as a result of his detention and that any statements he made were subject to suppression. After a hearing during which Officer Maloney was the sole witness, the trial court overruled Maston‘s motion to suppress. The court found that (1) Maloney had a reasonable and articulable suspicion of a traffic violation to justify a stop of Tincher‘s vehicle, (2) the free-air sniff did not extend the length of the traffic stop beyond the normal time required to investigate and complete a traffic stop, and the alert on Tincher‘s vehicle by the police canine justified the search of the vehicle and Maston‘s continued detention, and (3) Maston was never “in custody” for purposes of Miranda, and there was no right to Miranda warnings during the encounter.
{¶ 5} The matter proceeded to a bench trial on March 22, 2017. Officer Maloney was the sole witness for the State. The State also presented a laboratory report identifying the substance of the alleged Xanax pills (State‘s Exhibit A); the exhibit was admitted over Maston‘s objection. Maston presented no witnesses, but offered the judgment entry from Tincher‘s case regarding the marijuana (Defendant‘s Exhibit 1); Tincher had pled guilty to disorderly conduct. In his closing argument, Maston asserted that the State did not prove beyond a reasonable doubt that he constructively possessed the Xanax pills and, further, that regardless of what he had said at the scene about his ownership of the marijuana, the court should consider Tincher‘s guilty plea with respect
{¶ 6} Maston appeals from his convictions.
II. Motion to Suppress
{¶ 7} In his first assignment of error, Maston claims that the trial court erred in overruling his motion to suppress.
{¶ 8} In deciding a motion to suppress, the trial court assumes the role of trier of facts and is in the best position to resolve questions of fact and evaluate the credibility of witnesses. State v. Pence, 2d Dist. Clark No. 2013 CA 109, 2014-Ohio-5072, ¶ 7, citing State v. Hopfer, 112 Ohio App.3d 521, 548, 679 N.E.2d 321 (2d Dist.1996). The court of appeals must accept the trial court‘s findings of fact if they are supported by competent, credible evidence in the record. State v. Isaac, 2d Dist. Montgomery No. 20662, 2005-Ohio-3733, ¶ 8, citing State v. Retherford, 93 Ohio App.3d 586, 639 N.E.2d 498 (2d Dist.1994). Accepting those facts as true, the appellate court must then determine as a matter of law, without deference to the trial court‘s legal conclusion, whether the applicable legal standard is satisfied. Id.
{¶ 9} Officer Maloney‘s testimony at the suppression hearing established the following facts. At 2:09 a.m. on March 28, 2016, Maloney was driving near 2102 East Dorothy Lane in a marked cruiser with his canine partner, Jax, who is certified to detect heroin, marijuana, methamphetamines, and cocaine. Maloney observed a vehicle in the right lane that he recognized from a residence with a “known drug history.” When Maloney moved behind the vehicle, the vehicle switched to the left lane and immediately turned left into a Taco Bell parking lot. Officer Maloney decided to stop the vehicle for a
{¶ 10} Officer Maloney approached the vehicle and saw that Hannah Tincher was the driver and Maston was the front-seat passenger. Maloney was familiar with the couple; he testified that he had been to their residence on several occasions for domestic disputes and that Maston had been arrested on several of those occasions. Maloney asked if he could search the vehicle, but he did not get a clear affirmative response. Maloney called for back-up and then proceeded to look into the couple‘s “criminal history” and “call history” on Justice Web and to begin writing a traffic ticket. Maloney explained that he ran Tincher‘s and Maston‘s identifications and looked to see if Tincher‘s driver‘s license was valid and if either person had an outstanding warrant. Officer Anderson arrived at 2:16 a.m., while Officer Maloney was working on the traffic ticket.
{¶ 11} Officer Maloney explained to Officer Anderson why he had called for back-up, and then Officer Maloney conducted a free-air sniff with Jax; Tincher and Maston stood with Officer Anderson while the free-air sniff occurred. As Maloney walked Jax around TIncher‘s vehicle counter-clockwise, Jax alerted to the presence of illegal drugs. Maloney returned Jax to his cruiser and began to search the interior of Tincher‘s car. Upon opening the center console, Officer Maloney observed a small baggie of marijuana and a small baggie with 11 Xanax pills.
{¶ 12} After finding the drugs, Officer Maloney walked over to where Officer Anderson was standing with Tincher and Maston. Maloney testified, “Prior to being handcuffed, [Maston] admitted that the marijuana belonged to him, and he denied possession of the Xanax. He mentioned something about his brother or cousin being in the vehicle as a passenger prior to the stop. He said they could have been left in there
{¶ 13} Officer Maloney testified that neither Tincher nor Maston was arrested. He issued a summons for possession of Xanax and a traffic citation for the marked lanes violation to Tincher and issued a summons for possession of Xanax and marijuana to Maston. Maloney did not, at any point, inform Maston of his Miranda rights.
{¶ 14} Maston raises two issues on appeal. First, Maston claims that he was unreasonably detained during the stop in order for the officer to conduct a free-air canine sniff and a search of the vehicle. Second, he claims that his statements should have been suppressed, because the officer failed to provide Miranda warnings.
{¶ 15} The
{¶ 16} Maston does not claim on appeal that the initial stop of Tincher‘s vehicle was unlawful. Nevertheless, Officer Maloney observed Tincher‘s vehicle change lanes and immediately turn left into a fast-food restaurant parking lot. The trial court found, and we agree, that Maloney‘s observations led him to reasonably believe that Tincher had committed a traffic violation, justifying the officer‘s stop of the vehicle.
{¶ 17} Law enforcement officers may detain the driver and passengers only for the
{¶ 18} “[A] police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution‘s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, ‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a ticket for the violation.” Rodriguez v. United States, __ U.S. __, 135 S.Ct. 1609, 1612, 191 L.Ed.2d 492 (2015). Rodriguez made clear “that an officer may not prolong a traffic stop to perform a drug sniff even if the ‘overall duration of the stop remains reasonable in relation to the duration of other stops involving similar circumstances.’ ” State v. Hall, 2017-Ohio-2682, 90 N.E.3d 276, ¶ 13 (2d Dist.), quoting Rodriguez, 135 S.Ct. at 1616.
{¶ 19} A police officer need not have a reasonable suspicion that a vehicle contains contraband prior to summoning a canine drug unit or conducting a canine free air sniff. Thomas at ¶ 15. Furthermore, the use of a trained narcotics dog to sniff an automobile does not constitute a “search” under the
{¶ 21} Jax alerted on Tincher‘s vehicle, indicating the possible presence of heroin, cocaine, marijuana, or methamphetamines, i.e., the drugs that Jax was trained to detect. Jax‘s alert gave Officer Maloney probable cause to search the vehicle. Accordingly, the traffic stop was not unlawfully extended by the search.
{¶ 22} Under the
{¶ 23} Although Maston was not free to leave for the duration of the traffic stop, he was not “in custody” when he made the incriminating statements about the drugs. While Officer Maloney searched Tincher‘s vehicle, Maston and Tincher stood with Officer Anderson on the curb area next to Taco Bell. Officer Maloney testified that, prior to being handcuffed, Maston admitted to ownership of the marijuana, denied possession of the Xanax, and suggested that other individuals who were previously in the vehicle could have left the drugs behind. Officer Maloney testified that Tincher and Maston were then “detained until we could figure out the possession of the Xanax,” but he did not ask Maston any questions after Maston was handcuffed. Accordingly, the record reflects that Maston was not in custody when he made statements about the drugs in the vehicle and that there was no custodial interrogation after those statements.
{¶ 24} Maston‘s first assignment of error is overruled.
II. The State‘s Use of the Laboratory Report at Trial
{¶ 25} Maston‘s second assignment of error states:
The trial court erred to the prejudice of Appellant by permitting admission of a drug analysis report in lieu of actual analyst testimony, in violation of Appellant‘s right of confrontation under the
Sixth Amendment to the United States Constitution .
{¶ 26} The Confrontation Clause of the
{¶ 27} Pursuant to
In any criminal prosecution for a violation of this chapter * * *, a laboratory report * * *, stating that the substance that is the basis of the alleged offense has been weighed and analyzed and stating the findings as to the content, weight, and identity of the substance and that it contains any amount of a controlled substance and the number and description of unit dosages, is prima-facie evidence of the content, identity, and weight or the existence and number of unit dosages of the substance. * * *
A notarized statement by the signer of the report, which must meet certain statutory requirements, must be attached to the report.
{¶ 28} With limited exceptions not relevant here, to use the lab report as evidence, the prosecuting attorney must serve a copy of the report on “the attorney of record for the
{¶ 29} At trial, the State asked the trial court to admit a laboratory report prepared by Michele Taylor, a forensic scientist with the Bureau of Criminal Investigation. The report indicated that she had received an envelope containing 11 white, rectangular, scored tablets marked “XANAX <>2.” Upon testing one pill, she found that the pill contained 0.29 grams (+/- 0.04 grams) of Alprazolam.
{¶ 30} Maston objected to the admission of the lab report, stating, “I‘ll object for the record that I wasn‘t given notice of the * * * lab report, and the lab technician‘s not here to testify to the lab report.”1 The prosecutor responded that, according to his records,
{¶ 31} The record reflects that Maston was represented by attorneys of the Montgomery County Public Defender‘s Officer throughout the trial court proceedings. The possession of marijuana complaint was filed on March 28, 2016, and Maston, represented by Attorney Dennis Fallang, entered a not-guilty plea, waiver of speedy trial rights, and request for pretrial conference on March 31, 2016. Attorney Andrea Dewar Oladi was listed as defense counsel on the court‘s pretrial notice, filed on March 31, 2016, and on May 31, 2016, Oladi filed a motion to suppress on Maston‘s behalf.
{¶ 32} On June 27, 2016, Attorney Molly Stitsinger filed a notice of substitution of counsel in the trial court; the notice indicated that it was “delivered to the Kettering Prosecutor[‘]s Office on the date same was filed.” On the same date (June 27), Stitsinger filed a request for discovery and a praecipe for a subpoena for Officer Maloney to appear at the suppression hearing. Stitsinger represented Maston at the October 12, 2016 suppression hearing. At trial in March 2017, Maston was represented by Attorney Joe Hyde. It is unclear when Hyde began his representation; his name first appears on a February 21, 2017 notice setting the trial date.
{¶ 33} Maston argues that there is no evidence of when a report was served on defense counsel, because the State never filed a notice of intent to use the report in lieu of live testimony. Maston further argues that, because no notice was filed, the record
{¶ 34} The State argues in its appellate brief that “[t]he lab report was served on one of the three different attorneys for the defendant during the case. All three attorneys work for the public defender‘s office.” However,
{¶ 36} Maston‘s second assignment of error is sustained.
III. Ineffective Assistance of Counsel
{¶ 37} In his third assignment of error, Maston claims that his trial counsel rendered ineffective assistance at trial.
{¶ 38} We review alleged instances of ineffective assistance of trial counsel under the two-pronged analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To establish ineffective assistance of counsel, a defendant must demonstrate both that trial counsel‘s conduct fell below an objective standard of reasonableness and that the errors were serious enough to create a reasonable probability that, but for the errors, the outcome of the case would have been different. See Strickland at 688; Bradley at 142. Trial counsel is entitled to a strong
{¶ 39} ”Strickland and its progeny establish that when a court is presented with an ineffective-assistance-of-counsel claim, it should look to the full record presented by the defendant to determine whether the defendant satisfied his [or her] burden to prove deficient performance.” Reeves v. Alabama, __ U.S. __, 138 S.Ct. 22, 26, 199 L.Ed.2d 341 (2017). Hindsight is not permitted to distort the assessment of what was reasonable in light of counsel‘s perspective at the time, and a debatable decision concerning trial strategy cannot form the basis of a finding of ineffective assistance of counsel. State v. Cook, 65 Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992); State v. Fields, 2017-Ohio-400, 84 N.E.3d 193, ¶ 38 (2d Dist.).
{¶ 40} At trial, Officer Maloney testified that he stopped a vehicle driven by Tincher for a marked lanes violation. Maloney asked Tincher for consent to search the vehicle; she declined. Maloney requested a second unit, and after Officer Anderson arrived, Tincher and Maston, the passenger, were asked to exit the vehicle. Maloney testified that both Tincher and Maston consented to a pat down, in which no contraband was found. Maloney then deployed Jax, his police canine, who alerted on the vehicle. Maloney stated that he and Officer Anderson searched the vehicle, and Maloney located drugs in the center console.
{¶ 41} Officer Maloney testified that the drugs were “both wrapped in plastic baggies [and in] the same type of bag.” Maloney stated that the bags were identical –
{¶ 42} Officer Maloney then testified:
Both occupants of the vehicle were placed in handcuffs and separated, detained, and Patrolman Anderson and I began to ask the driver and passenger who the, the marijuana and the pills belongs to. During which the Defendant admitted that the marijuana belonged to him. * * * He denied ownership of the Xanax pills. * * * Both the Defendant and the driver were taken out of handcuffs. The Defendant was issued a summons for possession of marijuana and both the Defendant and the driver, Miss Tincher, were issued summons for possession of the Xanax pills.
(Trial Tr. at 10-11.) There was no testimony that Officer Maloney provided Miranda warnings to Maston prior to asking any questions about the drugs.
{¶ 43} Officer Maloney‘s testimony at trial regarding the timing of Maston‘s being placed in handcuffs and Maston‘s statements differed from his testimony at the suppression hearing. As stated above, Officer Maloney testified at the suppression hearing that Maston made statements before being handcuffed and that the officer did not ask Maston any questions after he was “detained.” In contrast, Maloney‘s trial
{¶ 44} “When a trial court overrules a defendant‘s motion to suppress evidence, it has the inherent authority to reconsider its ruling at trial.” State v. Hunter, 2d Dist. Montgomery No. 25164, 2013-Ohio-3459, ¶ 18. In other words, the trial court had the authority to reconsider the admissibility of Maston‘s statements to Officer Maloney had it been asked to do so.
{¶ 45} We need not decide whether Maston‘s attorney acted unreasonably in failing to ask the trial court to reconsider the admissibility of Maston‘s statement regarding his ownership of the marijuana. Even assuming that counsel should have renewed his motion to suppress, we cannot conclude, on this record, that there was a reasonable probability that the outcome of Maston‘s trial would have been different. Although the officer‘s testimony at trial may have supported an argument for the suppression of Maston‘s statements, it is unknown whether the trial court would have credited the officer‘s testimony at trial over his prior suppression hearing testimony, which undoubtedly would have been brought to the court‘s attention in response to Maston‘s renewed suppression motion. And, we can only speculate how Officer Maloney would have responded to any further questions about the discrepancies between his suppression hearing testimony and trial testimony. It is also unknown whether, at a rehearing on the suppression issue, the State or Maston would have called Officer Anderson to testify and
{¶ 46} Maston‘s third assignment of error is overruled.
IV. Conclusion
{¶ 47} In light of our disposition of Maston‘s second assignment of error, Maston‘s conviction for possession of a controlled substance (Xanax) will be reversed, and the matter will be remanded for further proceedings on that charge. Maston‘s conviction for possession of marijuana will be affirmed.
DONOVAN, J., concurs.
TUCKER, J., concurring:
{¶ 48} I concur in Judge Froelich‘s well-reasoned decision. I write separately to note that if the record supported a conclusion that when Oladi was served with the report she was acting as Stitsinger‘s substitute, I would conclude that the service upon Oladi satisfied