State v. PlattState v. Platt
Fred S. Miller, Baden & Jones Building, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant
O P I N I O N
YOUNG, J.
{¶ 1} Defendant-appellant, Phillip Platt, appeals his conviction in the Butler County Court of Common Pleas for felony murder and aggravated robbery.
{¶ 2} On August 8, 2010, appellant, Keri Kakaris (his girlfriend), and Ricardo Renfro (a.k.a. Ricco Renfro), agreed to rob Ransom “Randy” Manies at Kakaris’ father‘s house. Kakaris knew Manies as she had worked for him on occasions. The plan was carried out the
{¶ 3} On September 29, 2010, appellant was indicted on one count of felony murder in violation of
{¶ 4} Appellant appeals, raising two assignments of error.
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT WHEN IT REFUSED TO SUPPRESS THE DEFENDANT‘S STATEMENT TO THE POLICE.
{¶ 7} Appellant argues that his statements to the police should have been suppressed because when the interrogating detective advised him of his Miranda rights, he failed to explicitly tell appellant that any statement he made could be used “against him.” Appellant cites United States v. Street, 472 F.3d 1298 (11th Cir.2006); and United States v. Tillman, 963 F.2d 137 (6th Cir.1992), in support of his argument.
{¶ 8} Appellant‘s interrogation was videotaped. On the videotape, as he advises appellant of his Miranda rights, the detective can be heard saying, “This is the Miranda card and this says that I warn you I am a police officer. You have the right to remain silent and anything you say can and will be used in a court of law.” At the suppression hearing, the state stipulated that the videotape did not include the words “against you.” The detective testified that he did use the words “against you,” however there was a glitch in the recording which caused the two words to be omitted from the videotape.
{¶ 9} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8; State v. Renfro, 12th Dist. No. CA2011-07-142, 2012-Ohio-2848, ¶ 9. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Burnside at ¶ 8. Consequently, an appellate court must accept the trial court‘s findings of fact if they are supported by competent, credible evidence. Id. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the trial court applied the appropriate legal standard. Id.
{¶ 10} It is well-established that a suspect who is subject to a custodial interrogation must be advised of his Miranda rights. State v. Rader, 12th Dist. No. CA2010-11-310, 2011-Ohio-5084, ¶ 8, citing State v. Treesh, 90 Ohio St.3d 460 (2001). The admissibility of any statements given by a suspect during custodial interrogation depends on whether the police warned the suspect that he has the right to remain silent, anything he says can be used against him in a court of law, he has the right to the presence of an attorney, and if he cannot afford an attorney, one will be appointed for him prior to any questioning if he so desires. Treesh at 470, citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).
{¶ 11} “[T]here is no rigid rule requiring that the content of the Miranda warnings given
{¶ 12} Upon reviewing the record, we hold that the warning provided to appellant was adequate under Miranda. We find the reasoning in State v. Messino, 378 N.J.Super. 559, 876 A.2d 818 (2005), to be persuasive. As in the case at bar, Messino argued that his statements to the police should have been suppressed because the Miranda warnings failed to explicitly inform him that any statement could be used “against him.” While in police custody, Messino was given a Miranda warnings card and asked to read it aloud. The card stated in part, “Anything you say can and will be used in a court of law.” The appellate court held that Messino‘s statements were admissible:
We are convinced, however, that the warnings provided to defendant were sufficient to inform him of the substance of his constitutional rights. “[T]he words of Miranda do not constitute a ritualistic formula which must be repeated without variation in order to be effective. Words which convey the substance of the warning alone with the required information are sufficient.” In this matter, defendant was informed of the substance of his Miranda rights. Defendant was told that any statement he made could be used in a court of law. Defendant could have readily inferred that any statement given to the investigators could be used against him.
(Internal citations omitted.) Messino at 577.
{¶ 13} Appellant‘s reliance on Street and Tillman is misplaced. The warnings given to the defendant in Street completely omitted the advice that anything the defendant said could be used against him in a court of law. Likewise, the defendant in Tillman was not given any
{¶ 14} In addition, the detective testified, and the videotape shows that as he advised appellant of his Miranda rights, the detective had a Miranda warnings card in front of appellant and advised him to follow along. The detective then gave the card to appellant, told him to read it, and when he was done, to sign the back of the card. On the videotape, appellant appears to read the card. The detective testified that appellant appeared to read the card. Appellant then signed the card and inserted the date and time of the interview. The card clearly warns appellant that “anything you say can and will be used in a Court of law against you.” See State v. Moore, 81 Ohio St.3d 22 (1998) (an accused‘s signed waiver form is strong proof that the waiver is valid).
{¶ 15} We therefore find that the trial court did not err in denying appellant‘s motion to suppress the statements he made to the detective during the first 28 minutes and 50 seconds of his custodial interrogation.1 Appellant‘s first assignment of error is overruled.
{¶ 16} Assignment of Error No. 2:
{¶ 17} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT WHEN IT REFUSED TO PROVIDE A JURY INSTRUCTION REGARDING THE LESSER INCLUDED OFFENSE OF INVOLUNTARY MANSLAUGHTER.
{¶ 18} Appellant argues that the trial court erred by refusing to instruct the jury on the lesser included offense of involuntary manslaughter. Specifically, appellant asserts that the trial court should have instructed the jury on involuntary manslaughter as a lesser included
{¶ 19} Appellant was charged with, and convicted of, felony murder in violation of
{¶ 20}
{¶ 21} A jury instruction on a lesser included offense is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction on the lesser included offense. State v. Wyatt, 12th Dist. No. CA2010-07-171, 2011-Ohio-3427, ¶ 30. An instruction is not warranted, however, simply because the defendant offers “some evidence” to establish the lesser included offense. Id. Instead,
{¶ 22} Involuntary manslaughter is a lesser included offense of felony murder. State v. Tucker, 12th Dist. No. CA2010-10-263, 2012-Ohio-139, ¶ 32, citing State v. Thomas, 6th Dist. No. L-06-1331, 2009-Ohio-1748, citing State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284. Nonetheless, we find that no jury could have reasonably concluded that appellant‘s acts constituted anything other than aggravated robbery, the predicate offense supporting his felony murder charge.
{¶ 23} Testimony at trial clearly shows that appellant and Renfro conspired to rob Manies. The robbery was planned the day before. The following morning, both appellant and Renfro, hiding their identity by either wearing a bandana or a ski mask, hid in a closet. As soon as Manies walked past the closet, both appellant and Renfro jumped out of the closet, with appellant leading the way, and attacked Manies. According to Kakaris, appellant was yelling at Manies. A struggle ensued. Kakaris ran out of the house and waited in a getaway car. Five minutes later, both appellant and Renfro fled the house from a second-floor window and got into the car. As the car drove away, appellant and Renfro split up money, jewelry, and a cellphone they had stolen from Manies.
{¶ 24} With regard to the struggle which resulted in Manies’ death, testimony at trial revealed the following. According to Kakaris, once in the car, appellant “said that when he went after [Manies] he was stronger than what he thought, and he put up a little bit of a
{¶ 25} The videotape of appellant‘s interrogation was played to the jury. During the interrogation, appellant stated that (1) it was supposed to be a simple robbery; however, Manies was “in a rage” and fought back, “and from there it was a struggle;” (2) As Manies fought back, “he threw me off, * * * right to the side, * * * and him and [Renfro] went at it;” and (3) “I‘m not the guilty one, but I‘m a guilty party in a situation.” Appellant also stated that after he was the first one getting out of the closet, Manies swung at him but missed him. Manies also grabbed him but appellant was able to get away. Subsequently, Manies and Renfro struggled until Renfro applied a choke hold around Manies’ neck.
{¶ 26} Appellant witnessed Renfro apply a choke hold around Manies’ neck. Appellant testified that as Renfro was choking Manies, the latter was turning blue and purple and kept saying either “you‘re going to kill me, you‘re going to kill me,” or “you‘re killing me, you‘re killing me.” Appellant did not stop Renfro from choking Manies and instead went upstairs looking for Kakaris. After he realized she was not there, he went back downstairs and urged Renfro to leave, saying, “come on man, quit playing, come on, Ricco, let‘s go. * * * So [Renfro] left the dude alone” and he and appellant fled the house.
{¶ 27} As stated earlier, Dr. Swinehart testified that Manies died of cerebral hypoxia, that is, of a lack of oxygen to the brain. Manies had “deep neck injuries” with significant hemorrhage to his larynx and his left sternocleidomastoid muscle (a large neck muscle). Dr. Swinehart also testified that one can lose consciousness in 15 to 20 seconds, however, “if the pressure is removed, very often the individual will be revived.”
{¶ 28} The evidence shows that appellant and Renfro acted in concert and that each
{¶ 29} Because the evidence did not reasonably support an acquittal on appellant‘s felony murder charge and a conviction on the lesser included offense of involuntary manslaughter, the trial court did not err in refusing to instruct the jury as such. Appellant‘s second assignment of error is overruled.
{¶ 30} Judgment affirmed.
POWELL, P.J., and RINGLAND, J., concur.
Young, J., retired, of the Twelfth Appellate District, sitting by assignment of the Chief Justice, pursuant to