STATE OF OHIO v. HOUBERT J. RAINES
C.A. CASE NO. 24227
T.C. NO. 10CR662 (Criminal appeal from Common Pleas Court)
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
July 29, 2011
[Cite as State v. Raines, 2011-Ohio-3735.]
DANIEL R. ALLNUTT, Atty. Reg. No. 0085452, P. O. Box 234, Alpha, Ohio 45301 Attorney for Defendant-Appellant
O P I N I O N
DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Houbert J. Raines, filed August 27, 2010. On March 30, 2010, Raines was indicted on one count of aggravated robbery (deadly weapon), in violation of
{¶ 2} At the hearing on the motion to suppress, City of Dayton police officer Mitch Olmstead, who has been so employed for 18 years, testified that he was assigned to investigate the incident herein, which occurred at 903 Milburn Avenue. On March 4, 2010, Olmstead interviewed Raines at approximately 12:30 p.m. at the First District. Olmstead identified the pre-interview form that he used in the interview, and he testified that at the start of the process, he put the date, time and location of the interview in the upper right hand corner of the form. Olmstead stated that he read the entire form to Raines, and then he “drew lines next to each right,” and as he read each right, he “had him answer out loud that he verbally understood them with a yes.” According to his testimony, Olmstead then had Raines place his initials by each of the five rights to indicаte his understanding thereof. Olmstead stated that he had Raines read the waiver of rights out loud and Raines indicated he understood the waiver. Olmstead then asked Raines how many years of school he had completed, and Raines wrote 11 years on the form. According to Olmstead, Raines signed the form and printed his name under his signature. Olmstead testified that he wrote Raines’ identifying information in the upper left hand corner of the form and Raines placed his initials next to the identifiers, which included his name, address, social security number
{¶ 3} After the form was signed, Raines agreed to make statements to Olmstead. During the course of the interview, Olmstead asserted that Raines did not ask to terminate the process, nor did he ask for an attorney. Olmstead indicated that Raines did not appear to be under the influence of any alcohol or drugs, and he “understood every word I said to him.” Olmstead stated that he did not threaten Raines or employ force at any point, and no promises were made in exchange for his statements. Olmstead stated that he did not withhold medical treatment from Raines. In addition to his oral statements, Raines provided a written statement to Olmstead. At the conclusion of the interview, Officer Herman took Raines to Grandview Hospital while Olmstead followed in a separate cruiser. According to Olmstead, Raines remained at the hospital for two to three hours before being released, and then he was booked into the Montgomery County Jail.
{¶ 4} Olmstead further testified that on March 8, 2010, he showed a photo spread to Ernie Gilbert, the victim herein, at the Safety Building. Detective Richie Davidson prepared the photo spread at Olmstead‘s rеquest. Olmstead testified that he read the instructions for the photo spread to himself, and then he read them “verbatim” to Gilbert. Olmstead testified that when the photo spread was placed in front of him, Gilbert identified Raines as “the person who had robbed him, broken into his home.” Gilbert circled, signed and dated Raines’ photo, and then he signed the bottom of the paper, according to Olmstead. Olmstead identified the photo spread that he showed to Gilbert at the hearing. Olmstead stated that no one else was present when Gilbert identified Raines. Olmstead testified that
{¶ 5} On cross-examination, Olmstead stated that he was advised of the incident herein by another officer, and he also received a call on his cell phone regarding the incident from an evidence crew. Olmstead stated that he came into contact with Raines at approximately 12:10 p.m. at the home of his parents, and he immediately noticed a large knot on Raines’ forehead, as well as fresh blood on his face. Olmstead testified that Raines also “had some abrasions around his hand and some * * * small cuts on the back of his head.” The lacerations “didn‘t appear to be very big, at all,” and Olmstead stated that he did not believe that Raines was aware of them. Raines “never made reference to them,” and Olmstead “never saw him paying any attention to them. I never saw him touching them. I never heard him complain about them.” Olmstead stated that there was not very much blood on the back of Raines’ head. Regarding the knot on his forehead, Olmstead stated that “it was swollen and there was a cut. And there was blood on his forehead that had run down onto his nose and blood had dried.” Olmstead identified photos that were taken of Raines’ injuries.
{¶ 6} According to Olmstead, the interview lasted “maybe an hour,” and at its conclusion, Raines was taken to the hospital, at “1:30, two o‘clock.” Olmstead stated that Raines did not appear dazed in any way. In the course of the interview, according to Olmstead, Raines, “looked away and started laughing. And when I was repeating what he said to him, I told him - - I called him Hobie, * * * Hobie, you can tell you‘re lying; you know it yourself; you started to laugh and you‘re looking away; the rest of the time you were real serious and when you got to the part where you were lying to me, you started laughing.”
{¶ 7} Regarding the photo spread, Olmstead stated that it contained six photos of different sizes, and that Raines was depicted in photograph no. 4. According to Olmstead, photograph nos. 4, 1 and 2 were of equal size and larger than photograph nos. 3, 5 and 6. Olmstead testified that he went over the instructions “very clearly,” and when the photo spread was presented to Gilbert, he “didn‘t look at it very long * * * less than 30 seconds,” before identifying Raines.
{¶ 8} On redirect examination, Olmstead testified that the incident at issue occurred at 3:44 a.m., and that several hours had passed between the time of the incident and when Olmstead made contact with Raines. According to Olmstead, Raines did not indicate that he had sought any type of medical care in the intervening hours.
{¶ 9} The trial judge asked Olmstead if he previously knew Raines, and Olmstead responded, “I had arrested him about a year ago, * * * for B and E. But I didn‘t really remember him.”
{¶ 10} Raines’ mother, Sally Raines, testified on behalf of her son. On the date of
{¶ 11} On cross-examination, Sally stated that Raines tried to speak to her “but just the words weren‘t making any sense.” She stated that Olmstead and the other officers arrived at her home “around nine” in the morning. Raines “looked like he had a pretty good concussion,” according to Sally.
{¶ 12} Raines also testified. He stated that he was 23 years old at the time of the hearing, and that he had never been convicted of a felony offense. When asked about his
{¶ 13} On cross-examination, when asked about the incident, Raines stated that he remembers “waking up and crawling home.” Before the incident, Raines stated that he was “with a female,” named Ashley Honshul, at his home on Keowee. According to Raines, Honshul “had stolen a family heirloom, a pistol, my grandfather had left me.” Raines did not see her take the gun, but his grandmother, who also lives at that address, “seen her go out
{¶ 14} Regarding the pre-interview form, Raines testified that it “didn‘t really make sense to me but I nodded and initialed.” Raines stated that Olmstead “wouldn‘t take me to the hospital until I completed” the form. When he was shown his written statements, Raines stated, “I was helped to write that statement, not physically but he helped me with the words.” Regarding the conflicting statements that he gave, Raines stated that Olmstead told him what to write in both statements. Raines stated that he was told at the hospital that he had sustained a concussion, and he “couldn‘t remember the events.” At the jail, Raines stated that he received Motrin for pain, and that his request to be placed in a “medical cell” was denied.
{¶ 15} The following exсhange occurred between the trial judge and Raines:
{¶ 16} “THE COURT: “* * * your mother says that it was nine o‘clock that the police took you from your house. And it was noon on the forms when you started this interview or somewhere around there. What happened from nine o‘clock to noon?
{¶ 17} “THE WITNESS: Me and - - well I was sitting in the chair at First District
{¶ 18} “THE COURT: For three hours?
{¶ 19} “THE WITNESS: I couldn‘t say for three hours, sir.”
{¶ 20} Dr. Craig A. Dues, who treated Raines at the hospital, testified. Dues identified Raines’ medical records, which indicated that Raines had experienced a loss of consciousness after being injured. According to Dues, he “documented that there is a stellate, two centimeter laceration at the intraorbital region in the forehead as well as a two centimeter laceration to the * * * supraorbital left frontal region and a one centimeter laceration on the posterior scalp.
{¶ 21} “I go on to document that his pupils are equally round and reactive to light and accommodation.” Dues testified that Raines’ treatment “primarily involved repair of the wounds.” For the wound between Raines’ eyes, it “was anesthetized with some Lidocaine, one percent with Epinephrine. It was thoroughly cleansed and there was some 5.0 sutures plаced, which are stitches.” Dues stated that “it was a complex facial closure. * * * it was not a nice straight wound.” Raines’ two centimeter scalp wound “required six staples. Another scalp wound that was one centimeter in length required two staples.” Dues documented that Raines was “alert and oriented.” Dues diagnosed Raines with a “closed head injury,” which is “a blunt force type trauma” in which there‘s no penetration into the skull. Dues stated that he ordered a CAT scan of the head, facial bones, and the C-spine for Raines. Dues testified that he “documented that there was no hemorrhаge meaning no intracranial bleed. However, there is documented a scalp hematoma which means there was some type of blunt force trauma resulting in a scalp hematoma which is
{¶ 22} On cross-examination, Dues stated that he was unable to verify that Raines lost consciousness, and that the history Raines provided was the sole basis for his diagnosis of a traumatic brain injury. Dues stated that Raines told him that he was hit in the face and head with a pistol at approximately 4:00 a.m., and Dues testified that Raines “obviously, remembered the event and he independently recalled that. He told me about it.” Dues stated that Raines was discharged after spending two hours at the hospital.
{¶ 23} In overruling the motion to suppress, the trial court found that Raines was taken to the First District police station, where “at about 12:30,” shortly after his arrivаl, he was advised of his Miranda rights with the use of a pre-interview form. The court found that Raines initialed each right and indicated that he had 11 years of schooling. The court found that Raines read the waiver of rights out loud and signed the form, and there were “no
{¶ 24} According to the trial court, at “one point the defendant was challenged by the officer. The officer indicated that he did not believe that the defendant was telling him the truth, and the defendant then continued to give statements which were different from the initial statement that he made.”
{¶ 25} The сourt summarized the testimony of Raines’ mother and found that her “story makes no sense whatsoever to the Court with regard to the timing. Either she is lying or sorely mistaken as to the timing of the events because she‘s either a couple hours off or intentionally she is trying to mislead by her testimony.”
{¶ 26} The court also summarized Raines’ testimony, and found “that his testimony is also inconsistent with the time line of the event and the time that he eventually was found by the police about eight hours later. And is inconsistent further with the testimony of Dr. Dues, who testified that on March the 4th, 2010, he was working at Grandview Hospital.
{¶ 27} “The chart was introduced as an exhibit, and the documentation in that chart is effectively undisputed. There‘s no doubt that the defendant needed sutures for a complex
{¶ 28} “The doctor did not diagnose him with a concussion * * * . The defendant was alert and oriented * * * . The doctor described it as a fairly minimal, if any traumatic brain injury. Mild to moderate injury was also the description he used.”
{¶ 29} The trial court found it significant that Raines “was able to provide medical history and was able to provide information by independеnt recollection * * * and was perfectly alert and oriented” while at the hospital.
{¶ 30} Regarding Gilbert‘s identification of Raines in the photo spread, the court noted that Gilbert was read the instructions verbatim and there “were no suggestions made as to who the victim should identify.” The court noted that the identification occurred on March 8, 2010. Having found that the presentation of the photo spread was not suggestive, the court noted that it “does not need to determine whether or not it‘s a reliable identification in any event,” and the court determined that Gilbert‘s identification of Rainеs is admissible.
{¶ 31} Regarding Raines’ statements, the court found that “there is no doubt that at the police station the defendant was in a custodial interrogation.” The court found that Raines was adequately advised of his Miranda rights. According to the court, the “signing of a rights form is strong evidence, North Carolina v. Butler, of a knowing and intelligent waiver of the defendant‘s Miranda rights.”
{¶ 32} The court found that Raines “was properly advised of his rights, knowingly and intelligently waived those rights; and although he had received an injury eight hours earlier, the Court [did] not find that there was anything unconstitutional about waiting until
{¶ 33} The court found that there was not a “nexus or a connection between the statements that the defendant made and his medical treatment. Medical treatment was not withheld until the defendant would make any statements. His condition, even at the hospital, was adequate to be interviewed.”
{¶ 34} Finally the court found that Raines “did not seek medical treatment for eight hours before the police found him. It was not the Police department that did not have him seek medical treatment for that extended period of time before the interview.”
{¶ 35} Raines asserts three assignments of error. We will consider his first and second assignments of error together. They are as follows:
{¶ 36} “THE APPELLANT‘S CONFESSION GIVEN TO LAW ENFORCEMENT DURING HIS INTERROGATION BY OFFICER OLMSTEAD WAS NOT KNOWINGLY, VOLUNTARILY OR INTELLIGENTLY MADE, BECAUSE MEDICAL TREATMENT WAS WITHHELD IN A SUCCESSFUL ATTEMPT TO COERCE THE APPELLANT‘S CONFESSION.” And,
{¶ 37} “THE APPELLANT‘S WAIVER OF HIS MIRANDA WARNINGS PRIOR TO HIS INTERROGATION BY OFFICER OLMSTEAD WERE NOT KNOWINGLY, VOLUNTARILY OR INTELLIGENTLY MADE, BECAUSE MEDICAL TREATMENT WAS WITHHELD TO COERCE HIM TO MAKING THE WAIVERS.”
{¶ 38} According to Raines, he was “severely injured,” and his injuries “gave law enforcement leverage to elicit a confession.”
{¶ 39} “Appellate courts give great deference to the factual findings of the trier of
{¶ 40} ” ‘The
{¶ 41} ” ’ * * * The burden is on the prosecution to prove by a preponderance of the evidence that a dеfendant waived his Miranda rights voluntarily, knowingly, and intelligently. (Citation omitted).
{¶ 42} ” ’ * * * The test is whether the [waiver] [is] voluntary under the totality of the circumstances, “including 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.” (Citations omitted).
{¶ 43} ” ‘The totality of the circumstances analysis is triggered by evidence of police coercion. (Citation omitted). “[C]oercive police activity is a necessary predicate to the finding” that a suspect involuntarily waived his Miranda rights and involuntarily confessed. (Citation omitted). A suspect‘s decision to waive his Miranda rights * * * [is] made voluntarily absent evidence that “his will was overborne and his capacity for self-determination was critically impaired because of coercive police conduct.” (Citations omitted).
{¶ 44} ” ‘The suspect‘s impaired mental condition at the time of the waiver and the confession has some bearing on the issue of the voluntariness but only as to whether police officers deliberately exploit the suspect‘s mental condition to coerce the waiver and confession.” (Citation omitted). State v. Swopes, Montgomery App. No. 24044, 2011-Ohio-2072, ¶ 32-35.
{¶ 45} ” ‘The line to be drawn between permissible police conduct and conduct deemed to induce or tend to induce an involuntary statement does not depend upon the bare language of inducement but rather upon the nature of the benefit to be derived by a defendant if he speaks the truth, as represented by police. * * * .’ ” Jenkins, ¶ 49.
{¶ 46} Having thoroughly reviewed the record, we conclude that the State
{¶ 47} The record reflects that Rains was 23 years old at the time of the hearing, and that he completed 11 years of schooling. Raines testified that he had never been convicted of a felony. The length of his interview with Olmstead, “maybe an hour,” was reasonable. The fact that Raines laughed in the course of the interview suggests that the interview was not of unreasonable intensity, and it further suggests that Raines was not as “severely injured” as he asserts herein. The trial court found Olmstead‘s testimony credible that he did not threaten Jenkins, make promises or withhold medical treatment in exchange for his statement, and we defer to the trial court‘s assessment of credibility. While Raines testified that he “couldn‘t remember the events,” Olmstead testified that Raines did not appear to be dazed in the interview, and Dues’ testimony regarding Raines’ condition at the hospital, where Raines was taken immediately after the interview, supports Olmsteаd‘s testimony. Dues testified that Raines did not have a concussion, that he remembered being injured, that he had the highest possible score on his neurological examination, that he “did not have any altered sensorium, meaning he was alert, appropriate, oriented,” with appropriate verbal and motor responses. Raines told Dues that he was injured at approximately 4:00 a.m., which is
{¶ 48} There is no evidence of police coercion before us. Since Raines voluntarily, knowingly and intelligently waived his Miranda rights, and since his confession was free and voluntary, Raines’ first two assignments of error are overruled.
{¶ 49} Raines’ third assignment of error is as follows:
{¶ 50} “THE TRIAL COURT‘S DECISION THAT THE APPELLANT‘S IDENTIFICATION IN THE PHOTO ARRAY WAS ADMISSIBLE WAS AN ABUSE OF DISCRETION, BECAUSE THE FORM OF THE ARRAY WAS SUGGESTIVE.”
{¶ 51} According to Raines, the form of the photo spread “drew special attention” to his image because his photo was “significantly larger than half of the photographs.”
{¶ 52} “In many cases, and in almost all cases in which the criminal offender is not known to his victim or other eyewitnesses and is not arrested at the time of the crime, those who witness the crime are asked to identify the perpetrator for purposes of police investigation through some form of confrontation. This confrontation may be in the form of a ‘lineup,’ a one-on-one ‘show up,’ or from a photograph or series of photographs displayed to the witness. When any of these
{¶ 53} ” ‘In order to justify suppressing a pretrial identification, a defendant must demonstrate (1) that the identification procedure used was so impermissibly suggestive as to give rise to a very substantiаl likelihood of misidentification, and (2) that the identification in fact was unreliable under the totality of the circumstances. (Citations omitted). In other words, even if an identification procedure was overly suggestive, the identification remains admissible if sufficient evidence of reliability exists. A determination of reliability is unnecessary, however, where an identification procedure was not unduly suggestive.’ ” (Citations omitted.) State v. Taylor, Montgomery App. No. 22232, 2008-Ohio-6048, ¶ 12.
{¶ 54} Olmstead testified that he read the photo spread instructions to himself and then aloud “verbatim” to Gilbert. Gilbert readily identified Raines within 30 seconds, without difficulty. Gilbert circled Raines’ photo, signеd and dated it. Olmstead did nothing to suggest that Gilbert should identify Raines. The fact that three of the photographs in the array were larger than the other three does not render the photo array “so impermissibly suggestive” that there is a “very substantial likelihood of misidentification.” See State v. Foster (Sept. 25, 1998), Trumbull App. No. 97-T-0094, quoting State v. Hill (1987), 37 Ohio App.3d 10 (” ’ * * * There is nothing in the record to indicate that the police officers in any way suggested to the witnesses looking at the photo array who should be chosen from the array. The mere fact that appellant‘s photograph was slightly larger and did not contain the same border as the other pictures is not sufficient to find that the identification procedure was impermissibly suggestive’ “). There being no due process violation, Raines’ third assigned error is overruled.
{¶ 55} The judgment of the trial court is affirmed.
GRADY, P.J. and FAIN, J., concur.
Copies mailed to:
Kirsten A. Brandt
Daniel R. Allnutt
Hon. Mary L. Wiseman