State v. ReedState v. Reed
Rendered on the 29th day of January, 2010.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; Kirsten A. Brandt, Asst. Pros. Attorney, P.O. Box 972, Dayton, OH 45422, Atty. Reg. No.0070162
Attorneys for Plaintiff-Appellee
Larry J. Denny, Atty. Reg. No. 0020430, 371 West First Street, Dayton, OH 45402
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, J.:
{¶ 1} Defendant, James Reed, appeals from his conviction and sentence for OMVI, which were entered on Reed’s plea of no contest following the trial court’s denial of his
{¶ 2} Reed was arrested at approximately 12:45 a.m. on February
{¶ 3} “We were just standing there talking, having a cup of, cup of hot chocolate; and then Patricia Wolfe, who’s a clerk at UDF she came running toward us and said that the defendant just bought some alcohol, bought some beer, and when he was leaving, he was stumbling, and he had a very, very strong odor of alcohol. She said that he was, he was drunk.
{¶ 4} “Q. Okay. What did you upon receiving that information?
{¶ 5} “A. At that time I then went outside, and he was getting in his truck start, starting to back up.
{¶ 6} “Q. Okay. Had he actually started the vehicle?
{¶ 7} “A. Yes, he was actually backing up.
{¶ 8} “Q. Okay. So the vehicle was moving when --
{¶ 9} “A. Yes.
{¶ 10} “* * *
{¶ 11} “Q. Once you see him in the vehicle moving the car, what do you do?
{¶ 12} “A. I knocked on the, the window.
{¶ 13} “Q. The window of the truck?
{¶ 14} “A. Yes.
{¶ 15} “Q. Okay. And what was your reason for doing that?
{¶ 16} “A. Based on what the clerk told me that he was very intoxicated. He had a strong odor of alcohol. He, he was, he was staggering when he was walking out to the parking lot.
{¶ 17} “Q. Okay. Once you knocked on the window, what did the defendant do at that time?
{¶ 18} “A. The defendant put the truck, just put it in park right there and stepped out.
{¶ 19} “Q. Okay. What, if anything, did you notice about him?
{¶ 20} “A. I immediately noticed a strong odor of alcohol on him. I started talking with him, and then I, his speech was slurred and when I was talking to him, he, he was swaying back and forth.
{¶ 21} “Q. Okay. You, you said you started talking to him.
{¶ 22} “A. Yeah.
{¶ 23} “Q. What, what was the conversation that you had with the defendant?
{¶ 24} “A. I asked him how much alcohol has he had to drink, and he advised that he had a few.
{¶ 25} “* * *
{¶ 26} “He just said that he’s going through a lot of personal problems. He was being apologetic. You know, pleading. He said
don’t arrest me. Don’t arrest me. That this will be a felony DUI if I get arrested and just basically saying he’s sorry. {¶ 27} “Q. How long would you say you conversed with the defendant?
{¶ 28} “A. At that time probably a minute, minute or two.
{¶ 29} “Q. Okay. And is there anything else you noticed about his appearance that was unusual?
{¶ 30} “A. Just the very strong odor of alcohol, the slurred speech, his eyes were blood shot, and when I was talking to him, he was swinging back and forth.
{¶ 31} “Q. Was he swinging back and forth the entire course of your conversation?
{¶ 32} “A. Pretty much. I mean, he was, he wasn’t, he was going back and forth as I was talking to him.
{¶ 33} “Q. Okay. What did you do at that point?
{¶ 34} “A. I then asked him if he wanted to take some field, field sobriety tests.
{¶ 35} “Q. Okay. And what was his response to you?
{¶ 36} “A. He said he would.” (T. 6-10).
{¶ 37} Officer Schomburg testified that he administered the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, and the one-leg stand test. The officer also administered the
{¶ 38} Defendant was charged with operating a motor vehicle while having a prohibited concentration of blood/alcohol in violation of
{¶ 39} Reed obtained new counsel, and after that was granted leave to file another motion to suppress. The new motion challenged Reed’s stop, his field sobriety tests, and his arrest, as the previous motion had, and in addition challenged the results of Reed’s breath test. The new motion was not heard, because on February 9, 2009, Reed changed his plea to “no contest” and was found guilty. Reed thereafter withdrew his challenge to his breath test, also indicating that his other grounds for suppression had “been previously overruled.”
{¶ 40} Reed was sentenced to a one-year term of incarceration and his operating privileges were suspended for one year. Reed
FIRST ASSIGNMENT OF ERROR
{¶ 41} “APPELLANT WAS UNLAWFULLY SEIZED, BECAUSE THE OFFICER LACKED REASONABLE ARTICULABLE SUSPICION THAT CRIMINAL ACTIVITY WAS AFOOT TO JUSTIFY APPELLANT’S WARRANTLESS SEIZURE”
{¶ 42} Consistent with the Fourth Amendment, police may stop a motorist to investigate a reasonable suspicion of criminal activity. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; City of Maumee v. Weisner, 87 Ohio St.3d 295, 1999-Ohio-68. A determination of whether reasonable suspicion exists involves a consideration of the totality of the circumstances. State v. Bobo (1988), 37 Ohio St.3d 177. Under that analysis, both the content of the information possessed by police and its degree of reliability are relevant to the determination. Weisner.
{¶ 43} When the information possessed by the police before a stop stems solely from an informant’s tip, the determination of reasonable suspicion will be limited to an examination of the weight and reliability due that tip. Weisner. The appropriate analysis is whether the tip itself has sufficient indicia of reliability to justify the investigative stop. Id. Factors considered highly relevant are the informant’s veracity, reliability, and basis
{¶ 44} An anonymous informant is generally regarded as comparatively unreliable, and his tip, therefore, will ordinarily require independent and objective corroboration. Ohio courts have generally accorded the identified citizen informant greater credibility. Id. Information from an ordinary citizen who has personally observed what appears to be criminal conduct carries with it indicia of reliability, and is therefore presumed to be reliable. State v. Carstensen (Dec. 18, 1991), Miami App. No. 91-CA-13; City of Centerville v. Gress (June 19, 1998), Montgomery App. No. 16899.
{¶ 45} Defendant argues that the tip the officers were given by Patricia Wolfe, the UDF store clerk, provided an insufficient basis for the officers to stop Defendant from driving away. In this context, a tip is a “piece of advance or confidential information given by or received from one thought to have access to special or inside sources.” Webster’s Third International New Dictionary. It is those limitations that bring the reliability of the tip into question, requiring independent and objective corroboration.
{¶ 46} The report the officers received from Patricia Wolfe does not correspond to a true tip. The information she imparted was neither in advance of the matter concerned nor confidential
{¶ 47} Defendant nevertheless argues that Wolfe’s tip was insufficient to give rise to a reasonable suspicion of criminal activity and justify an investigative stop. Defendant relies upon previous decisions of this court wherein we stated that an odor of alcohol, or a slight odor of alcohol, coupled with a de minimus traffic violation, glassy bloodshot eyes, and an admission to having consumed one or two beers, was insufficient to create a reasonable suspicion of driving under the influence and justify the administration of field sobriety tests. State v. Spillers (Mar. 24, 2000), Darke App. No. 1504; State v. Dixon (Dec. 1, 2000), Greene App. No. 2000-CA-30. This court has, however, repeatedly held that a strong odor of alcohol alone is sufficient to provide an officer with reasonable suspicion of criminal behavior. See:
{¶ 48} Defendant relies on State v. Brant, Franklin App. No. 01AP-342, 2001-Ohio-3994. In that case an employee at a drive-thru called police to say he believed a driver was intoxicated because the driver had repeatedly honked his vehicle’s horn for ten minutes, his speech was very slow, and his shirt was on backwards and inside out. An officer followed the driver when he drove away, and though the officer observed no erratic driving while following the driver’s vehicle, he stopped the driver and arrested him for OMVI. On appeal, the court in Brant noted that while the report police received was credible, the store employee had not witnessed any traffic violations, unlawful behavior, or evidence of impaired driving. Neither did the employee in Brant report that the driver had a “very, very strong odor of alcohol” about him, or that he was stumbling when he walked, as the store employee in the present case did. Those facts portray an alcoholic impairment which justified the officers in stopping Defendant before he could drive
{¶ 49} Defendant further argues that Patricia Wolfe’s tip was unreliable because she lost all credibility by violating the law herself by selling beer to a person she believed to be intoxicated, in violation of
{¶ 50} Patricia Wolfe’s tip was both credible and sufficient to give rise to a reasonable suspicion of criminal behavior that justified the investigative stop of Defendant. The officers did not act on a mere inchoate hunch, as Defendant contends. Defendant’s Fourth Amendment rights were not violated by his stop.
{¶ 51} Defendant’s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 52} “OFFICER SCHOMBURG DID NOT ADMINISTER ANY OF THE FIELD
{¶ 53} The results of field sobriety tests are admissible at trial if the State presents clear and convincing evidence that the officer administered the tests in substantial compliance with National Highway Traffic Safety Administration (“NHTSA“) standards.
{¶ 54} Evidence showing that the pertinent rules and regulations have been followed in conducting field sobriety tests, if unchallenged, constitutes a sufficient foundation for admission of the test results. State v. Murray, Greene App. No. 2002-CA-10, 2002-Ohio-4809. Only when a defendant sufficiently challenges the evidence would the State then need to present more particular evidence of compliance. Id. For example, testimony by the
{¶ 55} Officer Schomburg testified at the suppression hearing that he was trained at the Ohio Highway Patrol in 1996 in how to administer the HGN test, the walk and turn test, and the one-leg stand test, and that “those are NHTSA tests.” (T. 11). Schomberg testified that he was given a NHTSA manual as part of his training, and he has since been provided periodic updates to the manual, the most recent being one he received a couple of years before. (T. 11).
{¶ 56} Officer Schomburg explained in detail how he administered each of the three NHTSA field sobriety tests to Defendant, including the screening questions he asked, the instructions he gave, his demonstrating how to perform each test, what he was looking for in each test, and how and why Defendant failed each test. When he was asked, “Did you administer (those tests) in accordance with the National Highway Traffic Administration Standards,” Officer Schomburg replied, “Yes.” (T.
{¶ 57} In order for the substantial compliance permitted by
{¶ 58} In the present case, the prosecutor inquired of Officer Schomberg whether and how he administered the tests in accordance with his training. A witness’s direct responses to that line of inquiry may be insufficient to satisfy
{¶ 59} Defendant’s second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
{¶ 60} “ONCE THE FIELD SOBRIETY TESTS ARE SUPPRESSED, OFFICER SCHOMBURG DID NOT HAVE PROBABLE CAUSE TO ARREST REED FOR OVI.”
{¶ 61} As we noted in disposing of the second assignment of error, the trial court properly refused to suppress the results of the field sobriety tests. When those results are considered in conjunction with the other evidence, Officer Schomburg had ample probable cause to arrest Defendant for driving under the influence of alcohol. Murray; Davis.
{¶ 62} Defendant’s third assignment of error is overruled.
FOURTH ASSIGNMENT OF ERROR
{¶ 63} “REED SHOULD HAVE BEEN GRANTED LEAVE TO FILE A NEW MOTION TO SUPPRESS DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL.”
{¶ 64} Defendant argues that the trial court abused its discretion when it reversed its original decision granting Defendant leave to file a new motion to suppress, because Defendant was denied the effective assistance of counsel during the suppression hearing.
{¶ 65} The trial court’s decision granting Defendant leave to file a new motion to suppress is part of the record in this case (Dkt. 22), but its judgment reversing that decision to which
{¶ 66} In any event, counsel’s performance will not be deemed ineffective unless and until counsel’s performance is proved to have fallen below an objective standard of reasonable representation and, in addition, the defendant was prejudiced as a result. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. To prove prejudice the defendant must demonstrate that were it not for counsel’s errors, the result of the trial would have been different. Id., State v. Bradley (1989), 42 Ohio St.3d 136.
{¶ 67} Defendant argues that his counsel performed deficiently by not adequately cross-examining Officer Schomburg on several issues, including Patricia Wolfe’s tip and the inconsistencies between her verbal statement to the officers in the UDF store and her subsequent written statement. However, Officer Schomburg did not rely on Wolfe’s written statement for the reasonable suspicion
{¶ 68} Next, Defendant claims that his counsel did not adequately cross-examine Officer Schomburg about Wolfe’s commission of a criminal offense when she sold beer to a person she believed to be intoxicated.
{¶ 69} Defendant also argues that his counsel performed deficiently by failing to adequately cross-examine Officer Schomburg about the field sobriety tests he administered. Specifically, Defendant claims that had his counsel cross-examined Schomburg about the four to five minutes he took to administer the HGN test, it would demonstrate that the test was not conducted in substantial compliance with NHTSA standards, which specify sixty-eight seconds as the time required to perform the HGN test.
{¶ 70} The length of time Officer Schomburg took to perform the HGN test is something that counsel did cross-examine Schomburg about. Schomburg testified that he spent four to five minutes in performing the HGN test, and that when he checked Defendant for nystagmus at maximum deviation, he held the pen at maximum deviation for four seconds after seeing nystagmus. That is in accordance with NHTSA requirements. See: State v. Derov, 176 Ohio App.3d 43, 2008-Ohio-1672; State v. Mai, Greene App. No. 2005-CA-115, 2006-Ohio-1430. Furthermore, the sixty-eight seconds that the NHTSA manual suggests is needed to perform all three phases of the HGN test is the minimum time required, and performing the test faster than that calls in question the
{¶ 71} Other than the amount of time Officer Schomburg took to perform the HGN test, Defendant does not explain how Schomburg’s administration of the field sobriety tests failed to comply with NHTSA standards. Accordingly, Defendant has not shown that his counsel performed deficiently by not eliciting on cross-examination of Schomburg areas of non-compliance, or that he suffered prejudice as a result.
{¶ 72} Defendant also argues that his counsel performed deficiently by failing to introduce the NHTSA manual or call an expert witness who could testify that Officer Schomburg’s administration of the field sobriety tests was not in substantial compliance with NHTSA standards. This argument contradicts Defendant’s contention in his second assignment of error that it was the State’s burden to show compliance with NHTSA standards by introducing such evidence. In any event, Defendant has not demonstrated that he suffered any prejudice as a result of his counsel’s failure to introduce this evidence. The trial court has the discretion to implicitly take judicial notice of the requirements in the NHTSA manual, even in the absence of a formal request to do so. Knox. Ineffective assistance of counsel has
{¶ 73} Finally, Defendant asserts that his counsel performed deficiently by failing to adequately cross-examine Officer Schomburg about the walk and turn test. Defendant’s counsel cross-examined Schomburg concerning each of the three NHTSA field sobriety tests that Schomburg administered. Counsel cross-examined Schomburg in detail concerning the instructions he gave for the walk and turn test, his demonstration of how to perform that test, and the conditions existing at the time. Defendant does not specify how Schomburg’s administration of the walk and turn test fails to comply with NHTSA standards. Accordingly, no deficient performance by counsel, much less resulting prejudice to Defendant, has been shown.
{¶ 74} Defendant’s fourth assignment of error is overruled. The judgment of the trial court will be affirmed.
BROGAN, J. And FROELICH, J., concur.
Copies mailed to:
Kirsten A. Brandt, Esq.
Larry J. Denny, Esq.
Hon. A.J. Wagner