State of Ohio v. Damon L. Taylor
No. 19AP-396
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
August 18, 2022
2022-Ohio-2877
BEATTY BLUNT, J.
(C.P.C. No. 17CR-3590), (REGULAR CALENDAR)
Rendered on August 18, 2022
On brief: [G. Gary Tyack], Prosecuting Attorney, and Seth L. Gilbert, for appellee.
On brief: Carpenter Lipps & Leland, LLP, Kort Gatterdam, and Erik P. Henry, for appellant.
APPEAL from the Franklin County Court of Common Pleas
BEATTY BLUNT, J.
{¶ 1} Defendant-appellant, Damon L. Taylor, appeals the judgment of the Franklin County Court of Common Pleas following a juvenile bindover and a jury trial. The jury found him guilty of murder with firearm specification and the court sentenced him to a 15-years-to-life term, consecutive to a three-year term for the specification. Taylor asserts nine assignments of error with the trial court‘s judgment:
[I.] Mandatory bindovers under
R.C. 2152.12(A)(1)(a)(i) violate due process and equal protection rights guaranteed under the United States and Ohio Constitutions.[II.] The juvenile court erred by finding probable cause, on a complicity theory, existed to transfer this matter to adult court in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution.
[III.] The trial court erred in denying appellant‘s motion to suppress statements.
[IV.] The trial court abused its discretion by allowing testimony regarding Snapchat from a witness when there was a lack of foundation and lack of qualification of the testifying witness contrary to the Due Process Clause of the Ohio and United States Constitutions.
[V.] The prosecutor engaged in misconduct during closing argument resulting in a denial of appellant‘s right to Due Process.
[VI.] The trial court erred in providing a limiting instruction regarding law enforcement‘s interrogation tactics.
[VII.] Appellant was deprived of the effective assistance of trial counsel in violation of appellant‘s rights under the Sixth and Fourteenth Amendments to the United States Constitution, and Section 10 and 16, Article I of the Ohio Constitution.
[VIII.] The trial court violated appellant‘s rights to due process and a fair trial when it entered a judgment of conviction based on insufficient evidence and against the manifest weight of the evidence in violation of appellant‘s rights under the United States and Ohio Constitutions.
[IX.] The imposition of an indefinite prison sentence of 15 years to life for murder violated the Eighth Amendment to the United States Constitution.
{¶ 2} Plaintiff-appellee, State of Ohio, alleged that on April 15, 2016, Taylor shot and killed Enrique Straughter. The facts at trial indicated that late in the evening of April 14, 2016, Taylor either stole or borrowed his mother‘s car, which happened to contain his stepfather Michael Jackson‘s firearm, a Smith & Wesson MP40 semiautomatic pistol. Taylor met up with his friend (and his sister Dasha‘s boyfriend) Damion Wade, went to the home of his two sisters Dasha and Asha on Commons Road, and drank and smoked marijuana with Wade and Asha. At some point Taylor became agitated about the loss of a chain that he owned and apparently believed that it had been stolen by Straughter, whom he had considered a friend. Straughter lived in the same apartment complex as Dasha and Asha, on Lavenham Road, which is well within walking distance of Commons Road.
{¶ 4} Based on this evidence, Reynoldsburg police obtained a search warrant for the apartment belonging to Taylor‘s two sisters. When they arrived at the apartment to execute the warrant, Taylor was there. It is unclear whether Taylor was arrested before or during the search of the apartment, but notwithstanding, police seized several cell phones from the apartment, one of which tied to a Bluetooth device and identified as “Damon Taylor.” Police were eventually able to extract several Snapchat photos from this phone—one the photos, time-stamped on April 14, 2016 at 11:33 p.m., shows a hand holding a Smith & Wesson pistol inside a Chevrolet, and another photo, taken at 10:55 a.m. on April 15 depicts Taylor laying back on a couch with his hand across his chest, and is captioned: “They tryna take me for murda.” (State‘s Ex. C2 and C4 to Bindover Hearing.) Police were also able to extract messages from the phone, which depicted the following conversation:
ME: I‘m not on god I left my gun in the car and someone shot some one with it and took off in the whip I go see a lawyer in like 30 mij
OFF: Why do you have a gun
ME: It was my stepdads he left it in the car and then I left the doors unlock
And got high fell asleep woke up to some bad news
{¶ 5} After he was arrested, Taylor was taken to the police station for interrogation. (State‘s Ex. B to Mar. 15, 2018 Mot. Hearing; see also State‘s Ex. C(1) to Mar. 15, 2018 Mot. Hearing at 14:14 et seq.) A video of the encounter demonstrates some discussion prior to Taylor being provided any Miranda warnings about him being named as a missing person and a suspect in the auto theft, and also that he is a person of interest in a homicide. Taylor, then a minor, requests to call his mother and his stepfather. He also seems to dispute any knowledge of where the automobile is parked, although the video is not clear on this point. The video does clearly demonstrate that two police officers told Taylor that he was a murder suspect and that they had witnesses to that effect.
{¶ 6} Prior to providing Taylor any Miranda warnings, the officers tell him that they would like to hear “his side of the story” while it‘s “fresh in his mind.” Taylor states that he is willing to talk to them about what happened the prior night and that he did not care about witnesses, but also that “I already talked to my lawyer.” Subsequently, Reynoldsburg Police Detective Tim Doersam begins to read the Miranda form to Taylor, who agrees that he understands all of them, but then repeatedly states that he wants his lawyer to be present. Detective Doersam then goes back to the top of the form to fill in his identifying information. Taylor repeatedly indicates that he will not talk without a lawyer. Detective Doersam and the other officer push him to talk even after he says he‘s not going to talk without his lawyer present, and suggest that Taylor‘s mother might get charged with some offense. After they indicate on the Miranda form that Taylor refuses to talk to them without an attorney present, they seek and obtain his consent for a DNA swab, test him for gunshot residue, and continue to encourage him to talk to them and ask him questions about the case. Taylor engages with them somewhat but is consistent about his desire to talk to his attorney and also his mother and is largely silent. After approximately one and one-half hours the video ends, and Taylor is told that his lawyer had arrived and was coming in. The trial court found that shortly thereafter, “counsel advised the detectives that Defendant would not consent to be interviewed, and ultimately, Defendant was released to his counsel. Over the next eight months, police continued to investigate Mr. Straughter‘s
{¶ 7} But on December 12, 2016, charges were filed against Taylor, he was again arrested, and was again interrogated by Detective Doersam. This interrogation was also videotaped, and when Detective Doersam went over the Miranda rights form this time, Taylor signed the waiver and talked with the police. (State‘s Ex. E to Mar. 15, 2018 Mot. Hearing; see also State‘s Ex. C(2) to Mar. 15, 2018 Mot. Hearing at 11:25:15 et seq.) Taylor filed a motion to suppress evidence, and at a motion hearing Detective Doersam admitted that after April 15, 2016, he was aware that Taylor was represented by an attorney and that he had subsequent contacts with that attorney, but claimed that when Taylor was arrested on December 12, 2016, he did “not a hundred percent” know that the attorney he had been dealing with was still representing Taylor on that date. (Mar. 14 and 15, 2018 Tr. at 36.) He admitted that he knew that Taylor‘s attorney had been “actively involved in the case,” id. at 78, that the prosecutor had previously reached out to Taylor‘s attorney to request that Taylor give a statement about the case to the prosecutor and Detective Doersam, id., that he had a meeting with the prosecutor‘s office in December prior to filing the charges against Taylor, id. at 79, that at the time the charges were approved by the prosecutor and filed, he knew Taylor‘s attorney “had represented him up until the last time I talked to you,” id. at 80, and that no one had ever communicated to him that Taylor was no longer represented by his attorney, id at 81. Finally, Detective Doersam admitted that he made no attempt to contact Taylor‘s attorney:
[Dodgion]: Okay. You didn‘t contact me, correct?
[Detective Doersam]: Correct.
Q: You didn‘t make an attempt to contact me, correct?
A: Correct.
Q: Mr. -- As far as you know, nobody from the county prosecutor‘s made an attempt to contact me, correct?
A: Correct.
Q: And on your direct examination, you kind of intimated or implied that, eh, at that point in time I really didn‘t know who
was representing him or whether or not Mr. Dodgion was representing him, didn‘t you, yesterday?
A: I said I could not be a hundred percent at that point.
Q: Okay. Fair enough. That was your answer. But, again, nobody had told you differently, right?
A: Correct.
Q: Okay. And you didn‘t even ask Damon Taylor whether or not I was still representing him, did you?
A: I don‘t believe so.
Q: And that‘s because you didn‘t want the answer, right?
A: It‘s because it‘s his decision.
Q: But you didn‘t ask because you didn‘t want the answer, correct?
A: I don‘t -- I didn‘t -- more because I don‘t think the decision mattered — or the answer didn‘t matter that much.
Q: It didn‘t matter. So if you would have asked him, hey, you know, we got you down here, we know that Mr. Dodgion was representing you in the past and up ‘til a month or so ago. Is he still representing you, by the way? You know that if he‘d -- if you‘d asked that question and he answered, yes, Mr. Dodgion is representing me everything stops, right?
A: I -- Not -- No.
(Mar. 14 and 15, 2018 Tr. at 84-85.)
{¶ 8} Because Taylor was a juvenile at that time Straughter was killed, the case was filed in juvenile court as a mandatory bindover offense. But on December 22, 2016, the Supreme Court of Ohio issued State v. Aalim, 150 Ohio St.3d 463, 2016-Ohio-8278 (“Aalim I“), and held Ohio‘s mandatory bindover statute to be unconstitutional. A probable cause hearing commenced in juvenile court and on April 28, 2017, that juvenile court found there was probable cause to bind Taylor over for the crime of complicity to murder with specification. Then, on May 25, 2017, the Supreme Court reconsidered Aalim I, reversed its earlier decision, and determined that Ohio‘s mandatory bindover statute was constitutional. See State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956 (“Aalim II“).
{¶ 9} Because it had found that there was conflicting evidence about whether Taylor or Wade shot Straughter, when the juvenile court relinquished jurisdiction over the case it found probable cause for complicity rather than purposeful murder. Notwithstanding this ruling, on June 30, 2017 Taylor was indicted by the General Division of the Franklin County Court of Common Pleas for aggravated murder, purposeful murder, and felony murder by felonious assault, each with a three-year gun specification. Following a trial, Taylor was found guilty by a jury of felony murder by felonious assault with gun specification, and was found not guilty of the two other charges and specifications. On May 28, 2019, the trial court sentenced Taylor to 15 years to life plus 3 mandatory and consecutive years on the gun specification, for an aggregate sentence of 18 years to life.
{¶ 10} In his first assignment of error, Taylor claims the Ohio mandatory-bindover procedures in Ohio do not satisfy either procedural or substantive due process under Mathews v. Eldridge, 424 U.S. 319, 335 (1976), and United States v. Kent, 383 U.S. 541, 557-61 (1966). But the argument presented in this assignment of error has already been rejected by the Supreme Court, see Aalim II, and Taylor admits in his brief that he “raises this issue in order to preserve it for further review.” (Appellant‘s Brief at 17.)
{¶ 11} The only difference between this case and Aalim II is that this case commenced after the release of the Aalim I opinion, but before the Supreme Court granted reconsideration, vacated Aalim I, and issued Aalim II. At the time the probable cause hearing was held in juvenile court Aalim II had not yet been decided, and the juvenile court was operating under discretionary bindover proceedings in accordance with Aalim I. Taylor argues that because the probable cause phase of his case was held and decided pursuant to Aalim I that the intervening decision in Aalim II finding the mandatory bindover statute to be constitutional does not apply to his case.
{¶ 12} We disagree. Until the Supreme Court issues a mandate in the underlying case, its decisions are subject to review and revision. See
{¶ 13} In Taylor‘s second assignment of error, he challenges the merits of the juvenile court‘s bindover decision. In In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, the Supreme Court reviewed the statute and caselaw regarding the standard of review for juvenile court probable-cause determinations, and concluded that “a juvenile court‘s probable-cause determination in a mandatory-bindover proceeding involves questions of both fact and law, and thus, we defer to the trial court‘s determinations regarding witness credibility, but we review de novo the legal conclusion whether the state presented sufficient evidence to demonstrate probable cause to believe that the juvenile committed the acts charged,” id. at ¶ 51, and observed that the state ” ‘must provide credible evidence of every element of an offense to support a finding that probable cause exists to believe that the juvenile committed the offense before ordering mandatory waiver of juvenile court jurisdiction * * * [it] must produce evidence that raises more than a mere suspicion of guilt, but need not provide evidence proving guilt beyond a reasonable doubt.’ ” (Emphasis sic.) Id. at ¶ 42, quoting State v. Iacona, 93 Ohio St.3d 83, 93 (2001).
{¶ 15} But probable cause is a low and flexible standard, and the fact that Taylor had possession of both the gun and the motor vehicle used in Straughter‘s death immediately prior to the shooting, as well as his continued presence in the vicinity of the shooting is certainly evidence of Taylor‘s complicity to the crime. Moreover, Taylor admitted during his December 12, 2016 interrogation to believing that a shootout would happen that evening because Straughter possessed a gun, implying that he had some foreknowledge of a plan to confront Straughter. It is unnecessary for the state to prove its case beyond a reasonable doubt at this stage of the proceedings, see, e.g., In re D.M., 140 Ohio St.3d 309, 2014-Ohio-3628, ¶ 10, and the record establishes the trial court correctly concluded that the state presented probable cause sufficient to show Taylor‘s complicity to Straughter‘s murder.
{¶ 16} And in a different case, this conclusion might end our inquiry into Taylor‘s second assignment of error. But on February 3, 2022, the Supreme Court of Ohio issued the decision in State v. Smith, 167 Ohio St.3d 423, 2022-Ohio-274, which complicates our analysis of the probable-cause question. Accordingly, we ordered the parties to submit post-argument supplemental briefing specifically on Smith and its application to the pending case.
{¶ 17}
{¶ 18} Smith‘s interpretation of
{¶ 19} Mindful of this jurisprudential background, we must consider how Smith‘s dictate that “no adult court has jurisdiction over acts that were charged in but not bound over by the juvenile court” applies to the juvenile court‘s bindover order in this case. Id. at ¶ 44. Here, the “act charged” in Taylor‘s juvenile complaint was purposeful murder in violation of
{¶ 20} Although State v. Hanning, 89 Ohio St.3d 86 (2000), interpreted and applied a version of the bindover statute that has since been superseded and restructured, it is instructive to the resolution of this question. In Hanning, the 17-year-old defendant
{¶ 21} And on appeal by the state, the Supreme Court affirmed our judgment. Analyzing both arguments, the court first held that the plain language of former
To require bindover for a child based on an adult accomplice‘s decision to use a firearm through application of the complicity statute runs contrary not only to the doctrine of parens patriae, upon which the General Assembly built the juvenile criminal justice system, but to common sense.
Our holding does not allow Hanning or other juveniles to escape responsibility for their own actions. We merely find that the legislature did not intend to automatically attribute responsibility to the juvenile for the actions of his or her accomplice * * *. Juveniles in Hanning‘s situation are still subject to transfer to adult court under [former]
R.C. 2151.26(C) , which provides that a child who commits a felony can be bound over if he is fourteen years of age or older and the results of an investigation and hearing indicate reasonable grounds to believe that the child is not amenable to care or rehabilitation in the juvenile system and the safety of the community requires that the child be placed under legal
restraint, including, if necessary, for a period extending beyond the child‘s majority.
(Emphasis added).3 Id. at 93.
{¶ 22} The existence of juvenile court is premised on the legislature‘s public policy judgments that children have a far greater need for protection and a far greater capacity for redemption than adults.
Juvenile courts hold a unique place in our legal system. They are legislative creatures that eschewed traditional, objective criminal standards and retributive notions of justice * * *. The overriding purposes for juvenile dispositions are to provide for the care, protection, and mental and physical development of children subject to [
R.C. Chapter 2152 ], protect the public interest and safety, hold the offender accountable for the offender‘s actions, restore the victim, and rehabilitate the offender.R.C. 2152.01(A) .We should respect those stated statutory purposes when examining, applying, and, when necessary, interpreting the statutes for juvenile bindovers for prosecution in adult court. This bindover process is based first on the juvenile court‘s finding of probable cause to believe that the child committed the act charged. A juvenile court‘s finding of probable cause and subsequent bindover of the child are not an open invitation for the adult court to treat the child as if his or her bindover to adult court is the child‘s first encounter with a tribunal for the acts named in the bindover order—there are limitations. Juvenile bindover does not open the door to prosecution in adult court for any charge the state might later seek in an indictment.
{¶ 23} Taylor‘s third assignment of error asserts that his rights under the Fifth and Sixth Amendments to the United States Constitution were violated when he was interrogated on December 12, 2016. He contends that all statements he made while in police custody on December 12, 2016, and evidence obtained as a result of his statements must be suppressed because he had invoked his Fifth and Sixth Amendment rights when he was initially arrested on April 15, 2016.
{¶ 24} Taylor argues that subsequent to his April 15 arrest and invocation of right to counsel, his attorney advised the Assistant Prosecuting Attorney and detectives that Taylor intended to continually invoke said rights. The state does not contest the fact that Taylor invoked his right to counsel after his April arrest, but instead directs the court to defendant‘s statement of Miranda rights and waiver form executed on December 12, 2016, in which Taylor purportedly waives his Fifth and Sixth Amendment rights. The state further points to the recording of the December 12, 2016 interview in which Taylor was read his Miranda rights, and neither requested counsel nor exercised his right to remain silent. On consideration of Taylor‘s motion to suppress, the trial court ruled as follows:
This Court has reviewed the recordings of both the April 15, 2016 and December 12, 2016 interviews - multiple times - together with both Statement of Miranda Rights and Waiver Forms, the testimony received at the hearing, and the arguments of counsel. In doing so, the Court noted the passage of time between interview[s] within which Defendant reached the age of majority; Defendant‘s ability to invoke his rights in April 2016; Defendant‘s demeanor; Defendant‘s responses and voluntary communications; as well as police conduct. In consideration of these factors, the Court reaches the conclusion that under the totality of the circumstances, Defendant knowingly and voluntarily executed the Statement of Miranda
Rights and Waiver Form on December 12, 2016. As a result of such waiver, Defendant‘s statements made at the December 12, 2016 interview are admissible, and Defendant‘s motion to suppress with respect thereto is DENIED.
(Emphasis sic.) (Nov. 05, 2018 Order & Entry at 12-13.)
{¶ 25} Our review of the record demonstrates that both Taylor‘s trial counsel and the trial prosecutor believed this case was controlled by Edwards v. Arizona, 451 U.S. 477 (1981), and Maryland v. Shatzer, 559 U.S. 98 (2010), which involve assertion of the right to have counsel present during custodial interrogation and a subsequent resumption of questioning following a break in custody. And although not cited in its entry, the fact that the court used the “knowing and voluntary waiver” standard set forth in Edwards and Shatzer reveals that the trial judge also relied upon those cases to deny Taylor‘s motion to suppress.
{¶ 26} We believe the trial court correctly concluded that Edwards and Shatzer control the Fifth Amendment half of this situation. Edwards creates a second-level prophylactic rule following Miranda v. Arizona, 384 U.S. 436 (1966) that during custodial interrogation following Miranda warnings, “when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” Edwards v. Arizona, 451 U.S. at 484. The right to have counsel present under these circumstances is rooted in the Fifth Amendment, not the Sixth. Id. at 482 (”Miranda thus declared that an accused has a Fifth and Fourteenth Amendment right to have counsel present during custodial interrogation.“). Shatzer, in turn, creates a third-level bright-line rule that Edwards‘s Fifth Amendment “presumption of involuntariness” does not apply if there has been a break in custody of 14 days. Maryland v. Shatzer, 559 U.S. at 110 (“We think it appropriate to specify a period of time to avoid the consequence that continuation of the Edwards presumption ‘will not reach the correct result most of the time.’ It seems to us that period is 14 days. That provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.“). (Internal citations omitted.) Taylor was out of custody between April 15 and December 12, 2016, and under Shatzer that extended break rendered the Edwards
{¶ 27} But Miranda, Edwards, and Shatzer have only tangential application to the Sixth Amendment right to counsel analysis once an adversarial proceeding for a specific offense has commenced.4 See, e.g., Montejo v. Louisiana, 556 U.S. 778, 786 (2009). Montejo held that a defendant who stood mute at his initial appearance at the time he was appointed counsel had not ipso facto asserted his right to counsel for purposes of the Sixth Amendment bar on interrogation by the state simply because counsel had been appointed. The Montejo court set forth certain bedrock principles as to how the Sixth Amendment right to counsel operates:
Under our precedents, once the adversary judicial process has been initiated, the Sixth Amendment guarantees a defendant the right to have counsel present at all “critical” stages of the criminal proceedings. Interrogation by the State is such a stage.
Our precedents also place beyond doubt that the Sixth Amendment right to counsel may be waived by a defendant, so long as relinquishment of the right is voluntary, knowing, and intelligent. The defendant may waive the right whether or not he is already represented by counsel; the decision to waive need not itself be counseled. And when a defendant is read his Miranda rights (which include the right to have counsel present during interrogation) and agrees to waive those rights, that typically does the trick, even though the Miranda rights purportedly have their source in the Fifth Amendment * * *.
The only question raised by this case, and the only one addressed by the Jackson [475 U.S. 625 (1986)] rule, is whether courts must presume that such a waiver is invalid under certain circumstances.
(Citations omitted, emphasis sic.) Id. at 786-87. Montejo overruled Michigan v. Jackson, 475 U.S. 625 (1986), which had created a prophylactic rule forbidding police from interrogating defendants who had requested counsel but had not yet consulted with counsel. The defendant in Montejo, like the defendant in Jackson, had been appointed
{¶ 28} Taylor‘s situation at the time of his December 12, 2016 interrogation was quite different—not only had he already consulted with counsel, representatives of the state had recognized and repeatedly dealt with that counsel, including the detective who interrogated Taylor. Notwithstanding those differences, the Sixth Amendment as described in Montejo controls this situation, and under that framework the analysis of Taylor‘s Sixth Amendment claim is as follows: first, had his Sixth Amendment right to counsel attached when he was arrested and interrogated on December 12, 2016; second, did he assert those rights prior to the interrogation; and third, was his Miranda waiver effective to knowingly, voluntarily, and intelligently waive his right the counsel?
{¶ 29} In juvenile cases, the adversarial proceeding generally commences not by the issuance of an indictment, but simply by the issuance of complaint.5 And Montejo
{¶ 30} Moving to the second question, it seems quite clear that not only did Taylor assert his right to counsel back in April, but that his trial counsel had been dealing with both prosecutors and police on Taylor‘s behalf for the entire eight-month period preceding Taylor‘s arrest and interrogation on December 12. Detective Doersam admitted that while he was “not a hundred percent” sure that Taylor was still represented, that no one—no prosecutor, no defense attorney, not Taylor himself—had ever indicated to him that Taylor was not still being represented by his counsel on the date in question. See, e.g., id. at 84. Detective Doersam was shockingly honest at the suppression hearing in testifying that he thought he had no reason to call Taylor‘s attorney unless Taylor himself specifically requested him to. Id. at 85. Even though Detective Doersam had been specifically advised by Taylor‘s attorney during the preceding eight months that Taylor “would not consent to an interview or proffer,” see Nov. 5, 2018 Order & Entry at 4, Detective Doersam chose not to contact Taylor‘s attorney “because it‘s [Taylor‘s] decision * * *.” Detective Doersam testified that he did not ask Taylor whether he was still represented “because I don‘t think the decision mattered — or the answer didn‘t matter that much.” Id. at 85. But despite Detective Doersam‘s belief on this point, there cannot be any dispute that Taylor both asserted and exercised his Sixth Amendment right to counsel.
{¶ 31} Finally, while it may seem clear that Taylor willingly signed the waiver of Miranda rights and submitted to Detective Doersam‘s questioning, that waiver must be
{¶ 32} Taylor‘s statements during the December 12, 2016 interrogation must be excluded as a violation of his rights under the Sixth Amendment. His third assignment of error is therefore sustained, and the court‘s judgment overruling his motion to suppress must be reversed.
{¶ 33} Taylor‘s remaining assignments of error all assert error in the trial and sentencing proceedings—his fourth assignment of error challenges specific witness testimony based on a lack of foundation; his fifth assignment of error asserts the prosecuting attorney engaged in misconduct during closing argument; his sixth assignment of error asserts the trial court should have refrained from giving a nonstandard jury instruction regarding the authority of police officers during interrogations; his seventh assignment of error asserts that he received ineffective assistance of counsel during trial; his eighth assignment of error asserts his conviction was based on insufficient evidence and against the manifest weight of the evidence presented; and his ninth assignment of error asserts the sentence of 15 years to life violates the Ninth Amendment to the United States Constitution. Given our disposition of Taylor‘s second and third assignments of error, we find the issues raised in his remaining assignments of error to be moot.
{¶ 34} Taylor‘s first assignment of error is overruled, his second and third assignments of error are sustained and his remaining assignments of error are rendered moot. The Franklin County Court of Common Pleas judgment as to Taylor‘s conviction is vacated and its judgment overruling Taylor‘s motion to suppress is reversed. This case is remanded to the juvenile branch for further consideration.
MENTEL, J., concurs.
DORRIAN, J., concurs in part and dissents in part.
{¶ 35} I respectfully dissent from the majority‘s sustaining of the second assignment of error. In so doing, I consider that the facts before us differ from the facts in State v. Smith, 167 Ohio St.3d 423, 2022-Ohio-274, in that the juvenile court in Smith expressly found no probable cause existed for the same charges on which he was indicted and was found guilty of by the trial court to which Smith was bound over. Smith held: “We hold that the General Division of the Cuyahoga County Common Pleas Court lacked subject-matter jurisdiction over Counts 4, 6, 7, and 8 and the firearm specifications because the juvenile court found that the acts related to those counts and specifications were not supported by probable cause and thus the juvenile court could not have made an amenability determination with regard to those acts. There was thus a jurisdictional defect in the bindover process.” Id. at ¶ 43.
{¶ 36} I concur with the majority‘s sustaining of the third assignment of error; however, I would consider, and not find to be moot, the remaining assignments of error.
Notes
The state‘s argument on this point is spurious—if the complaint had not already been approved and filed at the time Taylor was arrested and interrogated, both the arrest and the interrogation would have been improper under
Juv.R. 6 specifies the circumstances under which a child may be taken into custody. The only circumstance applicable herein is “pursuant to the law of arrest.” Although the record does not affirmatively indicate, apparently the arrest was without a warrant, since there is no record of an order of the court that defendant be taken into custody, which necessarily would have been preceded by the filing of a complaint, and, accordingly,R.C. 2935.05 is applicable. That section requires the filing of an affidavit describing the offense for which the person was arrested, either with the court or with the prosecuting attorney. If filed with the attorney, he must forthwith file a complaint with the court based on the affidavit. BothR.C. 2935.03 and2935.04 permit detention of a person arrested without a warrant only until a warrant can be obtained, which, pursuant toR.C. 2935.08 , is to be issued forthwith upon the filing of the affidavit or complaint in accordance withR.C. 2935.05 .
In re Therklidsen, 54 Ohio App.2d 195, 197 (10th Dist.1977). See also State v. Maurer, 15 Ohio St.2d 239, 255 (1984), and Brown v. Illinois, 422 U.S. 590 (1975) (holding that Miranda warnings do not purge the taint of an illegal arrest and that statements obtained as a result of that arrest may be suppressed as fruit of the poisonous tree). The state cannot now claim that it is entitled to evade the requirements of the Constitution because it failed to perform its duty and thereby arrested and interrogated a defendant without statutory authority—the very idea turns due process upside down.