[Cite as State v. Carter, 2010-Ohio-5189.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-10-01
v.
MARKELUS Q. CARTER, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court Trial Court No. CR2009 0068
Judgment Affirmed
Date of Decision: October 25, 2010
APPEARANCES:
Spencer Cahoon for Appellant
Jana E. Emerick for Appellee Case No. 1-10-01
ROGERS, J.
{¶1} Defendant-Appellant, Markelus Q. Carter, appeals the judgment of
the Court of Common Pleas of Allen County convicting him of possessing a
weapon while under disability and possession of crack cocaine, and sentencing
him to a four-year prison term. On appeal, Carter contends that the trial court
erred when it refused to suppress statements he made to police officers prior to
being given Miranda warnings. Based upon the following, we affirm the judgment
of the trial court.
{¶2} In April 2009, the Allen County Grand Jury indicted Carter on
Count One, having a weapon while under disability in violation of R.C.
2923.13(A)(3), a felony of the third degree; Count Two, having a weapon while
under disability in violation of R.C. 2923.13(A)(3), a felony of the third degree;
and, Count Three, possession of crack cocaine in violation of R.C.
2925.11(A),(C)(4)(d), a felony of the second degree. The indictment was issued
following a search of Carter’s residence which revealed the presence of a weapon
and crack cocaine. The bases of the search warrant for the residence were
statements Carter made during a police interview concerning an unrelated
homicide.
{¶3} In May 2009, Carter filed a motion to suppress the evidence seized
during the search of his residence, arguing that the stop of his vehicle prior to the
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interview was unsupported by reasonable and articulable suspicion and without a
warrant. Further, Carter contended that his interview was custodial, because he
did not have an objective and reasonable belief that he was free to leave, and that
the interview was not preceded by Miranda warnings.
{¶4} In July 2009, the trial court held a hearing on the motion to suppress,
at which the following testimony was heard.
{¶5} Sergeant Charles Godfrey, a police officer for the city of Lima,
testified that, on February 23, 2009, he began to investigate the homicide of
Kenneth Warrington, the boyfriend of Sonya Burkholder; that he had worked on a
recent case involving Carter and Burkholder, who was the mother of Carter’s
children; that, due to their relationship, Carter was a person of interest in the
homicide; that he called Carter’s cell phone at approximately 7:58 a.m. and asked
him to come to the police station to talk, and Carter agreed; that he waited
approximately half an hour and then called Carter again to ask him to come to the
station and told him that it was “important” and “that something had happened to
Kenneth” (motion to suppress hearing tr., vol. I, p. 5); that Carter agreed to come
to the station within the hour; that, when Carter did not arrive, he broadcast a
description of Carter’s vehicle and license plate number to other law enforcement
officers and requested they locate him; that Carter arrived at the police station
around 9:30 a.m.; that the officers drove him to the station, but that he believed
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Carter came on his own volition; that Carter spoke to him and Detective Kleman;
that Carter was calm at that point, but voiced concerns about his daughter; and,
that he was not sure why Carter became concerned about his daughter and
explained to Carter that she was fine.
{¶6} Detective Timothy Clark of the Lima Police Department testified
that, upon speaking to Sergeant Godfrey at 8:30 a.m., he drove to Carter’s home;
that he observed a man working on a vehicle and confirmed the man was Carter by
speaking with Sergeant Leary, who was also in the area; that he observed the front
license plate of the vehicle was different from the rear license plate; that the man
got into the vehicle and began to drive away; that Sergeant Leary and several other
officers executed a stop of the vehicle; that he advised the officers that Carter was
not under arrest, but that he just needed to talk to Carter; that he informed Carter
there had been a homicide that morning that they were investigating, and Carter
became “extremely emotional,” began screaming and flailing, threw himself on
the ground, and began talking about his daughter having been injured (id. at 19);
that he did not know why Carter believed his daughter had been injured and
assured him several times that his daughter was fine; that, due to Carter being
“emotionally out of control,” he was not comfortable with him driving his own
vehicle to the police station or riding to the police station in the passenger seat of
his cruiser (id. at 20); that Carter got into the back of a patrol car on his own and
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the officers escorted him to the station; and, that he impounded Carter’s vehicle
because it was blocking a driveway, was close to a busy intersection, and had
improper registration.
{¶7} Detective Clark continued that Carter was not handcuffed when he
arrived at the station, and that he did not remember whether Carter handed him the
keys to his vehicle or whether they were still in the car when he impounded it.
{¶8} Detective Phillip Kleman of the Lima Police Department testified
that Carter was brought into the station for a “non-custodial” interview in
conjunction with the homicide (id. at 35); that, by “non-custodial,” he meant that
Carter was not under arrest and was free to go; that he and Sergeant Godfrey were
the only officers present during the interview; that the interview lasted
approximately two hours; that, for most of the interview, Carter was very calm,
with the exception of the last several minutes, during which he “wasn’t very
happy” (id. at 36); that the interview was very “laid back” and “relaxed” (id.); that
the door to the interview room was not locked; that Carter had access to his cell
phone during the interview and used it several times; that they had a “general
conversation” (id.); that they discussed what Carter was going to be doing after the
interview concluded; that Carter would not have been permitted to have his cell
phone if it were a custodial interview; that one of the calls Carter made was to his
attorney, Kenneth Rexford; that he also spoke with Rexford, and nothing was
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discussed insinuating that it was a custodial interview; and, that, after the
interview concluded, Carter was taken to the front door of the station where his
friend picked him up.
{¶9} Thereafter, the State introduced as evidence an audio and video
recording of the interview between Sergeant Godfrey, Detective Kleman, and
Carter. The recording reveals that no more than two officers were ever present in
the interview room with Carter; that the door to the interview room was closed
when both officers were in the room; that Sergeant Godfrey informed Carter that
“when we’re done you can get on going home”; that the officers and Carter
discussed what his plans were for the afternoon; that, approximately twelve
minutes into the interview, Carter admitted he kept a firearm in his residence; that
Carter used his cell phone to ask a friend to pick him up from the station; that,
while speaking on his cell phone when no officers were present in the interview
room, Carter stated he “want[s] out of here”; that Carter informed the officers that
his “ride” had arrived, and Sergeant Godfrey replied, “if you’re willing, let them
take off [and] I’ll give you a ride wherever you need to go when we’re done”; that,
approximately twelve minutes before the interview concluded, Carter stated “I’m
ready to be let go”; and, that Carter appeared calm until approximately fifteen
minutes before the interview concluded, when he appeared agitated and began to
raise his voice.
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{¶10} Thereafter, Detective Scott Leland of the Lima Police Department
testified that he drafted several search warrants in conjunction with the homicide
investigation, which were signed by the trial court judge and executed; that one of
the search warrants was for Carter’s residence; and, that the basis of the first
search warrant was Carter’s statement during his interview at the station that he
was in possession of a firearm despite being under disability due to a prior
conviction.
{¶11} Rexford testified that he was an attorney who had represented Carter
on several occasions; that, on the day in question, he spoke with Carter three
separate times; that, during the first call, he received the impression that the
interview was a “follow up” of a previous case; that, during the second call,
Carter’s demeanor was unintelligible and hysterical, and he was crying and
rambling about something happening to his daughter; that he learned that Carter
was at the police station; that he spoke to an unidentified officer who told him they
were speaking to Carter, and, regarding his daughter, they were “gonna explain
that to him” (id. at 51); that he received the impression that something had
happened to Carter’s daughter and that was why he had been contacted by the
police; that there was no indication that any type of criminal conduct was at issue;
that, during the third call, he learned that Carter was at the police station allegedly
being interrogated; that he then talked to Carter, gave him directives, and told him
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about his rights; and, that he then spoke to Detective Kleman and indicated to him
to “cease all communications at this point * * * as far as the interrogation was
concerned.” (Id. at 58).
{¶12} On cross-examination, Rexford stated that, during the third phone
call, Detective Kleman indicated to him that Carter was free to leave; that he
believed the officers he spoke to during the phone calls were untruthful in telling
him that Carter was there voluntarily and was free to go, and in suggesting that
Carter was at the police station because something had happened to his daughter.
Thereafter, on redirect, Rexford clarified his prior statement by explaining that he
believed it was very possible the officers he spoke to did not know or had been
misinformed about the pretenses under which Carter was taken to the police
station.
{¶13} Carter testified that, on February 23, 2009, Sergeant Godfrey
contacted him just prior to 8:00 a.m. and requested that he come to the police
department to speak with him; that he believed the call was in conjunction with a
prior case concerning a child support action filed by his children’s mother; that he
told Sergeant Godfrey he had work to finish, and would go to the station after he
was done; that Sergeant Godfrey called him again, and his tone was “more
intense” about Carter coming to the police station (motion to suppress hearing tr.,
vol. II, p. 19); that he asked Sergeant Godfrey what the discussion was for, and he
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informed him that “something happened to Ken” (id. at 20); that he believed
“Ken” referred to his attorney, Rexford; that, shortly thereafter, he was pulled over
by a uniformed officer who patted him down and requested his identification; that
Detective Clark approached him and told him he wanted to speak to him about a
murder on McKibben Street; that, because Burkholder, his daughter’s mother,
lived on McKibben Street, he asked “where’s my daughter?” (id. at 25); that
Detective Clark responded “I can’t answer that” (id.); that he believed something
had happened to his daughter; that he was very emotional and was running around,
jumping, screaming, crying, and fell to the ground; that he was “directed,”
uncuffed, to the back of a police car to be taken to the station; that he tried to call
several people while in the police car on the way to the station, but could not make
contact with anyone except Rexford; that he was interviewed by Detective Kleman
upon arriving at the station; that he inquired multiple times about his daughter, and
the Detective replied “well, she’s okay,” but also advised that the officers had her
cell phone (id. at 32); and, that, because the officers had his daughter’s phone, he
remained under the impression that something had happened to her.
{¶14} On cross-examination, Carter testified that he knew that Warrington,
the homicide victim, had a relationship with Burkholder; that the police officers
gave him his cell phone while in the interview room and allowed him to make
calls; that he believed the officers abused him mentally because they did not give
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him a “straight” answer about his daughter; that he never heard Detective Clark
tell him that his daughter was okay prior to being transported to the police station;
and, that, at no point, did any officer inform him that his daughter had been
injured.
{¶15} In August 2009, the trial court denied Carter’s motion to suppress.
In its very thorough, twelve-page entry, the trial court found that the stop of
Carter’s vehicle was lawful because it had two different license plates; and,
alternately, because the officers were making a reasonable stop of a potential
witness to a crime. Additionally, the trial court found that Carter voluntarily went
to the police station; that he was calm, coherent, and apparently understanding of
the officer’s questions; that, although he was never officially admonished of his
Miranda rights, the DVD of the interview demonstrated that Carter informed
Sergeant Godfrey that his attorney had advised him of his rights; that Carter was
not threatened or promised anything for his statement; and, that Carter had the
opportunity to consult with his attorney while at the police station. Accordingly,
the trial court ascertained that Carter was never in custody, and, thus, Miranda
warnings were not required. The trial court further found that there was no
credible evidence that Rexford told the officers to cease the interrogation, and that
Carter was allowed to leave after the interview concluded. The trial court
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concluded that the search warrants were not based on illegally obtained evidence,
and overruled Carter’s motion to suppress.
{¶16} In November 2009, the case proceeded to jury trial. Thereafter, the
jury found Carter guilty of Count One, not guilty of Count Two, and guilty of
Count Three.
{¶17} In December 2009, the trial court sentenced Carter to a one-year
prison term on Count One, and to a mandatory three-year prison term on Count
Three, to be served consecutively. Further, the trial court ordered Carter to pay a
$15,000 fine in conjunction with Count Three.
{¶18} It is from this judgment that Carter appeals, presenting the following
assignment of error for our review.
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID NOT SUPPRESS MR. CARTER’S NON-MIRANDIZED STATEMENTS AND THE FRUITS THEREOF, DESPITE THE FACT THAT MR. CARTER WAS QUESTIONED BY MULTIPLE POLICE OFFICERS IN AN INTERROGATION ROOM, WAS TOLD THAT HE COULD LEAVE AFTER THE POLICE WERE DONE QUESTIONING HIM, AND HAD NO WAY TO LEAVE EARLIER SINCE THE POLICE HAD IMPOUNDED HIS VEHICLE AND TAKEN HIS KEYS. (JUDGMENT ENTRY MOTION TO SUPPRESS, AUG. 25, 2009); ST.EX. 4, 0:00:25-27; MOTION TO SUPPRESS HEARING, JULY 9, 2009, AT 32-33; SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION; THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
(Emphasis sic.)
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{¶19} In his sole assignment of error, Carter contends that the trial court
erred when it refused to suppress his non-mirandized statements and the fruits
thereof. Specifically, Carter argues that the trial court should have suppressed his
statements and the fruits thereof because, under the totality of the circumstances
surrounding his interview, he was in custody or deprived of his freedom of action
in a significant way. Carter specifies that the officers insinuated his daughter had
been injured; that the officers retained his keys and impounded his vehicle; that
the interview lasted approximately two hours; that the interrogation room was
coercive due to its small size and because he was seated in the back corner without
unobstructed access to the door; and, that he was never informed of his right to
terminate the encounter.
{¶20} “Appellate review of a decision on a motion to suppress evidence
presents mixed questions of law and fact.” State v. Dudli, 3d Dist. No. 3-05-13,
2006-Ohio-601, ¶12, citing United States v. Martinez (C.A.11, 1992), 949 F.2d
1117. The trial court serves as the trier of fact and is the primary judge of the
credibility of the witnesses and the weight to be given to the evidence presented.
State v. Johnson (2000), 137 Ohio App.3d 847, 850. Therefore, when an appellate
court reviews a trial court’s ruling on a motion to suppress, it must accept the trial
court’s findings of facts so long as they are supported by competent, credible
evidence. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶100, citing State
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v. Fanning (1982), 1 Ohio St.3d 19, 20. The appellate court must then review the
application of the law to the facts de novo. Roberts, supra, citing State v.
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8.
{¶21} It is well-established that Miranda warnings are not required in
nonthreatening and nonconfining interrogation situations, which are noncustodial
in nature. State v. Greeno, 3d Dist. No. 13-02-46, 2003-Ohio-3687, ¶12, citing
State v. Mason (1998), 82 Ohio St.3d 144, 153; Oregon v. Mathiason (1977), 429
U.S. 492, 494. This is so because “[i]t is the coercive nature of custodial
interrogation that necessitates the Miranda warnings[.]” Id.
{¶22} In determining whether an interrogation is custodial, courts must
inquire into “‘how a reasonable man in the suspect’s position would have
understood his situation.’” Mason, 82 Ohio St.3d at 154, quoting Berkemer v.
McCarty (1984), 468 U.S. 420, 442. The Supreme Court of Ohio has directed
that, “[i]n judging whether an individual has been placed into custody the test is
whether, under the totality of the circumstances, a ‘reasonable person would have
believed that he was not free to leave.’” State v. Gumm, 73 Ohio St.3d 413, 429,
1995-Ohio-24, quoting United States v. Mendenhall (1980), 446 U.S. 544, 554.
{¶23} This Court has previously found the following factors relevant in
determining whether a reasonable person would have believed he was free to
leave:
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(1) What was the location where the questioning took place- i.e., was the defendant comfortable and in a place a person would normally feel free to leave? For example, the defendant might be at home as opposed to being in the more restrictive environment of a police station; (2) Was the defendant a suspect at the time the interview began (bearing in mind that Miranda warnings are not required simply because the investigation has focused); (3) Was the defendant’s freedom to leave restricted in any way; (4) Was the defendant handcuffed or told he was under arrest; (5) Were threats made during the interrogation; (6) Was the defendant physically intimidated during the interrogation; (7) Did the police verbally dominate the interrogation; (8) What was the defendant’s purpose for being at the place where questioning took place? For example, the defendant might be at a hospital for treatment instead of being brought to the location for questioning; (9) Were neutral parties present at any point during the questioning; (10) Did police take any action to overpower, trick, or coerce the defendant into making a statement?
State v. Luke, 3d Dist. No. 1-06-103, 2007-Ohio-5906, ¶11, quoting Greeno, 2003-
Ohio-3687, at ¶15, citing State v. Estepp, 2d Dist. No. 16279, 1997 WL 736501.
Further, this Court has emphasized that, “‘[t]he ultimate inquiry is simply whether
there is a formal arrest or restraint on freedom of movement of the degree
associated with a formal arrest.’” State v. Ransom, 3d Dist. No. 15-06-05, 2006-
Ohio-6490, ¶20, quoting Mason, 82 Ohio St.3d at 154, quoting California v.
Beheler (1983), 463 U.S. 1121, 1125.
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{¶24} Here, Carter essentially argues that he was tricked in going to the
police station and participating in the interview by the officers’ statements that, he
argues, insinuated his daughter had been injured. However, Sergeant Godfrey
testified he did not know what had aroused Carter’s concerns, and that he
explained to him that his daughter was fine. Further, Detective Clark testified that
he assured Carter several times that his daughter was fine prior to Carter travelling
to the police station. Even Carter admitted that no one told him that his daughter
had been injured and that Detective Kleman told him his daughter was okay.
Additionally, we note that, despite Carter’s argument that he was not free to leave
because the police had impounded his vehicle, he had possession and use of his
cell phone and did, in fact, contact a friend who picked him up from the police
{¶25} Additionally, Carter argues that Sergeant Godfrey’s statement that
“when we’re done you can get on going home” indicated that he was not free to
leave until the officers were done questioning him. We cannot find that this
statement made at the beginning of the interview, in a casual manner, would cause
a reasonable person to believe he was not free to leave given the other
circumstances of the interview. Specifically, evidence was heard that Carter
voluntarily got into the police cruiser to be escorted to the station; that the officers
did not feel comfortable with Carter driving himself to the police station because
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he was “emotionally out of control”; that Carter was not handcuffed; that Carter’s
vehicle was impounded because it was blocking a driveway, was close to a busy
intersection, and had improper registration; that no more than two officers were
present during the interview; that the door to the interview room was closed at
times, but unlocked; that the interview was “laid back” and “relaxed” and Carter
was calm for most of the interview; that the interview was a “general
conversation”; that Carter had access to his cell phone and used it several times
during the interview, including to consult with his attorney; and, that Carter would
not have been permitted to access his cell phone if the interview had been
custodial. Additionally, although Carter stated on the recording of the interview
that he “want[s] out of here,” he did not make this statement when any officers
were present in the room, or make a similar demand when they returned. Further,
although Carter stated on the recording of the interview that he was “ready to be
let go,” he made no attempt to leave at that point, did not ask the officers if he
could leave, and, in fact, continued to answer their questions until he departed
approximately twelve minutes thereafter. Finally, Carter made the statement that
he was “ready to be let go” long after he revealed to the officers that he had a
firearm in his residence.
{¶26} We acknowledge that the interview was approximately two hours in
duration; that the officers did not inform Carter that he could terminate the
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interview; that Carter became agitated approximately fifteen minutes before
departing; and, that Carter did not have unobstructed access to the door due to the
small size of the interview room. However, under the totality of the
circumstances, we find that a reasonable person in Carter’s situation would have
felt free to leave during the interview. Further, we do not find that there was a
formal arrest or “restraint on freedom of movement of the degree associated with a
formal arrest.” See Ransom, supra. Thus, we find that the interview was non-
custodial, Miranda warnings were unnecessary, and the trial court did not err in
declining to suppress Carter’s statements and the fruits thereof.
{¶27} Accordingly, we overrule Carter’s assignment of error.
{¶28} Having found no error prejudicial to the appellant herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
WILLAMOWSKI, P.J., and PRESTON, J., concur.
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