[Cite as State v. Cundiff, 2011-Ohio-3414.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24171
vs. : T.C. CASE NO. 09CR3259
JAMES MARSHALL CUNDIFF : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 8th day of July, 2011.
Mathias H. Heck, Jr., Pros. Attorney; Kirsten A. Brandt, Asst. Pros. Attorney, Atty. Reg. No.0070162, P.O. Box 972, Dayton, OH 45422 Attorney for Plaintiff-Appellee
J. Allen Wilmes, 4428 North Dixie Drive, Dayton, OH 45414 Attorney for Defendant-Appellant
GRADY, P.J.:
{¶ 1} Defendant, James Cundiff, appeals from his convictions
for multiple counts of aggravated robbery and felonious assault,
with repeat violent offender specifications, abduction, aggravated
menacing and aggravated trespass charges. These offenses arose
from Defendant’s separate attacks on three women. 2
{¶ 2} On August 28, 2009, a man robbed Shannon George and
slashed her arm and breast with a knife at the rear of a building
next to Denny’s on South Main Street in Dayton. The assailant
was a tall African-American male, wearing a green shirt, black
pants, black shoes, and a yellow hospital mask over his nose and
mouth. The knife had a short blade and a ring on the handle.
After the attack, George ran toward Main Street in the direction
of Miami Valley Hospital where she obtained help. On October 28,
2009, George identified Defendant Cundiff from a photospread as
her assailant.
{¶ 3} On September 29, 2009, at 11:00 p.m,, Lillian Klosterman
was on the front porch of her home at 844 Belmont Park North in
Dayton, when a man in black clothing suddenly ran up onto her porch.
When Klosterman moved toward her front door, so did the man.
The man began asking Klosterman questions about whether she lived
alone and how many people were inside the house. When Klosterman
placed her hand on the handle of her front door, the man placed
her in a choke hold and forcibly restrained her. Klosterman was
able to pull the front door open and call her husband’s name.
When Klosterman’s dog came out the front door, the man ran off.
Klosterman went inside, locked the doors and called police.
{¶ 4} On October 1, 2009, at 7:50 p.m., Mary Beth Bozarth and
Peggy Haywood, both nurses in the intensive care unit at Miami 3
Valley Hospital in Dayton, left work and walked to their cars in
the parking lot on the corner of Apple Street and South Main Street.
As the two women neared the entrance to the parking lot, Bozarth
noticed a tall, thin African-American male wearing dark clothes,
a black hooded sweatshirt with the hood pulled up, and green latex
hospital gloves. The man followed the two women into the parking
lot and then pulled out a knife and stabbed Bozarth in the neck.
When Bozarth fell to the ground, the man stood over her demanding
her purse, which he took off of Bozarth’s arm. Meanwhile, Haywood
fled the parking lot and ran out into the street, screaming for
help. Haywood stopped a woman in a passing car who called police.
When Haywood saw that the man was looking at her, she yelled at
him that the police were on their way. The man then ran off down
Apple Street.
{¶ 5} After the man left, Haywood assisted Bozarth in getting
back inside the hospital. Bozarth remained in the hospital for
two days for treatment of a six inch deep stab wound to her neck.
Bozarth experienced neck pain, headaches and numbness in her arm,
and she took medication and received physical therapy for two
months. Bozarth is in need of plastic surgery for her injuries.
{¶ 6} Dayton police officers Theodore Trupp and Thomas Cope
searched an area called Tent City, in Veterans’ Park, at South
Patterson Boulevard and West Stewart Street, not far from the 4
hospital where many homeless people lived, but found no one matching
the assailant’s description. One half hour later, Officers Trupp
and Cope observed a man who matched the description of Bozarth’s
assailant near the hospital on Fairground Avenue. The man, later
identified as Defendant Cundiff, fled when the officers approached,
but was apprehended behind 124 Fairground Avenue. When stopped
by Officer Trupp, Defendant took off a pair of green latex gloves
and threw them down. While being placed in a police cruiser,
Defendant stated: “Man, I didn’t rob anybody. I did not stab
anybody.” Officer Trupp had not mentioned a robbery or a stabbing.
{¶ 7} Officer Cope and Defendant recognized each other.
Later, when Defendant spoke with Officer Cope, he told him: “I
didn’t stab nobody, I didn’t hurt nobody. I didn’t rob nobody.”
Officer Cope had not mentioned a stabbing or a robbery. The
officers transported Defendant to Miami Valley Hospital where Peggy
Haywood viewed him via a two way mirror. She identified
Defendant’s general build and clothing as the same as the man who
had stabbed and robbed Bozarth.
{¶ 8} The day after the attack on Bozarth, Detective Gaier
found Bozarth’s purse and the knife used in the attack in the woods
between the county fairgrounds and South Patterson Boulevard.
That same day, Detectives Beane and Elzholz interviewed Defendant,
who admitted being at the parking lot where Bozarth was attacked 5
and that he wore green latex gloves while there. He disputed his
identification as Bozarth’s assailant. Defendant indicated no
one would have been able to identify him because he would have
put his hood up and pulled it tight around his face.
{¶ 9} A week after the attack on Bozarth, Lillian Klosterman
spoke to her sister by phone. Klosterman’s sister told her police
had arrested someone, and it was in the news and on the internet.
When Klosterman looked at the story on the internet there was
a picture of Defendant. She immediately recognized Defendant as
her attacker. Klosterman called police to report that she had
seen the man who attacked her.
{¶ 10} On October 8, 2009, Detective Beane showed Shannon George
a photospread. She immediately identified Defendant as the man
who had robbed her and slashed her with a knife. On October 15,
2009, Detective Beane met with Lillian Klosterman and showed her
a photospread. She identified Defendant as the man who ran up
on her porch and put her in a choke hold.
{¶ 11} Defendant was initially indicted on two counts of
aggravated robbery, two counts of felonious assault, and tampering
with evidence with respect to his attack on Bozarth. One month
later, a subsequent indictment was issued which added repeat
violent offender specifications to the robbery and felonious
assault counts involving Bozarth. The second indictment also 6
included two counts of aggravated robbery and two counts of
felonious assault for the attack on Shannon George, all with repeat
violent offender specifications, and abduction, aggravated
menacing, and aggravated trespass charges for the attack on Lillian
Klosterman.
{¶ 12} Defendant filed a motion to suppress his statements to
police and the pretrial identifications of him, which the trial
court overruled following a hearing. Defendant was found guilty
following a jury trial of all aggravated robbery and felonious
assault charges involving Bozarth and George, but not guilty of
tampering with evidence. The repeat violent offender
specifications and the charges involving Klosterman were tried
separately to the court. The trial court found Defendant guilty
of all of those specifications and charges. The court sentenced
Defendant to prison terms totaling thirty-eight years.
{¶ 13} Defendant timely appealed to this court.
FIRST ASSIGNMENT OF ERROR
{¶ 14} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING
TO GRANT A MISTRIAL WHEN THE STATE FAILED TO PROVIDE DEFENSE WITH
INFORMATION ‘MATERIAL TO THE PREPARATION OF A DEFENSE’ PER
MONTGOMERY COUNTY LOCAL RULE OF PROCEDURE 16(A).”
{¶ 15} Mary Beth Bozarth was shown a police photospread
containing Defendant’s photograph while she was hospitalized. 7
Bozarth was unable to identify her assailant from the photospread.
A copy of a police report containing that information was provided
to Defendant in discovery pursuant to Mont.Loc.R. 3.03(D)(2)(d).
{¶ 16} Bozarth testified at trial and identified Defendant in
open court as her assailant. In cross-examination, Bozarth stated
that she may have seen a photo of Defendant prior to trial, perhaps
on television or in a newspaper, and that she had told police or
prosecutors that she could identify Defendant as her assailant.
Defendant moved for a mistrial for the State’s failure to reveal
that information in discovery.
{¶ 17} Detective Beane testified that she had shown Bozarth
a photospread only once, while Bozarth was hospitalized, and that
she could not identify Defendant from the photos she was shown.
Defendant then conditionally withdrew his motion for a mistrial,
if Bozarth “didn’t testify to that, that she had looked at a
photograph, then I withdraw my motion for mistrial. Does that
make any sense?” (T. 569).
{¶ 18} The trial court found that the State, in preparation
for trial, learned that Bozarth believed she could identify
Defendant, which she did in open court, and that Bozarth “did not
see the defendant until here in the courtroom or any pictures of
the defendant . . . under these circumstances there is nothing
that I have seen either in rule 16 or in the Montgomery County 8
local court management plan that requires disclosure of information
of what a witness would say, unless it is a witness statement or
a written witness statement or police report.” (T. 570). The
court denied Defendant’s motion for a mistrial.
{¶ 19} The grant or denial of an order of mistrial lies within
the sound discretion of the trial court. State v. Glover (1988),
35 Ohio St.3d 18. Moreover, mistrials need be declared only when
the ends of justice so require and a fair trial is not longer
possible. State v. Franklin (1991), 62 Ohio St.3d 118.
{¶ 20} Defendant argues that he had assumed that Bozarth would
not identify him, based on the police report the State had provided
him, and was surprised at trial when she identified him.
Defendant’s contention, in relation to the motion for mistrial
he made, assumes a violation by the State of its duty to provide
discovery.
{¶ 21} The trial took place on May 27 and 28, 2010, prior to
the amendments to Crim.R. 16 that became effective on July 1, 2010.
Neither before nor after those amendments would either party have
a duty to reveal what its witness’s trial testimony will be. Mont.
Loc.R. 3.03(D)(2)(d)(i) requires the State to provide the accused
at arraignment an information packet containing copies of “[a]ll
police reports . . .” The State apparently did that. Unless Ms.
Bozarth made a separate “witness statement” that division (ii) 9
of that local rule also requires the State to provide, no discovery
violation is demonstrated. There is no claim that Bozarth made
any such additional statement that had been reduced to writing.
A witness’s oral statements not reduced in some way to written
form are not within the coverage of the local rule.
{¶ 22} Lacking any demonstrated discovery violation, the trial
court did not abuse its discretion when it denied Defendant’s motion
for a mistrial. The first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 23} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ENTERING
FINDINGS OF GUILTY TO THE SUNDRY CHARGES OF FELONIOUS ASSAULT AND
AGGRAVATED ROBBERY WHEREIN MARY BETH BOZARTH WAS FOUND TO BE THE
VICTIM.”
{¶ 24} Defendant argues that with respect to his aggravated
robbery and felonious assault convictions where Bozarth was the
victim, those convictions are against the manifest weight of the
evidence because neither Bozarth nor the only other eyewitness
to the crime, Haywood, could identify Defendant, and there was
no blood on Defendant’s clothes or the knife used in the attack.
{¶ 25} A weight of the evidence argument challenges the
believability of the evidence and asks which of the competing
inferences suggested by the evidence is more believable or
persuasive. State v. Hufnagle (Sept. 6, 1996), Montgomery App. 10
No. 15563. The proper test to apply to that inquiry is the one
set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175:
{¶ 26} “The court, reviewing the entire record, weighs the
evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the
evidence, the jury lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and
a new trial ordered.” Accord: State v. Thompkins, 78 Ohio St.3d
380, 1997-Ohio-52.
{¶ 27} The credibility of the witnesses and the weight to be
given to their testimony are matters for the trier of facts to
resolve. State v. DeHass (1967), 10 Ohio St.2d 230. In State
v. Lawson (August 22, 1997), Montgomery App. No. 16288, we observed:
{¶ 28} “Because the factfinder . . . has the opportunity to
see and hear the witnesses, the cautious exercise of the
discretionary power of a court of appeals to find that a judgment
is against the manifest weight of the evidence requires that
substantial deference be extended to the fact finder’s
determinations of credibility. The decision whether, and to what
extent, to credit the testimony of particular witnesses is within
the peculiar competence of the fact finder, who has seen and heard
the witness.”
{¶ 29} This court will not substitute its judgment for that 11
of the trier of facts on the issue of witness credibility unless
it is patently apparent that the trier of facts lost its way in
arriving at its verdict. State v. Bradley (Oct. 24, 1997),
Champaign App. No. 97-CA-03.
{¶ 30} The evidence presented by the State demonstrates that
after Defendant stabbed Bozarth and she fell to the ground, he
stood over her, looking at her. Bozarth testified that she
carefully studied Defendant because, if she lived, she wanted to
be able to describe him to police. She later did, accurately
describing Defendant as a dark-skinned black male, six feet tall,
thin, wearing a black hooded sweatshirt with the hood pulled up,
and green hospital gloves. Bozarth positively identified
Defendant at trial as her assailant. Furthermore, her
identification was not based upon seeing Defendant sitting at
counsel table. She testified: “I’m identifying him because I know
exactly what he looked like . . . He stood over me and stared.
And I looked at his clothes. I looked at everything about him.”
{¶ 31} Moreover, the record demonstrates why Bozarth was unable
to identify Defendant from the photospread while she was in the
hospital. Bozarth was taking Fentanyl, a powerful narcotic to
control pain which made her sleepy and affected her memory while
she was on that medication. Bozarth’s memory of what occurred
at the time Defendant stabbed and robbed her was unaffected, 12
however.
{¶ 32} Peggy Haywood, the woman who was with Bozarth at the
time Defendant attacked her, could not identify Defendant because
she did not have the same opportunity to observe him that Bozarth
had. Haywood never saw Defendant’s face. When Haywood realized
that Defendant was behind her and Bozarth, she ran. Haywood only
observed Defendant from a distance, but she accurately described
his physical build and clothing, consistent with Bozarth’s
description.
{¶ 33} Although Bozarth’s blood was not found on Defendant’s
clothes or the knife he used to stab Bozarth, Mark Squibb of the
Miami Valley Regional Crime Lab testified that blood is not always
transferred from the victim to the attacker, especially if the
victim wore a lot of clothing that covered the wound. Bozarth
was wearing three layers of clothing, including a turtleneck that
was soaked in blood. Blood may not have remained on the knife
because Defendant abandoned it outdoors and it rained heavily that
night.
{¶ 34} Defendant’s weight of the evidence argument ignores the
fact that his convictions do not rest solely upon Bozarth’s
identification of him. Surveillance cameras captured someone
wearing the same dark clothing and green latex gloves as Defendant
following Bozarth and Haywood into the parking lot moments before 13
Bozarth was stabbed and robbed. Police apprehended Defendant in
an area near Miami Valley Hospital one hour after the stabbing
wearing the same clothing and green gloves described by Haywood.
Defendant fled upon seeing the officers and jumped a six foot
privacy fence in an effort to escape. Defendant also made
statements to the officers implicating himself in the attack.
{¶ 35} The credibility of the witnesses and the weight to be
given to their testimony were matters for the trier of facts, the
jury, to decide. DeHass. The jury did not lose its way simply
because it chose to believe the State’s witnesses, which it had
a right to do. Id.
{¶ 36} Reviewing this record as a whole, we cannot say that
the evidence weighs heavily against a conviction, that the trier
of facts lost its way in choosing to believe the State’s witnesses,
or that a manifest miscarriage of justice has occurred.
Defendant’s convictions are not against the manifest weight of
the evidence.
{¶ 37} Defendant’s second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
{¶ 38} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FINDING
APPELLANT GUILTY OF ANY AND ALL OFFENSES AGAINST VICTIM, LILLIAN
KLOSTERMAN.”
{¶ 39} Defendant argues that his convictions for abduction, 14
aggravated menacing and aggravated trespass, where Lillian
Klosterman was the victim, are against the manifest weight of the
evidence. Defendant contends that Klosterman’s pretrial
identification of him was unreliable because she saw Defendant’s
photograph in a news story on the internet before viewing the
photospread, and she later told Defendant Beane she was having
her doubts about her identification and wasn’t sure it was really
him.
{¶ 40} The evidence presented by the State demonstrates that
Klosterman had ample opportunity to observe Defendant as they
talked on Klosterman’s front porch. In talking to her sister about
this incident, Klosterman described Defendant’s dark skin,
wide-set eyes, and round face. Klosterman immediately recognized
and identified him from the photospread. Klosterman did see a
photograph of Defendant in a news story on the internet before
she viewed the photospread. That caused her to gasp and exclaim:
“My God, that’s him,” when she saw the photograph. Klosterman
explained at trial that her identification of Defendant from the
photospread was based upon recognizing him as the man who ran
up on her porch, and not seeing the photograph of him on the
internet.
{¶ 41} After Klosterman had identified Defendant from the
photospread, she called Detective Beane and said she wasn’t sure 15
she wanted to testify, that she was having doubts about her
identification of Defendant and wasn’t sure. Klosterman explained
at trial however that what she said to Detective Beane about being
unsure of her identification wasn’t true, that she was simply having
second thoughts about being involved, and she was trying to get
out of it because she lost her confidence. It had nothing to do
with the validity of her identification of Defendant.
{¶ 42} The credibility of the witnesses and the weight to be
given to their testimony were matters for the trier of facts, the
trial court in this case, to decide. DeHass. The trial court
did not lose its way simply because it chose to believe Klosterman’s
testimony and identification, which it had a right to do. Id.
{¶ 43} Reviewing this record as a whole, we cannot say that
the evidence weighs heavily against a conviction, that the trier
of facts lost its way in choosing to believe the State’s witnesses,
Defendant’s convictions are not against the manifest weight of
{¶ 44} Defendant’s third assignment of error is overruled.
FOURTH ASSIGNMENT OF ERROR
{¶ 45} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING
TO SUPPRESS DEFENDANT’S COMMENTS OBTAINED BY ILLEGAL POLICE
QUESTIONING.” 16
{¶ 46} Defendant argues that the trial court erred when it
overruled his motion to suppress statements he made to the police
at the time police seized him because the police interrogated him
while he was in custody without first informing him of his rights
under Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694.
{¶ 47} In State v. Retherford (1994), 93 Ohio App.3d 586, 592,
we noted:
{¶ 48} “In a motion to suppress, the trial court assumes the
role of the trier of fact, and, as such, is in the best position
to resolve questions of fact and evaluate the credibility of the
witnesses. State v. Clay (1972), 34 Ohio St.2d 250. Accordingly,
in our review, we are bound to accept the trial court’s findings
of fact if they are supported by competent, credible evidence.
Accepting those facts as true, we must independently determine
as a matter of law, without deference to the trial court’s
conclusion, whether they meet the applicable legal standard.”
{¶ 49} The facts found by the trial court relative to this issue
are as follows:
{¶ 50} “On October 1, 2009, Officer Theodore Trupp was a police
officer for the City of Dayton working with his partner Officer
Thomas Cope. They were patrolling in a marked police cruiser in
the vicinity of Miami Valley Hospital on a report of an Aggravated 17
Robbery where the suspect had been described as a tall black male
wearing black clothing. The officers were proceeding through a
parking lot approaching Fairgrounds Avenue. Trupp was driving.
He observed the shadow of a subject smoking a cigarette standing
to his left. Trupp turned left onto Fairgrounds Avenue to approach
the subject and, when he did so, the subject ran and jumped over
a privacy fence into the yard at 122 Fairgrounds Avenue. Trupp
dropped off Cope and then Trupp proceeded to the next intersection,
turned left and then turned left again in the alley which proceeds
behind 122 Fairgrounds Avenue. He saw the subject jump over the
back privacy fence into the alley. It was the Defendant. The
Defendant fit the description of the robbery suspect.
{¶ 51} “Trupp ordered the Defendant to stop at gunpoint. The
Defendant ripped off a pair green rubber gloves that he had been
wearing. Trupp placed the Defendant in handcuffs for his safety
and Trupp specifically informed the Defendant that he was not under
arrest. The Defendant repeatedly asked Trupp ‘What did I do?’
Trupp asked the Defendant what was he doing in the alley and what
was he doing jumping the fence. The Defendant responded ‘I was
taking a shortcut.’ At sometime during the detention, Officer
Cope arrived. The Defendant recognized Cope and said to him ‘Cope
you know me, I’m Warlock.’ One of the officers asked the Defendant
why he was wearing gloves and the Defendant stated that his hands 18
were cold. Cope specifically told the Defendant that he was not
going to jail. Cope told him this a couple of times. The Defendant
was not advised of his Miranda rights because the officers did
not believe the Defendant was under arrest. Nevertheless, the
officers acknowledged that the Defendant was not free to leave.
{¶ 52} “At the point that Officer Trupp asked the Defendant
to be seated in the police cruiser, with the handcuffs still
applied, the Defendant stated ‘I didn’t rob anybody, I didn’t stab
anybody.’ These statements were not made in response to any
questions from either officer. Trupp testified that he had not
said anything about a robbery before these statements were made
and that those statements were volunteered by the Defendant.
{¶ 53} “Eventually, the Defendant was taken to the Security
Office at Miami Valley Hospital where a witness was to observe
him through a two-way mirror. At some point it was learned that
the robbery suspect had been wearing green surgical gloves. At
the hospital, the officers were instructed to arrest the Defendant
for the robbery that was being investigated.”
{¶ 54} Defendant argues that at the time he told Officer Trupp,
“I didn’t rob anybody. I didn’t stab anybody,” he was in custody
and being questioned by police, and therefore was entitled to
Miranda warnings which police failed to give him. The trial court
concluded that at that time Defendant was not being subjected to 19
custodial interrogation and therefore Miranda warnings were not
required. We agree.
{¶ 55} In State v. Hatten, 186 Oho App.3d 286, 2010-Ohio-499,
at ¶49-50, we wrote:
{¶ 56} “Police are not required to give warnings pursuant to
Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694, to every person they question, even if the person being
questioned is a suspect. State v. Biros (1997), 78 Ohio St.3d 426,
440, 678 N.E.2d 891. Instead, Miranda warnings are required only
for custodial interrogations. Id. ‘The determination of whether
a custodial interrogation has occurred requires an inquiry into
“how a reasonable man in the suspect's position would have
understood his situation.” [Berkemer v. McCarty (1984), 468 U.S.
420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317.] “ ‘[T]he ultimate inquiry
is simply whether there is a “formal arrest or restraint on freedom
of movement” of the degree associated with formal arrest.’ ” ’
Estepp, 1997 WL 736501, *4, quoting Biros, 78 Ohio St.3d at 440,
678 N.E.2d 891, in turn quoting California v. Beheler (1983), 463
U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275.
{¶ 57} “In reaching this determination, neither the subjective
intent of the officer, nor the subjective belief of the defendant
is relevant. Estepp, 1997 WL 736501, *4, citing State v. Hopfer
(1996), 112 Ohio App.3d 521, 546, 679 N.E.2d 321, discretionary 20
appeal not allowed, 77 Ohio St.3d 1488, 673 N.E.2d 146. Instead,
we have considered factors such as the location of the interview
and the defendant's reason for being there, whether the defendant
was a suspect, whether the defendant was handcuffed or told he
was under arrest or whether his freedom to leave was restricted
in any other way, whether there were threats or intimidation,
whether the police verbally dominated the interrogation or tricked
or coerced the confession, and the presence of neutral parties.
Estepp at *4.”
{¶ 58} In State v. Keggan, Greene App. No. 2006CA9,
2006-Ohio-6663, at ¶30-31, we observed:
{¶ 59} “Not all seizures rise to the level of a formal arrest.
Under Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d
889, police officers may briefly stop and/or temporarily detain
individuals in order to investigate possible criminal activity
if the officers have a reasonable, articulable suspicion that
criminal activity has occurred or is about to occur. State v..
Martin, Montgomery App. No. 20270, 2004-Ohio-2738, at ¶ 10, citing
Terry, supra; State v. Molette, Montgomery App. No. 19694,
2003-Ohio-5965, at ¶ 10. This investigatory detention, or ‘Terry
stop’, is more intrusive than a consensual encounter, but less
intrusive than a formal custodial arrest. An investigatory
detention is limited in duration and purpose and can only last 21
as long as it takes a police officer to confirm or to dispel his
suspicions. Terry, supra. An individual is subject to an
investigatory detention when, in view of all the circumstances
surrounding the incident, by means of physical force or show of
authority, a reasonable person would have believed that he was
not free to leave or is compelled to respond to questions. United
States v. Mendenhall (1980), 446 U.S. 544, 553, 100 S.Ct. 1870,
64 L.Ed.2d 497; Terry, 392 U.S. at 16, 19. The test for determining
if a seizure is an arrest rather than a Terry-type detention is
if a reasonable person in the suspect's position would have
understood the situation to constitute a restraint on freedom of
movement of the degree which the law associates with formal arrest.
Yarborough v. Alvarado (2004), 541 U.S. 652, 124 S.Ct. 2140, 158
L.Ed.2d 938; State v. Castro (Sept. 20, 1995), Montgomery App.
No. 14398.
{¶ 60} “In a typical investigatory detention, such as a routine
traffic stop, individuals are not ‘in custody’ for purposes of
Miranda. Berkemer v. McCarty (1984), 468 U.S. 420, 440, 104 S.Ct.
3138, 82 L.Ed.2d 317; State v. Martin, Montgomery App. No. 19186,
2002-Ohio-2621; State v. Healy (Aug. 4, 2000), Montgomery App.
No. 18232. However, if the individual is, during the course of
the detention, ‘subjected to treatment that renders him “in
custody” for practical purposes, he will be entitled to the full 22
panoply of protections prescribed by Miranda.’ Berkemer, 368 U
.S. at 440; State v. Salyer (Apr. 10, 1998), Miami App. No.
97-CA-39.”
{¶ 61} In Keggan, we concluded that the defendant’s detention
was not custodial and that he was merely subject to investigatory
detention, and therefore Miranda warnings were not required, where
police stopped his vehicle, ordered him out, patted him down for
weapons, told him he was not under arrest but was being placed
in a police cruiser for safety reasons while they investigated,
and was subsequently handcuffed while he accompanied police inside
a home to look for a weapon. Although Keggan had been seized and
clearly was not free to leave during the investigatory detention,
his freedom of action was not restrained to a degree associated
with a formal arrest. Id., at ¶33-41.
{¶ 62} Here, Officers Trupp and Cope were investigating a
stabbing and robbery of a woman at Miami Valley Hospital when they
saw Defendant, who matched the suspect’s general description in
the area near where the attack had just occurred. As the officers
approached, Defendant fled but was quickly apprehended. Police
had sufficient, reasonable suspicion to initiate an investigatory
stop of Defendant to determine whether he was the person who
committed the stabbing and robbery. Terry v. Ohio (1968), 392
U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Upon apprehending 23
Defendant, the officers patted him down for weapons. That action
was reasonable and lawful as the officers had reasonable grounds
to believe Defendant might be armed and dangerous, based upon the
fact that the suspect in the stabbing and robbery was armed with
a knife. Id; State v. Jordan, Clark App. No. 05CA4,
2006-Ohio-1813. Although Defendant was handcuffed and placed in
a police cruiser while police investigated, he was explicitly told
by the officers that this was being done for safety reasons, that
he was not under arrest, and he was not going to jail. Defendant
was not arrested until when police transported him to Miami Valley
Hospital and Peggy Haywood had identified his physical build and
clothing as being the same as the man who stabbed and robbed Bozarth.
{¶ 63} Although Defendant was clearly not free to leave and
was subject to investigatory detention, those facts and
circumstances do not demonstrate that Defendant’s freedom of action
was restrained to a degree associated with a formal arrest when
police first seized him. We agree with the trial court that
Defendant was not in custody for Miranda purposes at that time,
and was not entitled to Miranda warnings.
{¶ 64} In any event, this record demonstrates that Defendant’s
statements to Officers Trupp and Cope that he didn’t stab anybody
and didn’t rob anybody were not made in response to any questioning
or interrogation by the officers, but rather were “volunteered” 24
statements that are admissible. State v. Johnson, Montgomery App.
No. 20624, 2005-Ohio-1367, at ¶25.
{¶ 65} Defendant’s fourth assignment of error is overruled.
The judgment of the trial court will be Affirmed.
DONOVAN, J. And FROELICH, J., concur.
Copies mailed to:
Kirsten A. Brandt, Esq. J. Allen Wilmes, Esq. Hon. Dennis J. Adkins