[Cite as State v. Gray, 2017-Ohio-563.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellate Case No. 27207 Plaintiff-Appellant : : Trial Court Case No. 16-CR-1201 v. : : (Criminal Appeal from ERNEST GRAY : Common Pleas Court) : Defendant-Appellee : :
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OPINION
Rendered on the 17th day of February, 2017.
MATHIAS H. HECK, JR., by MEAGAN D. WOODALL, Atty. Reg. No. 0069386, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402 Attorney for Plaintiff-Appellant
KRISTINE E. COMUNALE, Atty. Reg. No. 0062037, Law Office of the Public Defender, 117 South Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellee
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HALL, P.J.
{¶ 1} The State of Ohio appeals, pursuant to R.C. 2945.67 and Crim.R. 12(K), from
the trial court’s decision and entry sustaining in part defendant-appellee Ernest Gray’s -2-
motion to suppress evidence.
{¶ 2} The State advances two assignments of error. First, it contends the trial court
erred in sustaining Gray’s suppression motion where he did not unambiguously invoke
his right to remain silent during police questioning. Second, the State claims the trial court
erred in finding Gray’s confession to gross sexual imposition involuntary under the totality
of the circumstances.
{¶ 3} The record reflects that Dayton police received a complaint in March 2016
about Gray, who was 73 years old, inappropriately touching a six-year-old relative’s
vagina on a specific occasion. In April 2016, detectives contacted Gray, and he agreed
to be interviewed at the police station. He voluntarily arrived on April 15, 2016 and
proceeded to an interview room with two detectives, Hollie Bruss and Elizabeth Alley. The
interview began at 9:05 a.m. Detective Bruss advised Gray that the was being interviewed
in connection with a sexual-assault investigation. She also advised him of his Miranda
rights and inquired about his understanding of them. Gray, who had 11 years of schooling,
indicated that he understood his rights and waived them. The detectives proceeded to
interview Gray, on and off, over a period of two and one-half hours. Gray repeatedly
denied allegations that he had touched the young girl’s vagina. He also asserted that he
did not “remember” touching the child inappropriately. Approximately 50 minutes into the
interview, Alley suggested alternatives to explain what might have occurred, including the
child possibly placing his hand “down there.” The following exchange then occurred:
Gray: I know I didn’t go down inside her pants and touch her.
Alley: Did she put your hand down there?
Gray: [lengthy pause] I’m just gonna leave it like that, I’m just gonna -3-
leave it like that.
Alley: Why?
Gray: I’m just gonna leave it like that, I’m just gonna leave it like that.
Alley: Tell me why [pause], why are you gonna leave it just like that?
Gray: Because I don’t have anything else to say, leave it like that.
Alley: So you’re gonna make this little girl out to be a liar?
Gray: No, well, I’m not making her out to be a liar or nothin’ like that,
but she, she knows better than that.
Alley: Let me ask you this. Would it be helpful for you to write it down
so you don’t have to talk about it? Sometimes people might prefer to write
something down when they don’t want to talk about it.
Gray: Well, I don’t have nothin’, nothin’ else to say. I don’t have
nothin’ else to say.
Alley: You know people are more willing to forgive somebody who
said that I messed up and I made a mistake. And you can get past this, but
the first step is acknowledging that you made a mistake, and say I messed
up, and I’m sorry. And I think you know in your heart what you need to do.
Gray: I don’t remember touching her. I don’t—I know I didn’t touch
her.
(Interview DVD, Suppression Hearing Exh. 1, beginning at approximately 9:57 a.m.).
{¶ 4} Alley continued to question Gray for about 12 more minutes. She then offered
him time alone to write something down on a piece of paper. At 10:10 a.m. both detectives
left the room and closed the door. At 10:18, Gray opened the door and got the detectives’ -4-
attention. Alley returned to the room and sat near Gray, who proceeded to make
incriminating statements. He admitted touching the child’s vagina, described how the
incident occurred, and acknowledged telling her not to report the incident. Questioning
then continued intermittently with the two detectives entering and exiting the room until
11:23 a.m., when Gray was handcuffed and taken to jail.
{¶ 5} In May 2016, Gray moved to suppress the incriminating statements he made
in his interview. During a June 2016 evidentiary hearing on his motion, the State
presented testimony from Bruss and Alley, who testified about the interview. The trial
court also reviewed a DVD of the interview, which had been recorded in full. After the
hearing, Gray filed a memorandum in support of his motion. He argued that his statements
were made during a custodial interrogation, that his statements occurred after he
unequivocally invoked his right to remain silent, and that his statements were involuntary
and not the product of his free will. (Doc. #21). In response, the State argued that,
although Miranda warnings were given, Gray was not in custody when he made his
incriminating statements. Alternatively, the State asserted that Gray validly waived his
Miranda rights and never unambiguously invoked his right to remain silent. (Doc. #22).
{¶ 6} In a July 27, 2016 decision and entry, the trial court sustained Gray’s
suppression motion with respect to all statements he made after 9:57 a.m. on the
interview DVD. (Doc. #23). With regard to the existence of a custodial interrogation and
the corresponding necessity of Miranda warnings, the trial court found it “immaterial
whether the State was required to issue Miranda warnings.” (Id. at 5). Because the
detectives had advised Gray of his Miranda rights, the trial court reasoned that the State
was “estopped to deny these rights on an after the fact assertion that Defendant was not -5-
in custody and therefore the rights did not apply.” (Id. at 6). In any event, the trial court
also found “that this was a custodial interrogation and the Miranda warnings apply.” (Id.).
The trial court next concluded that Gray unambiguously invoked his constitutional right to
remain silent when he made the statements set forth above about wanting to “leave it like
that” and not having anything else to say. (Id. at 14-16). Because Alley continued
questioning Gray, the trial court found his subsequent incriminating statements subject to
suppression. Finally, the trial court also concluded that Gray’s confession was involuntary
under the totality of the circumstances because his will was overborne by coercive police
conduct. (Id. at 16-18).
{¶ 7} In its first assignment of error, the State challenges the trial court’s
determination that Gray unambiguously invoked his right to remain silent. In context, the
State contends Gray’s statement about wanting to “leave it like that” reasonably may be
interpreted to mean only that he did not wish to supplement or amend his previous answer
about not touching the victim inside her pants. Gray’s subsequent statement about not
having anything else to say came in response to Alley asking him why he wished to “leave
it like that.” Therefore, according to the State, the comment about not having anything
else to say reasonably may be interpreted as the rationale for Gray not wanting to
supplement or amend his previous answer. At a minimum, the State argues that Gray’s
remarks about wanting to “leave it like that” because he had nothing else to say did not
unambiguously express his desire to remain silent and terminate the interview. Upon
review, we find the State’s argument to be persuasive.
{¶ 8} “When considering a motion to suppress, the trial court assumes the role of
trier of fact and is therefore in the best position to resolve factual questions and evaluate -6-
the credibility of witnesses. Consequently, an appellate court must accept the trial court’s
findings of fact if they are supported by competent, credible evidence. Accepting these
facts as true, the appellate court must then independently determine, without deference
to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.”
(Citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8. Here the facts are not in dispute, and we have a DVD recording of Gray’s interview
to review. Whether he unambiguously invoked his right to remain silent involves a legal
issue that we review de novo. State v. Strong, 1st Dist. Hamilton Nos. C-100484, C-
100486, 2011-Ohio-4947, ¶ 47; see also United States v. McWhorter, 515 Fed. Appx.
511, 517 (6th Cir.2013) (“Upon de novo review, we conclude that McWhorter’s statement
to Park was not an unambiguous assertion of his right to remain silent.”); United States
v. McCarthy, 382 Fed. Appx. 789, 792 (10th Cir.2010) (“We review legal questions,
including the issue of whether a defendant unambiguously asserted his right to remain
silent, de novo.”).
{¶ 9} For present purposes, we will assume, arguendo, that Gray was subject to a
custodial interrogation, notwithstanding the fact that he voluntarily went to the police
station to speak with the two detectives. Once seated in the interview room, Gray was
advised of his Miranda rights and waived them. In light of that waiver, the detectives were
not obligated to stop questioning him unless he unambiguously invoked his right to remain
silent. State v. Murphy, 91 Ohio St.3d 516, 520, 747 N.E.2d 765 (2001). If a “suspect says
something that may or may not be an invocation of the right, police may continue to
question him; they need not treat the ambiguous statement as an invocation or try to clear
up the ambiguity.” Id. We note too that “a suspect’s alleged invocation must be examined -7-
in context, not in isolation.” Strong at ¶ 47, citing Murphy at 520-521.
{¶ 10} In our view, Gray’s statement about wanting to “leave it like that” appears
to be related to his previous answer about not going inside the victim’s pants. In other
words, he was expressing a desire to stand on that answer without modifying or amending
it in response to Alley’s suggested explanation for what had occurred. When Alley asked
why he wanted to “leave it like that,” Gray responded that he had nothing else to say. This
statement appears to be an explanation for his decision to stand on his previous answer.
The statements are at most ambiguous as to whether he had nothing more to say about
a particular question or whether he more broadly desired to terminate the interview.
{¶ 11} We note that a suspect expressing a desire not to elaborate on a prior
answer because he has nothing else to say about it is not the same as expressing a
desire to invoke the right to remain silent and to terminate the interview. State v. Blythe,
2d Dist. Montgomery No. 24961, 2013-Ohio-1688, ¶ 22, citing State v. House, 54 Ohio
St.2d 297, 299-300, 376 N.E.2d 588 (1978), citing State v. Anspaugh, 97 Idaho 519, 547
P.2d 1124 (1976) (finding no rescission of a Miranda waiver where in response to a
certain question the defendant stated that he would “rather not make any other comments
at this time”). Because Gray never unambiguously invoked his right to remain silent, the
trial court erred in suppressing the incriminating statements he made based on a
perceived violation of that right.1
1 In light of this conclusion, we need not address the State’s alternative arguments that the trial court erred in suppressing (1) unsolicited statements Gray subsequently made while alone in the interview room (2) statements Gray made after purportedly re-initiating questioning with the detectives. (See Appellant’s brief at 12-14). Given our determination above that Gray’s right to remain silent was not violated at all, these issues (which the State does not appear to have raised below) are moot. -8-
{¶ 12} In opposition to the foregoing conclusion, Gray cites State v. Miller, 7th Dist.
Mahoning No. 13 MA 12, 2014-Ohio-2936, and argues that his case is analogous to it.
(Appellee’s brief at 12). We disagree. The defendant in Miller put his head down and
repeatedly stated unequivocally, “I’m done talking.” He then added, “I ain’t got nothing
else to say.” He also said, “I told you everything I know. There ain’t nothing else to talk
about.” Miller at ¶ 56-60. The Seventh District concluded that the defendant’s initial
statement (“I’m done talking.”) was an unambiguous invocation of his right to remain
silent. Id. at ¶ 61-62.
{¶ 13} As set forth above, Gray did not make clear that he was “done talking” and
wanted to terminate the interview. Instead, after being given an opportunity to modify or
elaborate on an answer he had given, he stated that he would “leave it like that.” This
statement was not an unambiguous invocation of his right to remain silent. Nor was Gray’s
subsequent statement that he had nothing else to say. As we have explained, Gray made
this statement in response to a question about why he wanted to leave his prior answer
“like that.” Again, we see no unambiguous expression of Gray’s desire to terminate the
interview. Accordingly, the State’s first assignment of error is sustained.
{¶ 14} In its second assignment of error, the State contends the trial court erred in
finding Gray’s confession involuntary under the Fifth Amendment. The State asserts that
his confession was voluntary and that nothing about the circumstances surrounding it
established otherwise.
{¶ 15} This court set forth the standards governing the voluntariness of a
confession in State v. Simpson, 2d Dist. Montgomery No. 25069, 2013-Ohio-1072, as -9-
follows:
“A suspect’s decision to waive his Fifth Amendment privilege against
self-incrimination is made voluntarily absent evidence that his will was
overborne and his capacity for self-determination was critically impaired
because of coercive police conduct. State v. Otte (1996), 74 Ohio St.3d 555;
State v. Petitjean (2000), 140 Ohio App.3d 517. Coercive police activity is
a necessary predicate to finding a confession involuntary within the
meaning of the Due Process Clause of the Fourteenth Amendment. State
v. Wiles (1991), 59 Ohio St.3d 71.
“The voluntary nature of a defendant’s statement is determined from
the totality of the circumstances. State v. Slagle (1992), 65 Ohio St.3d 597;
State v. Treesh (2001), 90 Ohio St.3d 460. A confession is involuntary if, on
the totality of the circumstances, the defendant’s will was overborne by the
circumstances surrounding his giving of the confession. Dickerson v. United
States (2000), 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405; Petitjean,
supra.
“The totality of the circumstances test takes into consideration both
the characteristics of the accused and the details of the interrogation.
Petitjean, supra. Factors to be considered include the age, mentality and
prior criminal experience of the accused; the length, intensity and frequency
of interrogation; the existence of physical deprivation or mistreatment; and
the existence of threat or inducement. State v. Edwards (1976), 49 Ohio
St.2d 31. Use of deceit by the interrogating police officers and -10-
misrepresentations made to the suspect about the evidence police possess
do not per se render a confession involuntary, per se. Rather, it is but one
factor bearing on voluntariness. State v. Cooey (1989), 46 Ohio St.3d 20.
***
“Whether an accused’s confession was voluntary for purposes of the
Fifth Amendment presents a question of law. An appellate court reviews
that issue de novo, not being bound by the trial court’s judgment on the
same legal issue. The appellate court must give strong deference to the trial
court’s findings of the facts which underlie a claim of involuntariness.”
Id. at ¶ 52, quoting State v. Waldo, 2d Dist. Champaign No. 99 CA 24, 2001 WL
1103330 (Sept. 21, 2001).
{¶ 16} In addition to its finding that Gray’s right to remain silent was violated when
the detectives questioned him after made the statements discussed above, the trial court
also more broadly found his confession involuntary under the totality-of-the-
circumstances test. The trial court determined that coercive police activity caused Gray’s
will to be overborne and his capacity for self-determination to be critically impaired. It
reasoned:
The facts of this case indicate that the Defendant’s will was
overborne by the circumstances surrounding the giving of the confession.
The Defendant is a seventy three year old man with little prior experience
with law enforcement. Defendant executed a Pre-interview form and was
advised of his right to terminate that interview at any time. The Defendant
attempted to terminate the interview. The Detectives persisted and did not -11-
scrupulously honor the request to terminate the questioning. Rather, the
Detectives prompted him to keep speaking.
There is coercive police activity here. Defendant came to the police
station voluntarily, at the request of the investigating Detective. Prior to the
interrogation, a Pre-Interview Form was utilized. Defendant was advised of
his Miranda rights. Defendant signed the waiver. Defendant is an older
adult, he does not have any prior experience with law enforcement.
Defendant is elderly, but is not developmentally disabled or handicapped in
any particular way. He did not graduate from high school and does not have
experience with the criminal justice system. There is no evidence that
Defendant was deprived of food or sleep. There is no evidence that
Defendant was deprived of water. There is no evidence that Defendant was
denied restroom breaks.
The Defendant was interrogated on one occasion. The encounter
was intense but relatively short in time. Defendant was not threatened.
Defendant was not promised anything in exchange for his statements.
Defendant was told he could terminate the questioning at any time.
Defendant attempted to do that. His request was ignored. Defendant
adamantly denied the allegation and continued to do so repeatedly.
Defendant was first advised of the specific allegation about twenty minutes
into the interrogation. Detective Bruss used tactics like offering Mr. Gray
scenarios of how it happened that would not be so bad, suggesting that the -12-
complaining witness deserves an apology, told him that if he did not admit
it he would be seen as a monster. Detective Alley then addressed
Defendant and was initially kind and friendly. She progressively became
more confrontational in her tactics to get Mr. Gray to confess. Once Mr.
Gray said he had nothing else to say, she did not stop until Mr. Gray, as
anyone in his position would have, came to the conclusion that the only way
to end this was to give the Detectives what they wanted to hear.
Defendant was closed in an interrogation room with two Detectives
and read his Miranda warnings, which included the right to stop questioning
at any time. He was then interrogated by the two Detectives, one after the
other, who relentlessly tried to get him to change his denial to an admission.
Eventually, only after Defendant Gray told [them] he had nothing more to
say, invoking his right to stop the questioning, and having Detective Alley
persist, right in his face, Defendant made incriminating statements. The
State has not met its burden of preponderance of the evidence in this
voluntariness-of-confession case. The circumstances of lack of experience
with law enforcement, lack of education for many years, intensity of the
interrogation, and failure to scrupulously honor the right to remain silent,
indicate lack of voluntariness.
(Doc. #23 at 16-18).
{¶ 17} Upon review, we disagree with the trial court’s legal conclusion regarding
the voluntariness of Gray’s confession. In its factual findings, which are supported by the
record, the trial court recognized that Gray was elderly but had no mental or -13-
developmental disabilities. The record does not indicate that he had any prior experience
with law enforcement. Although Gray did not graduate from high school, he reported
having eleven years of education. The DVD recording of his interview reflects that he
understood what was happening and was able to read, albeit with some difficulty. The
trial court noted that he was advised of his rights and waived them, that he was not
deprived of anything, that no impermissible threats or promises were made to him, and
that the interview was “intense” but not particularly lengthy. 2 We note too that the
detectives used interview techniques intended to elicit a confession, such as
sympathizing with Gray, establishing a rapport, minimizing his actions, and offering
alternative scenarios regarding what had occurred. But they did not lie about the evidence
or make false representations to him.
{¶ 18} Although the trial court cited the “intensity” of the interview as a factor
militating toward an involuntary confession, we find nothing remarkable about it. Having
reviewed the DVD recording, we note that the tone was conversational and generally
polite. The detectives never raised their voices, and Gray never appeared to feel
threatened or intimidated. The detectives did tell Gray they disbelieved his denials, but
Alley also urged him to tell the truth and not to tell them something he did not do.
{¶ 19} A significant factor in the trial court’s finding of an involuntary confession
appears to be its belief that the detectives failed to honor Gray’s invocation of his right to
remain silent. As set forth in our analysis of the first assignment of error, however, we
conclude that Gray never unambiguously invoked that right. Therefore, contrary to the
2Although the total length of time Gray spent in the interview room was roughly two and one-half hours, we note that he was not interviewed the entire time. In addition, he began making the incriminating statements at issue approximately 50 minutes into the interview. -14-
trial court’s finding, the detectives did not fail to honor Gray’s invocation of his right to
remain silent.
{¶ 20} In the end, the record reflects a relatively routine and benign interview of an
elderly suspect who possessed a modest education and no prior experience with law
enforcement. Gray was told he could terminate the questioning at any time, but he never
unambiguously did so. We see nothing about the interview to support a finding that his
will was overborne and his capacity for self-determination was critically impaired because
of coercive police conduct. Accordingly, the State’s second assignment of error is
sustained.
{¶ 21} The judgment of the Montgomery County Common Pleas Court is reversed,
and the cause is remanded for further proceedings.
WELBAUM, J., concurs.
FROELICH, J., dissenting: {¶ 22} The Appellee initialed and signed a pre-interview form listing that he was
being interviewed for “sexual assault” and which stated:
“If you decide to answer questions now without a lawyer present, you will
still have the right to stop answering at any time. You also have the right
to stop answering at any time until you talk to a lawyer.”
Realizing that Appellee had difficulty in reading and writing, the detective orally explained
what this meant: “So if you start talking today and you decide you’re done talking, you
have that right.” (DVD at 9:10:26) The Appellant was then asked questions by the
detective and they began talking about the complainant. -15-
{¶ 23} After a half hour, in response to questions about his touching her vagina,
he says “I know I didn’t go down inside her pants and touch her.” The detective then
asks, “Did she put your hand down there?” The Appellee says twice, “I’m just going to
leave it like that,” and, subsequently, in response to further questions, “Because I don’t
have anything else to say, leave it like that,” and “I don’t have nothin’ else to say.”
{¶ 24} He had been told that if he decided he was done talking, he could stop
answering. True, he could have said “pursuant to my rights under the Fifth Amendment
to the U.S. Constitution as applicable to the states through the due process clause and
pursuant to Article I, Section 10 of the Ohio Constitution, I invoke my right to remain
silent,” or “not only do I have nothing else to say about whether I put my hands in her
pants and touched her ‘down there,’ but I do not have anything else to say about
anything,” or perhaps, as in Miller, “I am done talking.”
{¶ 25} Even assuming he was expressing his decision not to talk about going
inside the victim’s pants, that touching is the gravamen of the crime of sexual assault for
which he was being interviewed – and about which he had “nothin’ else to say.” I would
find that this semi-literate suspect who had no previous contact with law enforcement
unambiguously expressed his desire to stop answering questions.
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Copies mailed to:
Mathias H. Heck Meagan Woodall -16-
Kristine E. Comunale Hon. Timothy N. O’Connell