[Cite as State v. Strickland, 2013-Ohio-2768.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellate Case No. 25545 Plaintiff-Appellant : : Trial Court Case No. 2011-CR-2784 v. : : DARION T. STRICKLAND : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellee : : ...........
OPINION
Rendered on the 28th day of June, 2013.
...........
MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0061560, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellant
ANTHONY R. CICERO, Atty. Reg. #0065408, Cicero Law Office, 500 East Fifth Street, Dayton, Ohio 45402 Attorney for Defendant-Appellee
.............
HALL, J.,
{¶ 1} The State of Ohio appeals from the trial court’s decision and entry partially 2
sustaining defendant-appellee Darion Strickland’s motion to suppress evidence against him.1
{¶ 2} In its sole assignment of error, the State contends the trial court erred in finding
that some of Strickland’s statements during a custodial interrogation were involuntary under the
Fifth Amendment.
{¶ 3} The record reflects that a grand jury indicted Strickland on two counts of
aggravated robbery with firearm specifications.2 He subsequently moved to suppress statements
he had made to police. The trial court held an August 24, 2012 hearing on the motion. In a
December 14, 2012 suppression ruling, it made the following detailed findings of fact about the
interviews:
On or about the first day of June, 2011 an armed robbery occurred at or
about 3236 Salem Avenue in Dayton, Ohio. The allegation was that food and
money were taken from a complainant shortly after she left a Walgreen’s store or a
Mini Mart on Salem Avenue.
In connection with this robbery incident Defendant, Darion T. Strickland,
was interviewed at the Dayton Safety Building. The interview occurred in the late
afternoon or evening of June 01, 2011. Defendant came to the Dayton Police
Department in the late afternoon of June 01, 2011. Shortly after Defendant arrived
at the Safety Building he was placed in an interview room.
Defendant was seated in the interview room in the Dayton Safety Building
1 Pursuant to Crim.R. 12(K), the State has filed notice that its appeal is not being taken for purposes of delay and that the suppression ruling has rendered its proof so weak that any reasonable possibility of effective prosecution has been destroyed. (Doc. #32). 2 Because he was a minor at the time of the crimes at issue, Strickland was charged by complaint in juvenile court. Jurisdiction later was transferred to the Montgomery County Common Pleas Court. 3
located on West Third Street in downtown Dayton. The interview room is
windowless. It is relatively small. It contains a small table and three (3) chairs.
Defendant was wearing khaki colored shorts and a black t-shirt. He was wearing
sneakers.
Detectives Gaier and DeBorde conducted the interview on June 01, 2011.
That was the first of the two interviews with the Defendant. Before asking
Defendant any questions, the detectives presented Defendant with a
“Pre-Interview Form.” Detective Gaier dated the form and indicated the place.
Detective Gaier also wrote Defendant’s name and address on the form. Detective
Gaier then asked Defendant if he could read. Defendant indicated that he could not
read. So, Detective Gaier read Defendant each of the five (5) enumerated Miranda
Warnings. Detective Gaier followed a pattern of reading the warning or right and
then having the Defendant acknowledge that he heard and understood the right by
orally indicating such. In addition, the Detective had the Defendant acknowledge
understanding of the right by placing his (Defendant’s) initials on the form just to
the left of the number specified for the particular right. The Pre-Interview Form
indicated that the Defendant was being interviewed in reference to homicide and
robbery.
Detective Gaier told Defendant that he had a right to remain silent [and]
that he did not have to make any statements or answer any questions. Defendant
orally indicated that he understood this. Detective Gaier said, “Anything you say
can and will be used against you in a court of law.” Defendant acknowledged that 4
he understood. Detective Gaier said, “You have a right to talk to a lawyer for
advice before we ask you any questions and to have a lawyer with you during
questioning.” Defendant orally acknowledged that he understood this right and
wrote his initials to the left of this warning on the form.
Detective Gaier told Defendant, “If you do not have the money to hire a
lawyer, a lawyer appointed by the court, or a lawyer from the public defender’s
office will be provided to you before and during questioning without any cost to
you.” Defendant acknowledged that he understood this right. Finally, Detective
Gaier said, “If you decide to answer questions now without a lawyer present, you
will still have the right to stop answering at any time. You will also have the right
to stop answering at any time until you talk to a lawyer.” Defendant, again,
acknowledged this right by stating so and also initialing the form.
After Defendant was advised of the five (5) “Miranda Warnings”
Defendant was read the waiver paragraph since the Defendant could not read. The
Detective read the Waiver of Rights paragraph to the Defendant out loud. The
Waiver of Rights paragraph states, “The above statement of rights has been read to
me. I understand what my rights are. I am willing to make a statement and answer
questions. I do not want a lawyer at this time. I understand and know what I am
doing. No promises or threats have been made to me and no pressure or coercion
of any kind has been used against me.”
Defendant indicated that he had completed eight (8) years of schooling and
signed his name to the form. The form was also witnessed by the Detectives by 5
affixing their signatures to it.
Defendant was advised of his rights by use of the Pre-Interview Form at
about 5:00 p.m. on June 01, 2011 at 335 West Third Street in Dayton. Defendant
agreed to speak to the officers and a recorded interview was begun.
The Defendant did ask about the meaning of some words, such as promises
or threats. The Detective gave an explanation. The explanation indicated that the
Detectives weren’t giving Defendant tangible benefits such as personal property in
return for a statement. The explanation further indicated that the Detectives
weren’t using physical violence against the Defendant to obtain a statement. The
explanation did not indicate that promises could be for more favorable treatment
than other defendants in the criminal prosecution and disposition of the case.
The Detective went through the rights on the Pre-Interview Form quickly.
He did not pause very often. He treated the matter as if it was routine and
perfunctory and not an important event that should be seriously thought about.
Defendant was provided with water. Defendant indicated that he had slept
and had not been up continuously since the night before when some serious,
traumatic events had, apparently, occurred.
The Defendant apparently could not read, but he does have some prior
experience with the criminal justice system. He has been involved in prior
delinquency proceedings in the juvenile court. The Defendant appeared, on this
occasion, without a guardian. There is no guardian consent to the interview on
June 01, 2011. 6
Defendant did not appear to be under the influence of drugs or alcohol in
the late afternoon of June 01, 2011. He walked without stumbling or swaying. He
indicated he understood what he was doing and his responses were appropriate in
substance given the nature of the questions. No threats were made against the
Defendant in the sense of express threats. No express promises were made.
Defendant’s interview lasted about an hour. As indicated, Defendant was
given some water and there was a break taken. In the interview the Detectives
alternated in their questioning. Sometimes Detective Gaier would ask a question
and then Detective DeBorde would become involved. The Detectives essentially
played one defendant/suspect against the other. They implied that if Defendant
provided them with significant information he would be in a better position than
the other suspects. The Detectives, in effect, said that if Defendant spoke with
them and was forthcoming he would not suffer as severe a penalty as the other
defendants involved. The Detectives said, “That is not snitching. That is saving
your ass.” The Defendant implicated Carlos McGary and Raylin Holloway.
Defendant acknowledged that he knew Carlos and Raylin were planning a robbery
before it happened.
The Detectives did not raise their voices. They were calm for the most
part. They used a conversational tone and voice and manner. Defendant was
released after he provided a DNA sample.
On June 03, 2011 Defendant, Darion T. Strickland, returned to the Dayton
Safety Building. Just prior to him arriving at the Safety Building at about 7:30 7
p.m., Defendant had gone to the Federal Building. Apparently, Federal Agents
indicated to Defendant that they were not involved with the case and he should see
the Dayton Police. Defendant, accompanied by his guardian, went to the Safety
Building.
Carla Hunter was with Defendant on June 03, 2011. She, apparently,
consented to his being interviewed by police officers. Her consent is erroneously
dated as June 11, 2011. It appears to be a scrivener’s error. Carla Hunter is the
guardian of Darion Strickland. At the interview Defendant indicated that he was
actually staying at an address in Jefferson Township on June 03, 2011. According
to him, he was not staying with Carla Hunter on Glenwood Avenue in the City of
Dayton.
On June 03, 2011 Detectives Gaier and Ritchey conducted a second formal
interview of Defendant at the Safety Building. The interview occurred in a small
windowless room with a table and three (3) chairs. Defendant was seated in a
chair in a corner of the room. Detective Gaier was located within a few feet of him
at the small table. In other words, Defendant was in a corner between the wall and
the end of the table. Detective Gaier was on the front side of the table and taking
notes, to some extent. Detective Ritchey was diagonally across from Defendant
seated in a chair. The officers were in plain clothes and did not have firearms
visible on their persons.
Detective Gaier presented Defendant with a Pre-Interview Form. The
Pre-Interview Form was exactly like the Pre-Interview Form used on June 01, 8
2011. Detective Gaier read each of the rights to Defendant. Defendant verbally
acknowledged understanding the right and he initialed each right to the left side of
the form. Defendant read out loud the Waiver of Rights paragraph. The interview
was recorded.
Defendant was clothed in a black t-shirt and tan or light brown shorts. He
wore sneakers on his feet. For some reason, presumably air conditioning,
Defendant pulled his arms out of his sleeves and into the body or trunk of his
t-shirt. His black t-shirt was short sleeved. On June 03, 2011 Defendant was
sixteen (16) or seventeen (17) years old and he had completed only eight (8) years
of schooling. His guardian was not with him in the room.
This interview on June 03, 2011 is similar, in some ways, to the June 01,
2011 interview. The Defendant provides answers that are appropriate in terms of
substance given the questions that were asked. The Defendant did not appear
under the influence of drugs or alcohol. He did not appear sleepy or hungry. The
Detectives provided him with water. He is given a restroom break. The
Detectives’ tone is normally conversational and the atmosphere is calm. The
Detectives made no express threats and no express promises.
The Defendant is not hesitant about providing some description of the
events of the night in question. He provides incriminating evidence against
himself and others. It appears the Detectives feel the Defendant is not telling them
everything although, in the first thirty five (35) minutes, Defendant provides a
great deal of inculpatory statements. 9
Eventually the Detectives return to their tactic of playing one
defendant/suspect against the other. They confront the Defendant with what they
assert are the accounts by the other co-defendants. Early in the interview with little
or moderate encouragement the Defendant would essentially provide a narrative of
what happened. As the interview wore on the Defendant was reticent to speak and
provided only short answers.
The Detectives told Defendant that they had recovered the
firearm used in the alleged robbery. They reminded
the Defendant that he had provided them his DNA
two (2) days before. They told him that DNA would
be on the firearm that they had. They asserted that
he was implicated by others and that, in addition,
the police had his DNA on the firearm that was
used. It appears the representations were not entirely
truthful at that point, although it is true that the
police did have the firearm involved and they did
have Defendant’s DNA. At that time it seems that a
laboratory analysis had not been performed that
confirmed the existence of Defendant’s DNA on the
weapon.
Approximately twenty one (21) minutes into the interview Detective Gaier
made physical contact with Defendant. Detective Gaier patted Defendant on the 10
leg a couple of times. This occurred just after the Detectives indicated that others
had made admissions about a robbery on the night in question. The officers
indicated that they could understand why Defendant might have engaged in a
crime because of the intimidating presence and directions of Carlos McGary. After
this, the Detectives said that they had to “clear it up now.”
(Emphasis sic.) (Doc. #28 at 1-6).
{¶ 4} In its suppression ruling, the trial court held that Strickland validly waived his
Miranda rights at the outset of the June 1, 2011 interview and that his statements during the
interview were voluntary under the Fifth Amendment. Therefore, the trial court found no basis
for suppressing any of those statements. (Id. at 6-10). With regard to the June 3, 2011 interview,
the trial court held that the atmosphere became impermissibly coercive—and Strickand’s
statements became involuntary under the Fifth Amendment—part way through the interview
when Detective Gaier touched Strickland. As a result, the trial court suppressed “any statements
the Defendant made after he was touched by the Detective[.]” (Id. at 13). In support of its
decision to suppress the post-touching statements, the trial court reasoned:
Approximately three (3) significant things occurred after about ten to
fifteen (10-15) minutes of discussion. First, the Defendant was confronted with the
assertion that other subjects had made statements about what had occurred.
Second, the Defendant was advised that the police had possession of a firearm that
was, apparently, used in the purported crime and that there would be DNA on this
firearm. Then, the Defendant was advised that because he had provided a DNA
sample his DNA would be found on the weapon that the police had. Third, the 11
Detectives attempted to empathize with the Defendant by indicating that they
could understand why the Defendant might do something of an improperly
aggressive nature when encouraged by Carlos McGary who was a conceitedly
(sic) dangerous individual. After the indications were made, the Defendant
grudgingly conceded certain incriminating facts about his activity on Salem
Avenue where an apparent armed robbery had occurred. However, the Defendant
did not disclose all that the Detectives felt he should about the activities.
Approximately twenty to twenty five (20-25) minutes into the interview,
the Detective made contact with the Defendant’s body. The Detective, who was
very close in physical proximity to the Defendant, approximately three (3) feet,
patted or touched the Defendant two times on his (Defendant’s) left leg. It was not
an aggressive or particularly offensive touching. It was a touching that the parent
might give a child in an affirming type way or encouraging type way, but it was
not invited by the Defendant.
The court is very concerned about the voluntariness of the Defendant’s
statements after this point. As indicated herein whether or not this Defendant was
making voluntary statements on June 01 is a very close call. The court felt that the
factors indicating voluntary and knowing statements outweighed the factors
negating voluntary and knowing statements. At the point the Defendant is touched
on June 03, 2011 the court feels that the circumstances negating a voluntary and
knowing confession outweigh the factors in favor of a knowing and voluntary
statement. 12
By 8:10 p.m. or so on June 03, 2011 the Defendant had been in
questioning a total of an hour and twenty minutes over a period of three (3) days.
Of course, the Defendant was not in continuous custody. The following factors
indicate that the Defendant’s will was overborne and his capacity for self
determination was critically impaired because of coercive police conduct.
Defendant is a minor. Defendant is illiterate or reading far below the level he
should be given his age. Defendant failed to complete school. The Defendant is an
eighth (8th) grade drop out. The Defendant has been confronted with an assertion
that there is overwhelming evidence against him. The Defendant has been subject
to an emotional appeal that he may be the only one who is not confessing. There
was an implied promise that if the Defendant were to speak his treatment, in terms
of charges and sanctions, would be less severe than the other subjects. The
Detectives attempted to empathize with the Defendant in relation to his having to
deal with the dangerous Carlos McGary. Then, the Defendant was touched by the
Detective. The court is of the view that the combination of all of these factors
made it impossible for the Defendant to voluntarily speak.
The Defendant was told that a firearm was found and was in the possession
of the police. The Defendant was told that the police had his DNA. The Defendant
was told that his DNA was probably on the firearm or the police were likely to get
evidence that would put his DNA on the firearm. The statements were only
partially true at the time. It is probably likely that there would have been a test and 13
it is certainly conceivable that Defendant’s DNA could have been matched to the
firearm, but at the time the statement was made to the Defendant all the activity
had not occurred. The impression was certainly left with the Defendant that this
was an issue that was decided and it was unfavorable to the Defendant.
The Defendant was not advised that promises or coercion could be
inferential or subtle. He was not advised promises or coercion could involve
intangible benefits such as fewer charges or less severe punishment. The court is
not inferring that police officers have to take affirmative steps to advise regarding
this type of promise, but if an explanation of a promise or coercion is made it
should be comprehensive and thorough and consistent with what police may be
doing.
The factors in favor of an involuntary and unknowing confession outweigh
the factors in favor of a knowing and voluntary confession at the point in this
encounter just after Detective Gaier made physical contact with the Defendant.
Therefore, any statements the Defendant made after he was touched by the
Detective should not be admitted.
***
In the case at bar, about twenty (20) minutes into the interview on June 03
2011 the facts and circumstance[s] indicate here that the Defendant is a minor, he
has difficulty reading and has only completed eight (8) years of school. He has
some prior criminal experience in the juvenile court system. The Defendant had
been interviewed on two (2) separate occasions, the first time for an hour and the 14
second time for twenty (20) minutes. No guardian is present. The Defendant is in a
small room with two (2) Detectives and one Detective is in very close proximity to
him. The Defendant has not been physically deprived or mistreated. He has been
provided with water and restroom breaks. Defendant has not received any express
promises or express threats. There have been implied promises and implied
threats. The implied promise is that the Defendant would receive more favorable
treatment because he is telling the truth and he would likely be implicated because
of the statements of the other subjects. Defendant had been told he was “not
snitching he was saving his ass.” The clear implication there is that he better talk
or the Detectives may believe the other subjects who are implicating him. Further,
the Defendant has been told that, essentially, there is overwhelming evidence
against him because of other statements and because there is the more objective
evidence of DNA on the firearm.
The court is of the view that this is coercive police conduct. The court is
not saying that the officers made any expressly deceptive or untruthful
representations, but they made representations that were sufficient to overbear the
will of the Defendant.
(Id. at 11-14).
{¶ 5} On appeal, the State contends the trial court erred in suppressing all statements
Strickland made during the June 3, 2011 interview after Detective Gaier touched him.
Specifically, the State challenges that trial court’s finding that those statements were involuntary
under the Fifth Amendment. 15
{¶ 6} In ruling on a motion to suppress, a 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.” (Citation omitted). State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d 498
(2d Dist.1994). As a result, when we review suppression decisions, “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.” Id.
{¶ 7} With one exception, the record generally supports the trial court’s factual
findings regarding Strickland’s two interviews. The exception concerns the trial court’s finding
that police were not entirely honest with Strickland about his DNA being on a firearm. Our
review of a recording of the June 3, 2011 interview reveals that Detective Gaier told Strickland
police had his DNA, his DNA had been sent to the crime lab, and police had the firearm. In
addition to these true statements, the detective opined that Strickland’s DNA would be found on
the firearm. Neither detective told Strickland that lab testing already had confirmed the presence
of his DNA on the firearm. Instead, Detective Gaier simply predicted to Strickland, “Your
DNA’s gonna be on that gun. * * * Your DNA’s gonna be there.” We see no lack of honesty or
candor with regard to the DNA issue. We accept the remainder of the trial court’s factual
findings, which are supported by video recordings of the two interviews.3
3 Although this court has reviewed both videos, our analysis will focus on the June 3, 2011 interview because the trial court only found suppression required with regard to statements made during that interview. [Cite as State v. Strickland, 2013-Ohio-2768.] {¶ 8} The critical issue on appeal is whether the trial court’s factual findings support its
legal conclusion that Strickland’s June 3, 2011 statements became involuntary after Detective
Gaier touched him. Although the trial court provided a comprehensive and thoughtful analysis of
that issue, we ultimately disagree with its conclusion. Because our standard of review concerning
whether the facts found by the trial court legally justify suppression is de novo, we therefore must
reverse. See State v. Hughes, 2d Dist. Montgomery No. 25152, 2013-Ohio-808, ¶14 (applying de
novo review to determine whether the facts found by the trial court justified suppression of the
evidence); ABN AMRO Mtge. Group, Inc. v. Evans, 8th Dist. Cuyahoga No. 98777,
2013-Ohio-1557, ¶13 (recognizing that “a de novo standard of review requires reversal if a
reviewing court disagrees with the decision of law reached by the lower court”).
{¶ 9} “The Fifth Amendment to the United States Constitution and Article I, Section
10 of the Ohio Constitution guarantee that no person in any criminal case shall be compelled to
be a witness against himself.” State v. Jackson, 2d Dist. Greene No. 02CA0001,
2002-Ohio-4680, ¶19. “A suspect may waive his constitutional right against self-incrimination,
provided that waiver is voluntary. A suspect’s decision to waive his 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.”
(Citations omitted). Id. at ¶20.
{¶ 10} “The issues of whether a confession is voluntary, and whether a suspect has been
subjected to custodial interrogation so as to require Miranda warnings, are analytically separate
issues.” (Citations omitted). Id. at ¶21. “The due process clause continues to require an inquiry,
separate from custody considerations, concerning whether a defendant’s will was overborne by
the circumstances surrounding the giving of his confession.” (Citations omitted). Id. “This due 17
process test takes into consideration the totality of all the surrounding facts and circumstances,
including the characteristics of the accused and the details of the interrogation.” Id. “Factors to be
considered include the age, mentality, and prior criminal experience of the accused; the length,
intensity and frequency of the interrogation; the existence of physical deprivation or
mistreatment; and the existence of threats or inducements.” (Citation omitted). Id.
{¶ 11} “[A] confession may be involuntary and subject to exclusion if on the totality of
the circumstances the defendant’s will was overborne by the circumstances surrounding the
giving of that confession.” (Citation omitted). Id. at ¶22. “If all of the attendant circumstances
indicate that the confession was coerced or compelled, it cannot be used to convict the defendant.
That determination depends upon a weighing of the pressure to confess against the power of
resistance of the person confessing.” Id.
{¶ 12} With the foregoing standards in mind, we hold that all of Strickland’s statements
during the June 3, 2011 interview were voluntary, including the statements made after Detective
Gaier touched him. In reaching this conclusion, we are mindful of Strickland’s youth and limited
education. Indeed, these factors are perhaps the strongest ones militating against a finding of
voluntariness. The record reflects that Strickland was sixteen and one-half years old at the time of
his interview. As the trial court noted, he had an eighth-grade education and had trouble reading.
{¶ 13} Strickland had some prior experience, however, with the juvenile-justice system.
He also was advised orally of his Miranda rights, acknowledged understanding them, and agreed
to waive them. Our review of the interview reveals that he had no difficulty interacting with the
detectives and no apparent mental deficiencies. He also had no apparent problem understanding
the purpose of the interview, the nature of the charges, or the questions being asked. The June 3, 18
2011 interview was not particularly lengthy or intense. It came two days after the first interview,
which also was not particularly lengthy or intense. Both interviews took place in a typical police
interview room, and the tone was largely conversational with some confrontational moments.
Although Strickland’s guardian was not in the room during the June 3, 2011 interview, she gave
her consent for the detectives to question him. The trial court correctly noted the absence of any
physical deprivation or mistreatment of Strickland during the interview.
{¶ 14} As set forth above, the trial court stressed “three significant things” that occurred
part way through the June 3, 2011 interview: (1) the detectives told Strickland other people had
given statements to them; (2) they claimed his DNA would be on a firearm used in the crimes;
and (3) they attempted to empathize with him. Although these facts are relevant under a
totality-of-the-circumstances analysis, we find them insufficient, when considered in conjunction
with all surrounding facts and circumstances, to render Strickland’s statements involuntary.
{¶ 15} Regardless of whether other people actually had given statements, these types of
claims by police routinely are permitted by reviewing courts. See, e.g., State v. Hopkins, 2d Dist.
Montgomery No. 24940, 2012-Ohio-5536, ¶34 (“As for Hopkins’ claim about lies, police did
falsely tell him Jeffrey had admitted possessing a gun and having sex with J.R. But these
misrepresentations about the evidence did not render Hopkins’ statements involuntary under the
totality of the circumstances.”). With regard to the DNA issue, Detective Gaier truthfully pointed
out to Strickland that police had both his DNA and a firearm used in the crimes. He truthfully
told Strickland that his DNA had been sent to the crime lab and predicted that it would be found
on the firearm. Specifically, Detective Gaier told Strickland, “Your DNA’s gonna be on that gun. 19
* * * Your DNA’s gonna be there.” We see nothing inappropriate about these statements.4 We
also see nothing unusual or improper about the detectives’ efforts to empathize with Strickland
by telling him they understood why he might have committed the crimes. Whether sincere or
feigned, such routine expressions of empathy do not render a confession involuntary. Compare
State v. Powell, 1st Dist. Cal. App. No. A131100, 2012 WL 5193833, *4 (Oct. 22, 2012) (finding
no improper coercion where interviewing officer “came across more like a mentor than a police
officer during the interview”); Ortiz v. Uribe, 671 F.3d 863, 870 (9th Cir. 2011) (concluding that
“empathic and parental questioning does not render a confession involuntary”).
{¶ 16} In its suppression ruling, the trial court also expressed concern about Detective
Gaier’s act of touching Strickland’s leg. The trial court viewed this touching as the tipping point
in the voluntariness equation. Indeed, for the trial court to rule that statements after, but not
before, the touching of the knee should be suppressed the court must have concluded that the
touching contributed to and added to whatever coercive effects existed before that point. We have
found no Ohio case law addressing the effect of such touching on the voluntariness of a
defendant’s statements, and the trial court cited none. We are unpersuaded that Detective Gaier’s
act of patting Strickland’s leg added any coercive component or otherwise rendered Strickland’s
subsequent statements involuntary under the Fifth Amendment. Compare Powell, at *4 (finding
no improper coercion even though the interviewing officer “touched [the defendant] gently on the
4 Even if Detective Gaier had lied about Strickland’s DNA being found on the firearm, reviewing courts routinely allow such conduct by investigators. “Use of deceit by the interrogating police officers and misrepresentations made to the suspect about the evidence police possess do not per se render a confession involuntary. Rather, deceit or a misrepresentation about the evidence is but one factor bearing on voluntariness.” State v. Reeves, 2d Dist. Greene No. 2002-CA-9, 2002-Ohio-4810, ¶8. 20
leg and shoulder and said he was a good person who never intended for someone to die”).5 We
have viewed the recording of the interview which reveals that Detective Gaier quickly and lightly
patted Strickland on the leg when Strickland placed his head in his hands. “It was not an
aggressive or particularly offensive touching. It was a touching that the parent might give a child
in an affirming type way or encouraging type way[.]” (Doc. #28 at 12) In our specific view of the
interview, this touching was not in any way a coercive gesture. When viewed in conjunction with
the other facts and circumstances, the pat on the knee did not create, or add to, a coercive
environment that would make all subsequent statements by Strickland involuntary.
{¶ 17} In its ruling below, the trial court also found that the detectives had made implied
promises and threats to Strickland. Specifically, the trial court found an implied promise “that the
Defendant would receive more favorable treatment because he is telling the truth and he would
likely be implicated because of the statements of the other subjects.” (Doc. #28 at 14). The
implied threat apparently was that “he better talk or the Detectives may believe the other subjects
who are implicating him.” (Id.).
{¶ 18} Having reviewed the June 3, 2011 interview, we find no impermissible threats or
promises that contributed to Strickland’s free will being overborne. Detective Gaier admonished
Strickland to tell the “full truth,” suggested that he was not telling everything, and advised him
that the interview was his chance to talk. Detective Gaier also told him the detectives understood
people make mistakes, they knew he feared co-defendant Carlos McGary, and they knew he had
participated in the robbery. Detective Gaier suggested that Strickland not “dig [himself] in a
5 We note that Westlaw’s on-line version of Powell contains a notation indicating that California rules of court restrict the citation of “unpublished opinions” in that state’s courts. California’s rules of court obviously have no impact on our ability to cite Powell as persuasive authority. 21
hole” by lying. Detective Gaier also suggested that he not “bury himself.” Detective Gaier told
him that if he had made a “bad choice,” he needed to clear it up. Detective Gaier added that other
co-defendants had talked, and he suggested that Strickland had been implicated.
{¶ 19} This court has recognized that “admonitions to tell the truth are considered
neither threats nor promises and are permissible.” State v. Stringham, 2d Dist. Miami No.
2002-CA-9, 2003-Ohio-1100, ¶16. “Similarly, assurances that a defendant’s cooperation will be
considered or that a confession will be helpful do not invalidate a confession.” Id. Even a
“suggestion that cooperation may result in more lenient treatment is neither misleading nor
unduly coercive, as people ‘convicted of criminal offenses generally are dealt with more leniently
when they have cooperated with the authorities.’” Id., quoting State v. Farley, 2d Dist. Miami
No.2002-CA-2, 2002-Ohio-6192; see also State v. Bailey, 2d Dist. Miami No. 94 CA 39, 1995
WL137019, *7 (March 31, 1995) (finding a statement that the defendant “could help himself” by
speaking with investigators not impermissibly coercive because “the advice was non-specific as
to how making a statement would be advantageous”).
{¶ 20} Here Detective Gaier urged Strickland to tell the truth and suggested that it would
be better for him to talk because his co-defendants were talking. We see no implied promise of
any particular benefit and no implied threat of any particular harm if Strickland refused to
cooperate. Detective Gaier was entitled to “create a favorable environment for a confession,”
Stringham at ¶16, and his statements to Strickland during the June 3, 2011 interview fall short of
the type of threats or promises that render a confession involuntary.6
6 Parenthetically, we also find no impermissible threats or promises made to Strickland during the June 1, 2011 interview. In its ruling, the trial court found an implied promise that Strickland would face less severe charges or would receive less severe punishment if he talked. We find no such promise (or threat) with regard to the charges or punishment Strickland might face. At one point during the June 1, 22
{¶ 21} Finally, we note the trial court’s concern that Detective Gaier provided only a
basic explanation of the terms “promise” and “coercion” when obtaining Strickland’s Miranda
waiver. The trial court pointed out that the detective “did not define promise as encompassing
both tangible and intangible benefits, such as receiving favorable treatment with respect to
charges or punishment for the underlying activity.” (Doc. #28 at 11). Later in its ruling, the trial
court observed:
The Defendant was not advised that promises or coercion could be
inferential or subtle. He was not advised promises or coercion could involve
intangible benefits such as fewer charges or less severe punishment. The court is
not inferring that police officers have to take affirmative steps to advise regarding
this type of promise, but if an explanation of a promise or coercion is made it
should be comprehensive and thorough and consistent with what the police may
be doing.
(Id. at 13).
{¶ 22} We are unpersuaded that Detective Gaier’s failure to provide a more
comprehensive definition of the terms “promise” and “coercion” in the context of obtaining a
Miranda waiver affected the rendition of the waiver or the voluntariness of Strickland’s
subsequent statements. Regardless of how expansively the terms “promise” and “coercion” might
2011 interview, Strickland said he did not want to go to jail for what a co-defendant did. In response, the detectives stated, “That’s why you need to tell us the full truth.” They also advised him that telling the truth was not “snitching.” They described it as “saving your ass.” At other points, the detectives admonished Strickland not to “minimize what happened” and told him the co-defendants would not hesitate to pin the crime on him. The detectives additionally told Strickland that if he had overheard the co-defendants planning or discussing the crime, the detectives could “get around” or “deal with” “that kind of stuff.” But the detectives neither explicitly nor implicitly promised Strickland reduced charges or less severe punishment if he talked. 23
be interpreted, or how comprehensively they could be explained, the record reveals no evidence
whatsoever of any “promise” or “coercion” exerted on Strickland to induce him to waive his
Miranda rights and agree to speak to the detectives.
{¶ 23} As for the interview that followed, we are unpersuaded that the detectives had an
obligation to tell Strickland promises or coercion could be inferential or subtle. The issue before
us is whether the detectives coerced a confession through impermissible threats or promises, not
whether they advised Strickland to be on the lookout for inferential or subtle coercion. Based on
the reasoning set forth above, we find no impermissibly coercive police conduct to render
Strickland’s statements involuntary under the Fifth Amendment. Accordingly, the trial court
erred in sustaining in part Strickland’s suppression motion.
{¶ 24} The State’s assignment of error is sustained. The judgment of the Montgomery
County Common Pleas Court is reversed, and the cause is remanded for further proceedings.
DONOVAN and WELBAUM, JJ., concur.
Copies mailed to:
Mathias H. Heck R. Lynn Nothstine Anthony Cicero Timothy N. O’Connell