[Cite as State v. Tullis, 2014-Ohio-1286.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
STATE OF OHIO : : Appellate Case No. 2013-CA-55 Plaintiff-Appellee : : Trial Court Case No. 12-CR-607 v. : : DAMERICK TULLIS : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ........... OPINION Rendered on the 28th day of March, 2014. ...........
STEPHEN K. HALLER, Atty. Reg. #0009172, by NATHANIEL R. LUKEN, Atty. Reg. #0087864, Greene County Prosecuting Attorney, 61 Greene Street, Xenia, Ohio 45385 Attorneys for Plaintiff-Appellee
JAY A. ADAMS, Atty. Reg. #0072135, 36 North Detroit Street, Suite 102, Xenia, Ohio 45385 Attorney for Defendant-Appellant
.............
HALL, J.,
{¶ 1} Damerick Tullis appeals the trial court’s entry of summary judgment for the state
on his petition for postconviction relief. Finding no error, we affirm. [Cite as State v. Tullis, 2014-Ohio-1286.] I. FACTS
{¶ 2} The trial court overruled Tullis’s motion to suppress the statements and
confessions he made to detectives, and Tullis pleaded no-contest to two counts of voyeurism, two
counts of burglary, two counts of kidnaping, one count of attempted rape, and one count of rape.
Tullis appealed to this Court, arguing that the trial court erred in overruling his motion to
suppress. Our opinion recited the following facts, pertinent here:
On the morning of October 17, 2011, Detective Daniel Foreman called
Tullis at Wright-Patterson Air Force Base, where Tullis worked, and asked him to
come to the [Fairborn] police department to discuss some cases. Tullis agreed and
arrived at the department a little after noon the same day. Detective Foreman and
Detective Ryan Whittaker met Tullis and took him to an interview room. Foreman
told Tullis that he was not under arrest and that he was free to leave at anytime. *
**
The detectives questioned Tullis about an incident of voyeurism. They told
Tullis that a witness had reported seeing him peering into a neighbor’s windows.
At first, Tullis denied that he had done this, but later, he confessed. Tullis also
confessed to a second incident of voyeurism and confessed to burglary, kidnaping,
and rape. The interview lasted about two hours. When the interview was
completed, Tullis was allowed to leave the police department.
State v. Tullis, 2d Dist. Greene No. 2012-CA-59, 2013-Ohio-3051, ¶ 2-3.
{¶ 3} Tullis argued in his direct appeal that his confession was involuntarily given:
Tullis contends that the detectives induced him to confess by promising
that if he confessed, his employer would not be told. Tullis initially denied that he 3
had done anything wrong, but later he confessed to an instance of voyeurism.
Tullis says that he confessed because one of the detectives told him that “this
doesn’t even have to be something that the Base finds out about since it’s
relatively minor” and that “the Base doesn’t have to get involved in all this.”
Later, says Tullis, when the detective confronted him with allegations of another
instance of voyeurism, burglary, and rape, the detective said to him, “If I feel like
you’re being dishonest with me, then I gotta get a hold of the Base and stuff like
that.” Tullis says that the threat to contact the Base induced him to confess
because he did not want the Base to find out, which would ruin his military career.
In other words, says Tullis, this threat communicated hope that if he confessed, he
would receive the benefit of continuing his life and career without interruption.
Id. at ¶ 20. We rejected Tullis’s argument, concluding that “[n]othing in these facts and
circumstances suggests improper coercion leading to an involuntary confession.” Id. at ¶ 23. We
said that there was “nothing unduly coercive here in the detectives’ conduct or language,” id., and
we found that Tullis’s will was not overborne:
It was unreasonable of Tullis to infer from the detectives’ statements that a
confession would mean that the Base would not find out. Even someone
unfamiliar with the statutory penalties for the potential offenses would realize that
the matter had serious consequences. Tullis should have realized that the Base was
bound to find out, in fact he said he had already sought counseling related to his
tendencies that led to the offenses. Given what the evidence reveals about Tullis,
we do not think that his will was overborne by the detectives’ conduct and 4
language.
Id. at ¶ 22.
{¶ 4} While we were deciding his direct appeal, Tullis filed with the trial court a
petition for postconviction relief, arguing that new evidence shows that the detective’s statements
quoted above were unconstitutionally coercive. Tullis claims in the petition that Detective
Foreman’s statement that “stated or implied that the military may never need to know about (the)
interview and the contents” “ultimately contributed” to his confessions. (Petition for
Post-Conviction Relief). The statement, says Tullis, “was not only not accurate but there is no
chance that it would have been true given the process that is employed by the Wright Patterson
Air Force Base.” (Id.). In support, Tullis attached to the petition copies of agreements that the
88th Security Forces Squadron at Wright-Patterson has with area law enforcement, including the
Fairborn police department. Under these agreements, law enforcement must give the Security
Forces Squadron any criminal information that it collects involving active duty military personnel
and must tell the squadron if it incarcerates or charges any base personnel with a crime. Tullis
asserts that Detective Foreman, who testified at the motion-to-suppress hearing that he had been
in the military, must have known what the agreements required and therefore that what he was
telling Tullis was untrue.
{¶ 5} The state moved for summary judgment. Attached to its motion is an affidavit
from Detective Foreman in which he avers, “At the time of the interview, I was unaware of any
mutual aid agreement between the Fairborn Police Department and Wright Patterson Air Force
Base Security Forces calling for the Fairborn Police to apprise Base Security Forces about all
criminal investigations regarding active duty personnel.” (Affidavit of Dan Foreman, Detective 5
Fairborn Police Department, ¶ 3). Instead, avers Detective Foreman, “* * * I was operating
under a policy wherein the Base Security Forces would be notified if any personnel were arrested
and placed in custody. * * *” (Id. at ¶ 4).
{¶ 6} While the trial court was deciding the summary-judgment motion, we entered
judgment in Tullis’s direct appeal. Based on our Tullis opinion, the trial court granted the state
summary judgment. The court cited our determination (quoted above) that it was unreasonable
for Tullis to infer from Detective Foreman’s statements that a confession would mean the
military would not find out about the situation. And the court cited our determination that there
was nothing unduly coercive in the detective’s conduct or language that overbore Tullis’s will.
Given our conclusion that Tullis’s confession was voluntarily made, said the court, no genuine
issue of material fact remains.
{¶ 7} Tullis appealed.
II. ANALYSIS
{¶ 8} Tullis alleges that the trial court erred by entering summary judgment for the state
on his petition for post-conviction relief.
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[Cite as State v. Tullis, 2014-Ohio-1286.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
STATE OF OHIO : : Appellate Case No. 2013-CA-55 Plaintiff-Appellee : : Trial Court Case No. 12-CR-607 v. : : DAMERICK TULLIS : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ........... OPINION Rendered on the 28th day of March, 2014. ...........
STEPHEN K. HALLER, Atty. Reg. #0009172, by NATHANIEL R. LUKEN, Atty. Reg. #0087864, Greene County Prosecuting Attorney, 61 Greene Street, Xenia, Ohio 45385 Attorneys for Plaintiff-Appellee
JAY A. ADAMS, Atty. Reg. #0072135, 36 North Detroit Street, Suite 102, Xenia, Ohio 45385 Attorney for Defendant-Appellant
.............
HALL, J.,
{¶ 1} Damerick Tullis appeals the trial court’s entry of summary judgment for the state
on his petition for postconviction relief. Finding no error, we affirm. [Cite as State v. Tullis, 2014-Ohio-1286.] I. FACTS
{¶ 2} The trial court overruled Tullis’s motion to suppress the statements and
confessions he made to detectives, and Tullis pleaded no-contest to two counts of voyeurism, two
counts of burglary, two counts of kidnaping, one count of attempted rape, and one count of rape.
Tullis appealed to this Court, arguing that the trial court erred in overruling his motion to
suppress. Our opinion recited the following facts, pertinent here:
On the morning of October 17, 2011, Detective Daniel Foreman called
Tullis at Wright-Patterson Air Force Base, where Tullis worked, and asked him to
come to the [Fairborn] police department to discuss some cases. Tullis agreed and
arrived at the department a little after noon the same day. Detective Foreman and
Detective Ryan Whittaker met Tullis and took him to an interview room. Foreman
told Tullis that he was not under arrest and that he was free to leave at anytime. *
**
The detectives questioned Tullis about an incident of voyeurism. They told
Tullis that a witness had reported seeing him peering into a neighbor’s windows.
At first, Tullis denied that he had done this, but later, he confessed. Tullis also
confessed to a second incident of voyeurism and confessed to burglary, kidnaping,
and rape. The interview lasted about two hours. When the interview was
completed, Tullis was allowed to leave the police department.
State v. Tullis, 2d Dist. Greene No. 2012-CA-59, 2013-Ohio-3051, ¶ 2-3.
{¶ 3} Tullis argued in his direct appeal that his confession was involuntarily given:
Tullis contends that the detectives induced him to confess by promising
that if he confessed, his employer would not be told. Tullis initially denied that he 3
had done anything wrong, but later he confessed to an instance of voyeurism.
Tullis says that he confessed because one of the detectives told him that “this
doesn’t even have to be something that the Base finds out about since it’s
relatively minor” and that “the Base doesn’t have to get involved in all this.”
Later, says Tullis, when the detective confronted him with allegations of another
instance of voyeurism, burglary, and rape, the detective said to him, “If I feel like
you’re being dishonest with me, then I gotta get a hold of the Base and stuff like
that.” Tullis says that the threat to contact the Base induced him to confess
because he did not want the Base to find out, which would ruin his military career.
In other words, says Tullis, this threat communicated hope that if he confessed, he
would receive the benefit of continuing his life and career without interruption.
Id. at ¶ 20. We rejected Tullis’s argument, concluding that “[n]othing in these facts and
circumstances suggests improper coercion leading to an involuntary confession.” Id. at ¶ 23. We
said that there was “nothing unduly coercive here in the detectives’ conduct or language,” id., and
we found that Tullis’s will was not overborne:
It was unreasonable of Tullis to infer from the detectives’ statements that a
confession would mean that the Base would not find out. Even someone
unfamiliar with the statutory penalties for the potential offenses would realize that
the matter had serious consequences. Tullis should have realized that the Base was
bound to find out, in fact he said he had already sought counseling related to his
tendencies that led to the offenses. Given what the evidence reveals about Tullis,
we do not think that his will was overborne by the detectives’ conduct and 4
language.
Id. at ¶ 22.
{¶ 4} While we were deciding his direct appeal, Tullis filed with the trial court a
petition for postconviction relief, arguing that new evidence shows that the detective’s statements
quoted above were unconstitutionally coercive. Tullis claims in the petition that Detective
Foreman’s statement that “stated or implied that the military may never need to know about (the)
interview and the contents” “ultimately contributed” to his confessions. (Petition for
Post-Conviction Relief). The statement, says Tullis, “was not only not accurate but there is no
chance that it would have been true given the process that is employed by the Wright Patterson
Air Force Base.” (Id.). In support, Tullis attached to the petition copies of agreements that the
88th Security Forces Squadron at Wright-Patterson has with area law enforcement, including the
Fairborn police department. Under these agreements, law enforcement must give the Security
Forces Squadron any criminal information that it collects involving active duty military personnel
and must tell the squadron if it incarcerates or charges any base personnel with a crime. Tullis
asserts that Detective Foreman, who testified at the motion-to-suppress hearing that he had been
in the military, must have known what the agreements required and therefore that what he was
telling Tullis was untrue.
{¶ 5} The state moved for summary judgment. Attached to its motion is an affidavit
from Detective Foreman in which he avers, “At the time of the interview, I was unaware of any
mutual aid agreement between the Fairborn Police Department and Wright Patterson Air Force
Base Security Forces calling for the Fairborn Police to apprise Base Security Forces about all
criminal investigations regarding active duty personnel.” (Affidavit of Dan Foreman, Detective 5
Fairborn Police Department, ¶ 3). Instead, avers Detective Foreman, “* * * I was operating
under a policy wherein the Base Security Forces would be notified if any personnel were arrested
and placed in custody. * * *” (Id. at ¶ 4).
{¶ 6} While the trial court was deciding the summary-judgment motion, we entered
judgment in Tullis’s direct appeal. Based on our Tullis opinion, the trial court granted the state
summary judgment. The court cited our determination (quoted above) that it was unreasonable
for Tullis to infer from Detective Foreman’s statements that a confession would mean the
military would not find out about the situation. And the court cited our determination that there
was nothing unduly coercive in the detective’s conduct or language that overbore Tullis’s will.
Given our conclusion that Tullis’s confession was voluntarily made, said the court, no genuine
issue of material fact remains.
{¶ 7} Tullis appealed.
II. ANALYSIS
{¶ 8} Tullis alleges that the trial court erred by entering summary judgment for the state
on his petition for post-conviction relief. He contends that the trial court failed to address the
issues presented in the petition and should not have relied solely on our direct-appeal opinion.
{¶ 9} Tullis says that the trial court does not refer to any of the petition’s arguments or
mention the new evidence presented. Instead, says Tullis, the court “essentially ratifies” our
decision on a “tangentially related assignment of error.” (Brief of Appellant). He says that the trial
court’s decision “simply makes generic conclusive statements that because another court decided
an issue of similar import that there need be no further examination of the issue presented.” (Id.). 6
{¶ 10} “[A] petition for postconviction relief ‘is not an appeal of a criminal conviction
but, rather, a collateral civil attack on the judgment,’ in which a claimant asserts that either actual
innocence or deprivation of constitutional rights renders the judgment void.” State v. Silsby, 119
Ohio St.3d 370, 2008-Ohio-3834, 894 N.E.2d 667, ¶ 16, quoting State v. Calhoun, 86 Ohio St.3d
279, 281, 714 N.E.2d 905 (1999). The governing statute, R.C. 2953.21, provides that “[a]ny
person who has been convicted of a criminal offense * * * and who claims that there was such a
denial or infringement of the person’s rights as to render the judgment void or voidable under the
Ohio Constitution or the Constitution of the United States * * * may file a petition in the court
that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or
set aside the judgment or sentence or to grant other appropriate relief.” R.C. 2953.21(A)(1)(a).
{¶ 11} Summary judgment must be entered if the summary-judgment evidence “show[s]
that there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Civ.R. 56(C). Here the key question is whether any issue of fact
exists as to whether there has been a denial or infringement of Tullis’s rights. In Tullis, we
concluded that his constitutional rights were not denied or infringed upon by Detective
Foreman’s statements because the statements were not unconstitutionally coercive. The new facts
asserted by Tullis in his petition do not affect this conclusion. Detective Foreman’s affidavit
shows that, at the time of the interview, he did not know that the Fairborn police were required to
tell the base about criminal investigations involving base personnel. Also, the accuracy of the
detective’s statements is irrelevant to the analysis. As we said in Tullis, “ ‘ “[t]he line to be drawn
between permissible police conduct and conduct deemed to induce or tend to induce an
involuntary statement does not depend upon the bare language of inducement but rather upon the 7
nature of the benefit to be derived by a defendant if he speaks the truth, as represented by the
police.” ’ Police use of tactics like admonitions to tell the truth are not improper.” (Emphasis
added.) (Citations omitted.) Tullis, 2013-Ohio-3051, at ¶ 22, quoting State v. Jackson, 2d Dist.
Greene No. 02CA0001, 2002-Ohio-4680, ¶ 28, quoting People v. Flores, 144 Cal.App.3d 459,
192 Cal.Rptr. 772 (1983). Here, “[t]he detectives * * * simply urged Tullis, in a variety of ways,
to tell the truth.” Id.
{¶ 12} The trial court is correct that no issue of material fact remains. The entry of
summary judgment for the state was proper.
{¶ 13} The sole assignment of error is overruled.
{¶ 14} The trial court’s judgment is affirmed.
FROELICH, P.J., and WELBAUM, JJ., concur.
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