State v. Graham , 136 Ohio St. 3d 125 ( 2013 )

[Cite as State v. Graham, 136 Ohio St. 3d 125, 2013-Ohio-2114.]
THE STATE OF OHIO, APPELLEE, v. GRAHAM ET AL., APPELLANTS.
[Cite as State v. Graham, 136 Ohio St. 3d 125, 2013-Ohio-2114.]
Statements made by employees of state agency during an investigation conducted
by the Ohio inspector general were coerced and are therefore
inadmissible in subsequent criminal proceedings—Garrity v. New Jersey
applied.
(No. 2012-0338—Submitted January 22, 2013—Decided May 29, 2013.)
APPEAL from the Court of Appeals for Brown County, Nos. CA2010-10-016,
CA2010-10-017, CA2010-10-018, CA2010-10-019, and CA2010-10-020,
2012-Ohio-138.
____________________
FRENCH, J.
{¶ 1} This appeal asks whether the United States Supreme Court’s
holding in Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562
(1967)—that statements obtained from a public employee under threat of job loss
are unconstitutionally coerced and inadmissible in subsequent criminal
proceedings—required the trial court to suppress statements by employees of the
Ohio Department of Natural Resources (“ODNR”) during an investigation
conducted by the Ohio inspector general (“OIG”). We hold that it did.
Facts and Procedural History
{¶ 2} At all relevant times, appellants were five upper-level employees
of ODNR’s Division of Wildlife (“DOW”): Division Chief David Graham,
Assistant Chief Randy Miller, Human Resource Manager Michele Ward-Tackett,
Law Enforcement Executive Administrator James Lehman, and District Manager
Todd Haines.
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{¶ 3} In September 2009, a confidential informant contacted the OIG to
allege that Brown County DOW wildlife officer Allan Wright had engaged in
misconduct that DOW officials had not investigated properly. According to the
informant, Wright assisted his nonresident friend, a South Carolina wildlife
officer, in obtaining an Ohio-resident hunting license by allowing him to list
Wright’s home address as his own. This allowed Wright’s friend to pay a resident
license fee of $19 instead of the nonresident license fee of $125.
{¶ 4} The OIG asked ODNR Director Sean Logan to investigate the
alleged 2006 misconduct involving Wright and to prepare a report. The following
month, Logan responded that the DOW had already completed an investigation in
August 2008. Dissatisfied with the DOW investigation, the OIG assigned Deputy
Inspector Ron Nichols to investigate. Nichols interviewed appellants—the DOW
personnel involved in the Wright investigation—at different times between
December 22, 2009, and February 1, 2010. Prior to the questioning, each
appellant signed an oath that included the following statement: “I understand that
by affirming my truthfulness under oath, I am subject to criminal sanctions if I
provide false information.” Nichols did not advise appellants of any right to
counsel before each interview.
{¶ 5} During the interviews, appellants revealed that consistent with
reciprocal practices in other states, prior practice within the DOW allowed
wildlife officers from other states to obtain Ohio-resident hunting licenses as a
way to encourage interstate networking and cooperation, although there are some
discrepancies between the appellants’ statements as to when the practice began
and when it ended. In March and October 2008, appellant Graham issued
memoranda reminding division employees about the need to purchase out-of-state
licenses; the October memorandum expressly prohibited DOW employees from
accepting free or discounted licenses in other states (even if those other states
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allowed it) and from permitting nonresident friends to obtain free or discounted
licenses in Ohio.
{¶ 6} Appellants told Nichols that after learning that Wright had allowed
an out-of-state wildlife officer to use Wright’s home address, they had decided to
handle Wright’s misconduct administratively rather than report it to the ODNR
director as a possible criminal violation. Collectively, appellants determined that
Wright’s misconduct fell into the ODNR disciplinary-guidelines category of
“failure of good behavior” and decided that a verbal reprimand was the proper
sanction.
{¶ 7} During his questioning, Nichols asked each appellant whether
Wright’s falsification of the license was a crime and why they, collectively, had
decided not to pursue a criminal investigation. He asked several of the appellants
how they could have disciplined Wright administratively for a 2006 violation of
an internal prohibition that did not exist until Graham’s 2008 memo. And he
suggested to appellants Haines and Graham that perhaps appellants had decided to
issue a verbal reprimand for this nonexistent violation under the catchall category
of “failure of good behavior” because then Wright could not file a grievance over
it and no one would ever know about it. Each appellant testified at length,
however, about the various factors that went into his or her decision-making,
including the DOW’s past practice of allowing nonresident wildlife officers to
obtain resident licenses, Wright’s history and tenure at the ODNR, and Wright’s
use of his own home address, which indicated that he was not trying to hide
anything.
{¶ 8} In March 2010, the OIG issued an investigative report. The report
concluded that Wright had committed wrongdoing by allowing an out-of-state
wildlife officer to obtain an Ohio-resident hunting license using Wright’s home
address. Wright’s excuse for doing so, according to the report, was that it was
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common practice in southwest Ohio to allow out-of-state wildlife officers to
obtain resident licenses.
{¶ 9} The report also concluded that appellants had improperly failed to
report Wright’s criminal conduct to the ODNR director or chief legal counsel, as
required by the policies of the governor and the ODNR. The report stated that
appellants had not verified whether Wright had been adhering to a common
practice that his supervisors were aware of, as Wright claimed, and that appellants
used the alleged practice as an “excuse to disregard the criminal violation.” The
OIG forwarded the report to the Brown County prosecuting attorney.
{¶ 10} In April 2010, a Brown County grand jury indicted each appellant
on one count of obstructing justice and one count of complicity in obstructing
justice, each a fifth-degree felony. Appellants filed motions to suppress or,
alternatively, dismiss, on the ground that their statements to Nichols were coerced
by threat of job loss and were therefore inadmissible under Garrity, 385 U.S. 493,
87 S. Ct. 616, 17 L. Ed. 2d 562. The state countered that Garrity did not prevent
the state from using the statements in the criminal proceedings, because Nichols
had never threatened appellants with job loss or employment-related discipline
and because the OIG lacked the authority to discipline appellants.
{¶ 11} At the suppression hearing, Nichols testified that he had contacted
appellants by phone to set up the interviews and had not subpoenaed them.
Nichols stated that he had never threatened appellants with termination or any
form of job-related discipline. Appellants did not testify, although the state
introduced transcripts of the statements appellants had made to Nichols.
{¶ 12} ODNR Labor Relations Administrator Bret Benack testified that
appellants had known that they could be disciplined for refusing to cooperate with
the investigation. Benack explained that under the ODNR disciplinary guidelines
in effect at the time, an ODNR employee who failed to cooperate in an
administrative investigation would have been subject to discipline ranging from
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an oral reprimand up to removal, based on the number of prior offenses and the
severity of the offense. According to Benack, appellants were aware of these
policies and, as employees in “senior leadership” positions, would expect to
receive more severe discipline.
{¶ 13} Benack also testified that appellants each received an ODNR
“Notice of Investigatory Interview,” which informed them that their refusal to
cooperate could subject them to discipline. The notice contained the following
warning: “This interview is part of an official investigation and failure to answer
questions, completely and accurately, may lead to disciplinary action up to and
including termination.” Benack could not remember when appellants had
received the interview notice, only that ODNR had issued the notice to appellants.
{¶ 14} The trial court suppressed appellants’ statements, declaring them to
be compelled statements and therefore inadmissible under Garrity, 385 U.S. 493,
87 S. Ct. 616, 17 L. Ed. 2d 562. Acknowledging that Nichols had never expressly
threatened appellants with termination, the trial court found that appellants had
been “told by State’s Exhibit 20 [the ODNR Notice of Investigatory Interview]
they had to answer fully and truthfully or risk disciplinary action up to and
including termination.” The trial court further determined that appellants had
known that ODNR’s disciplinary policies and R.C. 121.451 required them to
participate in the OIG investigation.
{¶ 15} The court of appeals reversed. Before conducting its legal
analysis, the court of appeals rejected the trial court’s finding that appellants had
received an express threat of discipline via the ODNR Notice of Investigatory
Interview. 2012-Ohio-138 at ¶ 32. Specifically, the court of appeals stated that it
1. R.C. 121.45 provides, “Each state agency, and every state officer and state employee, shall
cooperate with, and provide assistance to, the inspector general and any deputy inspector general
in the performance of any investigation. In particular, each state agency shall make its premises,
equipment, personnel, books, records, and papers readily available to the inspector general or a
deputy inspector general.”
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could not consider Benack’s testimony that appellants had received the notice,
because the copy of the notice admitted into evidence was undated and unsigned
and because Benack’s testimony as to when appellants received the notice had
been stricken. Id. The court went on to determine that in the absence of any
express threat, appellants had not been compelled within the meaning of Garrity.
Id. at ¶ 145.
{¶ 16} We accepted appellants’ discretionary appeal. State v. Graham,
131 Ohio St. 3d 1539, 2012-Ohio-2025, 966 N.E.2d 893.
Analysis
{¶ 17} We must decide whether the trial court was correct in suppressing
appellants’ statements to Nichols, pursuant to Garrity, 385 U.S. 493, 87 S. Ct. 616,
17 L. Ed. 2d 562.
{¶ 18} Appellate review of a suppression ruling involves a mixed question
of law and fact. State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, 797
N.E.2d 71, ¶ 8. If competent, credible evidence supports the trial court’s findings
of fact, then the appellate court must accept those findings as true. Id. “[T]he
appellate court must then independently determine, without deference to the
conclusion of the trial court, whether the facts satisfy the applicable legal
standard.” Id., citing State v. McNamara, 124 Ohio App. 3d 706, 707 N.E.2d 539
(4th Dist.1997).
{¶ 19} The Fifth Amendment to the United States Constitution, made
applicable to the states by the Fourteenth Amendment, Malloy v. Hogan, 378 U.S.
1, 6, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964), states that “[n]o person * * * shall be
compelled in any criminal case to be a witness against himself * * *.” Article I,
Section 10 of the Ohio Constitution similarly provides that “[n]o person shall be
compelled, in any criminal case, to be a witness against himself * * *.” The
privilege against self-incrimination is generally not self-executing; a person
“ordinarily must assert the privilege rather than answer if he desires not to
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incriminate himself.” Minnesota v. Murphy, 465 U.S. 420, 429, 104 S. Ct. 1136,
79 L. Ed. 2d 409 (1984).
{¶ 20} This general rule is inapplicable, however, in certain well-defined
situations, such as when a person’s assertion of the privilege is penalized in a way
that precludes that person from choosing to remain silent and compels his or her
incriminating testimony. Id. at 434, quoting Garner v. United States, 424 U.S.
648, 661, 96 S. Ct. 1178, 47 L. Ed. 2d 370 (1976). For instance, a person need not
assert the privilege in cases in which the state compels the person to give up the
“privilege by threatening to impose economic or other sanctions ‘capable of
forcing the self-incrimination which the Amendment forbids.’ ” Murphy at 434,
quoting Lefkowitz v. Cunningham, 431 U.S. 801, 806, 97 S. Ct. 2132, 53 L. Ed. 2d
1 (1977).
{¶ 21} In Garrity, the United States Supreme Court held that the
constitutional protection “against coerced statements prohibits use in subsequent
criminal proceedings of statements obtained under threat of removal from office,
and that it extends to all, whether they are policemen or other members of our
body politic.” Id., 385 U.S. at 500, 87 S. Ct. 616, 17 L. Ed. 2d 562. Garrity does
not, however, discount the important public interest in obtaining information to
ensure effective governmental functioning. Lefkowitz v. Turley, 414 U.S. 70, 81,
94 S. Ct. 316, 38 L. Ed. 2d 274 (1973), citing Murphy v. Waterfront Comm. of New
York Harbor, 378 U.S. 52, 93, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964) (White, J.,
concurring). Indeed, the United States Supreme Court has recognized that
Garrity rests on reconciling the recognized policies behind the privilege against
self-incrimination and the government’s need to obtain information. Turley at 81.
A state may compel a public employee’s cooperation in a job-related
investigation, so long as the employee is not asked to surrender the privilege
against self-incrimination. Id. at 84. For example, the state may compel
incriminating answers from its employee if neither those answers nor the fruits
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thereof are available for use against the employee in criminal proceedings. Id.;
Jones v. Franklin Cty. Sheriff, 52 Ohio St. 3d 40, 44, 555 N.E.2d 940 (1990) (a
grant of immunity preserves the privilege because no statement made in that
context is incriminatory). But when the state compels testimony by threatening
potent sanctions unless the witness surrenders the constitutional privilege, the
state obtains the testimony in violation of the Fifth Amendment, and it may not
use that testimony against the witness in a subsequent criminal prosecution.
Cunningham at 805; State v. Jackson, 125 Ohio St. 3d 218, 2010-Ohio-621, 927
N.E.2d 574, ¶ 14 (plurality opinion) (a prosecutor cannot make “direct or
derivative use” of statements that were compelled under threat of termination).
This balance “provid[es] for effectuation of the important public interest in
securing from public employees an accounting of their public trust.” Cunningham
at 806.
{¶ 22} The public employees in Garrity were New Jersey police officers
whom the state attorney general investigated, under the direction of the state
supreme court, for fixing traffic tickets. Id. at 494. A New Jersey forfeiture-of-
office statute in effect at the time stated that public employees would forfeit or be
removed from their employment if they refused to testify upon matters relating to
the employment on the ground that their statements might incriminate them. Id.
at 494, fn. 1. Consequently, prior to questioning, each officer received warnings
“(1) that anything he said might be used against him in any state criminal
proceeding; (2) that he had the privilege to refuse to answer if the disclosure
would tend to incriminate him; but (3) that if he refused to answer he would be
subject to removal from office.” Id. at 494. The officers answered the questions,
and their statements were used against them in subsequent prosecutions for
conspiracy to obstruct the administration of traffic laws. Id. at 495. The United
States Supreme Court held that the statements had been coerced because the
officers had been forced to choose between self-incrimination or job forfeiture
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and so the statements could not be used in the officers’ subsequent prosecutions.
Id. at 496-497. According to the court, “[t]he option to lose their means of
livelihood or to pay the penalty of self-incrimination is the antithesis of free
choice to speak out or to remain silent.” Id. at 497.
{¶ 23} Compulsion within the meaning of Garrity is obvious in cases in
which, as in Garrity, the state has expressly confronted the public employee with
the inescapable choice of either making an incriminatory statement or being fired.
In the absence of an express threat, however, several jurisdictions follow the
holding of the United States Court of Appeals for the D.C. Circuit in United
States v. Friedrick, 842 F.2d 382, 395 (D.C.Cir.1988), that an employee claiming
compulsion “must have in fact believed his * * * statements to be compelled on
threat of loss of job and this belief must have been objectively reasonable.” See,
e.g., McKinley v. Mansfield, 404 F.3d 418, 436 (6th Cir.2005), fn. 20. Stated
differently: “ ‘[F]or statements to be considered compelled by threat of discharge,
(1) a person must subjectively believe that he will be fired for asserting the
privilege, and (2) that belief must be objectively reasonable under the
circumstances.’ ” State v. Brockdorf, 291 Wis. 2d 635, 2006 WI 76, 717 N.W.2d
657, ¶ 25, quoting People v. Sapp, 934 P.2d 1367, 1372 (Colo.1997).
Determining whether an employee’s subjective belief was objectively reasonable
requires a court to examine the totality of the circumstances. Brockdorf at ¶ 36.
The circumstances must show some demonstrable coercive action by the state
beyond “[t]he general directive to cooperate.” United States v. Vangates, 287
F.3d 1315, 1324 (11th Cir.2002). “[O]rdinary job pressures, such as the
possibility of discipline or discharge for insubordination, are not sufficient to
support an objectively reasonable expectation of discharge.” Sapp at 1372.
{¶ 24} In our view, the Friedrick analysis is persuasive, as it ultimately
examines the totality of the circumstances, an approach that is in keeping with this
court’s voluntariness jurisprudence, as well as that of the United States Supreme
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Court. See State v. Clark, 38 Ohio St. 3d 252, 261, 527 N.E.2d 844 (1988), citing
Fare v. Michael C., 442 U.S. 707, 99 S. Ct. 2560, 61 L. Ed. 2d 197 (1979) (“While
voluntary waiver and voluntary confession are separate issues, the same test is
used to determine both, i.e., whether the action was voluntary under the totality of
the circumstances”). We therefore conclude that for a statement to be suppressed
under Garrity, the employee claiming coercion must have believed that his or her
statement was compelled on threat of job loss and this belief must have been
objectively reasonable. In examining whether an employee’s belief was
objectively reasonable under the circumstances, evidence of an express threat of
termination or a statute, rule, or policy demanding termination will almost always
be sufficient to show coercion. Brockdorf at ¶ 3.
{¶ 25} In this case, the trial court and appellate court disagreed as to
whether appellants had received an express threat before Nichols interviewed
them. In suppressing appellants’ statements, the trial court relied heavily on its
finding of fact that appellants had received the ODNR Notice of Investigatory
Interview warning that their failure to answer truthfully “may lead to disciplinary
action up to and including termination.” The court of appeals concluded that the
record did not support this finding, because the copy of the ODNR notice,
introduced as Exhibit 20, was undated and unsigned, and it did not indicate if or
when appellants received it. Graham, 2012-Ohio-138, at ¶ 32. Given that
Benack could only speculate (in testimony that was stricken) as to when
appellants received the notice, the court of appeals stated that it could not
“consider Benack’s testimony that [appellants] received Exhibit 20.” Id.
{¶ 26} The court of appeals’ concern with the state of the record is
understandable, but ultimately insufficient to justify discarding the trial court’s
factual finding. Although Benack could only speculate as to when appellants
received the ODNR notice, he never wavered in his testimony that appellants had
in fact received the notice. Benack, the senior adviser to the ODNR director on
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issues relating to human resources, had personal knowledge that ODNR had
notified appellants that they were the subject of an investigation and that “all of
the [appellants] were issued Exhibit 20.” The language in the notice itself implies
that it is to be given to employees prior to an investigatory interview: “the
investigatory interview will be held with you at [time] on [date] at [location].”
(Emphasis added.) And given Benack’s testimony that ODNR did not conduct its
own interrogation of appellants, the trial court was free to conclude that ODNR
issued the notice in relation to the OIG’s investigation. This testimony was
adequate to support the trial court’s finding; the court of appeals should have
accepted it and considered that finding as true in its analysis. See Burnside, 100
Ohio St. 3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 8.
{¶ 27} Appellants’ receipt of the ODNR notice is dispositive. Although
appellants did not testify at the suppression hearing, the threat of discharge
contained in the notice was sufficient proof that they subjectively believed they
could be fired for refusing to cooperate with Nichols. The threat also establishes
that their belief was objectively reasonable, as it represented some demonstrable
state coercion above the general directive to cooperate. Because appellants spoke
to Nichols after being expressly warned by ODNR that their failure to do so
would subject them to disciplinary action up to and including termination, we
conclude that their statements were compelled under Garrity, 385 U.S. 493, 87
S. Ct. 616, 17 L. Ed. 2d 562, as interpreted by Friedrick, 842 F.2d 382.
{¶ 28} In reaching this conclusion, we reject the state’s characterization of
the OIG as a toothless agency with little or no coercive power. While it was the
ODNR (not the OIG) that compelled appellants’ statements in this case, we reject
the notion that the OIG is incapable of compulsion simply because it lacks the
ability to arrest or directly discipline employees of other state agencies. The
General Assembly established the office of the OIG in 1990 to “investigate
alleged wrongful acts and omissions by state officers and state employees.”
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Am.Sub.H.B. No. 588, 143 Ohio Laws, Part IV, 5930. Pursuant to R.C. 121.42,
the OIG has broad investigative powers. To determine whether wrongful acts or
omissions have been committed, the OIG may “enter upon the premises of any
state agency at any time, without prior announcement,” question state employees,
and inspect and copy any documents in the agency’s possession. R.C. 121.45.
Although the OIG cannot directly discipline employees of other state agencies, it
is statutorily required to “report the wrongful acts or omissions, as appropriate
under the circumstances, to * * * the person’s public or private employer for
possible disciplinary action.” R.C. 121.42(C). In this respect, the purpose of the
OIG’s investigation is similar to the scope of the investigation conducted by the
state attorney general in Garrity, who was ordered by the state supreme court to
make a report.
{¶ 29} Nor do we embrace appellants’ sweeping proposition that every
OIG investigation is coercive within the meaning of Garrity. To be sure, this case
has more in common with cases extrapolating from Garrity than it does with
Garrity itself. Other than the express threat contained in the ODNR notice, there
is scant evidence establishing that appellants subjectively believed that they were
compelled to cooperate with the OIG investigation. Appellants did not testify at
the hearing, and their claim of compulsion relied primarily on the ODNR
disciplinary policy and the general duty to cooperate with OIG investigations
under R.C. 121.45. Unlike the officers in Garrity, appellants were neither
threatened by their interrogator nor confronted with a statute mandating removal
from office. See Murphy, 465 U.S. at 437-438, 104 S. Ct. 1136, 79 L. Ed. 2d 409
(“Unlike the police officers in Garrity * * *, Murphy was not expressly informed
during the crucial meeting with his probation officer that an assertion of the
privilege would result in the imposition of a penalty”). R.C. 121.45 does not, as
appellants suggest, threaten any form of employment-related discipline.
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Nevertheless, the express threat in the ODNR notice was sufficiently coercive so
as to trigger the protections of Garrity.
Conclusion
{¶ 30} Appellants answered questions after receiving a warning that they
could be fired for failing to do so. Statements extracted under these
circumstances cannot be considered voluntary within the meaning of Garrity.
Accordingly, the court of appeals erred by reversing the trial court’s suppression
order. We therefore reverse the judgment of the court of appeals and reinstate the
judgment of the trial court.
Judgment reversed.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY, and
O’NEILL, JJ., concur.
____________________
Jessica A. Little, Brown County Prosecuting Attorney, for appellee.
Gary Rosenhoffer, for appellant David Graham.
John Woliver, for appellant Randy Miller.
Michael P. Kelly, for appellant Michelle Ward-Tackett.
Michael E. Cassity, for appellant James Lehman.
J. Michael Dobyns, for appellant Todd Haines.
Paul L. Cox and Mike Piotrowski, urging reversal on behalf of amicus
curiae, Fraternal Order of Police of Ohio, Inc.
________________________
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