State v. Boiani ( 2013 )

[Cite as State v. Boiani, 2013-Ohio-1342.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98314
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DAVID BOIANI
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-539352
BEFORE: E.T. Gallagher, J., Celebrezze, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: April 4, 2013
ATTORNEY FOR APPELLANT
Christine Agnello Russo
11005 Pearl Road
Suite 4
Strongsville, Ohio 44136
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Melissa Riley
Edward Fadel
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant David Boiani (“Boiani”) appeals his felony DUI
conviction and the denial of his motion to suppress. We find no merit to the appeal and
affirm.
{¶2} Boiani was charged with two counts of DUI pursuant to R.C.
4511.19(A)(1)(a) and 4511.19(A)(1)(h). He pleaded not guilty and filed a motion to
suppress evidence obtained following a traffic stop in Strongsville.
{¶3} At a suppression hearing, several Strongsville police officers testified about
the traffic stop and Boiani’s subsequent arrest. Lieutenant Anthony Zacharyasz
(“Zacharyasz”) testified that police received a call reporting a possible DUI. The caller
reported that the intoxicated driver was leaving Molly McGhee’s, a local bar, and was
heading southbound on Prospect Road. Zacharyasz, who met with the caller in person in
the parking lot of Molly McGhee’s, testified that although the caller was also intoxicated,
he was able to provide positive identification of the vehicle that matched the records in
the LEADS database. He described the vehicle as a white, four-door Cadillac and
provided an accurate license plate number. He also told police that the driver was so
drunk “he almost couldn’t walk.”
{¶4} Officer Jacob Knipp (“Knipp”) testified that he responded to the area and
observed a car matching the description on Lunn Road. He followed the car, which
turned onto Ranchwood and then into the driveway of a residence. He admitted that
although he did not observe the driver commit any traffic violations, he activated his
lights to investigate the alleged DUI.
{¶5} He approached Boiani, who was still seated in the car, and asked for his
driver’s license and proof of insurance. While he was speaking with him, Knipp noticed
that Boiani slurred his speech, had glassy eyes, and had a strong smell of alcohol. Based
on these observations, he asked Boiani to get out of the car to perform field sobriety tests.
When Boiani stepped out of the car, he was unsteady on his feet and refused to perform
the tests. Knipp arrested him for DUI. At the police station, Boiani was advised of his
Miranda rights.
{¶6} Based on this evidence, the court denied Boiani’s motion to suppress. Boiani
subsequently pleaded no contest, and the court imposed a six-month prison sentence.
The sentence was stayed pending appeal. Boiani now appeals and raises seven
assignments of error.
Motion to Suppress
{¶7} In his first assignment of error, Boiani argues the trial court erred in denying
his motion to suppress because police did not have reasonable suspicion to stop and
detain him. In the second assignment of error, he argues the trial court erred in denying
his motion to suppress evidence obtained during the traffic stop and subsequent arrest.
We discuss these assigned errors together because they are closely related.
{¶8} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
When ruling on a motion to suppress, the trial court assumes the role of trier of fact and is
in the best position to resolve questions of fact and to evaluate witness credibility. State
v. Dunlap, 73 Ohio St.3d 308, 314, 1995-Ohio-243, 652 N.E.2d 988. A reviewing court
must defer to the trial court’s factual findings if competent, credible evidence exists to
support those findings. Burnside at ¶ 8. However, once an appellate court has accepted
those facts as true, it must independently determine as a matter of law whether the trial
court met the applicable legal standard. Burnside at ¶ 9. In other words, the application
of the law to the trial court’s findings of fact is subject to a de novo standard of review.
Id.{¶9} Before initiating a stop, a “police officer must be able to point to specific and
articulable facts which, taken together with rational inferences from those facts,
reasonably warrant [the] intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968). Determination of whether reasonable suspicion exists in any given
case requires review of the totality of the surrounding facts and circumstances. State v.
Bobo, 37 Ohio St.3d 177, 524 N.E.2d 489 (1988), paragraph one of the syllabus. Those
circumstances must be viewed through the eyes of the reasonable and prudent police
officer on the scene who must react to events as they unfold. State v. Andrews, 57 Ohio
St.3d 86, 89, 565 N.E.2d 1271 (1991).
{¶10} The traffic stop in this case was based solely on an informant’s tip that
Boiani was driving under the influence of alcohol. In Maumee v. Weisner, 87 Ohio St.3d
295, 1999-Ohio-68, 720 N.E.2d 507, the Ohio Supreme Court held that a telephone tip
can, standing alone, create reasonable suspicion justifying an investigative stop if the tip
has sufficient indicia of reliability. Id., paragraph one of the syllabus. Under these
circumstances, the determination of reasonable suspicion is limited to an examination of
the weight and reliability of the tip. Id. The focus is on “whether the tip itself has
sufficient indicia of reliability to justify the investigative stop.” Id. The most important
factors in determining the reliability of an informant’s report are “the informant’s
veracity, reliability, and basis of knowledge.” Id., citing Alabama v. White, 496 U.S.
325, 328, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).
{¶11} In assessing the reliability of the informant’s tip, the Weisner court stated
that it is useful to categorize informants according to their typical characteristics. Id. at
300. It has generally been accepted that there are three classes of informants: the
anonymous informant, the known informant, and the identified citizen informant. Id.
The Weisner court explained:
While the United States Supreme Court discourages conclusory analysis
based solely upon these categories, insisting instead upon a totality of the
circumstances review, it has acknowledged their relevance to an
informant’s reliability. The court has observed, for example, that an
anonymous informant is comparatively unreliable and his tip, therefore, will
generally require independent police corroboration. Alabama v. White, 496
U.S. at 329, 110 S.Ct. at 2415, 110 L.Ed.2d at 308. The court has further
suggested that an identified citizen informant may be highly reliable and,
therefore, a strong showing as to the other indicia of reliability may be
unnecessary: “If an unquestionably honest citizen comes forward with a
report of criminal activity — which if fabricated would subject him to
criminal liability — we have found rigorous scrutiny of the basis of his
knowledge unnecessary.” Illinois v. Gates, 462 U.S. [213,] 233-234, 103
S.Ct. [2317,] 2329-2330, 76 L.Ed.2d [527,] 545.
Id. Finally, the court held that where the informant provides identifying information,
including his name and phone number, and the informant remained on the scene, making
face-to-face contact a possibility, police have sufficient information to classify that
informant as an identified citizen. Id.{¶12} In the instant case, the Strongsville police met with the informant in person
to verify his report before making the traffic stop. At the suppression hearing,
Zacharyasz testified that although the informant was intoxicated, he provided an accurate
description of the car Boiani was driving, its license plate number, and the car’s general
location. The name the informant provided to dispatch was consistent with the
identification he provided to Zacharyasz in person. Under these circumstances, the
informant was an identified informant with information reliable enough to warrant the
stop.
{¶13} Once Knipp made the stop and began speaking with Boiani, he noticed that
Boiani was slurring his speech and his eyes were glassy. There was also a strong smell
of alcohol. Based on these observations, Knipp had reasonable suspicion to investigate
further and asked Boiani to step out of the car. When Boiani stepped out of the car, he
was unsteady on his feet and refused to perform field sobriety tests. By this time, Knipp
had probable cause to arrest Boiani for DUI. Because Knipp had reasonable suspicion
for the stop and probable cause to arrest Boiani, the trial court properly denied his motion
to suppress.
{¶14} Accordingly, the first and second assignments of error are overruled.
Miranda Warnings
{¶15} In the third assignment of error, Boiani argues the trial court erred in
denying his motion to suppress statements he made to police during the investigatory
stop. He contends that because the police car blocked the driveway where he parked, he
was effectively under arrest and should have been advised of his Miranda rights before
the police questioned him.
{¶16} Prior to a custodial interrogation, the accused must be apprised of his or her
right against self-incrimination and right to counsel. Miranda v. Arizona, 384 U.S. 436,
86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda defines “custodial interrogations” as
any “questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way.” Id. at
444. A traffic stop alone does not render the person “in custody” within the meaning of
Miranda. State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985, ¶ 13,
citing Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984).
However, if that person “thereafter is subjected to treatment that renders him ‘in custody’
for practical purposes, he will be entitled to the full panoply of protections prescribed by
Miranda.” Id.{¶17} In the instant case, we need not determine whether Boiani was “in custody”
for purposes of Miranda because Boiani failed to identify what statements he allegedly
made to police that he wanted suppressed. Nor does he explain how such statements
would have prejudiced him in the proceedings below. Accordingly, we summarily reject
this unsupported claim. See App.R. 16(A)(7); App.R. 12(A)(2).
{¶18} Moreover, even if any and all of Boiani’s statements were obtained in
violation of Miranda, the court’s failure to suppress any statements would not have
changed the outcome of the proceedings. As previously explained, police obtained a
report from an identified informant that Boiani was driving while he was intoxicated.
Knipp smelled a strong odor of alcohol emanating through Boiani’s car window and
observed that Boiani’s eyes were glassy. He also observed that Boiani was unsteady on
his feet. Results of a breathalyzer test confirmed that his blood alcohol content was well
above the legal limit. Under these circumstances, even if all of Boiani’s statements had
been suppressed, it would not have changed the outcome of the proceedings. Therefore,
any error in denying the motion to suppress Boiani’s statements was harmless.
{¶19} The third assignment of error is overruled.
Breath Alcohol Test
{¶20} In the fourth assignment of error, Boiani argues the trial court should have
suppressed the results of his breath alcohol test because the officer who performed the
test was not called to testify at the suppression hearing.
{¶21} In support of this argument, Boiani relies on Bullcoming v. New Mexico,
U.S. , 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). In Bullcoming, the defendant was
convicted of driving while intoxicated. His conviction was based on a laboratory report
of his blood alcohol level. At the trial, an analyst from the laboratory where the test was
performed testified concerning the testing device and the laboratory’s testing procedures.
However, the analyst who testified at trial did not perform or observe the actual test
performed in the case. The defendant argued that the absence of the forensic analyst
who prepared the report violated his Sixth Amendment right of confrontation. The
United States Supreme Court agreed, holding that the admission of the report violated the
defendant’s right to confront the analyst who prepared the report because the substitute
analyst who testified at trial did not perform or observe the test and therefore did not
satisfy the right of confrontation.
{¶22} The instant case is distinguishable from Bullcoming in that Officer Knipp
was present and observed the officer perform the breath test. Officer Knipp testified that
the officer who performed the test followed the procedures for proper operation of the
Intoxilyzer 5000 and followed all applicable guidelines. Because Officer Knipp observed
the actual test and was available for confrontation, there was no Sixth Amendment
violation.
{¶23} Therefore, the fourth assignment of error is overruled.
Admission of State Exhibit Nos. 4 and 5
{¶24} In the fifth assignment of error, Boiani argues the trial court should not have
admitted state’s exhibit Nos. 4 and 5 into evidence. Both exhibits relate to the breath test
performed on the Intoxilyzer 5000.
{¶25} Boiani failed to object to the admission of these exhibits at the suppression
hearing. Therefore, he waived all but plain error. State v. Long, 53 Ohio St.2d 91, 372
N.E.2d 804 (1978); Crim.R. 52(B). In order to prevail under a plain error analysis,
appellant bears the burden of demonstrating that the outcome of the trial clearly would
have been different but for the error. Id. at paragraph one of the syllabus. Notice of
plain error “is to be taken with the utmost caution, under exceptional circumstances and
only to prevent a manifest miscarriage of justice.” Id. at paragraph three of the syllabus.
{¶26} Boiani contends the exhibits that relate to the breath test were inadmissible
under Bullcoming. However, as previously explained, because Officer Knipp was
present when the test was performed and was available for cross-examination, there was
no constitutional violation and the evidence of the breath test was admissible. Plain error
cannot exist in the absence of error. Accordingly, we overrule the fifth assignment of
error.
Admission of State Exhibit Nos. 9 and 11
{¶27} In the sixth assignment of error, Boiani argues the trial court erred in
admitting state’s exhibit Nos. 9 and 11. He contends these exhibits, both of which are
documents, were admitted even though neither the author of the records nor the records
custodian were present to authenticate them. We find these claims unsupported by the
record.
{¶28} Generally, documents constitute inadmissible hearsay unless the author of
the document is available to testify about it or the document qualifies as an exception to
the hearsay rule. Evid.R. 803; State v. Cassano, 8th Dist. No. 97228, 2012-Ohio-4047,
¶ 21-22. As applicable here, the business records exception excepts business records
from exclusion at trial “if they are made in the course of a regularly conducted business
activity because the courts presume that such records are trustworthy given the
self-interest to be served by the accuracy of such entries.” Id., citing Weis v. Weis, 147
Ohio St. 416, 425-426, 72 N.E.2d 245 (1947).
{¶29} To qualify for the business-records exception, a record must meet the
following criteria: (1) the record must be one recorded regularly in a regularly conducted
activity, (2) a person with knowledge of the act, event, or condition recorded must have
made the record, (3) it must have been recorded at or near the time of the act, event, or
condition, and (4) the party who seeks to introduce the record must lay a foundation
through testimony of the record custodian or some other qualified witness. State v.
Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 171.
{¶30} State exhibit No. 9 is a form police officers complete when they calibrate
the department’s Intoxilyzer 5000. State exhibit No. 11 is a document prepared by the
Ohio Department of Health inspector that includes a checklist of things the inspector
looks for when he is present at the police station for inspection. At the close of the
state’s case, Boiani objected to these exhibits and the court withheld ruling on them.
Neither of these exhibits were admitted into evidence. Therefore, this assigned error is
moot.
{¶31} Nevertheless, we note that Officer Albert Heyse (“Heyse”) identified State
exhibit No. 9 at the suppression hearing and testified that it is a form he completed
himself when he checked the calibrations of the Intoxilyzer 5000. As the author of the
report, he was qualified to testify about it. Heyse also testified that he is responsible for
maintaining all documents pertaining to the Intoxilyzer 5000. He is, therefore, the
custodian of records for that machine and could testify about the documents.
{¶32} Accordingly, we overruled the sixth assignment of error.
Findings of Fact and Conclusions of Law
{¶33} In the seventh assignment of error, Boiani argues the trial court failed to
correctly apply the law to his findings of fact and conclusions of law. He contends that
because Officer Knipp admitted that he did not observe any traffic violations prior to the
stop, he lacked reasonable suspicion to warrant the traffic stop.
{¶34} However, as previously explained, the reasonable suspicion needed to
warrant the traffic stop came from an identified citizen informant, who provided accurate
information about Boiani’s vehicle and location as well as accurate identification of
himself. Under Maumee v. Weisner, 87 Ohio St.3d 295, 1999-Ohio-68, 720 N.E.2d 507,
this informant’s tip provided reasonable suspicion to warrant the stop. During the
investigatory stop, Knipp acquired probable cause to arrest Boiani. Therefore, the trial
court correctly applied the applicable law to the facts of this case when it denied the
motion to suppress.
{¶35} Accordingly, the seventh assignment of error is overruled.
{¶36} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., CONCURS;
EILEEN A. GALLAGHER, J., DISSENTS (WITH SEPARATE OPINION)
EILEEN A. GALLAGHER, J., DISSENTING:
{¶37} I respectfully dissent from the majority opinion.
{¶38} At the hearing on the motion to suppress, Strongsville police officer Jacob
Knipp (“Knipp”) testified that on July 3, 2010, “we received a call about an intox driver.”
The dispatcher provided in the dispatch a license plate number and described the vehicle
as a four-door Cadillac traveling southbound on Prospect Road in Strongsville, Ohio,
from Molly McGhee’s, a tavern. Knipp “found” the car on Lunn Road and made
approach after the vehicle was driven into a driveway on Winding Trail. At no time did
Knipp observe any moving violations. Knipp approached the vehicle and requested that
the driver provide his license and proof of insurance, and he “advised him of the stop.”
Knipp testified that before he approached appellant’s vehicle, he had no information but
for the possibility of a drunk driver, a license plate number, and a description of the
vehicle but not of the driver. There was no information provided to Knipp of erratic
driving and, while following the vehicle, he observed it make proper, signaled turns with
no moving violations committed.
{¶39} Strongsville police Lieutenant Anthony Zacharyasz testified that on July 3,
2010, he responded to a complaint from a gentleman in the parking lot at Molly
McGhee’s tavern. The male was disheveled and appeared to be under the influence but
provided to police his own identifying information as well as a description and Ohio
registration of a vehicle that he reported was being operated by an intoxicated male. This
complaining person was driven home by a Strongsville police officer, for his own safety,
due to his intoxicated state.
{¶40} On cross-examination, the lieutenant related that the witness had also
reported, as part of his 911 call, that he had been assaulted by someone, not the driver of
the vehicle at issue, but Lieutenant Zacharyasz observed no evidence to bear out that
report. The lieutenant also testified that the tipster is known to the Strongsville Police
Department and to call them while he is intoxicated to report persons driving under the
influence, but that he was unaware how many, if any, resulted in people being stopped.1
1 The trial court issued findings of fact and conclusions of law, which I find to
be flawed. The court found that Mr. Banks, the citizen tipster, had stated that the
driver of the vehicle in question attempted to hit him with the vehicle. There is
absolutely no evidence in the record to support this finding. The record reflects
that Banks had reported to Strongsville police that he had been assaulted, but
never stated that it was with a motor vehicle and, in fact, testimony was that in his
allegation of assault, Banks reported that the assailant was not the driver of the
{¶41} Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a
law enforcement officer must have a reasonable suspicion, based on specific and
articulable facts, that a motorist is or has been engaged in criminal activity before
stopping a vehicle. State v. Bailey, 8th Dist. No. 97330, 2012-Ohio-3356, ¶ 17, citing
State v. Davenport, 8th Dist. No. 83487, 2004-Ohio-5020. An officer is justified in
making an investigative stop if the specific and articulable facts available to an officer
indicate that a motorist may be committing a criminal act, which includes the violation of
a traffic law. Id. Determination of whether reasonable suspicion exists in any given case
requires review of the totality of the surrounding facts and circumstances. State v. Bobo,
37 Ohio St.3d 177, 524 N.E.2d 489 (1988), paragraph one of the syllabus. Those
circumstances must be viewed through the eyes of the reasonable and prudent police
officer on the scene, who must react to events as they unfold. State v. Andrews, 57 Ohio
St.3d 86, 89, 565 N.E.2d 1271 (1991).
{¶42} The majority correctly points out that pursuant to Maumee v. Weisner, 87
Ohio St.3d 295, 296, 1999-Ohio-68, 720 N.E.2d 507, a telephone tip can, by itself, create
reasonable suspicion justifying an investigative stop where the tip has sufficient indicia of
reliability. I disagree with the majority’s conclusion that the circumstances of this case
established that the tip had sufficient indicia of reliability to justify an investigative stop.
{¶43} This court has previously explained that when an investigative stop is made
in sole reliance upon a police dispatch, the police officer making the stop need not have
white Cadillac.
personal knowledge of the information motivating the stop. Rather, where an officer
making an investigative stop relies solely upon a dispatch, the state must demonstrate at a
suppression hearing that the facts precipitating the dispatch justified a reasonable
suspicion of criminal activity. State v. Greer, 8th Dist. No. 92011, 2009-Ohio-5351, ¶ 20,
citing Rocky River v. Surovey, 8th Dist. No. 79380, 2002-Ohio-572, citing, Maumee.
{¶44} As an initial matter, it is clear from the record that the tipster in this case
was no stranger to the Strongsville Police Department. Lieutenant Zacharyasz testified
that the tipster was known to the Strongsville Police to call, specifically from Molly
McGhee’s, with tips, including reports of driving under the influence, while he himself
was intoxicated. Despite this reputation and history of making reports while intoxicated,
Zacharyasz was unaware of any occasion when a tip from this individual had led to an
arrest.
{¶45} Furthermore, upon arriving on the scene at Molly McGee’s just before 3:00
a.m., Zacharyasz observed that the tipster was “definitely” intoxicated to the point that
Zacharyasz felt it was unsafe to allow the tipster to attempt to walk home. It is unclear
from the record if this highly relevant information regarding the reliability of the tipster’s
account was conveyed to the officers searching for the vehicle identified by the tipster.
{¶46} I find present circumstances highly distinguishable from other investigatory
stops this court has upheld based solely on a tip. In Beachwood v. Sims, 98 Ohio App.3d
9, 647 N.E.2d 821 (8th Dist.1994), we upheld an investigatory stop based upon a tipster
who followed an intoxicated driver to his home after alerting police. The tipster in Sims
was present at the scene when police arrived and recounted his information to the officers
before they approached the defendant. In Surovey, we upheld an investigatory stop
where the reporting tipster observed an intoxicated man staggering and struggling to enter
his vehicle before driving away. The tipster provided police with her location and place
of employment. Similarly, in Cleveland v. Bradberry, 8th Dist. No. 78838, 2001 Ohio
App. LEXIS 3729 (Aug. 23, 2001), we found reasonable suspicion of an intoxicated
driver based upon a neighbor’s firsthand observations and report to police. None of
these cases involved an intoxicated witness-tipster, much less an individual with a
reputation for providing tips while intoxicated.
{¶47} “[A] tip which, standing alone, would lack sufficient indicia of reliability
nevertheless may establish reasonable suspicion to make an investigatory stop if it is
sufficiently corroborated through independent police work.” State v. Roubideaux, 8th
Dist. No. 92948, 2010-Ohio-73, ¶ 35, citing Alabama v. White, 496 U.S. 325, 332, 110
S.Ct. 2412, 110 L.Ed.2d 301 (1990). However, the “simple corroboration of neutral
details describing the suspect or other conditions existing at the time of the tip, without
more, will not produce reasonable suspicion for an investigatory stop.” Id.{¶48} Even if I accepted the proposition that reasonable suspicion to support an
investigatory stop could arise solely on the word of an intoxicated individual with a
history such as that described above, Officer Knipp’s actual observations of appellant’s
operation of his vehicle in conformity with the rules of the road failed to corroborate the
tipster’s report that appellant was so intoxicated he “almost couldn’t walk.”
{¶49} In light of above circumstances, I would find that the Strongsville Police
lacked reasonable suspicion to justify an investigative stop of appellant’s vehicle.