State v. Scullin , 2019 Ohio 3186 ( 2019 )

[Cite as State v. Scullin, 2019-Ohio-3186.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 107866
v. :
JEFFREY W. SCULLIN, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 8, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-622929-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Christopher D. Schroeder, Assistant
Prosecuting Attorney, for appellee.
Patituce & Associates, L.L.C., Joseph C. Patituce, and
Megan Patituce, for appellant.
FRANK D. CELEBREZZE, JR., J.:
Defendant-appellant, Jeffrey Scullin, Jr., brings the instant appeal
challenging his convictions for aggravated murder, murder, felonious assault,
tampering with evidence, making false alarms, and endangering children.
Specifically, appellant argues that the trial court erred in denying his motion to
suppress and motion to compel discovery. After a thorough review of the record and
law, this court affirms.
I. Factual and Procedural History
The instant matter arose from the murder of Melinda Pleskovic
(hereinafter “victim”) on October 23, 2017, at her residence in Strongsville, Ohio.
The victim was a 49-year-old school teacher.
On October 23, 2017, police were dispatched to the victim’s residence
regarding a possible stabbing. Upon arriving at the home, officers found the victim
laying on the kitchen floor. The victim was unresponsive and bleeding profusely.
She had sustained approximately 35 stab wounds and two gunshot wounds. The
victim was transported to Southwest General Hospital where she was pronounced
dead at approximately 9:00 p.m. (Tr. 156.)
The responding officers also encountered the victim’s husband Bruce
Pleskovic, the victim’s son,1 and appellant at the residence. Appellant was engaged
to the victim’s daughter, and he was living in the basement of the victim’s home at
the time of the murder. Officers spoke with the victim’s husband and appellant at
the scene. Furthermore, officers obtained and executed search warrants for the
residence, three vehicles that were parked in the driveway when officers arrived on
scene, and cell phones belonging to the victim, her husband, and appellant.
1 The victim’s son has Down syndrome.
The following day, officers searched one of the vehicles that was parked
in the driveway, a Chevrolet Silverado truck, that appellant had been driving at the
time of the incident. Officers discovered a knife inside the truck that had “some red
staining” on the blade. (Tr. 101.) Preliminary testing of the red substance confirmed
that it was human blood.
The knife was submitted to the medical examiner’s office for DNA
analysis. DNA testing revealed that the victim’s DNA was present on the knife’s
blade and handle, and appellant’s DNA was present on the knife’s handle. After
receiving the results of the DNA testing, officers obtained a warrant for appellant’s
arrest.
On October 31, 2017, after obtaining the DNA testing results and a
warrant for appellant’s arrest, officers asked appellant to come to the Strongsville
Police Department. Appellant was initially interviewed by Strongsville Police
Detective Ron Stolz. During this interview, appellant was placed under arrest.
Subsequently, Lance Fragomeli, an FBI special agent and polygraph
examiner, interviewed appellant and also administered a polygraph examination.
After taking the polygraph examination, appellant ultimately confessed to stabbing
and shooting the victim. Appellant informed the police that he put the gun with
which he shot the victim in a Buick LeSabre, and that the vehicle was parked in the
driveway of his parents’ house. Appellant provided officers with consent to search
the LeSabre.
Officers searched the LeSabre and recovered a .357 revolver and a pair
of sweatpants containing blood stains inside. Ballistic testing confirmed that the
victim had been shot by the .357 revolver that was recovered from the LeSabre. DNA
testing of the revolver indicated that appellant’s DNA was on the handle, barrel, and
trigger of the gun. Furthermore, DNA testing of the sweatpants recovered from the
LeSabre indicated that appellant’s DNA was present on the waistband and the blood
stains on the pants were the victim’s blood. (Tr. 232.)
On November 8, 2017, the Cuyahoga County Grand Jury returned a
seven-count indictment against appellant charging him with (1) aggravated murder,
in violation of R.C. 2903.01(A); (2) murder, in violation of R.C. 2903.02(B); (3)
felonious assault, in violation of R.C. 2903.11(A)(1); (4) felonious assault, in
violation of R.C. 2903.11(A)(2); (5) tampering with evidence, in violation of R.C.
2921.12(A)(1), with a forfeiture specification; (6) making false alarms, in violation of
R.C. 2917.32(A)(3); and (7) endangering children, in violation of R.C. 2919.22(A).
Counts 1 through 4 contained one- and three-year firearm specifications. Appellant
was arraigned on November 14, 2017. He pled not guilty to the indictment.
On December 19, 2017, appellant filed a motion for leave to file a
suppression motion after the exchange of discovery. The trial court granted the
motion on December 20, 2017, ordering defense counsel to file a motion to suppress
within 30 days of the exchange of discovery.
On August 16, 2018, appellant filed a motion to compel discovery.
Therein, appellant sought an order compelling the state to turn over any and all
evidence related to the polygraph examination that was administered to appellant
on October 31, 2017.
The state filed a brief in opposition to appellant’s motion to compel on
August 27, 2018. Therein, the state argued that the results of the polygraph
examination were not subject to discovery under Crim.R. 16. The trial court denied
appellant’s motion to compel on August 28, 2018.
In addition to the motion to compel, appellant filed a motion to
suppress on August 16, 2018. Appellant filed a supplemental motion to suppress on
August 22, 2018.
In his motions to suppress, appellant requested an order suppressing
the following evidence: (1) the evidence obtained from the search of appellant’s
Chevrolet Silverado truck, which was parked in the driveway of the victim’s
residence on the night of the murder (knife), (2) the evidence obtained from the
search of appellant’s cell phone and phone records, (3) the statements appellant
made to police, and (4) the evidence obtained from the search of the Buick LeSabre,
which was parked in the driveway of appellant’s parents’ house (.357 revolver and
sweatpants containing blood stains). With the exception of the LeSabre, all of these
searches were conducted pursuant to a search warrant. After appellant admitted to
stabbing and shooting the victim during Special Agent Fragomeli’s October 31, 2017
interview, appellant provided officers with consent to search the LeSabre. (Tr. 203.)
On August 27, 2018, the state filed a motion for an extension of time
to respond to appellant’s suppression motion. The trial court granted the motion
for an extension of time. The state filed its brief in opposition to appellant’s motion
to suppress on September 18, 2018.
The trial court held a hearing on October 12, 2018. The state placed
the terms of a plea agreement on the record that had been offered to appellant.
Defense counsel indicated that appellant rejected the plea offer. The trial court
proceeded to hold a hearing on appellant’s motion to suppress.
The following six witnesses testified during the suppression hearing:
(1) Dr. Nasir Butt, DNA technical manager and supervisor with the Cuyahoga
County Regional Forensic Science Laboratories; (2) Strongsville Police Officer
Patrick O’Sullivan; (3) Strongsville Police Sergeant Steven Piorkowski;
(4) Strongsville Police Detective Steve Borowske; (5) Detective Stolz; and (6) Special
Agent Fragomeli.
The suppression hearing concluded on October 16, 2018. After
considering the parties’ arguments and the testimony adduced during the hearing,
the trial court denied appellant’s motion to suppress.
On October 17, 2018, appellant withdrew his not guilty plea and
entered a plea of no contest to the seven offenses charged in the indictment. Based
on the evidence proffered, the trial court found appellant guilty on all seven counts
and the underlying specifications. The trial court ordered a presentence
investigation report and set the matter for sentencing.
On October 29, 2018, the trial court held a sentencing hearing. The
trial court determined that Counts 1 through 4 merged for sentencing purposes. The
state elected to sentence appellant on Count 1. The trial court also merged the
underlying firearm specifications and elected to sentence appellant on the three-
year firearm specification. The trial court imposed an aggregate prison sentence of
life with the possibility of parole after 33 years: life in prison on Count 1, consecutive
to the three-year firearm specification; three years on Count 5 to be served
concurrently with Count 1; 180 days in jail on both Count 6 and Count 7, to be served
concurrently with Count 1.
On November 2, 2018, appellant filed the instant appeal challenging
the trial court’s judgment. He assigns four errors for review:
I. The trial court erred in improperly shifting the burden from the state
to the defense in ruling that the defense did not prove misconduct.
II. The trial court erred in denying appellant’s motion to compel
because the evidence sought was material to the defense and relied
upon by the state of Ohio.
III. The trial court erred in denying appellant’s motion to suppress
because no reasonable person would have believed that the consent to
search exceeded beyond the brief period necessary to remove a diaper
bag.
IV. The trial court erred in finding the search warrants for appellant’s
cell phone and cellular data were supported by probable cause and
included particularized descriptions.
For ease of discussion, appellant’s assignments of error will be
addressed out of order.
II. Law and Analysis
A. Motion to Suppress
Appellant’s first, third, and fourth assignments of error pertain to the
trial court’s ruling denying his motion to suppress.
1. Standard of Review
This court reviews a trial court’s ruling on a motion to suppress under
a mixed standard of review.
“In 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 evaluate
witness credibility.” State v. Curry, 95 Ohio App. 3d 93, 96, 641 N.E.2d
1172 (8th Dist.1994). The reviewing court must accept the trial court’s
findings of fact in ruling on a motion to suppress if the findings are
supported by competent, credible evidence. State v. Burnside, 100
Ohio St. 3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. With respect to
the trial court’s conclusion of law, the reviewing court applies a de novo
standard of review and decides 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).
State v. Miller, 8th Dist. Cuyahoga No. 106946, 2018-Ohio-4898, ¶ 22.
2. Confession
In his first assignment of error, appellant argues that the trial court
erred in denying his motion to suppress with respect to the statements he made to
the police. Specifically, appellant argues that the trial court erred in finding that (1)
Detective Stolz’s initial interrogation on October 31 was noncustodial in nature, and
thus, Miranda warnings were not required, and (2) appellant’s statements were not
coerced and voluntarily made.
a. Detective Stolz’s Initial Interview
First, appellant challenges the trial court’s finding that Detective
Stolz’s initial interrogation on October 31 was noncustodial in nature and thus
Miranda warnings were not required.
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 interrogation” 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.
Cleveland v. Oles, 2016-Ohio-23, 45 N.E.3d 1061, ¶ 13 (8th Dist.).
During the suppression hearing, Detective Stolz testified that on the
morning of October 31, 2017, he received the results of the DNA testing from Dr.
Butt. The results indicated that the victim’s DNA was present on the blade and the
handle of the knife that was found in appellant’s pickup truck, and appellant’s DNA
was present on the knife’s handle. After receiving the testing results, police obtained
an arrest warrant for appellant.
After obtaining a warrant for appellant’s arrest, Detective Stolz
contacted appellant around 10:30 a.m. and asked him to come to the police station.
Appellant arrived at the police station around noon, and Detective Stolz brought him
into the interview room in the police station’s detective bureau.
Detective Stolz explained that appellant had previously came into the
police station, on his own free will, earlier that week on October 24 and 26, 2017.
When appellant came into the station on the 24th and the 26th, he was not under
arrest or detained in any way, and he was free to leave at any time. Detective Stolz
interviewed appellant on the 24th and 26th in the same interview room in the
detective bureau.
During the interview on October 31, Detective Stolz testified that when
appellant was initially brought inside the interview room, he was not placed under
arrest or handcuffed. However, he explained that unlike the previous interviews on
October 24 and 26, if appellant attempted to terminate the interview and leave the
police station during the October 31 interview, he would have been placed under
arrest.
During the October 31 interview, before appellant was advised of his
Miranda rights, Detective Stolz began going over appellant’s previous statements
about his whereabouts on the day of the murder. The officers were asking appellant
the same questions they had previously asked him: “[s]imple, open-ended
questions; who, what, where, why. We went over ascertaining change [in appellant’s
responses].” (Tr. 245.) Detective Stolz asserted that he was asking appellant “to
corroborate where he was [on October 23, 2017], not specific questions about the
murder itself.” (Tr. 246.) He confirmed that during this initial interview, he was not
asking appellant whether he murdered the victim or the location of any weapons
that had been used.
Approximately 20 minutes into the interview, Detective Stolz began
confronting appellant with information and evidence that contradicted appellant’s
statements. After he confronted appellant with the evidence that he received from
Dr. Butt, Detective Stolz placed appellant under arrest and advised appellant of his
Miranda rights.
After reviewing the record, we find no merit to appellant’s argument
regarding Detective Stolz’s initial interview. Appellant did not confess during
Detective Stolz’s initial interview, nor during the post-arrest phase of Detective
Stolz’s interview. Appellant denied any wrongdoing during Detective Stolz’s
interview, and did not confess to stabbing and shooting the victim until much later
in the day during Special Agent Fragomeli’s post-polygraph interview.
Assuming, arguendo, that the trial court erred in finding that
Detective Stolz’s initial interview was noncustodial in nature, any error in this regard
would be harmless. See State v. Nelson, 2017-Ohio-5568, 93 N.E.3d 472, ¶ 72 (8th
Dist.). “Harmless error is an error that does ‘not affect substantial rights.’ Crim.R.
52(A). The harmless error standard asks whether the rights affected are substantial
and, if so, whether a defendant has suffered any prejudice as a result. State v.
Harris, 142 Ohio St. 3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 36.” State v. Lindsey,
8th Dist. Cuyahoga No. 106111, 2019-Ohio-782, ¶ 88; see also State v. Durham,
2016-Ohio-691, 60 N.E.3d 552, ¶ 172 (8th Dist.), citing State v. Lytle, 48 Ohio St. 2d
391, 358 N.E.2d 623 (1976) (applying harmless error doctrine to a purported
Miranda violation).
In this case, appellant did not make any incriminating statements
during the initial interview with Detective Stolz, nor did he confess to having any
involvement in the murder. Even after Detective Stolz arrested appellant and
advised appellant of his Miranda rights, appellant repeatedly insisted that he did
not do anything wrong, that the victim took him in and was like a mother to him,
and that he would not hurt anyone.
For all of these reasons, we find no merit to appellant’s argument that
the trial court erred in concluding that the initial interview conducted by Detective
Stolz was not a “custodial interrogation” implicating Miranda. Appellant’s first
assignment of error is overruled in this respect.
b. Police Misconduct
Second, appellant argues that he did not voluntarily waive his
Miranda rights and that his confession was coerced. In support of this argument,
appellant asserts that (1) Detective Stolz manipulated him using his infant daughter;
(2) Special Agent Fragomeli psychologically coerced him using his infant daughter,
and manipulated appellant into compiling an apology letter addressed to his
daughter; and (3) Detective Stolz repeatedly threatened him with the death penalty
and threatened to charge him with a crime that does not exist in the state of Ohio.
In denying appellant’s motion to suppress, the trial court concluded
that (1) appellant knowingly, intelligently, and voluntarily waived his Miranda
rights and spoke to the police, and (2) appellant’s statements were voluntarily made
and not the result of coercion or police misconduct. The trial court emphasized that
officers read appellant his Miranda rights multiple times, including when he was in
custody, and each time, appellant voluntarily spoke with the officers and never
indicated he did not understand the Miranda rights. The trial court also
emphasized that appellant did not attempt to invoke his Miranda rights or his right
to counsel at any time, nor did he attempt to stop the interviews in any way.
In support of these findings, the trial court explained that (1)
throughout the process of interrogating appellant on October 31, 2017, officers
provided food and water to appellant; (2) when appellant complained of a headache,
the officers provided aspirin to him; (3) the officers took several breaks and gave
appellant “more time” when he asked for it (rather than continuously interrogating
him); and (4) officers made sure appellant was comfortable, and they
accommodated appellant when he said his handcuffs were too tight. Regarding
Detective Stolz’s reference to the death penalty, the trial court concluded that it was
not an “illusory promise” and that the death penalty was a possibility at the time.
i. Apology Letter
Regarding Special Agent Fragomeli’s suggestion that appellant write
an apology letter to his daughter, Special Agent Fragomeli testified during the
suppression hearing that he — not appellant — started writing the apology letter
during the pre-polygraph interview. Special Agent Fragomeli explained the purpose
for his suggestion that appellant write the letter:
During our conversation I asked [appellant], I said, Hey, look. I’d like
you to consider doing an apology letter to your daughter. And the
reason is you can let her know the entire truth [about the October 23,
2017 incident]. If it is not a premeditated murder, if it is something else
you’re embarrassed or afraid about, you can let her know right now.
And then years down the road when she can read and write, and she’s
in school, people on the Internet will not use this situation to bully her,
to traumatize her. And that’s why I asked him to write that apology
letter.
(Tr. 214-215.)
In support of his argument that Special Agent Fragomeli improperly
suggested that appellant write an apology letter to his daughter, appellant directs
this court to State v. Bohanon, 8th Dist. Cuyahoga No. 89443, 2008-Ohio-1087. In
Bohanon, the defendant-appellee filed a motion to suppress oral and written
statements she had made to police. During one interview, a detective suggested that
the defendant write an apology letter to her aunt. Following the detective’s
suggestion, the defendant wrote an apology letter to her aunt in which she confessed
to the theft offense with which she was charged. The state introduced a copy of the
defendant’s apology letter into evidence. The trial court granted the defendant’s
motion to suppress the statements she made to police, concluding that the
defendant’s admission to the theft offense and written apology were not voluntarily
made.
On appeal, this court affirmed the trial court’s judgment suppressing
the defendant’s statements. Initially, this court noted that in 1988, the First District
found that it was “suspect” to ask the subject of an interrogation to draft an apology
letter. Id. at ¶ 12, citing State v. MacDonald, 1st Dist. Hamilton No. C-860833, 1988
Ohio App. LEXIS 229, 6-7 (Jan. 13, 1988). This court found “subtle inducement” in
the detective’s suggestion that the defendant write an apology letter to her aunt. Id.
at ¶ 11. The court went on to conclude, “the inducement inherent in the officer’s
suggestion that [the defendant] write her aunt a letter of apology, combined with
[the defendant’s] limited intelligence and psychological conditions, rendered her
confession in this case involuntary.” (Emphasis added.) Id. at ¶ 12.
After reviewing the record, we find this case to be distinguishable from
Bohanon. First, in Bohanon, the defendant was initially found to be incompetent to
stand trial.2 Id. at ¶ 2.
[The defendant] was found to be mildly mentally retarded, with a
documented IQ testing of 66. She also suffered from a psychotic
disorder and was taking two anti-psychotic drugs. She was unable to
understand the nature and objective of the legal proceedings and to
assist her attorney at that time. The report establishing her restoration
to competency diagnosed [the defendant] as suffering from bipolar
disorder and borderline intellectual functioning.
Id. at ¶ 7.
In this case, unlike Bohanon, appellant’s competency was not called
into question, nor was appellant found to be incompetent at any point. See
MacDonald at 6 (although questions existed regarding the literacy of the defendant,
“there was no allegation that his mentality was subnormal.”). Furthermore, there is
no evidence in the record that appellant has limited intelligence, any mental diseases
or defects, or that he was under the influence of alcohol, drugs, or medications at the
time of Special Agent Fragomeli’s interview.
Second, unlike Bohanon, appellant did not draft, sign, or assent to the
apology letter. Special Agent Fragomeli testified that the letter contained his words,
not appellant’s words, and he compiled the letter using a “reflective listening”
2 The defendant was later restored to competency.
technique. (Tr. 215.) Special Agent Fragomeli drafted the letter based on his
understanding of what appellant communicated to him during the interview.
Finally, Special Agent Fragomeli confirmed that the document he compiled during
the interview was not, in fact, a letter because “it was never fulfilled. It was never
verified. It was never signed [by appellant]. * * * It is just notes.” (Tr. 216.)
Third, unlike Bohanon, in which the defendant confessed to the theft
offense with which she was charged in the apology letter, appellant did not confess
to the murder during the pre-polygraph interview during which Special Agent
Fragomeli suggested that he write the letter. Appellant also denied any wrongdoing
during the polygraph examination and during the early stages of the post-polygraph
interview.
Based on the foregoing analysis, we are unable to find that any
inducement inherent in Special Agent Fragomeli’s suggestion that appellant write
an apology letter to his daughter rendered appellant’s subsequent confession
involuntary. Accordingly, appellant’s first assignment of error is overruled in this
respect.
ii. Death Penalty
Appellant further argues that his confession was coerced because the
police repeatedly threatened him with the death penalty.
During the suppression hearing, Detective Stolz acknowledged that
during the October 31, 2017 interview, he asked appellant whether he wanted to see
his daughter again, and he told appellant that he would not get any “breaks” at the
sentencing hearing. (Tr. 248.) Detective Stolz asserted that he asked appellant if he
knew the difference between premeditated murder and aggravated murder. (Tr.
249.) Furthermore, Detective Stolz advised appellant that the police would pursue
the charge of premeditated murder. (Tr. 250.)
Detective Stolz acknowledged during the suppression hearing,
however, that (1) premeditated murder and aggravated murder are “the same thing,”
(2) the crime of premeditated murder does not exist, and (3) he mistakenly
referenced the crime of premeditated murder and/or suggested that there was a
difference between premeditated murder and aggravated murder during the
interview.
Defense counsel asked Detective Stolz on cross-examination if he
threatened appellant with the death penalty or told appellant that he was “not going
to be around very long” during the October 31, 2017 interview. (Tr. 251-252.)
Detective Stolz testified that he “asked [appellant] if he knew what could happen
[regarding sentencing].” (Tr. 252.) Detective Stolz confirmed, “I didn’t threaten
[the death penalty]. I asked [appellant] simply did he know that [the death penalty]
was definitely a possibility.” (Tr. 252.)
The trial court rejected the defense’s theory that appellant’s
confession was coerced by the references to the death penalty during the October 31,
2017 interrogation. The trial court explained that it “was not an illusory promise
when Detective Stolz told [appellant] that he faced the possibility of the death
penalty, and there was nothing improper or coercive about that.” (Tr. 278.)
In support of his argument that his confession was coerced by
Detective Stolz’s threats regarding the death penalty, appellant directs this court to
State v. Kerby, 2d Dist. Clark No. 03-CA-55, 2007-Ohio-187. In Kerby, the
defendant confessed to his involvement in a murder and attempted robbery. The
defendant filed a motion to suppress his confession, which the trial court denied.
On appeal, the defendant argued, in relevant part, that “his confession
was involuntary because it was obtained through the use of coercion and deception,
along with tactics inducing fright and despair.” Id. at ¶ 19. The Second District
concluded that the trial court erred in denying the motion to suppress because “the
evidence fails to demonstrate that [the defendant’s] confession was voluntary.” Id.
at ¶ 21. In support of its holding, the court explained that the officers’ suggestion
that the defendant could face the death penalty was “deceptively misleading and a
misstatement of the law” which undermined the defendant’s ability to voluntarily
waive his Fifth Amendment privilege against self-incrimination. Id. at ¶ 84-86. The
Second District emphasized that at the time of the interview, the interrogating
officers were aware of the defendant’s age, 17 years old, which eliminated the
possibility of the death penalty. Nevertheless, the officers “attempted to create the
impression that [the defendant] could be facing a death sentence unless he
cooperated with them and confessed.” Id. at ¶ 87. For all of these reasons, the court
concluded that the misstatement about the death penalty
deprived [the defendant] of his capacity to intelligently and voluntarily
waive his Fifth Amendment rights. When considering the totality of
the surrounding circumstances, these factors outweigh the influence of
[the defendant’s] maturity and the overall short duration of the
interrogation. Thus, we find that the trial court erred in determining
that [the defendant’s] confession to the police was voluntary.
Id. at ¶ 87.
After reviewing the record, we find this case to be distinguishable from
Kerby. First, unlike Kerby, the death penalty was not statutorily precluded based
on appellant’s age. Second, unlike Kerby, Detective Stolz did not deliberately
mislead appellant or misstate the law regarding the possible penalties appellant
could face. Pursuant to R.C. 2929.03(D)(1), the death penalty is a possible sentence
for the offense of aggravated murder. Although Detective Stolz acknowledged that
he made a misstatement of the law during the interview, the misstatement pertained
to his reference of premeditated murder and to the extent that he implied that there
was a difference between premeditated and aggravated murder. Detective Stolz’s
misstatement of law did not pertain to the possible penalties that appellant could
face.
Third, unlike Kerby, Detective Stolz did not definitively know whether
appellant would be charged with any death penalty specifications. At the time of the
October 31, 2017 interview, the case had not been presented to the grand jury. As
such, Detective Stolz had no way of knowing whether the state would pursue and
whether the grand jury would charge appellant with any death penalty specifications
pursuant to R.C. 2929.04(A)(1)-(10).
“An interrogator may inform the suspect of the penalties for the
offense of which he is suspected.” State v. Bays, 87 Ohio St. 3d 15, 23, 716 N.E.2d
1126 (1999), citing State v. Arrington, 14 Ohio App. 3d 111, 115, 470 N.E.2d 211 (6th
Dist.1984), United States v. Ballard, 586 F.2d 1060, 1063 (5th Cir.1978), and United
States v. Vera, 701 F.2d 1349, 1364 (11th Cir.1983). In State v. Western, 2015-Ohio-
627, 29 N.E.3d 245 (2d Dist.), the Second District held that the interrogating
detectives’ repeated references to the death penalty were not improper because,
based on the facts of the case, the detectives reasonably suspected that the defendant
committed the offense of aggravated murder with prior calculation and design. Id.
at ¶ 44. Accordingly, the court held that the detectives “did not overstate the
potential charges against [the defendant], and they did not misstate the law in telling
[the defendant] that he faced a possible death sentence if he were charged with
premeditated murder.” Id.
Similarly, in the instant matter, Detective Stolz was permitted to
inform appellant about the penalties for the offenses he was suspected of
committing. The investigators reasonably suspected that appellant committed the
crime of aggravated murder with prior calculation and design, for which one
possible sentence is the death penalty. Furthermore, appellant did not confess to
the murder during the interview with Detective Stolz. As noted above, appellant
continued to deny any wrongdoing during the interview with Detective Stolz, the
pre-polygraph interview, polygraph examination, and the initial stages of the post-
polygraph interview with Special Agent Fragomeli.
Finally, the record reflects that appellant raised the issue of death
penalty prior to the October 31, 2017 interrogations. During the suppression
hearing, Detective Stolz testified, “prior to [the October 31 interview] in a different
interview I asked [appellant] what should happen to the person that is responsible
for this crime, and he had offered the death penalty.” (Emphasis added.) (Tr. 253.)
Accordingly, before Detective Stolz referenced the death penalty on October 31,
2017, appellant had an independent and subjective belief that the perpetrator could
be sentenced to death.
Based on the foregoing analysis, we are unable to conclude that
Detective Stolz improperly referenced the death penalty during the October 31, 2017
interview, or that these references rendered appellant’s subsequent confession
involuntary. Accordingly, appellant’s first assignment of error is overruled in this
respect.
iii. Burden
Finally, appellant argues that the trial court “engaged in
unconstitutional burden shifting” and “erred in improperly shifting the burden from
the state to the defense in ruling that the defense did not prove [police] misconduct.”
Appellant’s brief at 4.
Typically, if a defendant “challenges a confession as involuntary, the
state must prove a knowing, intelligent, and voluntary waiver by a preponderance of
the evidence.” State v. Wesson, 137 Ohio St. 3d 309, 2013-Ohio-4575, 999 N.E.2d
557, ¶ 34. Appellant appears to argue that the trial court improperly shifted the
burden from the state (to prove that the confession was voluntary and that appellant
knowingly, intelligently, and voluntarily waived his Miranda rights) to the defense
to establish the existence of police misconduct or coercion.
The state directs this court to R.C. 2933.81(B), which became effective
in July 2010. In State v. Jallah, 8th Dist. Cuyahoga No. 101773, 2015-Ohio-1950,
this court recognized that pursuant to R.C. 2933.81(B), when an interrogation is
recorded electronically, as was the case here, a defendant’s statements during the
recorded interrogation are presumed to be voluntary. Id. at ¶ 80. Furthermore, this
court explained that the statute places the burden on appellant to demonstrate that
the recorded statement or confession was involuntary. Id.
In the instant matter, we initially note that it is undisputed that there
was a period of time, approximately two to three hours, during which the camera
was turned off during the interviews on October 31, 2017. Appellant relies on this
two-to-three-hour gap in the video recording in support of his argument that his
confession was coerced. See appellant’s brief at 9 (“[Special] Agent Fragomeli began
interrogating [a]ppellant only after the cameras were turned off.”).
Special Agent Fragomeli testified during the suppression hearing that
after executing consent and waiver forms regarding the polygraph examination, he
conducted a pre-polygraph interview with appellant. The pre-polygraph interview
was not recorded. (Tr. 191.) Special Agent Fragomeli explained what he discussed
with appellant during the pre-polygraph interview: “I asked him to tell me basically
why he’s here, and just to make sure we’re on the same page. Then I asked him to
go through his day on October 23rd to the best of his recollection.” (Tr. 191.) Special
Agent Fragomeli testified that appellant denied any wrongdoing or involvement in
the murder during the pre-polygraph interview: “[appellant] told me that he did not
have any involvement with the injuries to [the victim] in any matter. That was it.”
(Tr. 195.)
The post-polygraph interview, during which appellant confessed, was
electronically recorded. Furthermore, the entire interview conducted by Detective
Stolz was electronically recorded. As appellant acknowledges, “[t]he trial court had
the opportunity to review each of the recorded interviews, and relied upon them
heavily in reaching its decision.” Appellant’s brief at 9.
Because appellant’s statements and confession were recorded
electronically, the trial court did not err in shifting the burden from the state to the
defense to prove coercion. Furthermore, after reviewing the record, and based on
the totality of the circumstances in this case, we find that the evidence supports the
trial court’s findings that (1) appellant knowingly, intelligently, and voluntarily
waived his Miranda rights, and (2) appellant failed to meet his burden of
establishing police misconduct or coercion. Accordingly, appellant’s first
assignment of error is overruled in this respect.
For all of the foregoing reasons, we overrule appellant’s first
assignment of error. After reviewing the record, and based upon the totality of the
circumstances, we are unable to conclude that appellant’s statements were made
involuntarily or that his will was overborne.
For purposes of evaluating the voluntariness of a confession, the
“totality of the circumstances” includes: “‘the age, mentality, and prior
criminal experience of the accused; the length, intensity, and frequency
of interrogation; the existence of physical deprivation or mistreatment;
and the existence of threat or inducement.’” State v. Lynch, 98 Ohio
St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, ¶ 54, quoting State v.
Mason, 82 Ohio St. 3d 144, 154, 694 N.E.2d 932 (1998).
State v. Martinez, 8th Dist. Cuyahoga Nos. 103572 and 103573, 2016-Ohio-5515,
¶ 33.
This court will not conclude that appellant’s Miranda waiver was
involuntary “unless there is evidence of police coercion, such as physical abuse,
threats, or deprivation of food, medical treatment, or sleep.” Wesson, 137 Ohio St. 3d
309, 2013-Ohio-4575, 999 N.E.2d 557, at ¶ 35; see also State v. Treesh, 90 Ohio
St.3d 460, 472, 739 N.E.2d 749 (2001) (finding that a reviewing court need not
assess the totality of the circumstances unless the court finds that the tactics used by
the detectives were coercive).
Appellant was 21 years old when he was interviewed on October 31,
2017. Although appellant did not obtain his high school diploma, he obtained an
HVAC certificate and was employed. During the change-of-plea hearing, appellant
confirmed that he is able to read and write. (Tr. 332.)
Although appellant asserts that he “suffer[s] from educational
deficiencies,” there is no evidence in the record indicating that he has mental or
intellectual deficiencies or defects. Appellant’s brief at 14. There is no indication
that appellant was under the influence of drugs or alcohol during the October 31,
2017 interviews.
The October 31 interrogations were not appellant’s first interaction
with the police in this case. Detective Stolz explained that appellant voluntarily came
into the police station and spoke with him on two occasions earlier in the week. The
October 31 interviews were conducted in the same location, the interview room in
the detective’s bureau, as the prior interviews. As such, appellant was familiar with
the location.
Throughout the course of the interviews, appellant was fed. Also, on
several occasions, appellant was offered water and asked if he needed anything else.
Appellant asserted that he had a headache, and he was provided aspirin.
Detective Stolz testified that appellant arrived at the police station on
October 31, 2017, around noon. Thereafter, Detective Stolz interviewed appellant.
During this interview, Detective Stolz placed appellant under arrest. After Detective
Stolz’s interview, Special Agent Fragomeli conducted a pre-polygraph interview, a
polygraph examination, and a post-polygraph interview. Appellant confessed to
stabbing and shooting the victim during the post-polygraph interview. Detective
Stolz testified that after Special Agent Fragomeli’s interviews, appellant was
returned to his cell at approximately 9:30 p.m.
Special Agent Fragomeli did not continuously interrogate appellant
without taking a break. Several breaks were taken over the course of the day. When
appellant requested a break and asserted that he needed more time, the
interrogation was suspended.
Detective Stolz and Special Agent Fragomeli were accommodating to
appellant and ensured that he was comfortable during the interrogations. Appellant
was not handcuffed during the initial interview with Detective Stolz. At one point,
after appellant had been placed under arrest and handcuffed, appellant asserted that
the handcuffs were too tight. Officers adjusted the handcuffs and confirmed that
appellant was comfortable. Appellant was not handcuffed when he confessed to the
murder during Special Agent Fragomeli’s post-polygraph interview. Special Agent
Fragomeli testified that he never saw appellant in handcuffs.
At all times during the interrogation, the officers were calm and
respectful towards appellant. Appellant was not verbally abused, and the officers
did not yell or scream at him. There is no evidence that appellant was physically
abused or threatened. Finally, there is no evidence that appellant was subjected to
any physical deprivation or mistreatment at any time during the interrogations.
Finally, a review of the video recordings of the October 31 interviews
supports the trial court’s findings with respect to the voluntary nature of appellant’s
Miranda waiver and confession. For all of the foregoing reasons, we find that the
trial court did not err in concluding that appellant’s statements were voluntarily
made and not the result of coercion or police misconduct.
Appellant’s first assignment of error is overruled.
3. Search of Appellant’s Truck
In his third assignment of error, appellant challenges the trial court’s
judgment as it pertained to the search of his truck. Specifically, appellant contends
that the police exceeded the scope of his consent and the search warrant authorizing
the police to search the truck was invalid.
The Fourth Amendment to the United States Constitution and Article
I, Section 14 of the Ohio Constitution protect against unreasonable
searches and seizures and provide that a warrant can be issued only if
probable cause for the warrant is supported by an oath or affirmation
and particularly describes the place to be searched and the persons or
things to be seized. See also Crim.R. 41(C); R.C. 2933.23.
In deciding whether probable cause exists for the issuance of a search
warrant, the issuing judge must make “‘a practical, common-sense
decision whether, given all the circumstances set forth in the affidavit
before him, including the “veracity” and “basis of knowledge” of
persons supplying hearsay information, there is a fair probability that
contraband or evidence of a crime will be found in a particular place.’”
State v. George, 45 Ohio St. 3d 325, 544 N.E.2d 640 (1989), paragraph
one of the syllabus, following Illinois v. Gates, 462 U.S. 213, 238-239,
103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). “[C]onsiderations to be taken
into account when determining whether to issue a search warrant
include how stale the information relied upon is, when the facts relied
upon occurred, and whether there is a nexus between the alleged crime,
the objects to be seized, and the place to be searched.” State v.
Castagnola, 2015-Ohio-1565, ¶ 34, 145 Ohio St. 3d 1, 46 N.E.3d 638,
citing 2 LaFave, Search and Seizure, Section 3.7(a), (b), (d). “‘To
establish probable cause to search a home, the facts must be sufficient
to justify a conclusion that the property that is the subject of the search
is probably on the premises to search.’” State v. Marler, 2d Dist. Clark
No. 2007 CA 8, 2009-Ohio-2423, ¶ 26, quoting State v. Freeman, 4th
Dist. Highland No. 06CA3, 2006-Ohio-5020, ¶ 13. “The nexus between
the items sought and the place to be searched depends upon all of the
circumstances of each individual case, including the type of crime and
the nature of the evidence.” State v. Carter, 2d Dist. Greene No. 2011
CA 11, 2011-Ohio-6700, ¶ 10, citing Freeman at ¶ 13.
The duty of the reviewing court is to ensure that the issuing judge had
a “substantial basis” for concluding that probable cause existed.
Castagnola at ¶ 35; George at paragraph two of the syllabus. When
conducting any after-the-fact scrutiny of an affidavit submitted in
support of a search warrant, reviewing courts should accord “great
deference” to the issuing judge’s determination of probable cause;
“doubtful or marginal cases should be resolved in favor of upholding
the warrant.” George at paragraph two of the syllabus. Neither a trial
court nor an appellate court may substitute its judgment for that of the
issuing judge by determining de novo whether the affidavit provided
sufficient probable cause. Id.
State v. Tutt, 2015-Ohio-5145, 54 N.E.3d 619, ¶ 36-38 (8th Dist.).
As an initial matter, this court need not address appellant’s arguments
pertaining to his consent to search the vehicle and the scope thereof because we find
that the police obtained a valid search warrant authorizing them to search the truck
in which the knife was recovered.
The search warrant references the three vehicles that were located
within the premises of the victim’s residence, and describes the truck as “A red
Chevy pickup truck, Ohio license plate CW40SY, VIN 2GCEC19V321418495[.]” The
search warrant provided that probable cause existed to believe that evidence was
being concealed within the victim’s residence and/or the three vehicles, including,
specifically, “Knives, bladed instruments[.]”
With respect to the search warrant that authorized the police to search
the truck, this court must determine whether, considering the totality of the
circumstances, Officer O’Sullivan’s affidavit provided a substantial basis for the
issuing judge to conclude there was, in fact, a fair probability that there was evidence
related to the murder in appellant’s truck.
The search warrant was issued based on the affidavit of Officer
O’Sullivan, a ten-year veteran of the Strongsville Police Department. In his affidavit,
Officer O’Sullivan referenced the three vehicles that were parked in the driveway of
the victim’s residence upon his arrival, and specifically identified the red truck as
one of the vehicles. Officer O’Sullivan averred, in relevant part,
3. Affiant avers that officers learned from Southwest General Hospital
that [the victim] died later that night. She suffered 35 stab wounds and
two gunshot wounds.
***
11. Affiant avers that there were three vehicles parked in the driveway
of the residence at the time officers arrived on scene. * * *
13. Affiant further avers that it is necessary to search the three vehicles
located on the premises for all of the same evidence described above,[3]
as individuals who commit criminal activity frequently travel to or from
the scene of the crime using cars, and leave trace amounts of biological
material, weapons, or cellular or electronic devices in their cars after
the offense.
“Statements made in a search warrant affidavit enjoy a presumption
of validity. State v. Taylor, 174 Ohio App. 3d 477, 2007-Ohio-7066, 882 N.E.2d 945(1st Dist.). Without evidence to the contrary, this court is bound to find the
statements made in the affidavit valid and, thus, the warrants valid.” State v. Mock,
2018-Ohio-268, 106 N.E.3d 154, ¶ 18 (8th Dist.).
In determining whether to issue a search warrant, one consideration
to be taken into account is “whether there is a nexus between the alleged crime, the
objects to be seized, and the place to be searched.” State v. Castagnola, 145 Ohio
St.3d 1, 2015-Ohio-1565, 46 N.E.3d 638, ¶ 34, citing 2 LaFave, Search and Seizure,
Section 3.7(a), (b), (d) (5th Ed.2012). As noted above, “[t]he nexus between the
items sought and the place to be searched depends upon all of the circumstances of
3 Including, specifically, “[k]ni[v]es, bladed instruments[.]”
each individual case, including the type of crime and the nature of the evidence.”
Carter, 2d Dist. Greene No. 2011 CA 11, 2011-Ohio-6700, at ¶ 10, citing Freeman,
4th Dist. Highland No. 06CA3, 2006-Ohio-5020, at ¶ 13.
Appellant appears to argue that the police did not have any specific
information or evidence that the truck was connected to the murder or that any
evidence related to the murder was inside the truck. Appellant’s argument is
misplaced. “The issuing judge need only have concluded that there was a fair
probability that contraband or evidence of a crime would be found inside the [place
to be searched].” Tutt, 2015-Ohio-5145, 54 N.E.3d 619, at ¶ 47, citing Carter at ¶ 21.
After reviewing Officer O’Sullivan’s affidavit, and considering the
facts set forth therein, we find that probable cause did, in fact, exist to issue the
search warrant entitling police to search the residence and the three vehicles in the
driveway. Officer O’Sullivan’s affidavit provided the issuing judge with a substantial
basis for determining that there was a fair probability that evidence related to the
murder would be found in the truck.
The police were actively investigating the murder, and the search
warrant was issued after the police learned that the victim sustained gunshot and
stab wounds that led them to believe that the perpetrator and the victim knew one
another. Officer O’Sullivan testified that the victim’s injuries were indicative of a
“crime of passion,” and as a result, all of the victim’s family members were
considered as suspects. (Tr. 62.) Sgt. Piorkowski testified that he considered anyone
that was at the scene as a suspect.
Officer O’Sullivan explained during the suppression hearing that it
was necessary to search the vehicles because the evidence officers were looking for,
including the knife and gun with which the victim was attacked, could have been
contained in any one of the vehicles. Officers also believed that any of the vehicles
at the scene, including the pickup truck, “could have either brought or removed any
evidence from the scene.” (Tr. 61.) On redirect examination, Officer O’Sullivan
confirmed that the weapons used in the murder were capable of being stored in a
truck. At the time he executed the affidavit in support of the search warrant, Officer
O’Sullivan learned that appellant had been driving the pickup truck that was in the
driveway when he arrived on scene.
Given the fact that (1) the truck was observed in the driveway of the
residence when officers arrived on scene, (2) Officer O’Sullivan initially encountered
appellant standing in the driveway when he arrived on scene, (3) officers learned
that the victim sustained stab and gunshot wounds (as a result, they were looking
for a gun and a knife), and (4) officers suspected that the victim was murdered by
someone she knew, we conclude that the trial court could have concluded that there
was a sufficient nexus between the truck and the murder and a “fair probability”
existed that evidence would be found inside the vehicle.
After reviewing the record, we find that the trial court properly denied
appellant’s motion to suppress as it pertained to the search of the pickup truck. The
totality of the circumstances set forth in Officer O’Sullivan’s affidavit support the
issuing judge’s probable-cause determination. The officers sufficiently established
the existence of probable cause to search the truck based on the fact that the truck
was present at the scene of the crime, the victim was stabbed and shot, and officers
reasonably believed that a gun or knife could have been transported, stored, or
concealed in the truck, and the officers reasonably believed that the victim was
murdered by someone she knew — the truck had been driven by appellant who was
engaged to the victim’s daughter and residing in the basement of the victim’s
residence at the time of the murder.
Finally, as noted above, this court is obligated to accord great
deference to the probable-cause determination made by the magistrate or judge who
issues the search warrant and resolve any doubtful or marginal case in favor of
upholding the search warrant. George, 45 Ohio St. 3d 325, 544 N.E.2d 640,
paragraph two of the syllabus.
Based on the foregoing analysis, we find that the issuing judge had a
substantial basis for finding a fair probability that evidence, weapons, and the other
items specified in the search warrant would be found in the truck. As such, the trial
court did not err in denying appellant’s motion to suppress the evidence seized
during the search of the truck. Appellant’s third assignment of error is overruled.
4. Search of Cell Phone and Phone Records
In his fourth assignment of error, appellant challenges the trial court’s
judgment as it pertained to the search of his cell phone and cell phone records.
Specifically, appellant contends that the search warrants authorizing the police to
search the cell phone and phone records were invalid. In his motion to suppress,
appellant argued that the search warrants and affidavits failed to establish probable
cause that evidence would be found on the cell phone or in the phone records.
a. Cell Phone
Police obtained a search warrant authorizing them to search the cell
phones of the victim’s husband, the victim, and appellant. The three cell phones
were seized at the scene of the murder.
The search warrant was issued based on the affidavit of Detective
Borowske, a 28-year veteran of the Strongsville Police Department. This court must
determine whether, considering the totality of the circumstances, Detective
Borowske’s affidavit provided a substantial basis for the issuing judge to conclude
there was, in fact, a fair probability that there was evidence related to the murder on
appellant’s cell phone.
In his affidavit, Detective Borowske identified the three phones that
were seized. He averred, in relevant part,
9. * * * Officer O’Sullivan also obtained a search warrant authorizing
him to search the [victim’s] residence * * * for, among other things,
“[a]ny cell phones, computers, electronic storage or media devices.”
That warrant was signed by the Honorable Judge Steven E. Gall.
***
11. Affiant further avers that both Bruce Pleskovic and [appellant]
voluntarily provided their cell phones to officers at the scene. * * *
12. Affiant avers, based on his training and experience, that individuals
who engage in criminal activity frequently exchange calls or text
messages about the crimes before, during, and after the incidents.
Affiant avers that it necessary to search the contents of the cell phones
recovered from [Bruce, the victim, and appellant] to determine the
nature and extent of any communications they may have had regarding
the break-ins, the murder, or anything else relevant to [the victim’s]
death, for photographs relevant to the investigation, and for GPS data
and cell phone tower data.
13. Affiant avers that it is necessary to search the above-described cell
phone for any personal communications including but not limited to
opened and unopened e-mail messages, instant messages (IM), text
messages, letters, and other electronic records, documents,
correspondence stored and/or exchanged in electronic form, notes,
memoranda, address lists, telephone directories, screen name lists,
buddy lists, advertisements, faxes, audio and visual tape recordings,
materials or items reflecting or relating in any way to communications
or contacts between any individuals.
After reviewing Detective Borowske’s affidavit, and considering the
facts set forth therein, we find that probable cause did, in fact, exist to issue the
search warrant entitling police to search the cell phones. Detective Borowske’s
affidavit provided the issuing judge with a substantial basis for determining that
there was a fair probability that evidence related to the murder would be found on
the cell phones.
The police were actively investigating the murder, and the search
warrant was issued after the police learned that the victim sustained gunshot and
stab wounds that led them to believe that the perpetrator and the victim knew one
another.
Officer O’Sullivan acknowledged during the suppression hearing
that the police did not have any specific evidence that appellant’s cell phone was
connected to or contained evidence related to the murder. However, he explained
that officers believed there was a possibility that the cell phone contained such
evidence. (Tr. 71.)
Detective Borowske explained why it was important to search the cell
phones belonging to the victim’s husband, the victim, and appellant: “[w]e had to
eventually obtain the information from the phones to corroborate testimony or
statements that were given to officers.” (Tr. 131.) He went on, “[w]e were given
information that certain persons that were [at the scene], obviously [the victim],
Bruce, and [appellant], were telling us where they were at certain times so we wanted
to make sure those stories were true or untrue.” (Tr. 132.)
b. Phone Records
Police obtained a search warrant to search appellant’s
T-Mobile/Metro PCS phone records between October 10 and October 23, 2017. The
search warrant was issued based on the affidavit of Detective Borowske.
In his affidavit, Detective Borowske averred, in relevant part,
13. Affiant avers, based on his training and experience, that individuals
who engage in criminal activity frequently exchange calls or text
messages about the crimes before, during, and after the incidents.
Affiant avers that it is necessary to obtain the cell phone records for
[appellant’s phone] to determine the nature and extent of any
communications that [appellant] may have had with anyone about the
murder, as well as to determine [appellant’s] location, and the
identities and contact information of the people with whom he
communicated. Affiant therefore avers that it is necessary to obtain the
cell phone records for [appellant’s] number from T-Mobile.
After reviewing Detective Borowske’s affidavit, and considering the
facts set forth therein, we find that probable cause did, in fact, exist to issue the
search warrant entitling police to search the phone records. Detective Borowske’s
affidavit provided the issuing judge with a substantial basis for determining that
there was a fair probability that evidence related to the murder would be found in
the phone records.
Detective Borowske testified during the suppression hearing that it
was important to obtain appellant’s phone records “[t]o corroborate his statements,
his whereabouts, what he had told officers at the scene.” (Tr. 138.) Officers wanted
to learn (1) whether appellant communicated with anyone about the murder, (2)
appellant’s location (using GPS coordinates), and (3) the identities of any contacts
on the phone that could potentially be witnesses. (Tr. 138-139.) Detective Borowske
confirmed that officers believed that this information would be found in appellant’s
phone records.
Furthermore,
[t]his court has previously found no privacy right exists for cell phone
records maintained by a phone company. [State v. Crawford, 8th Dist.
Cuyahoga No. 98605, 2013-Ohio-1659,] ¶ 47 (“telephone users have no
right of privacy in the numerical information they convey to the
telephone company. Courts have also held that this reasoning applies
to cell phone records obtained from cell phone companies as well.”),
citing State v. Neely, 2d Dist. Montgomery No. 24317, 2012-Ohio-212;
United States v. Dye, N.D.Ohio No. 1:10CR221, 2011 U.S. Dist. LEXIS
47287 (Apr. 27, 2011). Information that has been voluntarily turned
over to third parties does not enjoy protection because a person does
not have a legitimate expectation of privacy in such information.
Mock, 2018-Ohio-268, 106 N.E.3d 154, at ¶ 23.
After reviewing the record, we find that the trial court properly
denied appellant’s motion to suppress as it pertained to the search of his cell phone
and phone records. The totality of the circumstances set forth in Detective
Borowske’s affidavits support the issuing judge’s probable-cause determinations.
The officers sufficiently established the existence of probable cause to search the
phone and phone records based on the fact that appellant was at the scene of the
murder when officers arrived, and the officers reasonably believed that the victim
was murdered by someone she knew. Furthermore, the officers sufficiently
established that information about appellant’s whereabouts on the day of and at the
time of the murder would be found on the cell phone and in the cell phone records,
and this information could be used to corroborate the statements that appellant
made to police.
Finally, as noted above, this court is obligated to accord great
deference to the probable-cause determination made by the magistrate or judge who
issues the search warrant and resolve any doubtful or marginal case in favor of
upholding the search warrant. George, 45 Ohio St. 3d 325, 544 N.E.2d 640,
paragraph two of the syllabus.
Based on the foregoing analysis, we find that the issuing judge had a
substantial basis for finding a fair probability that evidence and other items specified
in the search warrants would be found on appellant’s cell phone and in his phone
records. As such, the trial court did not err in denying appellant’s motion to
suppress the evidence seized during the search of the cell phone and phone records.
Appellant’s fourth assignment of error is overruled.
B. Motion to Compel
In his second assignment of error, appellant argues that the trial
court erred in denying his motion to compel the state to provide defense counsel
with evidence pertaining to appellant’s polygraph examination.
A trial court enjoys considerable discretion in regulating the
exchange of discovery. State ex rel. Daggett v. Gessaman, 34 Ohio St. 2d 55, 57, 295
N.E.2d 659 (1973). “The granting or overruling of discovery motions in a criminal
case rests with the sound discretion of the trial court.” State v. Spates, 8th Dist.
Cuyahoga No. 100933, 2015-Ohio-1014, ¶ 44, citing State v. Shoop, 87 Ohio App. 3d
462, 469, 622 N.E.2d 665 (3d Dist.1993). A trial court abuses its discretion if its
decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5
Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
In his motion to compel, appellant requested the trial court to order
the state to produce “any and all documentation, video, audio, data, statements,
charts, graphs, data recordings, data captures, or other evidence related to the
polygraph[.]”4 Appellant asserted that the state’s failure to disclose the evidence
related to the polygraph constituted a violation of appellant’s constitutional rights,
4 During oral arguments, appellant’s counsel explained that he did not want the
state to turn over a video recording of the polygraph examination to use at trial; rather,
he wanted the state to turn over charts and/or graphs from the polygraph examination
that Special Agent Fragomeli used during the post-polygraph interview.
a violation of Brady v. Maryland, 373 U.S. 83, 82 S. Ct. 1194, 10 L. Ed. 2d 215 (1963),5
and a violation of Crim.R. 16(B)(1), (4), and (5).
Crim.R. 16(B), governing discovery and inspection, provides, in
relevant part,
Upon receipt of a written demand for discovery by the defendant * * *
the prosecuting attorney shall provide copies or photographs, or permit
counsel for the defendant to copy or photograph, the following items
related to the particular case indictment * * * and which are material to
the preparation of a defense, or are intended for use by the prosecuting
attorney as evidence at the trial, or were obtained from or belong to the
defendant, within the possession of, or reasonably available to the
state, subject to the provisions of this rule:
(1) Any written or recorded statement by the defendant or a co-
defendant, including police summaries of such statements, and
including grand jury testimony by either the defendant or co-
defendant;
***
(4) * * * results of physical or mental examinations, experiments or
scientific tests;
(5) Any evidence favorable to the defendant and material to guilt or
punishment * * *.
Appellant acknowledged in his motion to compel that the evidence is
generally inadmissible at trial. Nevertheless, he maintained that the evidence was
still subject to disclosure as a written or recorded statement by the defendant, the
result of a scientific test, and evidence that was favorable to the defendant and
material to guilt or punishment.
5 In Brady, the United States Supreme Court held that pursuant to the Due Process
Clause, the state is required to disclose evidence that is both favorable to the defendant
and material to either guilt or punishment to the defense.
In his appellate brief, appellant acknowledges the holdings in Wood
v. Bartholomew, 516 U.S. 1, 116 S. Ct. 7, 133 L. Ed. 2d 1 (1995), and State v. Davis, 62
Ohio St. 3d 326, 581 N.E.2d 1362 (1991). In Wood, the United States Supreme Court
concluded that the results of a polygraph examination administered to a state
witness were not discoverable under state law or Brady v. Maryland. As such, the
court determined that the prosecution’s failure to turn over the polygraph results
did not constitute a discovery violation.
“In [Davis], 62 Ohio St. 3d 326, 341, 581 N.E.2d 1362 (1991), the Ohio
Supreme Court determined that due to their scientific unreliability, polygraph
examination results of prosecution witnesses are not considered exculpatory
material discoverable under either Crim.R. 16 nor [Brady], 373 U.S. 83, 83 S. Ct.
1194, 10 L. Ed. 2d 215 (1963).” State v. Penque, 2013-Ohio-4696, 1 N.E.3d 441, ¶ 61
(8th Dist.). The Ohio Supreme Court explained, “[t]his court has never held that a
defendant is entitled to the results of polygraph examinations, nor has this court
held that polygraph examinations are scientific tests which are discoverable
pursuant to Crim.R. 16.” Davis at 342.
In the instant matter, appellant argues that Wood and Davis are
distinguishable because they involved polygraphs that had been administered to
other third-party individuals, whereas appellant sought evidence related to the
polygraph that was administered to himself. After reviewing the record, we disagree
and find no merit to this argument.
The Eleventh District considered a similar argument in State v.
Dykes, 11th Dist. Lake No. 92-L-078, 1993 Ohio App. LEXIS 6082 (Dec. 17, 1993).
In Dykes, the defendant-appellant appeared to argue that the state and the trial
court “circumvent[ed] the discovery rules and appellant’s subpoena power by failing
to produce or order the production of clearly discoverable evidence.” Id. at 42.
Appellant filed a discovery request for the production of the results of a polygraph
examination that had been administered to a codefendant, and the state did not
produce the results during the exchange of discovery. On appeal, in opposing
appellant’s argument, the state cited Davis “for the proposition that polygraph
results are not discoverable as scientific tests under Crim.R. 16(B)(1)(d).” Id. at 45.
In support of his argument, appellant argued that the Davis holding “only applied
to witnesses who were not defendants or co-defendants.” Id.
The Eleventh District rejected appellant’s argument, concluding that
there is no indication that the Davis holding was limited to polygraph examinations
administered to third-party witnesses and did not apply to polygraph examinations
administered to defendants and codefendants. Furthermore, the court emphasized,
“[u]nder no circumstances are polygraph results discoverable scientific evidence.”
(Emphasis added.) Id.
In this case, like Dykes, appellant argues that the Davis holding is
inapplicable because he requested evidence related to his polygraph examination,
not a polygraph examination that was administered to a third-party witness. We
disagree, and find no basis upon which to depart from the Davis holding.
The Ohio Supreme Court’s holding in Davis was based on the
subjective and scientific unreliability of polygraph examinations, not the fact that
the defendant-appellant sought the results of polygraph examinations administered
to three witnesses of the prosecution. The court explained,
The nature of polygraphs is different from traditional scientific tests.
Most, if not all, scientific tests involve objective measurements, such as
blood or genetic typing or gunshot residue. In a polygraph test, the
bodily response of the examinee to his answers is dependent upon the
subjective interpretation thereof by the examiner. Inasmuch as the test
is not perceived by the profession to be reasonably reliable, its
admissibility is limited in Ohio to situations where the parties stipulate
to its admission.
Davis, 62 Ohio St.3d at 341, 581 N.E.2d 1362, citing State v. Souel, 53 Ohio St. 2d
123, 372 N.E.2d 1318 (1978).
Finally, to the extent that appellant argues that the results of the
polygraph examination or answers he gave during the examination were
discoverable under Crim.R. 16(B)(1) as a recorded statement by the defendant, we
disagree. The Fourth District rejected a similar argument in State v. Phillips, 4th
Dist. Pickaway Nos. 89-CZ-32 and 89-CA-33, 1992 Ohio App. LEXIS 1016 (Mar. 5,
1992).
In Phillips, the defendants-appellants argued that the trial court
erred by failing to order the state to disclose to the defense the questions and
answers of a polygraph examination that had been administered to an individual
that was purportedly involved in the arson. Alternatively, the defendants argued
that the defense was, at a minimum, entitled to an in camera inspection of the
summary of the polygraph results. The defendants specifically asserted that the
individual’s answers to the polygraph questions were statements for purposes of
Crim.R. 16. Id. at 17. The Fourth District rejected the defendants’ argument,
concluding that “[t]he concluding summary of a polygraph examiner’s
interpretation of [the examinee’s] answers are not [the examinee’s] written, signed,
or adopted statement subject to an in camera inspection by the defense.” (Emphasis
deleted.) Id.; see also State v. Johnson, 2d Dist. Montgomery No. 14176, 1994 Ohio
App. LEXIS 3976, 23 (Sept. 9, 1994) (“[s]tatements of the examinee prior to and
following the polygraph test are not discoverable as scientific tests or witness
statements”).
Similarly, in this case, Special Agent Fragomeli’s summary or
interpretation of appellant’s answers during the polygraph examination do not
constitute a written or recorded statement by appellant. Accordingly, Special Agent
Fragomeli’s summary and conclusions regarding the polygraph examination are not
subject to disclosure under Crim.R. 16(B)(1).
After reviewing the record, we find no basis upon which to conclude
that the trial court abused its discretion in denying appellant’s motion to compel.
The results of polygraph examinations, regardless of to whom they are
administered, are neither admissible at trial, scientifically reliable, nor discoverable
under Crim.R. 16. Accordingly, appellant’s second assignment of error is overruled.
III. Conclusion
After thoroughly reviewing the record, we overrule appellant’s
assignments of error. The trial court did not err in denying appellant’s motion to
suppress the statements he made to the police or the evidence obtained from the
searches of appellant’s truck, cell phone, and phone records. Furthermore, the trial
court did not err or abuse its discretion in denying appellant’s motion to compel.
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
convictions having been affirmed, any bail pending 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.
FRANK D. CELEBREZZE, JR., JUDGE
SEAN C. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR