State v. Cook

[Cite as State v. Cook, 2013-Ohio-5449.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-130242
TRIAL NO. B-1206956
Plaintiff-Appellant, :
vs. : O P I N I O N.
CHRISTIAN COOK, :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: December 13, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Brian Goldberg, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D INKELACKER , Judge.
{¶1} Defendant-appellant Christian Cook was indicted for three counts
of burglary and two counts of receiving stolen property. He entered not guilty pleas
to all the charges and filed two separate motions to suppress the eyewitness
identification of John Aschraft, Cook’s statements to police, and the evidence that
stemmed from the police’s warrantless search of an apartment Cook shared with his
girlfriend. Following the denial of his motions to suppress, Cook pleaded no contest
to three counts of burglary. In exchange, the state dismissed the two receiving-
stolen-property charges. The trial court sentenced Cook to a four-year prison term
for each burglary charge and ordered that the terms be served consecutively, for a
total of 12 years in prison.
{¶2} Cook raises five assignments of error in support of his appeal. He
claims that the trial court erred in failing to suppress the evidence police obtained
during a warrantless search of his apartment, the eyewitness identification of a
victim of the third burglary, and his statements to police; that the trial court failed to
properly notify him of his postrelease-control obligations at sentencing; and that the
trial court failed to substantially comply with Crim.R. 11 by failing to properly advise
him of his postrelease-control obligations and that he could serve consecutive prison
terms. Finding merit only in his fourth assignment of error, we remand this case to
the trial court for the sole purpose of informing Cook of his postrelease-control
obligations in accordance with R.C. 2929.191. We affirm the trial court’s judgment in
all other respects.
Testimony at the Hearing on the Motions to Suppress
{¶3} At the hearing on Cook’s motions to suppress, Jill Schramm, a
Cincinnati police detective assigned to the District 2 Investigative Unit, testified that
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she had investigated three burglaries on Shaw Avenue that had occurred on October
8, October 11, and October 12, 2012. When she arrived at the scene of the October 12
burglary, she learned that the homeowner, John Ashcraft, had surprised the burglar,
who was trying to leave through a door to a deck. In his haste to leave, the burglar
had dropped a number of items, including a receipt for Spree candy that had been
purchased at a nearby Shell gas station, a lanyard with a set of keys, and a packet of
suboxone, a prescription medication, which had a food stamp card for Lindsay
Bellville inside it. The police determined that the keys matched an apartment
complex a few doors down from the residence that had been burglarized. They then
knocked on the door to the apartment, but no one answered.
{¶4} When Schramm returned to District 2, she was advised that
officers had developed Cook as a suspect for the burglary, and that they were putting
together a photographic array to show Ashcraft. Detective Schramm testified that
she was only given Cook’s name, and did not know what he looked like. When the
array was complete, she called Ashcraft and asked him to come to the police station.
{¶5} Three hours after the burglary, Schramm showed Ashcraft the
photographic array, which included six photographs of men that shared similar facial
features and characteristics. Prior to showing him the array, she read Ashcraft
instructions and asked him to sign a form, indicating his understanding of those
instructions. She then laid the six photographs on the table in two separate rows.
She did not emphasize any one of the photographs because she did not know what
the suspect looked like. Ashcraft pulled two of the photographs out of the group.
After 30 seconds, he chose the fifth photograph from the array, and said, “This looks
like him.” Detective Schramm then had Ashcraft initial a form acknowledging that
he had chosen the fifth photograph. When she gave the photograph Ashcraft had
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selected to two other police officers associated with the investigation, she was
informed that Ashcraft had selected Cook’s photograph from the array.
{¶6} At that point, officers knew Cook was living with his girlfriend,
Lindsay Belville. They went to the apartment the two shared, and knocked on the
front door, but no one answered. The p0lice then returned to District 2 and called
Belville’s relatives. Belville’s grandparents brought her to the police station for
questioning.
{¶7} Although Belville was not arrested, Detective Schramm informed
her of her Miranda rights and explained that police believed Cook had perpetrated
burglaries in the area and had stolen property from the burglaries inside their
apartment. Belville told Schramm that Cook had left the apartment and she did not
know where he had gone. She identified a cell phone that had been left at the first
burglary as belonging to Cook. She also told Schramm that some of the property that
had been taken in the burglaries was in the apartment. Schramm asked Belville if the
police could enter the apartment to search for the stolen property.
{¶8} At that point, Belville agreed to accompany police to the
apartment. Once there, Detective Schramm read a written consent to search form to
Belville and asked her for consent to allow the investigators to enter the residence
and search for stolen property. Belville signed the form. Schramm denied
threatening or coercing Belville to obtain her consent to search the apartment.
{¶9} Belville then stood in the parking lot with her grandparents while
police entered the apartment. Upon entering the residence, the police found Cook
and arrested him based on Ashcraft’s eyewitness identification as the perpetrator of
the burglary earlier that morning. Schramm testified that Cook “did not want to
comply. He almost got tased. He didn’t want to put his hands behind his back.”
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Police removed Cook from the apartment and took him to District 2 for questioning.
The police then asked Belville to enter the apartment. Once inside, Belville helped
police identify property that had been taken in the October 8 and October 11
burglaries.
{¶10} When Schramm returned to District 2, she met with Cook. She
notified him of his Miranda rights, and asked him if he would be willing to talk about
the incidents that had occurred that day and the previous day. Cook indicated that
he was willing to talk. He did not ask for an attorney or invoke his right to remain
silent. According to Schramm, Cook understood the questions she asked him and
gave appropriate responses.
{¶11} Schramm recorded the interview, which was played during the
suppression hearing. At the beginning of the interview, Detective Schramm asked
Cook if he was feeling “ok.” She told Cook that he was “slurring” his words. Later,
Schramm commented that Cook sounded better, but that he still looked “dope sick.”
Cook told Schramm that he had taken two Klonopin pills when he heard police
knocking on the apartment door. When she asked him what effect this medicine had
upon him, he said they were “nerve pills and don’t give you any buzz. They will slow
you down.”
{¶12} Cook then argued with Schramm over whether he had a drug
problem. He eventually admitted that he was addicted to drugs, including suboxone.
Schramm told Cook that police had recovered a packet of suboxone at the scene of
the third burglary.
{¶13} During the course of the interview, Cook admitted he had previous
experience with law enforcement. He admitted to being at the Shell gas station the
morning of the third burglary, but stated that he went straight home and went to
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bed. He disclaimed any responsibility for that burglary or the other two burglaries.
He claimed he had only been purchasing stolen property, and that the police had
arrested the wrong man. He told Schramm the perpetrator of the burglaries was
actually a man named Tyler Goodman. When Schramm informed Cook that she did
not believe him, he became very argumentative. Schramm then terminated the
interview.
{¶14} John Ashcraft testified that around 6:50 a.m. on October 12, 2012, he
was upstairs sleeping in the home he shared with his pregnant wife and one-year-old
daughter, when he heard noises downstairs. When his dog started barking, he
realized someone was in his home. As he got to the bottom of the stairs, he saw a
man trying to leave through the back door of his home. He yelled for the man to
leave and kept moving towards the kitchen.
{¶15} When he got to the edge of the kitchen, the man, who had now
opened the door, turned to look at him and said, “Sorry, wrong house.” The man
then ran out of the door. Ashcraft said he was ten to 12 feet away when the intruder
turned around and spoke to him. Ashcraft saw his face for a couple of seconds. He
was very focused on making sure the person was leaving his home.
{¶16} After the intruder left, Ashcraft ran and shut the door. His wife called
the police. He couldn’t recall if he had given police a description of the intruder.
Around 9:30 a.m. that same morning, he met with Schramm to look at some
photographs.
{¶17} Prior to showing Ashcraft the photographs, Schramm read him some
instructions from a sheet of paper, which included the following:
In a moment, I will show you a group of photographs. This group of
photographs may or may not contain the photograph of the alleged
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perpetrator of the offense now being investigated. I do not know who
the alleged perpetrator of the offense now being investigated is. I do
not know which, if any, of the photographs is of the alleged
perpetrator.
{¶18} She then showed him six different photographs, which he
immediately narrowed down to two. He looked at those two photographs for 30
seconds and then said, “I think this is the one.” He handed Schramm the photo. He
testified that he was pretty confident that he had identified the person he had seen in
his home earlier that morning. He further stated that at no time did Schramm point
to any specific photograph in the array and ask him if it was the person he had seen.
{¶19} Lindsay Belville testified that she met with police on October 12, 2012.
She said Schramm had called her grandparents’ home and asked to speak with her.
Her grandparents had then taken her to District 2. According to Belville, Detective
Schramm took her to an interrogation room and asked her to sign a paper, which
stated that she could have an attorney present if she needed one. Schramm then
started asking her questions about Cook. She became very anxious. She asked
Schramm for an attorney, but Schramm ignored her request and kept asking her
questions.
{¶20} According to Belville, Schramm told her that she had the choice to
sign a search warrant or that she would have “the cops kick in her door.” She also
testified that Schramm had told her that if she did not cooperate, she could be
charged with “everything” and then her two-week-old daughter would be removed
from her custody. As a result, she didn’t feel like she had a choice, she had to give
police consent to search the apartment.
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{¶21} Belville then returned with the police to her apartment on Shaw
Avenue. She signed a consent form for the police to search her apartment. At that
point, she did not know if Cook was still in the apartment. She only knew he had
been there previously. She denied telling Schramm that Cook had left the apartment.
{¶22} During cross-examination, Belville admitted that she had lived at the
apartment with Cook and her daughter, and that both her name and Cook’s name
were on the lease. She also admitted that her signature was on the consent-to-search
form.
Search of Cook’s Apartment
{¶23} In his first assignment of error, Cook argues the trial court erred in
failing to suppress the evidence recovered during the warrantless search of his
apartment.
{¶24} When reviewing a trial court’s ruling on a motion to suppress we employ
a two-part analysis. First, we review the historical facts found by the trial court for clear
error and give due weight to the inferences drawn from those facts by the trial court.
Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).
Second, we must independently decide whether the facts meet the applicable legal
standard. See State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71.
{¶25} Cook first argues that Belville’s consent to search the home was not
voluntarily given. He relies on Belville’s testimony at the suppression hearing that
the police had threatened to arrest her and take her child if she did not consent to a
search of the apartment. Detective Schramm, however, denied threatening or
coercing Belville to obtain her consent to search the apartment. She testified instead
that Belville had voluntarily consented to the search.
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{¶26} In its written decision overruling Cook’s motions to suppress, the trial
court stated that in weighing Belville’s testimony at the suppression hearing with the
testimony presented by Schramm, it found Schramm’s testimony to be more
credible. Under these circumstances, we cannot conclude that the trial court erred in
finding Belville’s consent to be voluntary. See State v. Hunter, 1st Dist. Hamilton No.
C-960431, 1997 Ohio App. LEXIS 630, *3-4 (Feb. 26, 1997); see also State v. Ayoub,
498 F.3d 352, 542, (6th Cir.2007). We, thus, find Cook’s first argument meritless.
{¶27} Cook next argues that the police, upon entering the apartment and
finding him there, should have asked for his consent to search the apartment. He
further argues that under the circumstances it was impossible for him to expressly refuse
to consent to the search because it was a hostile situation where he was almost tased
upon the officers’ entry into the apartment. Thus, he contends that his actions in
refusing arrest amounted to a refusal to allow police to enter the residence.
{¶28} The difficulty with Cook’s argument, however, is that the case he relies
upon, Georgia v. Randolph, 547 U.S. 103, 121, 126 S.Ct. 1515, 164 L.Ed.2d 208(2006), is factually distinguishable. Georgia involved a defendant who had expressly
refused to consent to a police search of his residence, followed by a third-party who
later gave police consent to search. The United States Supreme Court held that
under those narrow circumstances, when “a potential defendant with self-interest in
objecting is in fact at the door and objects, the co-tenant’s permission does not
suffice for a reasonable search.” Id. As a result, the Supreme Court upheld the
suppression of evidence resulting from the warrantless search. Id. Federal courts
however, have refused to extend Georgia’s holding to a potential objector who stands
by mute. See United States v. Stanley, 351 Fed.Appx. 69, 72, (6th Cir.2009).
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{¶29} Thus, absent a contemporaneous objection from Cook, Belville’s
consent to search the apartment was sufficient to permit the police to enter their
apartment. See State v. Pugh, 2d Dist. Montgomery No. 25223, 2013-Ohio-1238, ¶
10. Cook admits he made no express objection to the search of the apartment. He
merely resisted arrest. Cook cites no authority, and we are not aware of any, that
would support his assertion that resisting arrest is tantamount to an express refusal
of consent to search. Compare United States v. Tatman, 397 Fed.Appx. 152, 161 (6th
Cir.2010) (holding that a defendant’s statements to police at the top of the stairs that
a cotenant had no right to let them in and that they had no right to be there were
sufficient to revoke the cotenant’s earlier consent, and distinguishing the case from
cases where the defendant had made no such statement). And contrary to Cook’s
assertions, the police were not required to obtain his express consent before
searching the apartment. See Pugh at ¶ 10; Stanley, 351 Fed.Appx. at 72. As a
result, we cannot say the trial court erred in concluding that Belville’s consent to
search gave the officers the legal authority to search the apartment. We, therefore,
overrule his first assignment of error.
Eyewitness Identification
{¶30} In his second assignment of error, Cook argues the trial court erred
in failing to suppress the eyewitness identification of John Ashcraft, the victim of the
third burglary.
{¶31} A court should suppress a pretrial identification only if the
circumstances surrounding the identification were unnecessarily suggestive and the
identification was unreliable under the totality of the circumstances. State v.
Waddy, 63 Ohio St.3d 424, 439, 588 N.E.2d 819 (1992).
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{¶32} Cook argues that the lineup was unnecessarily suggestive because
Schramm, who had administered the photographic lineup was not a “blind
administrator” as required under R.C. 2933.83. He also claims that Ashcraft’s
identification was unreliable because Ashcraft did not have enough time to view
Cook during the burglary.
{¶33} R.C. 2933.83(B) provides that “any law enforcement agency or
criminal justice entity that conducts * * * photo lineups shall adopt specific
procedures for conducting the lineup.” One of those procedures involves using a
“blind” or “blinded administrator” to conduct the lineup. R.C. 2933.83(B)(1). A
“ ‘blinded administrator’ means the administrator may know who the suspect is, but
does not know which lineup member is being viewed by the eyewitness.” R.C.
2933.83(A)(3). When the state fails to comply with 2933.83, a defendant’s remedy is
not suppression, but the opportunity for cross-examination at trial. See State v.
Ruff, 1st Dist. Hamilton No. C-110250, 2012-Ohio-1910, ¶ 5; R.C. 2933.83(C)(1).
{¶34} Here, Schramm testified that she had been given Cook’s name as a
suspect in the burglaries, but that she did not know what he looked like. She testified
that she did not prepare the photo array and did not know which photograph in the
array depicted Cook. She further testified that she had read an advisement to
Ashcraft, which stated as much prior to showing him the array. Thus, there is no
evidence to demonstrate that Schramm was not a “blind administrator” as
contemplated by the statute. Therefore, the trial court properly denied Cook’s
motion to suppress on this basis. Cook, moreover, points to no other defect in the
lineup that would support his argument that the photo array was unduly suggestive.
{¶35} Cook also argues that Ashcraft’s identification was unreliable because
Ashcraft had testified that it was dark inside his home and that he had seen the
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OHIO FIRST DISTRICT COURT OF APPEALS
intruder only a second or two from ten-12 feet away, and Ashcraft had said, “I think
this is the one” when selecting Cook’s photograph from the array. But because Cook
has not demonstrated that the array was impermissibly suggestive, we need not
reach the reliability of Ashcraft’s identification. Waddy, 63 Ohio St.3d at 439, 588
N.E.2d 819. As a result, we overrule his second assignment of error.
Voluntariness of Cook’s Statements
{¶36} In his third assignment of error, Cook argues that the trial court erred
in failing to suppress his statements to Schramm. He argues that because he was
under the influence of drugs at the time of the interview, he could not have
knowingly and voluntarily waived his right to remain silent. He points to Detective
Schramm’s testimony at the suppression hearing that he had admitted during the
police interview that he had taken two Klonopin pills before he had been arrested,
and that he had looked “dope sick” during the interview.
{¶37} In determining whether a defendant’s statement is made voluntarily,
courts employ a “totality of the circumstances” test. State v. Wiles, 59 Ohio St.3d 71,
81, 571 N.E.2d 97 (1991). They “consider a variety of factors including the age,
mentality and prior criminal experience of the accused; the length, intensity, and
frequency of the interrogation; the existence of physical deprivation or mistreatment;
and the existence of threat or inducement” to determine whether the statement was
the product of a free and deliberate choice, or the result of police coercion and
overreaching. State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d
229 at ¶ 32; see also State v. Edwards, 49 Ohio St.2d 31, 40-41, 358 N.E.2d 1051(1976); Colorado v. Connelly, 479 U.S. 157, 163, 107 S.Ct. 515, 93 L.Ed.2d 473,
(1986). “The suppression of a statement is properly denied on the basis of its
voluntariness where the record discloses substantial evidence upon which the trial
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court, applying the above criteria, might have concluded, by a preponderance of the
evidence that the statement was made voluntarily.” State v. Rogers, 1st Dist.
Hamilton No. C-000299, 2000 Ohio App. LEXIS 6203, *8 (Dec. 29, 2000).
{¶38} Prior to interviewing Cook, Detective Schramm advised him of his
constitutional rights, and Cook admitted that he understood them. Detective
Schramm’s interview with Cook was recorded, and a copy of the interview was played
at the hearing on the motion to suppress. While Schramm described Cook as
appearing to be ill, a condition she described as “dope sick” and attributed to drug
addiction, she testified that he understood her questions and gave appropriate
answers. Moreover, at no time during the interview did Cook assert his right to
counsel or to remain silent. Instead, he chose to verbally spar with Schramm and to
try to persuade her of his innocence. Schramm concluded the interview when Cook
became irate that she did not believe him.
{¶39} Cook’s statements during the interview are inconsistent with his
argument that his will was so overborne by drugs that he did not knowingly and
voluntarily choose not to remain silent. See State v. Israel, 1st Dist. Hamilton No. C-
961006, 1997 Ohio App. LEXIS 4413, *22 (Sept. 26, 1997); State v. Stewart, 75 Ohio
App.3d 141, 147-48, 598 N.E.2d 1275 (11th Dist.1991). Nor does the record reflect
that Cook’s statements were the product of police coercion. As a result, we cannot
say the trial court erred in concluding that under the totality of the circumstances,
Cook’s statements were voluntary and should not be suppressed. We, therefore,
overrule his third assignment of error.
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Notification of Postrelease Control at Sentencing Hearing
{¶40} In his fourth assignment of error, Cook argues that his sentence is
contrary to law based upon the trial court’s failure to orally notify him of his
postrelease-control obligations at the sentencing hearing.
{¶41} R.C. 2967.28(B) provides as follows:
Each sentence to a prison term for * * * a felony of the second
degree * * * that is not a felony sex offense shall include a
requirement that the offender be subject to a period of post-
release control imposed by the parole board after the offender's
release from imprisonment. * * * Unless reduced by the parole
board pursuant to division (D) of this section when authorized
under that division, a period of post-release control required by
this division for an offender shall be of one of the following
periods:
***
(2) For a felony of the second degree that is not a felony sex
offense, three years[.]
{¶42} R.C. 2929.19(B)(3)(c) requires the sentencing court to “notify the
offender at the sentencing hearing that he will be supervised pursuant to R.C.
2967.28 and that the parole board may impose a prison term of up to one-half of the
prison term originally imposed on the offender if he violates supervision or a
condition of his postrelease control.” See State v. Williams, 1st Dist. Hamilton No.
C-081148, 2010-Ohio-1879, ¶ 20.
{¶43} When a sentencing court fails to advise an offender about postrelease
control at the sentencing hearing, and the offender is sentenced after July 11, 2006,
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the effective date of R.C. 2929.191, the trial court violates its statutory duty, and that
part of an offender’s sentence that is related to postrelease control is void. See State
v. Brown, 1st Dist. Hamilton Nos. C-100390 and C-100310, 2011-Ohio-1029, ¶8-9,
quoting State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 26.
To remedy the postrelease-control defect, the trial court must employ the sentencing
procedures set forth in R.C. 2929.191. See Brown at ¶ 8.
{¶44} Here, the trial court failed to orally advise Cook that he would be
subject to a mandatory period of three years of postrelease supervision following his
release from prison, and that the parole board could impose a prison term of up to
one-half of the stated prison term originally imposed, if he violated supervision or a
condition of his postrelease control. See R.C. 2929.19(B)(3)(c) and 2967.28(B). As a
result, we sustain Cook’s fourth assignment of error.
Plea Hearing
{¶45} In his fifth assignment of error, Cook argues that his no-contest pleas
were involuntary because the trial court failed to advise him of the maximum
possible aggregate sentence in that the trial court failed to address consecutive
sentences and it misstated that he “could be” subject to three years of postrelease
control where postrelease control was mandatory.
{¶46} Cook first argues the trial court failed to comply with Crim.R. 11(C)(2)(a)
as it only informed him of the maximum prison term available for each offense, but did
not inform him that it could impose consecutive sentences under R.C. 2929.14(E)(4). In
State v. Johnson, 40 Ohio St.3d 130, 532 N.E.2d 1295 (1988), syllabus, however, the
Ohio Supreme Court held that when a trial court has the option to impose consecutive
sentences pursuant to R.C. 2929.14(E)(4), its failure to inform a defendant who pleads
guilty that his sentences may run consecutively rather than concurrently is not a
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violation of Crim.R. 11(C) and does not render the plea involuntary. See also State v.
Clark, 1st Dist. Hamilton No. C-010532, 2002-Ohio-3135, ¶ 5-8. We, therefore, find
Cook’s first argument meritless.
{¶47} Cook also argues that the trial court failed to substantially comply with
Crim.R. 11(C)(2)(a) when it failed to adequately inform him of his postrelease-control
obligation. The Ohio Supreme Court has held that if a trial judge imperfectly explains
nonconstitutional rights, such as the right to be informed of the maximum possible
penalty and the effect of the plea, a substantial compliance rule applies. Under this
standard a slight deviation from the text of the rule is permissible so long as the totality
of the circumstances indicates that the “the defendant subjectively understands the
implications of his plea and the rights he is waiving.” State v. Clark, 119 Ohio St.3d 239,
243, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 31.
{¶48} While the trial court initially misinformed Cook that he would be subject
to a discretionary three-year term of postrelease control, the assistant prosecuting
attorney clarified that the term was actually mandatory. The trial court agreed with the
prosecuting attorney’s statement. Cook’s plea form correctly stated that he would be
subject to a mandatory three-year term of postrelease control. Cook, moreover, has
failed to demonstrate any prejudice from the trial court’s initial misstatement. See id. at
¶ 32. As a result, we overrule his fifth assignment of error.
{¶49} Having sustained Cook’s fourth assignment of error, we reverse the
trial court’s judgment, and remand this cause for the trial court to notify Cook of his
postrelease-control obligations in accordance with R.C. 2929.191. We affirm the trial
court’s judgment in all other respects.
Judgment affirmed in part, reversed in part, and cause remanded.
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HENDON, P.J, and CUNNINGHAM, J., concur.
Please note:
The court has recorded its own entry this date.
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