State v. Oh

[Cite as State v. Oh, 2013-Ohio-4940.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-130182
TRIAL NO. B-1206685
Plaintiff-Appellee, :
vs. :
O P I N I O N.
:
JAEHEE OH,
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed and Cause Remanded
Date of Judgment Entry on Appeal: November 8, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
George A. Katchmer, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
FISCHER, Judge.
{¶1} Defendant-appellant Jaehee Oh appeals the judgment of the trial court
convicting him of rape and aggravated burglary following Oh’s no-contest pleas. Oh
argues that the trial court erred by denying his motion to suppress statements he had
made to police where Oh, a Korean national, had not had previous experience with
the American criminal-justice system, had been “hung over” at the time of the police
interview, and had not been informed of his right to contact the Korean Consulate as
required by the Vienna Convention on Consular Relations, Apr. 24, 1963, (1970) 21
U.S.T. 77, T.I.A.S. No. 6820 (“Vienna Convention”). Oh also argues that the trial
court erred by granting the state’s motion to take the deposition of the victim, Y.Y.S.,
prior to trial. Finding no merit in Oh’s assignments of error, we affirm the trial
court’s judgment.
{¶2} Oh was indicted for the rape of Y.Y.S. and the aggravated burglary of
Y.Y.S.’s apartment, both felonies of the first degree. According to the bill of
particulars, Oh had entered Y.Y.S.’s apartment by force and had obtained a knife
from inside her apartment. Oh then had entered Y.Y.S.’s bedroom while she had
been sleeping and had held a knife to her throat while he had digitally penetrated her
vagina. Oh had attempted to have sexual intercourse with Y.Y.S., but he had been
unsuccessful.
{¶3} Oh filed a motion to suppress statements he had made to police. At
the motion-to-suppress hearing, Detective Kimberly Kelley testified that she had first
met Oh at his apartment at around 8:00 or 9:00 p.m., and the offense had occurred
at 5:00 a.m. Detective Kelley had identified herself to Oh as an officer, had informed
him that a female had made a complaint against him, and had requested to speak
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OHIO FIRST DISTRICT COURT OF APPEALS
with him in connection with the investigation. Detective Kelley had noticed that Oh
could speak some English, but that she would need an interpreter to interview him.
Once Oh had agreed to go to the police station, Detective Kelley had called a
language service to arrange for a Korean interpreter to meet them at the station. Oh
then had been brought to the station by a uniformed police officer.
{¶4} Once Oh and the interpreter had arrived at the station, Detective
Kelley had given Oh his notification-of-rights form, which had been written in
English. The interpreter had orally informed Oh of his rights as laid out in the form,
and then Oh had signed the form. Detective Kelley had interviewed Oh with the aid
of the interpreter, but some of the interview had been conducted in English. Oh had
not indicated at any time that he wanted to stop the interview or get a lawyer.
{¶5} Detective Kelley testified that Oh had stated he was tired and “hung
over,” but that he had not appeared to be under the influence of alcohol. Detective
Kelley acknowledged that she had not informed Oh of his right to contact the Korean
Consulate at any time during the interview. Detective Kelley also acknowledged that
Oh had not had a criminal history that she had found.
{¶6} Jennifer Kim, a Korean interpreter, also testified at the hearing. Kim
was not the same interpreter that had been with Oh during the police interview. Kim
testified that her review of Oh’s interview showed that Oh’s interpreter had
accurately and fully translated the notification-of-rights form. For example, Kim
testified that, at one point during the interview, Oh had been asked if he knew what a
lawyer did, and he had answered: “Protect me.”
{¶7} After the hearing, the trial court denied Oh’s motion to suppress.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} The state filed three separate pretrial motions, all of which sought to
depose Y.Y.S., also a Korean national, prior to trial. The state contended that Y.Y.S.
would not be able to attend the trial, which at that point had not been scheduled,
because she would be going back to Korea permanently within the next couple of
weeks. Oh objected to the state’s deposition of Y.Y.S., arguing that the state had not
shown Y.Y.S.’s unavailability for trial. Oh contended that Y.Y.S. was a student who
had gone back and forth from Korea before, and that the state had not served Y.Y.S.
with a subpoena while she was still in the country. After discussing the matter on the
record with counsel, the trial court granted the state’s motion to take Y.Y.S.’s
deposition. Oh, Oh’s counsel, and an interpreter attended the deposition, allowing
Oh the opportunity to cross-examine Y.Y.S.
{¶9} After Y.Y.S.’s deposition, Oh entered pleas of no contest to rape and
aggravated burglary. The trial court conducted a plea hearing where it accepted Oh’s
pleas and found Oh guilty of both offenses. The trial court sentenced Oh to
concurrent three-year prison terms on the charges. Oh now appeals.
Motion to Suppress Statements to Police
{¶10} We address Oh’s second assignment of error first, in which Oh argues
that the trial court erred in “failing to dismiss the matter” because Oh had not been
afforded the assistance of the Korean Consulate as required by the Vienna
Convention. Oh’s argument on appeal is broader than his argument before the trial
court in that Oh argued before the trial court that his statements to police should be
suppressed because of the failure to comply with the Vienna Convention and not that
the entire indictment against him should be dismissed.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} In regard to the trial court’s ruling on Oh’s motion to suppress, such a
ruling presents a mixed question of law and fact. See State v. Burnside, 100 Ohio
St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. We must accept a trial court’s
findings of fact if they are supported by competent, credible evidence, but we review
de novo the application of the law to those facts. Id. By contrast, we review for plain
error Oh’s argument that the trial court should have dismissed the indictment
because Oh did not raise that argument below. See Crim.R. 52(B).
{¶12} Article 36 of the Vienna Convention, a treaty ratified by the United
States, requires that individuals detained by authorities in a foreign country be
informed of their right to request the authorities to contact those individuals’ foreign
consulates. Vienna Convention on Consular Relations, Apr. 24, 1963, (1970) 21
U.S.T. 77, T.I.A.S. No. 6820, Article 36(1)(b). The United States Supreme Court has
held that a failure by police to notify a defendant in accordance with Article 36 prior
to obtaining the defendant’s statement is not a distinct ground for suppression of the
statement. Sanchez-Llamas v. Oregon, 548 U.S. 331, 126 S.Ct. 2669, 165 L.Ed.2d
557, 579 (2006). The Court noted that the exclusionary rule generally applies to
constitutional violations—not treaties—and that a defendant can use an Article 36
violation as a factor in attacking the overall voluntariness of the defendant’s
statement to police. Id. at 577-579.
{¶13} Detective Kelley’s failure to inform Oh of his rights under Article 36 of
the Vienna Convention is not, in and of itself, a ground to suppress Oh’s statements,
and, likewise, such a failure is not a separate ground to dismiss Oh’s indictment. See
State v. Jamhour, 10th Dist. Franklin No. 06AP-20, 2006-Ohio-4987, ¶ 14 (where
the court determined that counsel was not ineffective for failing to move to suppress
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OHIO FIRST DISTRICT COURT OF APPEALS
a criminal defendant’s statement to investigators as a violation of the Vienna
Convention because, under Sanchez-Llamas, even assuming that the Vienna
Convention created a judicially enforceable right, suppression of evidence was not a
remedy).
{¶14} Therefore, the trial court did not err in overruling Oh’s motion to
suppress on the basis of the Vienna Convention violation, nor did the trial court
commit plain error in failing to dismiss the indictment against Oh. We overrule Oh’s
second assignment of error.
{¶15} In his first assignment of error, Oh argues that the trial court erred in
overruling his motion to suppress because his statements were not voluntary.
{¶16} In determining whether a defendant’s pretrial statement is voluntary,
a court “should consider the totality of the circumstances, including 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. Leonard, 104 Ohio St.3d 54,
2004-Ohio-6235, 818 N.E.2d 229, ¶ 32, quoting Edwards at paragraph two of the
syllabus. Moreover, police coercion is a prerequisite to a finding of involuntariness.
Id.; State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 113-
114.
{¶17} The record does not reflect that Oh’s statements were involuntarily
made to Detective Kelley. Although Oh, a Korean national, had not been informed of
his consulate rights and had not had prior experience with the American criminal-
justice system, Oh had been informed of his Miranda rights through an interpreter,
he had indicated that he comprehended those rights, and he had expressly waived
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OHIO FIRST DISTRICT COURT OF APPEALS
those rights. Even though Oh contends that he had been “hung over” during the
interview, the interview had not been lengthy or intense, nor had any deprivation or
threats occurred. Considering the totality of the circumstances surrounding Oh’s
statements to Detective Kelley, Oh’s statements were voluntary.
{¶18} The trial court did not err in failing to suppress Oh’s statements, and
we overrule Oh’s first assignment of error.
Deposition of the Victim
{¶19} Finally, in Oh’s third assignment of error, he argues that the trial court
erred in allowing the state to depose the victim, Y.Y.S., prior to trial.
{¶20} The trial court granted the state’s motion to depose Y.Y.S. under
Crim.R. 15. Crim.R. 15(A) states:
If it appears probable that a prospective witness will be
unable to attend or will be prevented from attending a
trial or hearing, and if it further appears that his
testimony is material and that it is necessary to take his
deposition in order to prevent a failure of justice, the
court at any time after the filing of an indictment,
information, or complaint shall upon motion of the
defense attorney or the prosecuting attorney and notice
to all the parties, order that his testimony be taken by
deposition * * *.
We review a trial court’s decision to grant or deny a party’s request for a pretrial
deposition under Crim.R. 15 for an abuse of discretion. See State v. Lominack, 5th
Dist. Stark No. 2012CA00213, 2013-Ohio-2678, ¶ 57.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶21} The trial court did not err in allowing the state to depose Y.Y.S., the
sole complaining witness, prior to trial under Crim.R. 15 where the state contended
that Y.Y.S. intended to move back to Korea permanently within the next couple of
weeks and a trial date had yet to be scheduled, and the state would be prevented
from issuing Y.Y.S. a subpoena once she moved out of the country. As a practical
matter, the state could not issue a subpoena without a trial date.
{¶22} Oh nevertheless argues that the trial court’s allowance of Y.Y.S.’s
pretrial deposition violated his Sixth Amendment rights under Crawford v.
Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) and Evid.R.
804(B), because the state failed to show that Y.Y.S. was unavailable for trial or that a
reasonable effort had been made to secure Y.Y.S.’s presence at trial. Oh pled no
contest to rape and aggravated burglary prior to any ruling by the trial court
admitting the deposition at trial. As a result, Oh cannot demonstrate that he was
prejudiced by the trial court’s allowance of the pretrial deposition.
{¶23} We overrule Oh’s third assignment of error.
{¶24} In conclusion, having overruled Oh’s assignments of error, we affirm
the judgment of the trial court. As noted by the state, the judgment entry states that
Oh was pro se at the time of sentencing; however, the record shows that Oh was
represented by counsel. Therefore, we remand this case to the trial court to correct
the clerical error in the judgment entry.
Judgment affirmed and cause remanded.
CUNNINGHAM, P.J., and DEWINE, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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