State v. Wilson

[Cite as State v. Wilson, 2013-Ohio-4643.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-13-04
v.
MAURICE M. HENRY WILSON, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 12-CR-0046
Judgment Affirmed
Date of Decision: October 21, 2013
APPEARANCES:
Alison Boggs for Appellant
Terry L. Hord for Appellee
Case No. 14-13-04
PRESTON, P.J.
{¶1} Defendant-appellant, Maurice M. Henry Wilson, appeals the Union
County Court of Common Pleas’ decisions overruling his motion to compel
discovery and overruling, in part, his motion to suppress evidence following a
traffic stop. For the reasons that follow, we affirm.
{¶2} On August 17, 2011 around 2:56 p.m., Ohio State Highway Patrol
Trooper Travis Woodyard was stationary in his Chevy Tahoe patrol vehicle on
U.S. Route 33 just west of State Route 161 inside of Union County, Ohio. (Sept.
25, 2012 Tr. at 5-6, 13, 20, 33); (D’s Ex. A). Woodyard observed a Ford Taurus
in the left lane visibly slowing from 65 or 66 miles per hour (m.p.h.)—around the
speed limit of 65 m.p.h.—to 56 or 57 m.p.h. and causing cars to stack up behind it.
(Id. at 6, 21). As the Taurus passed, Woodyard observed a male driver, a female
passenger, and a male passenger in the back seat, later identified as Wilson, who
appeared to be asleep. (Id.). The Taurus continued past Woodyard in the left lane
below the speed limit impeding traffic. (Id.). Woodyard then observed the Taurus
move from the left lane to the right lane, cutting off a semi tractor-trailer. (Id.).
Woodyard decided to stop the driver for a traffic violation. (Id. at 7).
{¶3} Prior to turning on his lights to execute the traffic stop, Woodyard
observed Wilson—who appeared to be sleeping when the Taurus passed
Woodyard 45 seconds earlier—moving around in the back seat “raising up and
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down, moving from side to side * * * bouncing all over * * * like a three year
old.” (Id.); (Id. at 21). When Woodyard approached the vehicle to advise the
driver, subsequently identified as Ryan Fissel, of the reason for the stop,
Woodyard observed that Fissel was “very, very nervous * * * couldn’t make eye
contact[, and] * * * had a very rapid heart beat [sic].” (Id. at 8). Woodyard then
noticed that Fissel had “track marks” on his arm, consistent with drug abuse; and,
Woodyard further noticed that Fissel looked like he had lost 40 pounds from when
his driver’s license was issued, even though that was only about four to five
months prior. (Id.). Woodyard began to suspect that Fissel was a heroin user. (Id.
at 8-9).
{¶4} Woodyard asked Fissel to step out of his vehicle and escorted Fissel
back to his patrol vehicle, at which point Fissel’s heartbeat and breathing
escalated. (Id. at 9). Trooper James Cress arrived on the scene shortly thereafter
and watched the remaining passengers in the vehicle. (Id. at 40, 51, 56).
Woodyard asked Fissel if he had any knives, needles, weapons, or things of that
nature on his person, and Fissel indicated “no.” (Id. at 10). Woodard then asked
to check for weapons, Fissel consented, and Woodyard identified something soft
with something hard inside of it in Fissel’s pocket, which Fissel indicated was his
eyeglass case. (Id.). Because Fissel was wearing his eyeglasses, Woodard asked
Fissel what was inside his eyeglass case, and Fissel indicated he did not know.
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(Id.). With Fissel’s consent, Woodard removed and opened the eyeglass case and
discovered two syringes, marijuana, and at least one foil ball containing heroin.
(Id.).
{¶5} State Highway Patrol Lieutenant Kemmer, who arrived at the scene
shortly after Woodyard searched Fissel, talked to Woodyard who informed him
that Fissel had two syringes on his person. (Id. at 44). Thereafter, Kemmer made
contact with the right, front passenger, who was later identified as Natasha Fissel,
Ryan’s wife. (Id. at 11, 44). Kemmer asked Natasha to exit the vehicle, walked
her back to place her into his patrol vehicle, and asked her if she had anything that
was going to poke him if he conducted a pat-down for weapons. (Id. at 44).
Natasha stated that she had two syringes in the front of her pants, so Kemmer
removed them, but he found no further contraband on Natasha’s person. (Id. at
45). At that point, Kemmer placed Natasha into the back of his patrol vehicle and
began assisting Woodyard with the final passenger, Wilson. (Id.).
{¶6} Around the time Woodyard and Kemmer were searching and securing
the Fissels, Cress briefly patted Wilson down for weapons but did not find
anything. (Id. at 58, 62-63). Woodyard returned to the vehicle, and Cress
informed Woodyard that he patted down Wilson for weapons and did not find any.
(Id.). Woodyard then asked Wilson if he could conduct an additional pat-down for
weapons, to which Wilson agreed. (Id. at 12-13, 63). During the additional pat-
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down, Woodyard found “something hard, up high in [Wilson’s] butt crack area,”
so he asked Wilson what it was, but Wilson said nothing. (Id. at 13). Because
Wilson was wearing very thick sweatpants and a pair of pajama pants or boxers,
Woodyard handcuffed and escorted Wilson back by his patrol vehicle out of the
view of traffic where Woodyard moved Wilson’s sweatpants out of the way and
patted-down Wilson’s second pair of pants. (Id. at 13, 29, 64). During this
subsequent pat-down Woodard determined that the unidentified item was
“something that had either foil balls or crack rocks.” (Id. at 14). Woodyard then
asked Wilson what the item was, and Wilson stated it was $1,000 worth of heroin.
(Id. at 41). Woodyard then asked Wilson if he would remove the drugs from his
person if he was unhandcuffed, and Wilson agreed. (Id.). Wilson removed the
drugs, Woodard then advised Wilson of his Miranda rights, and Cress placed
Wilson into a cruiser. (Id. at 14).
{¶7} On March 13, 2012, the Union County Grand Jury indicted Wilson on
Count One of possession of heroin in violation of R.C. 2925.11(A), a second-
degree felony, and Count Two of aggravated drug trafficking in violation of R.C.
2925.03(A)(2), a second-degree felony, stemming from the August 17, 2011
traffic stop. (Doc. No. 1).
{¶8} On March 23, 2012, Wilson was arraigned and entered pleas of not
guilty. (Doc. No. 5).
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{¶9} On June 11, 2012, Wilson filed a motion to suppress all statements he
made and the evidence obtained during the traffic stop. (Doc. No. 25). In
particular, Wilson argued that law enforcement unlawfully detained him in
absence of any reasonable suspicion that he was violating or about to violate any
law, because he was merely a passenger in the vehicle. (Id.).
{¶10} On June 19, 2012, the State filed a memorandum contra Wilson’s
motion to suppress, arguing that: (1) the initial traffic stop was lawful because
Trooper Woodyard had probable cause to believe that the driver was violating no
less than three separate traffic offenses, including: speeding, impeding traffic, and
reckless operation; (2) law enforcement was permitted to remove Wilson, a
passenger, from the vehicle without further suspicion of criminal activity; (3) law
enforcement was permitted to pat-down Wilson since they reasonably believed
that he could be armed; and, (4) the drug contraband was found during this lawful
pat-down for weapons. (Doc. No. 27).
{¶11} On August 9, 2012, Wilson filed praecipes for service of subpoenas
duces tecum, pursuant to Crim.R. 17(A), upon Troopers Woodyard and Cress and
Lieutenant Kemmer “[t]o produce to Counsel for defense any and all video
recording [sic] from the traffic stop conducted on August 17, 2011 at 1456 hours
on or before Wednesday, August 15, 2012,” five days prior to the scheduled
hearing on the motion to suppress. (Doc. No. 41).
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{¶12} Thereafter, the suppression hearing was continued to September 13,
2012 and then to September 25, 2012. (Doc. Nos. 55, 57).
{¶13} On September 18, 2012, Wilson again filed praecipes for service of
subpoenas duces tecum upon the same law enforcement officers for the video from
the traffic stop. (Doc. No. 61).
{¶14} On September 25, 2012, the trial court held a hearing on the motion
to suppress. During closing argument counsel for Wilson argued that “there
should have been a video that was available to the defendant * * * And the video
could have very well been exculpatory * * *.” (Tr. at 83). The trial court rejected
this argument, noting that counsel for Wilson failed to develop any evidence
during the hearing concerning the allegedly missing cruiser videos. (Id. at 84).
Thereafter, the trial court found that the initial traffic stop was lawful based upon
Trooper Woodyard’s reasonable articulable suspicion of a traffic violation, and
patting-down Wilson for weapons was reasonable in light of the suspected drug
trafficking involved. (Id. at 84-85). The trial court concluded that the physical
evidence obtained during the traffic stop was admissible, as well as any statements
Wilson made prior to being in custody or after his written waiver of rights was
executed. (Id. at 86-87). However, the trial court determined that the only issue
remaining was whether Wilson’s statement that the unidentified item was heroin—
made after Wilson was handcuffed but prior to Trooper Woodyard administering
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Miranda warnings—was admissible. (Id. at 86-87). The trial court asked the
parties to submit short briefs on this issue and adjourned the hearing. (Id. at 87).
{¶15} The parties failed to file any briefs on this issue as requested by the
trial court. On October 19, 2012, the trial court issued its decision overruling the
motion to suppress as it related to all physical evidence obtained and all statements
Wilson made after his signed waiver of rights and statements Wilson made prior to
being handcuffed. (Doc. No. 68). However, the trial court concluded that Wilson
was in custody after Woodyard handcuffed him; and therefore, any statement
Wilson made after that but prior to Miranda warnings was inadmissible. (Id.).
{¶16} On November 19, 2012, the trial court scheduled jury trial for
January 3-4, 2013. (Doc. No. 71).
{¶17} On December 31, 2012, Wilson filed a motion to compel discovery
concerning the alleged destruction of cruiser videos from the traffic stop. (Doc.
No. 83). That same day, the trial court denied the motion, finding that this issue
was already addressed during the suppression hearing when counsel for Wilson
failed to produce any evidence on the same. (Doc. No. 84).
{¶18} On January 3, 2013, Wilson withdrew his previously tendered not
guilty pleas and entered no contest pleas to both counts in the indictment. (Doc.
No. 86); (Jan. 3, 2013 Tr. at 5, 20-21). Thereafter, the trial court found Wilson
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guilty, ordered a pre-sentence investigation (PSI) report, and scheduled sentencing
for February 11, 2013. (Id.); (Id. at 21-23).
{¶19} On February 11, 2013, the trial court held a sentencing hearing
whereat it determined that Count One of drug possession was an allied offense of
Count Two of aggravated drug trafficking. (Tr. at 3). The State elected to proceed
on Count Two for purposes of sentencing, and the trial court sentenced Wilson to
a mandatory six years imprisonment. (Tr. at 9). The trial court also ordered that
Wilson serve the six-year term of imprisonment consecutive to the term of
imprisonment imposed in Logan County Case No. CR 12030069. (Id.). The trial
court filed its judgment entry of sentence that same day. (Doc. No. 90).
{¶20} On March 7, 2013, Wilson filed a notice of appeal. (Doc. No. 96).
Wilson raises two assignments of error for our review.
Assignment of Error No. I
Appellant’s due process rights were violated when the trial court
overruled appellant’s motion to compel discovery without a
hearing as the allegation was that the appellee withheld possible
Brady evidence.
{¶21} In his first assignment of error, Wilson argues that the trial court
erred by denying his motion to compel discovery of potential Brady evidence
without first holding a hearing.
In Brady v. Maryland, the United States Supreme Court held that:
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[t]he suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.
373 U.S. 83, 87, 83 S.Ct. 1194 (1963). However, the U.S. Supreme Court later
clarified that:
The rule of Brady * * * arguably applies in three quite different
situations. Each involves the discovery, after trial, of information
which had been known to the prosecution but unknown to the
defense.
United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392 (1976) (emphasis added).
{¶22} Based upon this latter statement concerning Brady’s scope, the Ohio
Supreme Court has found that no Brady violation occurs when evidence is
discovered and presented during the trial. State v. Wickline, 50 Ohio St.3d 114,
116 (1990). When a defendant discovers that the State withheld potentially
exculpatory evidence during the course of the trial proceedings, and not after,
Crim.R. 16(L), and not Brady, governs. Id. at 116-117.1
1
At the time of the Ohio Supreme Court’s decision in Wickline, the applicable Rule of Criminal Procedure
governing discovery sanctions was Crim.R. 16(E)(1). However, Rule 16 of the Rules of Criminal
Procedure was subsequently amended on July 1, 2010, and the current section governing discovery
sanctions is Crim.R. 16(L)(1).
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{¶23} Defense counsel subpoenaed “any and all video recording [sic] from
the traffic stop conducted on August 17, 2011 at 1456 hours” from all three law
enforcement officers prior to the motion to suppress hearing. (Doc. No. 41). After
the trial court partially granted Wilson’s motion to suppress, defense counsel filed
a motion to compel discovery of “evidence of the destruction or electronic failure
which caused the recorded video from the traffic stop on August 17, 2011.” (Doc.
No. 83). Counsel represented in the motion to compel that:
At [the suppression hearing] law enforcement represented to counsel
that while the two vehicles on site that day were equipped with
recording devices and the stop and search was recorded there was
some unidentified computer glitch that caused both videos to be
destroyed. Subsequent to this hearing, defense counsel has
repeatedly requested proof of some form that this was an
unavoidable technical error and not the result of bad faith in the
destruction of evidence.
(Id.). Based upon the foregoing, it is clear that the potentially exculpatory
evidence was apparent to defense counsel during the trial proceedings; and
therefore, the proper remedy was contained in Crim.R. 16(L), governing
discovery. Wickline at 116-117.
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{¶24} While acknowledging that Brady violations generally occur when
exculpatory evidence is discovered after trial, Wilson points out that The Court of
Appeals for the Second Appellate District has rejected that bright-line rule, finding
that a Brady claim could exist “where other remedies were not readily available to
the defendant[], the evidence was undoubtedly material * * *, and the finder of
fact did not actually weigh the exculpatory evidence in reaching a verdict[.]” State
v. Aldridge, 120 Ohio App.3d 122, 146 (1997). We reject this argument. Aside
from the fact that this statement appears to be obiter dictum, the rule would not
apply here since Wilson had other remedies—namely those found in Crim.R.
16(L)—and it cannot be said that “the evidence is undoubtedly material,” because
the contents of the cruiser videos is not known. In this case, it can only be said
that the video evidence was “potentially exculpatory.”
{¶25} We must also reject Wilson’s argument that a hearing was required
in this case. Wilson’s argument is based upon the faulty premise that an alleged
Brady violation occurred, which premise we have already rejected. Beyond that,
the cases Wilson cites in support of his argument for a hearing are post-conviction
cases, not direct appeals from discovery matters.
{¶26} Wilson’s first assignment of error is, therefore, overruled.
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Assignment of Error No. II
The trial court committed error when it suppressed some of
appellant’s statements made during the traffic stop but ruled
other statements and the physical evidence from the traffic stop
were not suppressible, in violation of Section 10, Article I of the
Ohio Constitution.
{¶27} In his second assignment of error, Wilson argues that the trial court
erred by suppressing only the statements he made prior to Miranda warnings.
Wilson argues that his statements after Miranda warnings were part of a single
interrogation and should have also been suppressed. Wilson further argues that
the physical evidence must be suppressed because any search beyond the initial
pat-down was unconstitutional without a warrant.
{¶28} A review of the denial of a motion to suppress involves mixed
questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-
5372, ¶ 8, citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). At a suppression
hearing, the trial court assumes the role of trier of fact and, as such, is in the best
position to evaluate the evidence and the credibility of witnesses. Id.{¶29} When reviewing a ruling on a motion to suppress, deference is given
to the trial court’s findings of fact so long as they are supported by competent,
credible evidence. Burnside at ¶ 8. With respect to the trial court’s conclusions of
law, however, our standard of review is de novo and we must decide whether the
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facts satisfy the applicable legal standard. State v. McNamara, 124 Ohio App.3d
706, 710 (4th Dist.1997).
{¶30} In his motion to suppress, Wilson argued that his further detention
for multiple pat-down searches was unconstitutional absent any reasonable
suspicion that he—a passenger in the vehicle—had violated, was violating, or
about to violate the law. (Doc. No. 25). Wilson also argued that law enforcement
unreasonably expanded the scope of the search after the first pat-down revealed no
weapons. (Id.). At the suppression hearing, counsel for Wilson argued that the
initial traffic stop was unlawful; the continued detention of Wilson was unlawful
since law enforcement did not have an independent reason to detain Wilson apart
from Mr. Fissel’s actions; Wilson did not voluntarily consent to the pat-down
searches; law enforcement asked Wilson incriminating questions without the
benefit of Miranda warnings; and, law enforcement withheld potentially
exculpatory cruiser videos. (Sept. 25, 2012 Tr. at 79-83).
{¶31} Now, on appeal, Wilson argues that “evidence gathered before the
Miranda warning was administered must be suppressed based on Section 10,
Article I of the Ohio Constitution and the pre- and post-Miranda statements are
inadmissible,” citing State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, ¶ 9.
This argument is strikingly different than Wilson’s argument in the trial court. In
fact, nowhere in any of his filings or during the motion hearing did Wilson
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mention State v. Farris. “[T]he defendant must make clear the grounds upon
which he challenges the submission of evidence pursuant to a warrantless search
or seizure,” and the “[f]ailure on the part of the defendant to adequately raise the
basis of his challenge constitutes a waiver of that issue on appeal.” City of Xenia
v. Wallace, 37 Ohio St.3d 216, 218 (1988). See also State v. Wilson, 2d Dist.
Montgomery No. 22001, 2007-Ohio-6581, ¶ 12; State v. Mock, 11th Dist. Lake
No. 2012-L-066, 2013-Ohio-874, ¶ 7-10. We will not address Wilson’s new
arguments for suppression of the evidence in the first instance on appeal.
{¶32} Before Woodyard patted Wilson down, Woodyard had observed that
Fissel was very nervous, had track marks on his arms indicative of drug abuse, and
observed Wilson making furtive movements in the rear of the vehicle. Woodyard
also had found drugs and drug paraphernalia upon both Fissel and Natasha. At
that point, Woodyard could have reasonably suspected that Wilson was involved
in drug trafficking, giving rise to a nearly automatic right to frisk for weapons.
State v. Evans, 67 Ohio St.3d 405, 413 (1993). Wilson consented to the
subsequent pat-down for weapons and, during that consensual pat-down,
Woodyard identified, by plain feeling, drug contraband. Minnesota v. Dickerson,
508 U.S. 366, 375-376, 113 S.Ct. 2130 (1993). Consequently, the trial court did
not err by denying Wilson’s motion to suppress as it related to the physical
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evidence. The trial court also did not err by denying Wilson’s motion to suppress
statements he made after being fully advised of his Miranda rights.
{¶33} Wilson’s second assignment of error is, therefore, overruled.
{¶34} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and SHAW, J.J., concur.
/jlr
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