State v. Boone , 2018 Ohio 2541 ( 2018 )

[Cite as State v. Boone, 2018-Ohio-2541.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27668
:
v. : Trial Court Case No. 2016-CR-2095/1
:
DONALD T. BOONE : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 29th day of June, 2018.
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MATHIAS H. HECK, JR., by ALICE B. PETERS, Atty. Reg. No. 0093945, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
DANIEL J. O’BRIEN, Atty. Reg. No. 0031461, 1210 Talbott Tower, 131 North Ludlow
Street, Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
DONOVAN, J.
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{¶ 1} Defendant-appellant Donald T. Boone appeals his conviction and sentence
for one count of possession of cocaine (20 grams but less than 27 grams), in violation of
R.C. 2925.11(A), a felony of the second degree; one count of having weapons while under
disability (prior offense of violence), in violation of R.C. 2923.13(A)(2), a felony of the third
degree; and one count of trafficking in cocaine (20 grams but less than 27 grams), in
violation of R.C. 2925.03(A)(1), a felony of the second degree. Boone filed a timely
notice of appeal with this Court on July 26, 2017.
{¶ 2} The record establishes that in January 2016, the Regional Agency Narcotics
Gun Enforcement Task Force (“R.A.N.G.E”) began a drug investigation regarding a
residence located at 248 Kenwood Avenue in Dayton, Ohio. The R.A.N.G.E. Task Force
is a conglomerate of different police jurisdictions throughout Montgomery County that
work together to serve warrants for illegal drugs and guns. Heading up the investigation
for the R.A.N.G.E. Task Force was Dayton Police Detective Ryan Halburnt, who testified
that he had eighteen years of law enforcement experience. After surveilling the subject
residence and conducting three controlled drug buys, Detective Halburnt completed an
affidavit for a search warrant for 248 Kenwood Avenue.
{¶ 3} In his affidavit, Detective Halburnt stated that he had probable cause to
believe that evidence of illegal drug possession and trafficking was concealed inside the
residence located at 248 Kenwood Avenue. In support of his affidavit, Detective
Halburnt stated that in January 2016, he received information from a reliable confidential
informant (“CI”) that an individual was selling crack cocaine from the subject residence.
Detective Halburnt indicated that the CI had provided him with information in the past
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which led to the issuance of search warrants and the eventual recovery of weapons,
drugs, and money. The CI further informed Detective Halburnt that a black male
nicknamed “T,” later identified as Boone, was selling crack cocaine from the residence
and that “T’s” phone number was 732-0381. The CI also stated that other unidentified
males sold drugs from the residence when “T” was not present there.
{¶ 4} Upon searching the Montgomery County tax records, Detective Halburnt
discovered that Boone was the owner of the residence located at 248 Kenwood Avenue.
Detective Halburnt testified that he then searched the Dayton Police Management
Information System as it pertained to the subject residence and discovered that on
November 19, 2013, police officers had been dispatched to that address on a drug
complaint. The officer’s comments from the field interview card indicate that Boone was
present at the residence on that date, and a small amount of marijuana was recovered
from his person for which he received a minor misdemeanor citation. Boone also
provided his phone number to the officers which was 732-0381.
{¶ 5} Detective Halburnt also searched Boone’s criminal history in the
Management Information System and found that in September 2009, Boone had been
trespassed from a known drug house where heroin was found. Boone also pled guilty
to trafficking in cocaine in a 2006 Greene County case. Detective Halburnt obtained a
photograph of Boone from the system and showed it to the CI. The CI identified the man
in the photograph as “T,” who was selling cocaine from the subject residence.
{¶ 6} Detective Halburnt and Detective Andrew McCoy used the CI to arrange
controlled drug buys from Boone at 248 Kenwood Avenue on three separate dates, to
wit: February 17, 2016, March 2, 2016, and March 22, 2016. Prior to each of the
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controlled buys, the CI was searched in order to ensure that he was not in possession of
any money and/or drugs. Additionally, prior to each buy, the CI contacted Boone on his
cell phone at 732-0381, spoke with Boone, and was directed to come to the subject
residence. The detectives then provided the CI with a sum of money and observed as
he entered the residence at 248 Kenwood Avenue. Shortly thereafter, the CI would exit
the residence and present the detectives with the crack cocaine that he had purchased.
{¶ 7} With respect to the first two buys on February 17, 2016 and March 2, 2016,
the CI reported that he purchased drugs from an unknown black male, whom he described
as light-skinned, approximately six feet tall and weighing 260 pounds, with brown hair and
brown eyes. The last controlled buy of March 22, 2016, involved a purchase by the CI
of drugs directly from Boone. Detective Halburnt stated that the drugs recovered from
the CI after each of the controlled buys was tested, analyzed, and found to be crack
cocaine.
{¶ 8} Based upon the information contained in Detective Halburnt’s affidavit, a
Dayton Municipal Court judge approved a search warrant on March 24, 2016, for the
residence located at 248 Kenwood Avenue and its surrounding curtilage. The search
warrant also encompassed Boone and the unknown male suspect. At approximately
10:00 a.m. on March 25, 2016, Detective Halburnt and other members of the R.A.N.G.E.
Task Force conducted a search of the subject residence pursuant to the search warrant.
After forcing entry into the house when no one answered the door, the officers located
four individuals inside the house, but Boone was not present. While searching outside
the perimeter of the house, Detective Halburnt observed a man fitting Boone’s description
run out of a detached garage into an alley. Detective Halburnt testified that he was able
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to detain the individual, later identified as Boone, after a brief chase down the alley.
{¶ 9} The State also presented the testimony of Deputy Samuel Hemingway of the
Five Rivers Metropark Police Department. On March 25, 2016, Deputy Hemingway was
working with the R.A.N.G.E. Task Force and was tasked with interviewing the suspects
who had been detained at the subject residence. Deputy Hemingway conducted the
interview of Boone after he was taken into custody. Boone had already been handcuffed
when Deputy Hemingway began the interview. We note that the interview took place
inside the back area of a law enforcement “rapid deployment” vehicle. Deputy
Hemingway was wearing a recording device which he used to create an audio recording
of Boone’s interview. Deputy Hemingway testified that he informed Boone that the
interview was being recorded. The recording of Boone’s interview was introduced at the
motion to suppress hearing as State’s Exhibit #2.
{¶ 10} Deputy Hemingway testified that he introduced himself to Boone and
explained why the police were at his residence. Deputy Hemingway then verbally
advised Boone off his Miranda rights. Deputy Hemingway did not utilize a pre-interview
waiver form, but he testified that he was confident in his ability to verbally advise Boone
of his Miranda rights because he had done so in hundreds of other cases as a law
enforcement officer. After being advised of his constitutional rights, Boone informed
Deputy Hemingway that he understood his rights. Deputy Hemingway then asked
Boone if he was willing have a conversation, and Boone responded affirmatively.
{¶ 11} Deputy Hemingway interviewed Boone for approximately fifteen minutes.
Boone did not appear to be under the influence of alcohol or drugs during the interview.
Deputy Hemingway testified that Boone was lucid and answered questions appropriately.
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At one point during the interview, Deputy Hemingway informed Boone that if he answered
questions honestly, Deputy Hemingway would advocate to the trial court and the
prosecutor to “cut [Boone] a break.” During the interview, Boone made admissions with
respect to the offenses for which he was charged.
{¶ 12} Thereafter on August 15, 2016, Boone was indicted for one count of
possession of cocaine (20 grams but less than 27 grams); one count of having weapons
while under disability (prior offense of violence); and one count of trafficking in cocaine
(20 grams but less than 27 grams). At his arraignment on September 1, 2016, Boone
pled not guilty.
{¶ 13} On September 19, 2016, Boone filed a motion to suppress all of the physical
evidence seized during the search by police as a result of the search warrant executed
on March 25, 2016. Boone also sought suppression of any statements he made to police
after being taken into custody. A hearing was held on said motion on January 27, 2017.
On March 16, 2017, the trial court issued a decision overruling Boone’s motion to
suppress in its entirety.
{¶ 14} On May 22, 2017, Boone entered pleas of no contest to all three counts in
the indictment. On June 26, 2017, the trial court sentenced Boone to an aggregate
prison term of three years. Immediately after being sentenced, Boone filed a motion to
stay his sentence pending the outcome of his appeal, which the trial court granted.
{¶ 15} Boone’s appeal is now properly before this Court.
{¶ 16} Boone’s first assignment of error is as follows:
THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLE
ERROR WHEN IT FOUND THERE WAS A SUBSTANTIAL BASIS FOR
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THE MAGISTRATE JUDGE CONCLUDING THERE WAS PROBABLE
CAUSE TO SEARCH THE DEFENDANT’S HOME.
{¶ 17} In his first assignment, Boone contends that the trial court erred when it
overruled his motion to suppress with respect to the search warrant issued on March 24,
2016. Specifically, Boone argues that the trial court did not have a substantial basis for
concluding that probable cause existed to issue the search warrant.
{¶ 18} In ruling on a motion to suppress, the trial court “assumes the role of the
trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate
the credibility of the witnesses.” State v. Retherford, 93 Ohio App. 3d 586, 592, 639 N.E.2d
498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010–Ohio–116, ¶
30. Accordingly, when we review suppression decisions, we must accept the trial court's
findings of fact if they are supported by competent, credible evidence. Retherford, 93 Ohio
App.3d at 592. “Accepting those facts as true, we must independently determine as a
matter of law, without deference to the trial court's conclusion, whether they meet the
applicable legal standard.” Id.
{¶ 19} The Fourth Amendment to the United States Constitution and Article I,
Section 14 of the Ohio Constitution provide that search warrants may only be issued upon
probable cause, supported by oath or affirmation, particularly describing the place to be
searched, and the person and/or things to be seized. See also State v. Jones, 143 Ohio
St.3d 266, 2015–Ohio–483, 37 N.E.3d 123, ¶ 11.
{¶ 20} We begin our analysis with the governing legal standards. Under Crim.R.
41, a request for a search warrant requires a sworn affidavit “establishing the grounds for
issuing the warrant.” Crim.R. 41(C)(1). The judge may issue a search warrant if the
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judge finds, based on the information in the affidavit, that “probable cause for the search
exists.” Crim.R. 41(C)(2). “The finding of probable cause may be based upon hearsay
in whole or in part, provided there is a substantial basis for believing the source of the
hearsay to be credible and for believing that there is a factual basis for the information
furnished.” Id. “In determining the sufficiency of probable cause in an affidavit submitted
in support of a search warrant, ‘[t]he task of the issuing magistrate is simply to 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, quoting Illinois v. Gates, 462 U.S. 213, 238–
239, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).
{¶ 21} Trial courts and appellate courts “should accord great deference to the
magistrate's determination of probable cause, and doubtful or marginal cases in this area
should be resolved in favor of upholding the warrant.” State v. George, 45 Ohio St. 3d 325,
544 N.E.2d 640 (1989), paragraph two of the syllabus; Jones at ¶ 14.
{¶ 22} Regarding informants, as this Court has previously noted:
“Courts have generally recognized three categories of informants: (1)
the identified citizen informant, (2) the known informant, i.e., someone from
the criminal world who has a history of providing reliable tips, and (3) the
anonymous informant.” State v. Jordan, 104 Ohio St. 3d 21, 2004–Ohio–
6085, 817 N.E.2d 864, ¶ 36, citing Maumee v. Weisner, 87 Ohio St. 3d 295,
300, 720 N.E.2d 507 (1999).
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“Where a confidential or anonymous informant is the source of the
hearsay, the ‘informant's veracity, reliability and basis of knowledge are all
highly relevant’ in a totality of the circumstances probable cause
determination. Gates at 230 (internal quotations omitted). There must be
some basis in the affidavit to indicate the informant's credibility, honesty or
reliability. An affidavit which contains detailed information from informants
(permitting an inference that illegal activity was personally observed by the
informants), police corroboration of an informant's intelligence through its
own independent investigation, or additional testimony by the affiant helps
to bolster and substantiate the facts contained within the affidavit. While
individual facts and statements themselves may not separately support a
probable cause determination, a reviewing court must weigh all of the
components together because ‘[p]robable cause is the sum total of [all]
layers of information.’ ” (Citations omitted.) State v. Harry, 12th Dist. Butler
No. CA2008–01–0013, 2008–Ohio–6380, ¶ 20.
State v. Mitchell, 2d Dist. Montgomery No. 25402, 2013–Ohio–622, ¶ 19–20.
{¶ 23} As we have further noted, while an informant's veracity, reliability and basis
of knowledge are highly relevant factors to the determination of probable cause, “those
factors are not separate and independent requirements but, rather, ‘intertwined issues
that may usefully illuminate the commonsense, practical question whether there is
“probable cause” to believe that contraband or evidence is located in a particular place.’ ”
State v. Harris, 2d Dist. Montgomery No. 18913, 2002 WL 1041868, *1 (May 24, 2002),
quoting Gates at 320. “Accordingly, an informant's tip may be reliable despite the
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deficiency in one factor where there is a strong showing of another factor or some other
indicia of reliability.” Id., citing Gates at 233.
{¶ 24} Finally, we note that the “Supreme Court of the United States held that
evidence obtained in violation of the Fourth Amendment by an officer acting in objectively
reasonable reliance on a search warrant issued by a neutral and detached magistrate
need not be excluded from state criminal prosecution. (Citations omitted).” State v.
Arnold, 2d Dist. Clark No. 2016 CA 20, 2017–Ohio–559, ¶ 48.
{¶ 25} Upon review, we conclude that the municipal court judge who approved the
search warrant “had a substantial basis for finding a fair probability” that the drugs and
firearms identified in the warrant would be found in Boone’s residence located at 248
Kenwood Avenue. See State v. Smith, 2d Dist. Greene No. 2009–CA–81, 2010–Ohio–
6229. As previously stated, in January 2016, Detective Halburnt received information
from a reliable CI that an individual was selling crack cocaine from the subject residence.
Detective Halburnt indicated that the CI had provided him with information in the past
which led to the issuance of search warrants and the eventual recovery of weapons,
drugs, and money. The CI further informed Detective Halburnt that a black male
nicknamed “T” was selling crack cocaine from the residence and that “T’s” phone number
was 732-0381.
{¶ 26} Upon searching Montgomery County tax records, Detective Halburnt
discovered that Boone was the owner of the subject residence. Detective Halburnt
testified that he also searched the Dayton Police Management Information System as it
pertained to the subject residence and discovered that, on November 19, 2013, police
officers had been dispatched to that address on a drug complaint. The officer’s
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comments from the field interview card indicate that Boone was present at the residence
on that date, and a small amount of marijuana was recovered from his person for which
he received a minor misdemeanor citation. Boone also provided his phone number to
the officers, which was 732-0381.
{¶ 27} Upon investigating Boone’s criminal history, Detective Halburnt discovered
that, in September 2009, Boone had been trespassed from a known drug house.
Significantly, in a 2006 Greene County case, Boone pled guilty to trafficking in cocaine.
Detective Halburnt obtained a photograph of Boone from the system and showed it to the
CI. The CI identified the man in the photograph as “T,” who was selling cocaine from the
subject residence.
{¶ 28} Finally, the affidavit contained information regarding three controlled drug
buys from the subject residence arranged by Detective Halburnt on February 17, 2016,
March 2, 2016, and March 22, 2016. Prior to each buy, the CI contacted Boone on his
cell phone at 732-0381 and was directed to come to the subject residence. With respect
to the first two buys on February 17, 2016 and March 2, 2016, the CI reported that he
purchased drugs from an unknown black male, whom he described as light-skinned,
approximately six feet tall and weighing 260 pounds, with brown hair and brown eyes.
The last controlled buy of March 22, 2016, involved a drug purchase directly from Boone.
Significantly, Detective Halburnt submitted the search warrant affidavit to the judge only
two days after the last controlled buy which specifically involved Boone selling crack
cocaine to the CI.
{¶ 29} Based on all of the information contained in Detective Halburnt’s affidavit,
we cannot say the municipal court judge erred in finding a fair probability that contraband
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or evidence of a crime would be discovered in Boone's residence. In reaching this
conclusion, we recognize that close or marginal cases should be resolved in favor of
upholding a magistrate's probable cause determination. George, 45 Ohio St. 3d 325, 544
N.E.2d 640, at paragraph two of the syllabus. Here, there is no evidence that police
misled the judge, that the judge wholly abandoned his judicial role, or that the affidavit
was so lacking in indicia of probable cause as to make belief in its existence
unreasonable.
{¶ 30} Boone’s first assignment of error is overruled.
{¶ 31} Boone’s second and final assignment of error is as follows:
THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLE
ERROR WHEN IT FOUND THE DEFENDANT’S STATEMENTS TO THE
POLICE VOLUNTARY AND ADMISSIBLE UNDER THE FACTS
PRESENTED HEREIN ON THIS RECORD.
{¶ 32} In his final assignment, Boone contends that the trial court erred when it
found that the statements made by Boone to Deputy Hemingway during the interview
after execution of the search warrant were made voluntarily. Rather, Boone argues that
he only made admissions because Detective Hemingway improperly induced him to do
so by promising to advocate to the trial court and the prosecutor to “cut [Boone] a break”
during sentencing. Boone asserts that the only reason he made any admissions to
Deputy Hemingway was because he thought he would receive community control.
{¶ 33} “Under the Fifth Amendment to the United States Constitution, no person
shall be compelled to be a witness against himself. In order to ensure that this right is
protected, statements resulting from custodial interrogations are admissible only after a
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showing that the procedural safeguards described in Miranda v. Arizona, 384 U.S. 436,
444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), have been followed.” State v. Western, 2015-
Ohio-627, 29 N.E.3d 245, ¶ 12 (2d Dist.). “[T]he State has the burden to show by a
preponderance of the evidence that a defendant's confession was voluntarily given.” Id.
at ¶ 16.
{¶ 34} “Whether a statement was made voluntarily and whether an individual
knowingly, voluntarily, and intelligently waived his or her Miranda rights are distinct
issues.” State v. Lovato, 2d Dist. Montgomery No. 25683, 2014-Ohio-2311, ¶ 30.
Generally, statements made to police after a knowing, intelligent, and voluntary waiver of
an individual's Miranda rights are presumed voluntary. Id. at ¶ 31. However, “[t]he
Miranda presumption applies to the conditions inherent in custodial interrogation that
compel the suspect to confess. It does not extend to any actual coercion police might
engage in, and the Due Process Clause continues to require an inquiry separate from
custody considerations and compliance with Miranda regarding whether a suspect's will
was overborne by the circumstances surrounding his confession.” State v. Porter, 178
Ohio App. 3d 304, 2008-Ohio-4627, 897 N.E.2d 1149, ¶ 14 (2d Dist.). Therefore,
“[r]egardless of whether Miranda warnings were required and given, a defendant's
statement may have been given involuntarily and thus be subject to exclusion.” State v.
Kelly, 2d Dist. Greene No. 2004-CA-20, 2005-Ohio-305, ¶ 11.
{¶ 35} When making a determination regarding whether a valid waiver has
occurred, we must “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
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threat or inducement.” State v. Edwards, 49 Ohio St. 2d 31, 358 N.E.2d 1051 (1976),
paragraph two of the syllabus, overruled on other grounds, 438 U.S. 911, 98 S. Ct. 3147,
57 L. Ed. 2d 1155 (1978).
{¶ 36} A court may find coercion when law enforcement officers “persuad[e] or
deceiv[e] the accused, with false promises or information, into relinquishing rights and
responding to questions.” Id. at 39. However, “the presence of promises does not as a
matter of law, render a confession involuntary.” Id. at 41. Officers may discuss the
advantages of telling the truth, advise suspects that cooperation will be considered, or
even suggest that a court may be lenient with a truthful defendant. Id.; see also State v.
Belton, 149 Ohio St. 3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 111.
{¶ 37} “ ‘The line to be drawn between permissible police conduct and conduct
deemed to induce or tend to induce an involuntary statement does not depend upon the
bare language of inducement but rather upon the nature of the benefit to be derived by a
defendant if he speaks the truth, as represented by the police. * * *’ ” (Citations omitted).
State v. Jackson, 2d Dist. Greene No. 02CA0001, 2002-Ohio-4680, ¶ 28.
{¶ 38} We determined in Jackson “ ‘that false promises made by police to a
criminal suspect that he can obtain lenient treatment in exchange for waiving his Fifth
Amendment privilege so undermines the suspect's capacity for self-determination that his
election to waive the right and incriminate himself in criminal conduct is fatally impaired.
His resulting waiver and statement are thus involuntary for Fifth Amendment purposes.
* * * The simple result is that officers must avoid such promises, which are not proper
tools of investigation.’ ” (Citations omitted). Id. at ¶ 40.
{¶ 39} Conversely, a police officer's assurances that a defendant's cooperation will
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be considered, or that a confession will be helpful, do not invalidate an otherwise legal
confession. State v. Stringham, 2d Dist. Miami No. 2002–CA–9, 2003-Ohio-1100, ¶ 16.
“[A] mere suggestion that cooperation may result in more lenient treatment is neither
misleading nor unduly coercive, as people ‘convicted of criminal offenses generally are
dealt with more leniently when they have cooperated with the authorities.’ ” Id., quoting
State v. Farley, 2d Dist. Miami No. 2002–CA–2, 2002-Ohio-6192, ¶ 44. (Other citation
omitted.) “Likewise, an investigator's offer to ‘help’ if a defendant confesses is not
improper.” Id., citing State v. Chase, 55 Ohio St. 2d 237, 247, 378 N.E.2d 1064 (1978).
(Other citation omitted.) Furthermore, “[a]dmonitions to tell the truth, coupled with a
benefit that flows naturally from being truthful, are not coercive in nature.” (Citation
omitted.) Porter at ¶ 34. Accord State v. Tullis, 2d Dist. Greene No. 2012–CA–59, 2013-
Ohio-3051, ¶ 22.
{¶ 40} Initially, we note that we have reviewed the audio recording of Deputy
Hemingway’s interview of Boone in the rear of the rapid deployment vehicle on March 25,
2016. Regarding Boone's Miranda warnings, the record clearly establishes that he was
advised of his rights by Deputy Hemingway. Although Deputy Hemingway did not have
a waiver of rights form for Boone to sign, the record supports the trial court’s finding that
Miranda warnings were given before questioning began. The interview was brief, lasting
only approximately fifteen minutes. The tone of the interview was conversational and did
not involve any threats or aggressive behavior by Deputy Hemingway. Furthermore,
Boone is a middle-aged adult male and did not appear to be under the influence of any
drugs or alcohol. Notably, Boone had prior experience with the criminal justice system.
Upon being advised of his Miranda warnings, Boone stated that he understood his rights
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and agreed to speak to Deputy Hemingway.
{¶ 41} Nevertheless, Boone argues that he was improperly induced to make
admissions because Deputy Hemingway allegedly promised a recommendation for
probation or community control in exchange for Boone’s truthfulness. The record,
however, undermines his argument in this regard. Deputy Hemingway stated that he
would advocate to the trial court and the prosecutor to “cut [Boone] a break” if Boone was
honest during the interview. While emphasizing that it was up to the prosecutors and the
judge, the record establishes that at no point during the interview did Deputy Hemingway
mention a specific recommendation to Boone regarding sentencing, nor did the deputy
tell Boone that he would receive community control, probation, or a specific sentence for
being honest. There is no evidence that a suggestion of a “break” overcame Boone’s
will.
{¶ 42} Police use of tactics like admonitions to tell the truth are not improper. State
v. Dixon, 101 Ohio St. 3d 328, 2004–Ohio–1585, 805 N.E.2d 1042, ¶ 29; Stringham, 2d
Dist. Miami No. 2002–CA–9, 2003–Ohio–1100, at ¶ 16 (saying that “admonitions to tell
the truth are considered neither threats nor promises and are permissible”). Here,
Deputy Hemingway urged Boone to cooperate with law enforcement and tell the truth.
Offering to advocate to the trial court and the prosecutor to “cut [Boone] a break” if Boone
was honest during the interview does not amount to a specific recommendation that he
receive probation or a definitive sentence.
{¶ 43} In light of the foregoing, we see nothing unduly coercive here in the
detective’s conduct or language. Stringham at ¶ 15 (finding defendant's arguments
unpersuasive that police downplayed the seriousness of his offense, exaggerated the
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evidence against him, implied that he would not be prosecuted, suggested that he could
work something out if he would confess, stated that he could do more for himself than an
attorney, and offered to help him in exchange for a confession). Nothing in these facts
and circumstances suggests improper coercion leading to an involuntary confession. Id.
at ¶ 13 (finding “nothing coercive or overbearing about the physical circumstances of the
interview,” where the officers spoke in a conversational manner, the tone of the dialogue
was “benign,” the defendant was questioned only once for about two hours, and there
was no evidence of physical deprivation or mistreatment). Accordingly, we find that the
trial court did not err when it found that Boone’s statements were voluntary and that his
Miranda rights were not violated.
{¶ 44} Boone’s second assignment of error is overruled.
{¶ 45} Both of Boone’s assignments of error having been overruled, the judgment
of the trial court is affirmed.
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FROELICH, J. and HALL, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Alice B. Peters
Daniel J. O’Brien
Hon. Timothy N. O’Connell