State v. Atkins , 2014 Ohio 1091 ( 2014 )

[Cite as State v. Atkins, 2014-Ohio-1091.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. William B. Hoffman, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
:
-vs- :
: Case No. 12-CA-39
SHEVANN R. ATKINS :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Fairfield County
Court of Common Pleas, Case No. 2011-
CR-380
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 19, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOCELYN KELLY PAMELA L. PINCHOT
Assistant Prosecuting Attorney 1800 Lyons Road
239 West Main Street, Ste. 101 Dayton, OH 45458
Lancaster, OH 43130
[Cite as State v. Atkins, 2014-Ohio-1091.]
Gwin, J.,
{¶1} Defendant-appellant Shevann R. Atkins (“Atkins”) appealed her
convictions and sentences in the Fairfield County Court of Common Pleas for one count
of theft, a fourth-degree felony in violation of R.C. 2913.02(A)(3), one count of illegal
use of supplemental nutrition assistance program benefits, a fourth-degree felony in
violation of R.C. 2913.46(B), and one count of tampering with records, a third-degree
felony in violation of R.C. 2913.42(A)(1). State v. Atkins, 5th Dist. Fairfield No. 12-CA-
39, 2013-Ohio-2236. This Court upheld appellant's conviction and sentences. Id.{¶2} By Judgment Entry filed September 24, 2013, this Court granted Atkins’
motion to re-open her direct appeal for the sole purpose of addressing the issue of
whether counsel was ineffective and Atkins prejudiced by the failure to file a motion to
suppress her statements made during the June 26, 2011 meeting.
Assignment of Error
{¶3} Atkins has raised the following assignment of error
{¶4} “I. SHEVANN ATKINS WAS DENIED HER CONSTITUTIONAL RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL, AND WAS PREJUDICED BY THE
FAILURE TO FILE A MOTION TO SUPPRESS HER STATEMENTS MADE DURING
THE JUNE 26, 2011, MEETING.”
Analysis
{¶5} In her present motion to re-open, appellant maintains she received
ineffective assistance of appellate counsel on direct appeal. The standard for reviewing
claims for ineffective assistance of counsel was set forth in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). Ohio adopted this standard in the
Fairfield County, Case No. 12-CA-39 3
case of State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989). These cases
require a two-pronged analysis in reviewing a claim for ineffective assistance of
counsel.
{¶6} First, we must determine whether counsel's assistance was ineffective;
i.e., whether counsel's performance fell below an objective standard of reasonable
representation and volatile of any of his essential duties to the client. If we find
ineffective assistance of counsel, we must then determine whether the defense was
actually prejudice by counsel's ineffectiveness such that the reliability of the outcome of
the trial is suspect. This requires a showing that there is a reasonable probability that
but for counsel's unprofessional error, the outcome of the trial would have been
different. We apply the Strickland test to all claims of ineffective assistance of counsel,
either trial counsel, or appellate counsel. State v. Blacker, 5th Dist. No. 2005-CA-41,
2006-Ohio-5214.
{¶7} When counsel's alleged ineffectiveness involves the failure to pursue a
motion or legal defense, this actual prejudice prong of Strickland breaks down into two
components. First, the defendant must show that the motion or defense “is meritorious,”
and, second, the defendant must show that there is a reasonable probability that the
outcome would have been different if the motion had been granted or the defense
pursued. See Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2583, 91
L.Ed.2d 305 (1986); see, also, State v. Santana, 90 Ohio St.3d 513, 739 N.E.2d 798(2001), citing State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990).
{¶8} Trial counsel's failure to file a suppression motion does not per se
constitute ineffective assistance of counsel. State v. Madrigal, 87 Ohio St.3d 378, 389,
Fairfield County, Case No. 12-CA-39 4
2000–Ohio–0448. Counsel can only be found ineffective for failing to file a motion to
suppress if, based on the record, the motion would have been granted. State v. Lavelle,
5th Dist. No. 07 CA 130, 2008–Ohio–3119, at ¶ 47; State v. Cheatam, 5th Dist. No. 06–
CA–88, 2007–Ohio–3009, at ¶ 86.
{¶9} In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966), the Court adopted a set of prophylactic measures designed to safeguard the
constitutional guarantee against self-incrimination. J.D.B. v. North Carolina __ U.S.___,
131 S.Ct. 2394, 2401, 180 L.Ed.2d 310(July 16, 2011). Prior to questioning, a suspect
“must be warned that he has a right to remain silent, that any statement he does make
may be used as evidence against him, and that he has a right to the presence of an
attorney, either retained or appointed.” Miranda, 384 U.S. at 444, 86 S.Ct. 1602; see
also Florida v. Powell, 559 U.S. ––––, ––––, 130 S.Ct. 1195, 1198, 175 L.Ed.2d 1009(2010).
{¶10} Because these measures protect the individual against the coercive
nature of custodial interrogation, they are required “ ‘only where there has been such a
restriction on a person’s freedom as to render him “in custody.” ’ ” Stansbury v.
California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam)
(quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977)
(per curiam)). Whether a suspect is “in custody” is an objective inquiry. J.D.B. v. North
Carolina, 131 S.Ct. 2394, 2402, 180 L.Ed.2d 310. In J.D.B., the United States Supreme
Court further explained,
“Two discrete inquiries are essential to the determination: first, what
were the circumstances surrounding the interrogation; and second, given
Fairfield County, Case No. 12-CA-39 5
those circumstances, would a reasonable person have felt he or she was
at liberty to terminate the interrogation and leave. Once the scene is set
and the players’ lines and actions are reconstructed, the court must apply
an objective test to resolve the ultimate inquiry: was there a formal arrest
or restraint on freedom of movement of the degree associated with formal
arrest.” Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133
L.Ed.2d 383 (1995) (internal quotation marks, alteration, and footnote
omitted).
See also Yarborough v. Alvarado, 541 U.S. 652, 662–663, 124
S.Ct. 2140, 158 L.Ed.2d 938 (2004); Stansbury, 511 U.S., at 323, 114
S.Ct. 1526; Berkemer v. McCarty, 468 U.S. 420, 442, and n. 35, 104 S.Ct.
3138, 82 L.Ed.2d 317 (1984). Rather than demarcate a limited set of
relevant circumstances, we have required police officers and courts to
“examine all of the circumstances surrounding the interrogation,”
Stansbury, 511 U.S., at 322, 114 S.Ct. 1526, including any circumstance
that “would have affected how a reasonable person” in the suspect’s
position “would perceive his or her freedom to leave,” id., at 325, 114 S.Ct.
1526. On the other hand, the “subjective views harbored by either the
interrogating officers or the person being questioned” are irrelevant. Id., at
323, 114 S.Ct. 1526. The test, in other words, involves no consideration of
the “actual mindset” of the particular suspect subjected to police
questioning. Alvarado, 541 U.S., at 667, 124 S.Ct. 2140; see also
Fairfield County, Case No. 12-CA-39 6
California v. Beheler, 463 U.S. 1121, 1125, n. 3, 103 S.Ct. 3517, 77
L.Ed.2d 1275 (1983) (per curiam).
The benefit of the objective custody analysis is that it is “designed
to give clear guidance to the police.” Alvarado, 541 U.S., at 668, 124 S.Ct.
2140. But see Berkemer, 468 U.S., at 441, 104 S.Ct. 3138 (recognizing
the “occasiona[l] ... difficulty” that police and courts nonetheless have in
“deciding exactly when a suspect has been taken into custody”). Police
must make in-the-moment judgments as to when to administer Miranda
warnings. By limiting analysis to the objective circumstances of the
interrogation, and asking how a reasonable person in the suspect’s
position would understand his freedom to terminate questioning and leave,
the objective test avoids burdening police with the task of anticipating the
idiosyncrasies of every individual suspect and divining how those
particular traits affect each person’s subjective state of mind. See id., at
430–431, 104 S.Ct. 3138 (officers are not required to “make guesses” as
to circumstances “unknowable” to them at the time); Alvarado, 541 U.S.,
at 668, 124 S.Ct. 2140 (officers are under no duty “to consider ...
contingent psychological factors when deciding when suspects should be
advised of their Miranda rights”).
J.D.B. v. North Carolina __ U.S.___, 131 S.Ct. 2394, 2402, 180 L.Ed.2d 310. Accord,
State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 28, ¶27. The test
involves no consideration of the particular suspect's “actual mindset.” Yarborough v.
Alvarado, 541U.S. 652, 667, 124 S.Ct. 2140, 158 L.Ed.2d 938(2004). Accord, State v.
Fairfield County, Case No. 12-CA-39 7
Mason, 82 Ohio St.3d 144, 153, 1998-Ohio-370, 694 N.E.2d 932(1998); State v. Gumm,
73 Ohio St.3d 413, 429, 1995 Ohio 24, 653 N.E.2d 253(1995).
{¶11} The determination of whether a custodial interrogation has occurred
requires an inquiry into how a reasonable person in the detainee’s position would have
felt in the same position. Id. Miranda warnings are not required simply because the
questioning takes place in a coercive atmosphere. See Oregon v. Mathiason, 429 U.S.
492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714(1977) (a coercive environment does not
automatically convert a noncustodial situation into one requiring Miranda warnings).
State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, ¶26; State v.
Mason, 82 Ohio St.3d 144, 154, 694 N.E.2d 932, 946(1998). Nor is the requirement of
warnings to be imposed simply because the questioned person is one whom the police
suspect. Oregon v. Mathiason, 429 U.S. at 495, 97 S.Ct. 711, 50 L.Ed.2d 714; State v.
Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, ¶47.
{¶12} In the case at bar, Atkins was not in custody when she was questioned by
Investigator Kessler, but was there voluntarily. Atkins testified that Job and Family
Services asked her to come in and she drove herself to the interview. She was not
questioned at a police station, but at the Job and Family Services Building. She was not
under arrest and was free to leave at any time. There was not any restraint of her
movement such that a reasonable person would believe they were under arrest.
{¶13} The fact that the investigator may have used deception to get her to come
to the interview is not controlling. Deception is a factor bearing on voluntariness.
Schmidt v. Hewitt, 573 F.2d 794, 801(3rd Cir. 1978). “However, this factor, standing
alone, is not dispositive of the issue.” State v. Wiles, 59 Ohio St.3d 71, 81, 571 N.E.2d
Fairfield County, Case No. 12-CA-39 8
97(1991). Here, the authorities may have used deception to get Atkins to the interview,
but deception was not used during the interview. Atkins never refused to answer
questions, never asked for the questioning to stop, and never asked for medical
attention or a lawyer. See State v. Biros, 78 Ohio St.3d 426, 441, 678 N.E.2d 891(1997)
(no custodial interrogation where accused voluntarily went to the police station in his
own vehicle, was not arrested, and was free to leave at any time). The interview lasted
less than one hour.
{¶14} The investigator did confront Atkins with the strength of the evidence
against her. However, in State v. Cooey, 46 Ohio St.3d 20, 28, 544 N.E.2d 895,
908(1989), the court clearly stated that admonitions to tell the truth directed at a suspect
by police officers are not coercive in nature. See Frazier v. Cupp (1969), 394 U.S. 731,
89 S.Ct. 1420, 22 L.Ed.2d 684; State v. Wiles, 59 Ohio St.3d 71, 81, 571 N.E.2d 97,
112(1991). “A defendant’s will is not overborne simply because he is led to believe that
the government’s knowledge of his guilt is greater than it actually is.” Ledbetter v.
Edwards, 35 F.3d 1062, 1070(6th Cir. 1994).
{¶15} Because Atkins was not subject to a custodial interrogation on June 26,
2011, she was not subject to Miranda.
{¶16} In addition, an examination of the totality of the circumstances in this case
indicates that Atkins’ statements were voluntarily made.
{¶17} In Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d
473(1986), the court held that "police over-reaching" is a prerequisite to a finding of
involuntariness. Evidence of use by the interrogators of an inherently coercive tactic
(e.g., physical abuse, threats, deprivation of food, medical treatment, or sleep) will
Fairfield County, Case No. 12-CA-39 9
trigger the totality of the circumstances analysis. State v. Clark, 38 Ohio St.3d 252, 261,
527 N.E.2d 844, 854(1988).
{¶18} In the cause sub judice, Atkins does not assert that she was physically
deprived or mistreated while at the interview, nor does the record reveal any type of
physical deprivation. Moreover, there is no evidence that police subjected Atkins to
threats or physical abuse, or deprived her of food, sleep, or medical treatment. See
State v. Cooey, 46 Ohio St.3d 20, 28, 544 N.E.2d 895, 908(1989).
{¶19} At the time of the interview, Atkins was attending classes at Ohio
University. Atkins was only interviewed once and that interview was relatively short in
length, just under an hour. Investigator Kessler testified that she was "very sharp"
during the interview and asked questions. Atkins did tell the investigator that she
struggled with narcolepsy, but did not mention having any problems that day. When
Atkins asked about getting a lawyer, Investigator Kessler replied, "You're welcome to a
lawyer at any time you want a lawyer.” He further told Atkins she was free to leave the
interview at any time. (2T. at 407-408).
{¶20} Atkins’ decision not to file a motion to suppress in this case may have
been based on a reasonable trial strategy.
{¶21} The Ohio Supreme Court has recognized that if counsel, for strategic
reasons, decides not to pursue every possible trial strategy, defendant is not denied
effective assistance of counsel. State v. Brown, 38 Ohio St.3d 305, 319, 528 N.E.2d
523(1988). When there is no demonstration that counsel failed to research the facts or
the law or that counsel was ignorant of a crucial defense, a reviewing court defers to
counsel's judgment in the matter. State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d
Fairfield County, Case No. 12-CA-39 10
1189(1980), citing People v. Miller, 7 Cal.3d 562, 573-574, 102 Cal.Rptr. 841, 498 P.2d
1089(1972); State v. Wiley, 10th Dist. Franklin No. 03AP-340, 2004-Ohio-1008, ¶ 21.
{¶22} A defendant has no constitutional right to determine trial tactics and
strategy of counsel. State v. Cowans, 87 Ohio St.3d 68, 72, 717 N.E.2d 298(1999);
State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶150; State v.
Donkers, 170 Ohio App.3d 509, 867 N.E.2d 903, 2007-Ohio-1557(11th Dist.), ¶183.
Rather, decisions about viable defenses are the exclusive domain of defense counsel
after consulting with the defendant. Id. In the case at bar, the evidence before this
course indicates that the decision not to file a motion to suppress may have been a
tactical decision by trial counsel. In State v. Madrigal, the Ohio Supreme Court noted,
Filing a motion to suppress is not without risks, and the fact that
counsel filed a motion for leave to file the motion to suppress, and later
withdrew that motion, is compelling evidence of a tactical decision. It is not
mere speculation to presume that defense counsel obtained information
concerning the suppression motion that led to its withdrawal. Further, the
“adversarial testing process” worked to Madrigal's benefit. The gun that
was seized during Madrigal's arrest was never conclusively tied to the
murder in this case. Through cross-examination of the state's expert, as
well as the presentation of his own expert, Madrigal's counsel were able to
show that the gun was not necessarily the murder weapon.
87 Ohio St.3d 378, 389, 2000-Ohio-448, 712 N.E.2d 52.
{¶23} In the case at bar, the defense utilized cross-examination, Atkins’
testimony and argument to present to the jury a picture of overreaching by the state in
Fairfield County, Case No. 12-CA-39 11
its zeal to obtain a conviction. Even if ruled inadmissible in the state’s case in chief, the
trial court “might have allowed its use to impeach [appellant] if [s]he later chose to testify
at trial. See United States v. Salvucci, 448 U.S. 83, 93–94, 100 S.Ct. 2547, 2554, 65
L.Ed.2d 619, 629(1980); 4 LaFave, Search and Seizure (2 Ed.1987) 240–242, Section
11.2(d), and 349–351, Section 11.3(g); 1 Hall, Search and Seizure (2 Ed.1991) 244–
245, Section 5:42.” State v. Campbell, 69 Ohio St.3d 38, 44-45, 1994-Ohio-492, 630
N.E.2d 339. Even assuming defense counsel's tactics were questionable, we are
unpersuaded that these trial tactics constituted ineffective assistance of counsel. See
State v. Clayton 62 Ohio St.2d 45, 49, 16 O.O.3d 35, 37, 402 N.E.2d 1189, 1192(1980).
{¶24} Given the record in the case at bar, we cannot conclude that there is a
reasonable probability that a motion to suppress would have been successful. See, e.g.,
State v. Fair, 2nd Dist. No. 24120, 2011–Ohio–3330, ¶ 27. Accordingly, Atkins has not
satisfied the second prong of the Strickland test and, therefore, has not demonstrated
that she received ineffective assistance of counsel.
{¶25} Atkins’ sole assignment of error is overruled.
Fairfield County, Case No. 12-CA-39 12
{¶26} For the foregoing reasons, the judgment of the Court of Common Pleas, of
Fairfield County, Ohio, is affirmed.
By Gwin, J.,
Hoffman, P.J., and
Farmer, J., concur