State v. Ward , 2012 Ohio 3446 ( 2012 )

[Cite as State v. Ward, 2012-Ohio-3446.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No: 10CA3370
:
v. :
: DECISION AND
KEITH WARD, : JUDGMENT ENTRY
:
Defendant-Appellant. : July 27, 2012
APPEARANCES:
Bryan Scott Hicks, Lebanon, Ohio, for Appellant.
Mark E. Kuhn, Scioto County Prosecutor, Portsmouth, Ohio, for Appellee.
Kline, J.:
{¶1} Keith Ward (hereinafter “Ward”) appeals the judgment of the Scioto
County Court of Common Pleas, which convicted him of numerous crimes related to the
robbery of a pharmacy. On appeal, Ward contends that his trial counsel was ineffective
for failing to file a motion to suppress. Because Ward cannot prove that there was a
basis to suppress the evidence in question, we disagree. Accordingly, we overrule
Ward’s assignments of error and affirm the judgment of the trial court.
I.
{¶2} On March 9, 2010, David Nelson (hereinafter “Nelson”) robbed Gahm’s
pharmacy in West Portsmouth, Ohio. After being apprehended, Nelson implicated
Scioto App. No. 10CA3370 2
Ward as the getaway driver. Ward was then located and placed into custody in
Lancaster, Ohio.
{¶3} On March 15, 2010, Detective Jodi Conkel traveled to Lancaster to
transport Ward back to Scioto County. Detective Conkel retrieved Ward, placed him in
her vehicle, and gave Ward his Miranda warnings. There is no evidence that Ward
acknowledged an understanding of his Miranda rights at that time. Nevertheless, during
the drive back to Scioto County, Ward gave an unrecorded statement that implicated
himself as a willing participant in the robbery of Gahm’s pharmacy.
{¶4} The following morning, Detective Conkel interviewed Ward at the Scioto
County Sheriff’s Office. This time, the interview was recorded, and Ward acknowledged
that he understood his Miranda rights. But during the March 16, 2010 interview, Ward
denied being a willing participant in the robbery of Gahm’s pharmacy. Instead, Ward
claimed that Nelson forced him to participate.
{¶5} Based on the incident at Gahm’s pharmacy, a Scioto County Grand Jury
returned a ten-count indictment against Ward.
{¶6} On May 4, 2010, the state filed a response to Ward’s request for
discovery. The state’s response included information about both of Ward’s statements
to Detective Conkel -- the one on March 15, 2010, and the one on March 16, 2010.
{¶7} At Ward’s jury trial, Detective Conkel testified about Ward’s two different
statements. Other witnesses also testified on the state’s behalf. And eventually, the
jury found Ward guilty of all ten counts. Later, after merging the appropriate counts, the
trial court sentenced Ward accordingly.
Scioto App. No. 10CA3370 3
{¶8} Ward appeals and asserts the following assignments of error: I. “THE
DEFENDANT WAS INEFFECTIVELY REPRESENTED AS DEFENSE COUNSEL DID
NOT FILE A MOTION TO SUPPRESS THE CAR ‘STATEMENT.’” And II. “HAD
DEFENSE COUNSEL FILED A MOTION TO SUPPRESS, THE CAR ‘STATEMENT’
SHOULD HAVE BEEN SUPPRESSED AS THERE WAS NO EVIDENCE PRESENTED
THAT IT WAS A KNOWING, INTELLIGENT, AND VOLUNTARY WAIVER OF WARD’S
CONSTITUTIONAL RIGHTS[.]”
II.
{¶9} Ward’s two assignments of error address the same fundamental issue.
Therefore, we will address his assignments of error together. Ward contends that his
March 15, 2010 statement to Detective Conkel should have been suppressed. And
because his trial counsel did not file a motion to suppress the March 15, 2010
statement, Ward claims that he received ineffective assistance of counsel. We find,
however, that Ward cannot prove that there was a basis to suppress the March 15,
2010 statement. Therefore, Ward has failed to demonstrate that his trial counsel was
ineffective.
{¶10} “In Ohio, a properly licensed attorney is presumed competent. * * * The
appellant bears the burden of proving that his trial counsel was ineffective.” State v.
Hamblin, 37 Ohio St. 3d 153, 155-156, 524 N.E.2d 476 (1988); accord State v. Norman,
4th Dist. Nos. 08CA3059 & 08CA3066, 2009-Ohio-5458, ¶ 65. To secure reversal for
the ineffective assistance of counsel, one must show two things: (1) “that counsel’s
performance was deficient * * *[,]” which “requires showing that counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by
Scioto App. No. 10CA3370 4
the Sixth Amendment[;]” and (2) “that the deficient performance prejudiced the defense
* * *[,]” which “requires showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); accord Norman at ¶ 65. “Failure
to satisfy either prong is fatal as the accused’s burden requires proof of both elements.”
State v. Hall, 4th Dist. No. 07CA837, 2007–Ohio–6091, ¶ 11, citing State v. Drummond,
111 Ohio St. 3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205.
{¶11} Ward bases his ineffective-assistance-of-counsel claim on Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Essentially, Ward argues
that the March 15, 2010 statement would have been suppressed because there was no
evidence that he acknowledged understanding his Miranda rights. Ward’s argument
relies upon the United States Supreme Court’s decision in Tague v. Louisiana, 444 U.S.
469, 100 S. Ct. 652, 62 L. Ed. 2d 622 (1980). In Tague, the defendant filed a motion to
suppress a statement that he gave to law enforcement. The trial court denied the
defendant’s motion, but the United States Supreme Court held the following: “In this
case no evidence at all was introduced to prove that petitioner knowingly and
intelligently waived his rights before making the inculpatory statement. The statement
was therefore inadmissible.” Id. at 471. More recently, the United States Supreme
Court stated the following: “If the State establishes that a Miranda warning was given
and the accused made an uncoerced statement, this showing, standing alone, is
insufficient to demonstrate ‘a valid waiver’ of Miranda rights. The prosecution must
make the additional showing that the accused understood these rights.” (Internal
Scioto App. No. 10CA3370 5
citation omitted.) Berghuis v. Thompkins, 560 U.S. ___, 130 S. Ct. 2250, 2261, 176
L. Ed. 2d 1098 (2010).
{¶12} Because there was no evidence that Ward acknowledged understanding
his Miranda rights, Ward argues that he could not have voluntarily, knowingly, and
intelligently waived those rights. Therefore, Ward claims that his March 15, 2010
statement to Detective Conkel would have been suppressed if his trial counsel had filed
the appropriate motion. But, under Miranda, law enforcement officers are not required
to ask “whether a suspect understands his or her rights[.]” State v. Lather, 110 Ohio
St.3d 270, 2006-Ohio-4477, 853 N.E.2d 279, ¶ 13. Furthermore, the Supreme Court of
Ohio has held
that a court may infer from the totality of the circumstances
that a defendant voluntarily, knowingly, and intelligently
waived his rights. State v. Clark (1988), 38 Ohio St. 3d 252,
261, 527 N.E.2d 844, 853; State v. Gapen, 104 Ohio St. 3d
358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 52. The totality of
the circumstances includes “‘e.g., 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. Dixon, 101 Ohio St. 3d 328,
2004-Ohio-1585, 805 N.E.2d 1042, ¶ 25, quoting State v.
Eley (1996), 77 Ohio St. 3d 174, 178, 672 N.E.2d 640. By
definition of “totality,” a court is to look to all of the evidence
Scioto App. No. 10CA3370 6
to determine a suspect’s understanding, which can be
implied by his conduct and the situation. (Emphasis sic.)
Lather at ¶ 9.
{¶13} With an understanding of the totality-of-the-circumstances approach, we
note that “[f]ailing to file a motion to suppress does not constitute ineffective assistance
of counsel per se.” State v. Brown, 115 Ohio St. 3d 55, 2007-Ohio-4837, 873 N.E.2d
858, ¶ 65, citing State v. Madrigal, 87 Ohio St. 3d 378, 389, 721 N.E.2d 52 (2000).
Instead, “[t]o establish ineffective assistance of counsel for failure to file a motion to
suppress, a defendant must prove that there was a basis to suppress the evidence in
question.” Brown at ¶ 65, citing State v. Adams, 103 Ohio St. 3d 508, 2004-Ohio-5845,
817 N.E.2d 29, ¶ 35.
{¶14} Here, after considering the totality of the circumstances, we find the
following: Ward cannot prove that there was a basis to suppress his March 15, 2010
statement to Detective Conkel. If Ward’s trial counsel had filed a motion to suppress,
we believe the state could have demonstrated that Ward understood his Miranda rights.
First, Ward has an extensive felony record -- the prosecutor, in fact, called it the worst
he had “seen in 16 years of being prosecutor.” Transcript at 349. This is significant
because “previous contact with police” is a factor for determining whether suspects
understood their Miranda rights. See Lather at ¶ 13. Next, there is no evidence “to
suggest that [Ward] was intellectually or emotionally impaired so as to affect his ability
to understand his rights as they were presented to him by [Detective Conkel].” See
State v. Smith, 2d Dist. No. 2004 CA 90, 2005-Ohio-3757, ¶ 21. And finally, in giving
his March 16, 2010 statement, Ward acknowledged that he understood his Miranda
Scioto App. No. 10CA3370 7
rights. There is no evidence that law enforcement officials did anything special on or
before March 16, 2010, to assist Ward in understanding his Miranda rights, and Ward
has not even attempted to explain away this seemingly implausible scenario -- that is,
the implausibility of failing to understand the Miranda rights one day but, with no further
assistance, understanding those same rights the very next day. Accordingly, the totality
of the circumstances demonstrates that Ward understood his Miranda rights before
giving the March 15, 2010 statement. “The evidence, therefore, did not justify a motion
to suppress. Consequently, appellant cannot meet his burden to prove trial counsel
failed an essential duty in neglecting to file it.” State v. Fryerson, 8th Dist. No. 82940,
2003-Ohio-6041, ¶ 18.
{¶15} Accordingly, because Ward cannot demonstrate ineffective assistance of
counsel, we overrule Ward’s two assignments of error and affirm the judgment of the
trial court.
JUDGMENT AFFIRMED.
Scioto App. No. 10CA3370 8
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs
herein taxed.
The Court finds that there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Scioto County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.
Harsha, J. and McFarland, J.: Concur in Judgment & Opinion.
For the Court
BY:_____________________________
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.