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State v. Eichler

Court of Appeals of Ohio, Seventh District, Noble
Jul 9, 2024
2024 Ohio 4819 (Ohio Ct. App. 2024)

Opinion

23 NO 0510

07-09-2024

STATE OF OHIO, Plaintiff-Appellee, v. DANIEL F. EICHLER, Defendant-Appellant.

Atty. Jordan C. Croucher, Noble County Prosecutor, for Plaintiff-Appellee Atty. L. Bryan Carr, for Defendant-Appellant


Criminal Appeal from the Court of Common Pleas of Noble County, Ohio Case No. 222-2041

Atty. Jordan C. Croucher, Noble County Prosecutor, for Plaintiff-Appellee

Atty. L. Bryan Carr, for Defendant-Appellant

BEFORE: Cheryl L. Waite, Mark A. Hanni, Katelyn Dickey, Judges.

OPINION AND JUDGMENT ENTRY

WAITE, J.

{¶1} Appellant Daniel Eichler appeals his conviction, arising from his plea of no contest, for discharge of a firearm and cruelty to animals. These charges arose after Appellant shot a neighbor's beagle puppy with a .22 caliber rifle. Appellant contends that the police failed to explain his Miranda rights to him when he was questioned on his porch the day of the shooting. Appellant believes that all evidence in this case is fruit of the poisonous tree because of alleged violations of his Fourth Amendment rights, and that all evidence should have been suppressed. The record reveals that Appellant voluntarily spoke to the police officers who arrived at his home on the day of the crime, and he gave them permission to take the weapon he used in the crime. As he was also free to return inside his home at any time during the questioning, he was not subject to any custodial interrogation.

{¶2} Appellant also argues that his interview with the police two days after he was arrested should have been suppressed because he invoked his right to counsel and his right to remain silent, but the interrogation continued. The record shows that police notified Appellant of his Miranda rights before questioning him, that he did not unambiguously assert his right to end questioning when he mentioned the Fifth Amendment, and that he did not invoke his right to counsel, until well into the interview. The moment he invoked his right to counsel the interrogation ceased. The totality of the circumstances here do not reveal any violation of Appellant's right against self-incrimination occurred. Appellant's assignment of error is overruled and the judgment of the trial court is affirmed.

Facts and Procedural History

{¶3} On April 6, 2022 Appellant was indicted for discharge of a firearm on or near a prohibited premises pursuant to R.C. 2923.162(A)(3), a third degree felony (with a 3-year firearm specification and weapon forfeiture); and cruelty to companion animals in violation of R.C. 959.131(C), a fifth degree felony. The charges arose from an incident that occurred on March 1, 2022 at 13031 Thorny Hill Road in Noble County. Police dispatch received a report of a companion dog being shot. Noble County Sheriff's Deputy Gardner arrived at the scene first, followed soon after by Lieutenant Dale Morris and Deputy William Poling. The officers spoke with Destiny McCauley and her daughter. The women explained that their five-month-old beagle puppy had been shot with what was believed to have been a .22 caliber rifle, and that their neighbor, Appellant Daniel Eichler, had fired the shot. Appellant lived at 12905 Thorny Hill Road, on the opposite side of the road from where the dog was shot. Only a cut hay field lay between the two houses. Deputy Poling later observed that the dog's wound was consistent with that of a .22 rifle. The dog was taken to a veterinary clinic but did not survive.

{¶4} The deputies immediately went across the road to Appellant's home to gather information. It was between 4:00 and 5:00 p.m. Appellant was the only suspect at this time. The driveway to Appellant's home led to a garage and large back porch, which appeared to be the main entrance to the house. This entrance and porch faced both the road and the McCauley's house. There was also a sun porch attached to the back porch.

{¶5} Appellant came out to the back porch from inside the house and identified himself. The officers began what they called a casual conversation with Appellant, who initially denied having anything to do with the shooting. When Lieutenant Morris noticed a spent .22 caliber rifle cartridge on the porch, Appellant stated that he owned a .22 caliber rifle, a Henry lever-action gun. Appellant said that he routinely fired shots using the rifle from his porch, and there should be other casings nearby. However, the deputies saw no other casings. Appellant then stated that, while he did fire a shot at the dog, he intended to fire over it, but shortly thereafter confessed to shooting the dog. (7/27/22 Tr., p. 10.) Appellant told the deputies that the gun he used was located just inside the sun porch door, and gave the deputies permission to retrieve it. (7/27/22 Tr., p. 10.) Deputy Poling identified the gun seized as a loaded .22 magnum rifle. Deputy Poling immediately made the weapon safe. He noted that the ammunition in the rifle matched the casing found on the porch. The entire conversation between Appellant and the officers took approximately ten minutes.

{¶6} At no point prior to being formally arrested did the deputies draw their weapons, tell Appellant he could not leave, or tell him he was under arrest. At no time did they prevent Appellant from ending their discussion by going back inside the house. The tone of the conversation remained friendly and casual. At no point was the conversation moved to a private or secluded location. The entirety of the discussion took place while the deputies stood on the outside porch and Appellant also stood outside on the porch, near the doorway.

{¶7} At some point after Appellant admitted to shooting the dog, and after the rifle was retrieved, the officers told Appellant he was under arrest. While Appellant was not given any Miranda warnings prior to his arrest or while being transported, the officers did not question Appellant any further after placing him under formal arrest.

{¶8} On March 3, 2022, Appellant was interviewed by Detective Brent McKee at the Monroe County Sheriff's Office. Detective McKee notified Appellant of his Miranda rights, including the rights to remain silent and to have a lawyer present while being questioned. Appellant did not sign a waiver of Miranda rights, but did nod his head affirmatively and say "yes" when asked if he understood these rights. In the course of the interview, Appellant admitted he shot the puppy and that only one shell casing was found on his porch in a location that was in the direct line of sight to where the dog was shot. At various points during the questioning, Appellant stated that he was not sure how much he could reveal without incriminating himself, and at one point he said "I plead the fifth I guess." (3/3/22 Tr., p. 11.) Detective McKee reminded Appellant that he did not have to keep answering any questions or could answer only the questions to which he was comfortable responding. Appellant continued to speak with McKee for some time before finally invoking his right to counsel. At this juncture Detective McKee immediately stated: "That's the magic word. And now we're done." (3/3/22 Tr., p. 17.)

{¶9} On June 29, 2022, Appellant filed a motion to suppress. The basis for his motion was the conduct of the deputies on March 1, 2022. A hearing was held on July 27, 2022. After the hearing, but prior to the court's issuance of a final ruling on the motion, the prosecutor received a copy of the recording of the interview between Detective McKee and Appellant that had taken place on March 3, 2022. The prosecutor forwarded a copy to Appellant on August 22, 2022. Appellant then filed a supplemental motion to suppress on August 29, 2022, and sought to revise that supplement on November 28, 2022. The basis for the supplemental motion to suppress was the interview held on March 3, 2022. Appellant alleged this interview revealed further violations of his right to counsel and right to remain silent. The court held a hearing regarding the supplemental motion on December 13, 2022. The court denied both motions to suppress on February 14, 2023.

{¶10} At a hearing held on April 4, 2023, Appellant entered into a Crim.R. 11 plea agreement of no contest to the charges. As part of the plea, the state agreed to dismiss the 3-year gun specification. Sentencing took place on May 30, 2023. The court sentenced Appellant to five years of community control, which included 60 days in jail, the forfeiture of his rifle, restitution to the victim, no contact with the victim, and no ownership or possession of firearms for five years. The court filed its final order of sentence on June 7, 2023. This appeal followed on June 21, 2023. Appellant raises one assignment of error on appeal.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTIONS TO SUPPRESS.

{¶11} Appellant presents two arguments under this single assignment of error: the initial encounter with the deputies on March 1, 2022 was a custodial interrogation and the officers failed to give Appellant his required Miranda rights; and Appellant invoked his right to have an attorney present and right to remain silent at the March 3, 2022 interrogation but this was ignored by law enforcement in violation of Appellant's constitutional rights. Appellant filed motions to suppress regarding both of these issues, which he claims were erroneously denied by the trial court. We note that Appellant's no contest plea reserved his right to challenge the trial court's rulings on the motions to suppress. Although Appellant pleaded no contest to the charges, a "plea of no contest does not preclude a defendant from asserting upon appeal that the trial court prejudicially erred in ruling on a pretrial motion, including a pretrial motion to suppress evidence." Crim.R. 12(I); State v. Vaughn, 7th Dist. Carroll No. 683, 2003-Ohio-7023, ¶ 33.

{¶12} Review of a trial court's denial of a motion to suppress involves a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. In a hearing on a motion to suppress, the trial court sits as the trier of fact and is responsible for determining the credibility of the witnesses and weighing the importance of the evidence. State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). A reviewing court should accept the trial court's findings of fact if they are supported by competent and credible evidence. Id. at 20. Regarding conclusions of law, however, a court of appeals applies a de novo standard of review and must determine whether the facts satisfy the applicable legal standards. Burnside at ¶ 8.

{¶13} Regarding Appellant's first argument, the law is clear that the requirement of notifying a suspect of his or her Miranda rights applies only when a custodial interrogation is about to take place. Neither party disagrees with this statement of law, which was also applied by the trial court judge.

{¶14} "The Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution secure an individual's right to be free from unreasonable searches and seizures and require warrants to be particular and supported by probable cause." State v. Telshaw, 195 Ohio App.3d 596, 2011-Ohio-3373, 961 N.E.2d 223 (7th Dist.), ¶ 12. Pursuant to Miranda v. Arizona, 384 U.S. 436, 477, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), before a custodial interrogation takes place a police officer must warn the suspect "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." Id. at 444. In the absence of Miranda warnings, a statement made during a custodial interrogation is subject to exclusion from a criminal prosecution. Id. at 479.

{¶15} The exclusionary rule applies not only to primary evidence directly obtained during an illegal search or seizure, but also to derivative evidence. Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939). This type of evidence is referred to as the fruit of the poisonous tree. State v. Carter, 69 Ohio St.3d 57, 67, 630 N.E.2d 355 (1994). Appellant argues that all of the evidence obtained on March 1, 2022 amounts to fruit of the poisonous tree.

{¶16} Police are not required to administer Miranda warnings to every person they question. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714, 719 (1977). "Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect." Id. Only custodial interrogation triggers the need for Miranda warnings. Id. at 494; Berkemer v. McCarty (1984), 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). The determination whether a custodial interrogation has occurred requires an inquiry into "how a reasonable man in the suspect's position would have understood his situation." Berkemer at 442. "[T]he ultimate inquiry is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983).

{¶17} With respect to Miranda challenges, "custody" is a term of art that implicates circumstances reflecting a serious danger of coercion may occur. State v. Epling, 2023-Ohio-418, 208 N.E.3d 405, ¶ 49 (5th Dist.). In determining whether a person is in custody, the inquiry is whether, in light of "the objective circumstances of the interrogation," a reasonable person would have believed they had no right to end the questioning and leave. Stansbury v. California, 511 U.S. 318, 322-325, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). In order to evaluate how a suspect would have interpreted his "freedom of movement," courts must examine "all of the circumstances surrounding the interrogation." Id. Although every case contains its own list of relevant factors, some of the typical factors include: the location of the questioning and if it was inherently coercive (such as questioning taking place at the person's home versus the police station); the duration of the questioning; the number of officers present; all statements made during the questioning; the presence or absence of physical restraints during the questioning; whether the subject's movement was restrained in any way; whether objective indicia of arrest are present; whether any force was used by the police to compel answers to their questions; or whether the subject volunteered answers during the questioning. State v. Biros, 78 Ohio St.3d 426, 442, 678 N.E.2d 891, 905 (1997); State v. McCrary, 2d Dist. Montgomery No. 18885, 2002-Ohio-396.; Matter of O.E., 2023-Ohio-1946, 217 N.E.3d 48, ¶ 17 (11th Dist.); Berkemer, supra, at 437-438; Stansbury, supra, at 325. The subjective intent of the officers and the beliefs of the suspect are irrelevant to this inquiry. State v. Springer, 135 Ohio App.3d 767, 773, 735 N.E.2d 914 (7th Dist.1999).

{¶18} A defendant has the initial burden to prove by a preponderance of the evidence that he or she was questioned by the police as part of custodial interrogation. Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Once this burden is met, the burden then shifts to the state to prove by a preponderance of the evidence that the person knowingly, intelligently, and voluntarily waived his or her Miranda rights. Id. at 167-68; United States v. Bentley, 726 F.2d 1124, 1126 (6th Cir.1984).

{¶19} Appellant claims that he was under custodial arrest when sheriff's deputies came to his home and spoke to him on his porch. The parties agree that no Miranda warnings were given on March 1, 2022. There is also no dispute that Appellant was questioned by the deputies at his home. The issue is whether the questioning that took place on Appellant's porch constituted custodial interrogation. Appellant contends that he was a suspect when the deputies arrived, that he was not free to leave his home with three deputies standing at his door, that he was subject to a pat down search, that the deputies conducted an illegal search of his property and found a shell casing, and that he was never told he was under arrest even when he was eventually handcuffed and placed in a police cruiser. He contends that a constant stream of questions from the deputies for 10-15 minutes, even after he denied shooting the dog, constituted custodial interrogation. He argues that a reasonable person would believe they were under arrest, or at least unable to leave, in the presence of three law enforcement officers, particularly after denying any involvement in the crime at issue.

{¶20} Appellant did not meet his burden of showing that custodial interrogation took place in this matter. The record is clear that Appellant voluntarily spoke to the deputies, and permitted them to take a walk around his porch in an attempt to show them that there were many spent bullet casings (which was determined not to be true). Appellant was not prevented in any way from reentering the house and closing the door or from leaving his home, and he voluntarily told officers where his gun was located and gave consent for the deputies to take the loaded rifle from inside the door.

{¶21} Deputy William Poling testified at the July 27, 2022 suppression hearing that when the deputies arrived at Appellant's house he met them on his back porch and they had a casual conversation. (7/27/22 Tr., p. 9.) At some point near the beginning of this encounter, Deputy Gardner patted down Appellant. (7/27/22 Tr., p. 58.) Appellant had stepped outside of the house to the porch. Hence, this pat down was described as "safe practice" when the investigation involves the use of a firearm, and when it is believed the suspect possesses firearms. (7/27/22 Tr., p. 58.)

{¶22} The officers asked whether Appellant knew anything about a dog being shot and he initially denied shooting the dog. When the officers noticed a spent shell casing where they were standing on the porch, Appellant then admitted that he had shot the dog. (7/27/22 Tr., p. 10.) Appellant then told officers that the weapon he used was on the sun porch, and gave them permission to retrieve it. (7/27/22 Tr., p. 10.) Deputy Gardner stepped inside the edge of the sun porch and retrieved the gun. (7/27/22 Tr., p. 10.)

{¶23} The fact that Appellant was a suspect does not transform the encounter into custodial interrogation. "Nor is the requirement of [Miranda] warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect." Biros, supra, at 440, citing Mathiason, supra, 429 U.S. 495.

{¶24} The deputies were not required to give a Miranda warning simply because Deputy Gardner patted him down to check for weapons. A brief detention of a person to conduct a pat down of their outer clothing is permissible as a Terry stop, based on the holding of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Although a pat down to check for weapons is a type of brief search and seizure, it does not equate to being in custody for purposes of Miranda. Even if a pat down frisk occurs:

[An] officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond. And, unless the detainee's answers provide the officer with probable cause to arrest him, he must then be released. The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda.
Berkemer, supra, at 439-440.

{¶25} Appellant contends that he was in custody because he now alleges the deputies were blocking him from leaving his porch. The record does not support his contention. There is nothing in the record showing that Appellant was restricted in any way from moving around on his porch, leaving the porch, or reentering his home. Interrogation at a suspect's home, unaccompanied by any restriction of movement by the police, will not be deemed as custodial. Epling, supra, at ¶ 57.

{¶26} Although Appellant takes issue with Appellee's use of the words "casual" and "conversation" to describe the deputies' interaction with him on March 1, 2022, these are the words that the deputies used to describe what took place at Appellant's home. Simply because Appellant dislikes this description does not mean it is not part of the record, and in fact, there is no other description in the record.

{¶27} The record does not support that a custodial interrogation took place when Appellant was questioned at his home on March 1, 2022.

{¶28} Turning to Appellant's second argument, he contends that he was interrogated by the police subsequent to his arrest without an express waiver of his Miranda rights, and that police continued to question him and failed to allow him to consult an attorney after he expressed that he did not wish to incriminate himself. Appellant's primary argument seems to be that he was not provided with an attorney once he allegedly invoked his right not to incriminate himself.

{¶29} A Miranda warning consists of four separate notices: the right to remain silent; a warning that anything the defendant says can and will be used against him; the right to the presence of an attorney; the right to an appointed attorney. State v. Evans, 144 Ohio App.3d 539, 551, 760 N.E.2d 909 (1st Dist.2001). Any and all of these rights may be waived, provided such waiver is made voluntarily, knowingly and intelligently. State v. Nelson, 4th Dist. Ross No. 1984, 1994 WL 534930, *2.

{¶30} There is no question that Detective McKee informed Appellant of the four components of his Miranda rights at the beginning of the interview. (3/3/22 Tr., p. 4.) Appellant said that he understood those rights. When questioning began after that, Appellant expressed no reservations about speaking to McKee or answering questions. Appellant's first issue with the interview is that he did not sign a written waiver of his Miranda rights. However, a valid implied waiver of rights can occur without a written waiver. Although a written waiver is strong proof that a waiver is valid, it is not required for a reviewing court to conclude that waiver has taken place. State v. Dennis, 79 Ohio St.3d 421, 425, 683 N.E.2d 1096 (1997), citing North Carolina v. Butler (1979), 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979).

{¶31} The waiver does not need to be explicit. "Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent." Berghuis v. Thompkins, 560 U.S. 370, 384, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010). A waiver can be inferred from the actions and words of the person interrogated. State v. Kalna, 7th Dist. Mahoning No. 18 MA 0133, 2020-Ohio-5016, ¶ 30-31, citing Butler, 441 U.S. 373. Whether a waiver of Miranda rights took place is viewed from the totality of circumstances. State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 35; State v. Clark, 38 Ohio St.3d 252, 261, 527 N.E.2d 844 (1988).

{¶32} The record in this matter reveals Appellant waived his right to remain silent. Detective McKee clearly notified Appellant of his rights, and Appellant expressed verbally and by nodding his head that he understood his rights. No coercive tactics were used in the interview. Detective McKee engaged in a general conversation with Appellant about his home and the places he had formerly lived. Appellant did not hesitate to converse with Detective McKee, and there are no indications that he was in any type of distress or was of unsound mind. Appellant has not raised anything in the record that would undermine Appellant's implied waiver, here.

{¶33} Appellant's argument next focuses on two statements made by Appellant during the interrogation by Detective McKee. After Detective McKee stated: "What happened the other day?" Appellant said "Well, I don't know how much I can tell you, I'm sorry, without incriminating myself." (3/3/22 Tr., p. 6.) Detective McKee responded with: "That's up to you Bud." (3/3/22 Tr., p. 6.) Appellant then said (without a further question being asked): "Evidently a neighbor's dog got shot." (3/3/22 Tr., p. 6.) Appellant continued to talk to the detective without any questions being asked.

{¶34} A few moments later Detective McKee stated: "Let's just cut to it * * * I heard what you did. I know what you told the deputies you did. I know what the evidence shows you did. I'm more interested in, Dan, why?" (3/3/22 Tr., p. 8.) Appellant said: "Well, once again, I can't incriminate myself." (3/3/22 Tr., p. 8.) Detective McKee followed with: "And that is your right, Dan. I truly appreciate that. And I respect that. I'm going to ask the questions and it's your right * * *." (3/3/22 Tr., p. 8.)

{¶35} We note this record also shows that at some point Appellant said: "Yeah, I plead the 5th I guess." (3/3/22 Tr., p. 11.)

{¶36} Appellant contends that the officers were required to provide him with counsel the moment he first invoked his right against self-incrimination. Appellant clearly misunderstands the right to counsel during a custodial interrogation. The right to counsel and the right against self-incrimination are separate rights. "A suspect is entitled to the assistance of counsel during custodial interrogation even though the Constitution does not provide for such assistance." Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). If the suspect invokes that right at any time, the police must immediately cease questioning him until an attorney is present. Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (known as the "Edwards Rule").

In the context of invoking the Miranda right to counsel, the Court in Davis * * *, held that a suspect must do so "unambiguously." If an accused makes a statement concerning the right to counsel 'that is ambiguous or equivocal' or makes no statement, the police are not required to end the interrogation, ibid, or ask questions to clarify whether the accused wants to invoke his or her Miranda rights, 512 U.S., at 461-462, 114 S.Ct. 2350.
Berghuis at 381.

{¶37} The record shows that Appellant never unambiguously invoked his right to counsel until page 17 of the interview transcript. Questioning immediately ceased at that point. Appellant did not seek assistance of counsel during his admittedly custodial questioning until long after he engaged in answering police questions, when questioning immediately ceased. There was no violation of the right to the assistance of counsel during the March 3, 2022 interview.

{¶38} As far as Appellant's statements regarding the right to remain silent are concerned, the same rule applies: the subject must invoke the right to remain silent unambiguously and unequivocally. Id. If a reasonable police officer, in light of all the circumstances, would have understood only that the subject might seek to invoke the right to remain silent and cease all questioning, questioning may continue. State v. Henness, 79 Ohio St.3d 53, 63, 679 N.E.2d 686 (1997). Such phrases as "I think I need to" or "maybe I should" are too ambiguous to invoke the right to cease any further questioning. State v. Clashman, 7th Dist. Jefferson No. 97 JE 8 (Feb. 26, 1999), *4, citing Davis, 512 U.S. 459.

{¶39} Waiver of the right to remain silent can be inferred where a defendant voluntarily speaks to officers after being advised of his rights and after indicating that he understands them. State v. Dillon, 2016-Ohio-1561, 63 N.E.3d 712, ¶ 59 (2nd Dist.); Berghuis at 388-389. This is true even if the suspect refuses to sign a waiver form. Dillon at ¶ 59. "Where a suspect speaks freely to police after acknowledging that he understands his rights, a court may infer that the suspect implicitly waived his rights." State v. Murphy, 91 Ohio St.3d 516, 519, 2001-Ohio-112, 747 N.E.2d 765.

{¶40} Appellant made the following statements on which he relies: "I don't know how much I can tell you, I'm sorry, without incriminating myself" (3/3/22 Tr., p. 6); "Well, once again, I can't incriminate myself" (3/3/22 Tr., p. 8); "Well, again, we're getting into incrimination there" (3/3/22 Tr., pp. 10-11); and "Yeah, I plead the 5th I guess. (3/3/22 Tr., p. 11.)" All four statements are ambiguous and do not convey a clear intent to end the interrogation. In addition, these statements are not viewed in isolation, but looked at in the context of the entire interview. Appellant voluntarily continued speaking after making each of those statements, without directly indicating that he desired to end all questioning. In fact, Appellant interrupted Detective McKee as Detective McKee tried, once again, to explain to Appellant his right to remain silent. (3/3/22 Tr., p. 8.) In order to invoke the right to remain silent it must be clear that the subject actually wishes to remain silent and end the interrogation. State v. Lawson, 4th Dist. Pickaway No. 14CA20, 2015-Ohio-4394, ¶ 19, citing Davis, and Berghuis, supra.

{¶41} Appellant appears to believe that any expression, ambiguous or not, of a desire not to answer a particular question requires all police questioning to cease. This is not the law. As stated in State v. Murphy, "[t]he invocation does not bar further questioning altogether, but police must scrupulously honor the defendant's exercise of his right to cut off questioning." State v. Murphy, 91 Ohio St.3d 516, 519, 747 N.E.2d 765 (2001). In Murphy, the defendant stated that he had not been involved in the crime and "I'm ready to quit talking now and I'm ready to go home, too." Id. The detective left the room for a few minutes, came back with a technician, and the interrogation continued. The defendant continued to answer questions without hesitation and ultimately confessed to the crime. Id. at 520.

{¶42} Appellant's comments regarding his reluctance to answer particular questions posed by Detective McKee are far more ambiguous than the defendant's statement in Murphy that he wished to quit talking and go home. And yet, the Murphy Court determined there was no violation of the right to remain silent in Murphy. Questioning was allowed to continue, even with another police employee sitting in during the interrogation. In the present case, Detective McKee repeatedly made it clear to Appellant that he could stop talking if that is what he wished to do. Yet, Appellant continued to speak. Continued questioning of Appellant was permissible because Appellant voluntarily waived, and continued to waive, his right to remain silent. Questions properly ceased when Appellant unambiguously asserted his right to counsel. The trial court correctly overruled the motion to suppress the March 3, 2022 interview based on the totality of circumstances. Both of Appellant's arguments under this assignment of error are unpersuasive.

Conclusion

{¶43} Appellant contends that the police failed to explain his Miranda rights to him when he was questioned on his porch about a dog being shot near his home. Appellant voluntarily both spoke to the police at his home and gave permission to take the weapon used in the crime. As he was free to leave at any time during the questioning, this encounter was not a custodial interrogation. As such, Appellant was not entitled to Miranda warnings and there can be no Miranda violation. Appellant also argues that his interview with the police two days after he was arrested should have been suppressed because after he mentioned his right to counsel and his right to remain silent the interrogation continued. The record shows that police notified Appellant of his Miranda rights before questioning him, that he did not clearly invoke his right to remain silent and end the interrogation, and that at the moment he did clearly invoke his right to counsel the interview terminated. Based on the totality of circumstances, Appellant's right to remain silent was not violated as there is also no reason to suppress the custodial interview that took place on March 3, 2022. Appellant's assignment of error is overruled and the judgment of the trial court is affirmed.

Hanni, J. concurs.

Dickey, J. concurs.

For the reasons stated in the Opinion rendered herein, Appellant's assignment of error is overruled and it is the final judgment and order of this Court that the judgment of the Court of Common Pleas of Noble County, Ohio, is affirmed. Costs to be taxed against the Appellant.

A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.


Summaries of

State v. Eichler

Court of Appeals of Ohio, Seventh District, Noble
Jul 9, 2024
2024 Ohio 4819 (Ohio Ct. App. 2024)
Case details for

State v. Eichler

Case Details

Full title:STATE OF OHIO, Plaintiff-Appellee, v. DANIEL F. EICHLER…

Court:Court of Appeals of Ohio, Seventh District, Noble

Date published: Jul 9, 2024

Citations

2024 Ohio 4819 (Ohio Ct. App. 2024)