[Cite as State v. Smith,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellate Case Nos. 24264 Plaintiff-Appellee : Appellate Case Nos. 24265 : v. : Trial Court Case Nos. 09-CR-4063/1 : Trial Court Case Nos. 09-CR-2679/2 WAYMOND B. SMITH : : (Criminal Appeal from Defendant-Appellant : (Common Pleas Court) : ...........

OPINION

Rendered on the 30th day of June, 2011.

...........

MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. #0070162, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

LYNNE M. FLEMING, Atty. Reg. #0078520, 15 West Fourth Street, Suite 100, Dayton, Ohio 45402 Attorney for Defendant-Appellant

.............

FAIN, J.

{¶ 1} Defendant-appellant Waymond Smith appeals from his conviction and sentence

in two criminal cases, which have been consolidated for purposes of appeal. In Montgomery

County Common Pleas Court Case No. 2009 CR 02679/2, Smith pled no contest to 2

Aggravated Robbery (Deadly Weapon), with a firearm specification. Smith also pled no

contest in Montgomery County Common Pleas Court Case No. 2009 CR 04063/1 to

Aggravated Robbery (Physical Harm), Aggravated Robbery (Deadly Weapon), Aggravated

Burglary (Physical Harm), Aggravated Burglary (Deadly Weapon), two counts of Aggravated

Murder, and Tampering with Evidence. The charges in the latter case, other than the

tampering charge, contained firearm specifications. Smith was found guilty of the charges in

both cases. He was then sentenced to life in prison with the possibility of parole after 37

years in Case No. 04063/1, to be served concurrently with the nine-year sentence imposed in

Case No. 02679/2.

{¶ 2} Smith contends that the trial court erred in denying motions to suppress that

were filed in both criminal cases. Smith also contends that his no-contest pleas were not

entered knowingly, voluntarily, and intelligently.

{¶ 3} We conclude that the trial court did not err in overruling the motions to

suppress statements that Smith made after receiving Miranda warnings from the police. The

record contains competent, credible evidence to support the trial court’s finding that Smith

was not coerced into making statements to the police. We further conclude that Smith’s

no-contest pleas were entered into knowingly, voluntarily, and intelligently. The record does

not demonstrate that Smith was bewildered, as appellate counsel suggests, that he was

incapable of fully understanding the proceedings or the consequences of his pleas, or that he

was incapable of exercising his will with respect to his decision to plead no contest.

Accordingly, the judgment of the trial court is Affirmed. 3

I

{¶ 4} The charges in these consolidated cases arose from events that occurred on

August 15 and 16, 2009. On the earlier date, Smith committed an aggravated robbery (with a

deadly weapon) at 1538 Almore Avenue in Dayton, Ohio. The next day, Smith trespassed in

an occupied structure at 1529 Weaver Street in Dayton, Ohio with the intent to commit

aggravated robbery. During the course of the robbery, an occupant of the house, David

Green, was shot and killed.

{¶ 5} Detective Gaier of the Dayton Police Department was involved in investigating

the robbery and murder that took place on August 16, 2009. During his investigation, Gaier

learned that Delmar Maxwell and Waymond Smith were the perpetrators of that aggravated

robbery and homicide.

{¶ 6} In November 2009, another detective, who was investigating the August 15,

2009 robbery, traveled to Greensboro, North Carolina, to take custody of Demar Maxwell,

who was a suspect in that case as well. After Maxwell returned to Dayton, Ohio, Gaier then

interviewed Maxwell on three occasions – November 25 and 27, 2009, and December 1, 2009.

{¶ 7} At some point, a warrant was issued for Smith’s arrest in connection with the

August 15, 2009 robbery. Gaier also placed a “lockup broadcast” for Smith with regard to

Green’s murder. Subsequently, on December 2, 2009, police came in contact with Smith,

arrested him, and transported him to the Safety Building in Dayton, Ohio. Gaier and

Detective Rebecca Rose then made contact with Smith in an interview room. Smith appeared

coherent, was able to understand what he was being told, and did not appear to be under the

influence of any drugs or alcohol. 4

{¶ 8} When Gaier initially attempted to go over the pre-interview form, Smith

learned that he was being interviewed about a murder. Smith became uncooperative and tried

to prevent Gaier from reading him his Miranda rights. When Gaier attempted to read each

right, Smith interrupted to say that he had not done anything, and that Gaier did not know

what he was talking about.

{¶ 9} Smith did not ask for a lawyer and did not tell Gaier that he did not want to talk

to him. Instead, Smith kept saying that he had not done anything. After about ten minutes,

Gaier told Smith that he was not going to question him, that he was under arrest for murder,

and that Gaier would book him into the jail. Gaier and Rose then left the interview room,

leaving Smith alone.

{¶ 10} Gaier went to a nearby computer and began the booking process. Within

several minutes, Smith knocked on the interview room door, and told Rose that he wanted to

speak with them and was willing to go over his rights. Gaier and Rose returned to the

interview room and read Smith the Miranda rights. Smith waived his rights, after indicating

both verbally and in writing that he understood them. Smith was then interviewed for

one-and-a-half to two hours. Smith did not ask to stop the interview at any time, nor did he

request a lawyer.

{¶ 11} Smith did not tell the officers during the interview that he was not feeling well,

nor did he say that he had mental health issues. Smith did say that he was using half a gram

of heroin a day at the time of the incident, but he did not appear to be under the influence of

any drugs of abuse when he was interviewed. Smith stated during the interview that he had

some back pain and had been shot in the past. Gaier did not ask Smith if he took any 5

medications, because he normally does not ask people that. Smith appeared normal and gave

logical responses to questions.

{¶ 12} No written statement was made, and no audio or video tapes were made of the

interview. At one point during the interview, Gaier wrote the word “Bullshit” on a yellow

tablet and handed it to Smith. Smith took the paper from Gaier and showed it back to him.

Gaier denied telling Smith that “twelve jurors were not going to believe this B-S.”

{¶ 13} At the end of the interview, Smith was booked into the Montgomery County

Jail. Smith was subsequently indicted for Aggravated Robbery in Case No. 04063/1 and for

Aggravated Robbery, Aggravated Burglary, Aggravated Murder, and the remaining charges in

Case No. 02679/2. Smith filed motions to suppress in both cases, contending that statements

obtained by the police in their custodial interrogation were obtained without the required

procedural safeguards and violated his privilege against self-incrimination.

{¶ 14} The trial court held a combined suppression hearing on both motions in

February 2010. At the hearing, the court heard testimony only from Detective Ritchey, who

had transported Maxwell from North Carolina, and from Detective Gaier, who had

interviewed both Maxwell and Smith. Smith did not present any witnesses or testimony.

Subsequently, the trial court overruled the motions to suppress, and set the cases for trial.

{¶ 15} In August 2010, Smith pled no contest to the charges, as indicated above, and

was sentenced accordingly. Smith appeals from his convictions and sentences.

II

{¶ 16} Smith’s First Assignment of Error is as follows: 6

{¶ 17} “THE TRIAL COURT ERRED IN DENYING DEFENDANT/APPELLANT’S

MOTION TO SUPPRESS.”

{¶ 18} Under this assignment of error, Smith contends that the trial court erred in

denying his motion to suppress, because his confession to police was involuntary under the

totality of the circumstances.

{¶ 19} Standards for reviewing decisions on motions to suppress are well established.

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 (1994),

(citation omitted). As a

result, when we review suppression decisions, “we are bound to accept the trial court’s

findings of fact if they are supported by competent, credible evidence. 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.”

{¶ 20} In a suppression hearing, the State has the burden of proving by a

preponderance of the evidence that the defendant’s Miranda rights were knowingly,

intelligently, and voluntarily waived. Colorado v. Connelly (1986),

,

,

. Voluntary waiver and voluntary confession are separate

issues, but “ ‘the same test is used to determine both, i.e., whether the action was voluntary

under the totality of the circumstances.’ ” State v. Treesh,

, 472,

, citing State v. Clark (1988),

. “In deciding whether a

defendant’s confession is involuntarily induced, the court should consider the totality of the

circumstances, including the age, mentality, and prior criminal experience of the accused; the 7

length, intensity, and frequency of interrogation; the existence of physical deprivation or

mistreatment; and the existence of threat or inducement.” State v. Edwards (1976),

, paragraph two of the syllabus.

{¶ 21} We do not reach the issue of totality of the circumstances, however, unless we

find that the police used a coercive tactic. State v. Perez,

,

. Accord State v. Swopes, Montgomery App. No. 24044,

.

{¶ 22} Smith argues that the police coerced his waiver, due to “overreaching.” In

support of this contention, Smith alleges that the arresting officers told him that he was

“breathing his last air,” and that Gaier said that there would be a lethal injection in the case.

There is no proof, however, that these remarks occurred. When asked about the remarks in

the suppression hearing, Gaier denied any knowledge of the arresting officer’s remarks, and

denied saying anything about a lethal injection.

{¶ 23} In advancing the overreaching argument, Smith also points to evidence that he

was a heroin user. There is no evidence, however, that Smith was under the influence of

drugs when he was interviewed. The only evidence that was elicited is that Smith said he was

a heroin user, and had been using heroin at the time of the alleged robberies, which occurred

several months earlier. Gaier indicated that Smith appeared normal and answered questions

logically while he was being interviewed.

{¶ 24} Coercive tactics can include matters like threats to arrest members of a

suspect’s family, or physical abuse, or deprivation of food, medicine, or sleep. Perez,

; State v. Clark (1988),

. There is no evidence 8

that coercive tactics occurred in the case before us.

{¶ 25} Smith also relies heavily on a decision by the Fourth District Court of Appeals,

which affirmed the suppression of statements where a deputy made repeated

misrepresentations and used other coercive tactics against a defendant who had low mental

aptitude. See State v. Baker (Nov. 2, 1995), Athens App. No. 94CA1644. Again, no

evidence was submitted in the case before us to indicate that the police used coercive tactics or

misrepresentation, and there is no evidence that Smith had a low mental aptitude. In fact, the

evidence at the plea hearing indicates that Smith was 30 years old and had reached his junior

year in college.

{¶ 26} Finally, even if Detective Gaier had accused Smith of lying, admonitions to

suspects to tell the truth are not coercive. See, e.g., State v. Knight, Clark App. No.

04-CA-35,

.

{¶ 27} We note that the trial court accepted Gaier’s testimony that Smith appeared

coherent and normal and did not appear under the influence of any drugs. The court concluded

that Smith had expressly waived his rights with full awareness of the implications. The trial

court further concluded that Smith did not suffer any unconstitutional deprivation when he

met with detectives.

{¶ 28} The trial court’s findings are supported by competent, credible evidence. The

only witnesses were police officers, and Detective Gaier testified that Smith appeared normal,

spoke logically, and waived his rights after being fully advised.

{¶ 29} Smith’s First Assignment of Error is overruled. 9

III

{¶ 30} Smith’s Second Assignment of Error is as follows:

{¶ 31} “APPELLANT’S PLEAS WERE NOT OFFERED KNOWINGLY,

INTELLIGENTLY, AND VOLUNTARILY AS REQUIRED BY LAW.”

{¶ 32} Under this assignment of error, Smith contends that his pleas were not offered

knowingly, intelligently, and voluntarily, because the medications he was taking affected his

ability to understand the implications of tendering his plea, and because he had not taken one

of several prescribed medications in the morning before his plea.

{¶ 33} A defendant’s plea in a criminal case “must be made knowingly, intelligently,

and voluntarily. Failure on any of those points renders enforcement of the plea

unconstitutional under both the United States Constitution and the Ohio Constitution.” State

v. Engle (1996),

. With regard to plea requirements, Crim.R. 11(C)(2)

provides that:

{¶ 34} “In felony cases the court may refuse to accept a plea of guilty or a plea of no

contest, and shall not accept a plea of guilty or no contest without first addressing the

defendant personally and doing all of the following:

{¶ 35} “(a) Determining that the defendant is making the plea voluntarily, with

understanding of the nature of the charges and of the maximum penalty involved, and if

applicable, that the defendant is not eligible for probation or for the imposition of community

control sanctions at the sentencing hearing.

{¶ 36} “(b) Informing the defendant of and determining that the defendant understands 10

the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea,

may proceed with judgment and sentence.

{¶ 37} “(c) Informing the defendant and determining that the defendant understands

that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against

him or her, to have compulsory process for obtaining witnesses in the defendant’s favor, and

to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which

the defendant cannot be compelled to testify against himself or herself.”

{¶ 38} In the case before us, the trial court properly addressed the defendant regarding

the above issues. With regard to medication, the following colloquy occurred:

{¶ 39} “THE COURT: Are you currently under the influence of any drugs, alcohol or

medication?

{¶ 40} “THE DEFENDANT: I take medication.

{¶ 41} “THE COURT: What medication do you take?

{¶ 42} “THE DEFENDANT: I take three different medications, but since I’ve been

in here, I can only get two.

{¶ 43} “THE COURT: I’m sorry?

{¶ 44} “THE DEFENDANT: Three. Three different medications, but since I’ve

been in here, I’ve only been allowed to get two of them.

{¶ 45} “THE COURT: All right. Now, I have to make sure that the record is clear.

What are the medications? When did you last take them?

{¶ 46} “THE DEFENDANT: I take Ativan every – every day, twice a day.

Klonopin’s in the morning. Klonopin’s at night. I’m supposed to take trazodone, tramodol, 11

Prefrin, Cymbalta three times a day, every day. That’s what my body’s used to.

{¶ 47} “THE COURT: All right. Now, the fact that – and you took your medication

this morning?

{¶ 48} “THE DEFENDANT: No. They just – they didn’t do a medicine call for us.

{¶ 49} “THE COURT: All right.

{¶ 50} “THE DEFENDANT: I haven’t had it today.

{¶ 51} “THE COURT: All right. So you’re not –

{¶ 52} “THE DEFENDANT: I’ll get them when I go back.

{¶ 53} “THE COURT: The key question is, when we ask, are you under the influence

of any drugs, alcohol or medication, is you’re not feeling high, or you’re not –

{¶ 54} “THE DEFENDANT: I’m not. I don’t – I’m not – I’m okay.

{¶ 55} “THE COURT: All right. So you’re – so the answer to the question is, to the

question, are you under the influence of any drugs, alcohol or medication should be no. Is

that correct? And I’m asking you because –

{¶ 56} “THE DEFENDANT: I don’t have any alcohol. I take medication that is

prescribed by the doctor.

{¶ 57} “THE COURT: All right. But listen to my question. The question is, are

you under the influence? You can take medicine.

{¶ 58} “THE DEFENDANT: I take it at night, so –

{¶ 59} “THE COURT: Listen to the question.

{¶ 60} “THE DEFENDANT: Sorry. I don’t –

{¶ 61} “THE COURT: Okay. That’s why I want you – I’m asking it. It is a precise 12

question and I need a precise answer. You can take medicine. The question is, are you

under the influence of it, meaning, are you high? Do – are you unable to know where you

are?

{¶ 62} “THE DEFENDANT: No, ma’am.

{¶ 63} “THE COURT: All right. So are you under the influence?

{¶ 64} “THE DEFENDANT: No, ma’am.

{¶ 65} “THE COURT: All right. Very well. Thank you. Are you – do you have

any mental or physical problems that would prevent you from understanding what’s going on?

{¶ 66} “THE DEFENDANT: Well, yes. That, I know so.

{¶ 67} “THE COURT: All right. Again, what are the problems that you’ve been

diagnosed with?

{¶ 68} “THE DEFENDANT: I’m bipolar schizophrenic, you know.

{¶ 69} “THE COURT: All right. So are you on medication for them?

{¶ 70} “THE DEFENDANT: Yes.

{¶ 71} “THE COURT: All right. So, at this point, are you hearing voices?

{¶ 72} “THE DEFENDANT: No, ma’am.

{¶ 73} “THE COURT: Is there anything that would prevent you from understanding

what’s going on? You’ve noted to me that you have problems, and we’ll accept that. Is

there anything about those problems that would prevent you from understanding that we’re

going through with the plea at this point?

{¶ 74} “THE DEFENDANT: If I didn’t understand, just that you know, I would –

{¶ 75} “THE COURT: All right. Let’s go off the record. Well, you go talk to your 13

attorney.

{¶ 76} “THE DEFENDANT: Yeah, man. Just to get – just as well to get it over

with.

{¶ 77} “THE COURT: No.

{¶ 78} “(Counsel Confer)

{¶ 79} “ * * * *

{¶ 80} “THE COURT: All right. Do you have any mental or physical problems that

would prevent you from understanding what’s going on?

{¶ 81} “THE DEFENDANT: No.” Transcript, pp. 72-75.

{¶ 82} The plea hearing took place at 9:30 a.m., and Smith had missed only his

morning dose of medicine. The record does not demonstrate that Smith was bewildered, as

appellate counsel suggests, or that he was incapable of fully understanding the proceedings or

the consequences of his pleas. Compare the colloquy and confusion of the defendant in State

v. Nickell, Wood App. No. WD-07-015,

. In Nickell, the Sixth

District Court of Appeals observed that:

{¶ 83} “Thus, even with the repetitive coaxing and questioning, appellant was unable

to sufficiently focus on and comprehend the nature and objectives of the proceedings. Many

of appellant’s answers were non-responsive, indicating that she clearly did not understand that

under a no contest plea, she would likely be found guilty, or even why she had been charged

with the offense.

{¶ 84} “Even the court itself expressed that it had difficulty discerning whether

appellant’s inability to comprehend was due to lack of education or mental health issues. 14

Nothing in the record indicates that appellant was ‘faking it,’ nor did the trial court make such

a finding. Instead, we conclude that appellant’s ability to understand or to become ‘educated’

as to the legal issues involved was inextricably intertwined with her mental health and

medication issues. Consequently, we conclude that the record shows that, due to her mental

illness and somewhat limited cognitive abilities, appellant was unable to fully participate in

her defense or to appreciate the ramifications of the no contest plea and subsequent conditions

of sentencing.” Id. at ¶117-118.

{¶ 85} In addition, the Sixth District Court of Appeals noted that the defendant

“continued to protest her innocence during both the plea and sentencing hearings, offering

explanations which contradicted the state’s evidence, and asking that the court talk to her

doctor.” Id. at ¶129. In contrast, Smith’s statements at the plea hearing indicate that he was

well aware of the matters itemized in App. R. 11(C)(2).

{¶ 86} Accordingly, Smith’s Second Assignment of Error is overruled.

IV

{¶ 87} Both of Smith’s assignments of error having been overruled, the judgment of

the trial court is Affirmed.

.............

FROELICH and HALL, JJ., concur.

Copies mailed to:

Mathias H. Heck Kirsten A. Brandt 15

Lynne M. Fleming Hon. Frances E. McGee