[Cite as State v. Gray,

.]

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

STATE OF OHIO : : Appellate Case No. 27207 Plaintiff-Appellant : : Trial Court Case No. 16-CR-1201 v. : : (Criminal Appeal from ERNEST GRAY : Common Pleas Court) : Defendant-Appellee : :

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OPINION

Rendered on the 17th day of February, 2017.

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MATHIAS H. HECK, JR., by MEAGAN D. WOODALL, Atty. Reg. No. 0069386, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402 Attorney for Plaintiff-Appellant

KRISTINE E. COMUNALE, Atty. Reg. No. 0062037, Law Office of the Public Defender, 117 South Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellee

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HALL, P.J.

{¶ 1} The State of Ohio appeals, pursuant to R.C. 2945.67 and Crim.R. 12(K), from

the trial court’s decision and entry sustaining in part defendant-appellee Ernest Gray’s -2-

motion to suppress evidence.

{¶ 2} The State advances two assignments of error. First, it contends the trial court

erred in sustaining Gray’s suppression motion where he did not unambiguously invoke

his right to remain silent during police questioning. Second, the State claims the trial court

erred in finding Gray’s confession to gross sexual imposition involuntary under the totality

of the circumstances.

{¶ 3} The record reflects that Dayton police received a complaint in March 2016

about Gray, who was 73 years old, inappropriately touching a six-year-old relative’s

vagina on a specific occasion. In April 2016, detectives contacted Gray, and he agreed

to be interviewed at the police station. He voluntarily arrived on April 15, 2016 and

proceeded to an interview room with two detectives, Hollie Bruss and Elizabeth Alley. The

interview began at 9:05 a.m. Detective Bruss advised Gray that the was being interviewed

in connection with a sexual-assault investigation. She also advised him of his Miranda

rights and inquired about his understanding of them. Gray, who had 11 years of schooling,

indicated that he understood his rights and waived them. The detectives proceeded to

interview Gray, on and off, over a period of two and one-half hours. Gray repeatedly

denied allegations that he had touched the young girl’s vagina. He also asserted that he

did not “remember” touching the child inappropriately. Approximately 50 minutes into the

interview, Alley suggested alternatives to explain what might have occurred, including the

child possibly placing his hand “down there.” The following exchange then occurred:

Gray: I know I didn’t go down inside her pants and touch her.

Alley: Did she put your hand down there?

Gray: [lengthy pause] I’m just gonna leave it like that, I’m just gonna -3-

leave it like that.

Alley: Why?

Gray: I’m just gonna leave it like that, I’m just gonna leave it like that.

Alley: Tell me why [pause], why are you gonna leave it just like that?

Gray: Because I don’t have anything else to say, leave it like that.

Alley: So you’re gonna make this little girl out to be a liar?

Gray: No, well, I’m not making her out to be a liar or nothin’ like that,

but she, she knows better than that.

Alley: Let me ask you this. Would it be helpful for you to write it down

so you don’t have to talk about it? Sometimes people might prefer to write

something down when they don’t want to talk about it.

Gray: Well, I don’t have nothin’, nothin’ else to say. I don’t have

nothin’ else to say.

Alley: You know people are more willing to forgive somebody who

said that I messed up and I made a mistake. And you can get past this, but

the first step is acknowledging that you made a mistake, and say I messed

up, and I’m sorry. And I think you know in your heart what you need to do.

Gray: I don’t remember touching her. I don’t—I know I didn’t touch

her.

(Interview DVD, Suppression Hearing Exh. 1, beginning at approximately 9:57 a.m.).

{¶ 4} Alley continued to question Gray for about 12 more minutes. She then offered

him time alone to write something down on a piece of paper. At 10:10 a.m. both detectives

left the room and closed the door. At 10:18, Gray opened the door and got the detectives’ -4-

attention. Alley returned to the room and sat near Gray, who proceeded to make

incriminating statements. He admitted touching the child’s vagina, described how the

incident occurred, and acknowledged telling her not to report the incident. Questioning

then continued intermittently with the two detectives entering and exiting the room until

11:23 a.m., when Gray was handcuffed and taken to jail.

{¶ 5} In May 2016, Gray moved to suppress the incriminating statements he made

in his interview. During a June 2016 evidentiary hearing on his motion, the State

presented testimony from Bruss and Alley, who testified about the interview. The trial

court also reviewed a DVD of the interview, which had been recorded in full. After the

hearing, Gray filed a memorandum in support of his motion. He argued that his statements

were made during a custodial interrogation, that his statements occurred after he

unequivocally invoked his right to remain silent, and that his statements were involuntary

and not the product of his free will. (Doc. #21). In response, the State argued that,

although Miranda warnings were given, Gray was not in custody when he made his

incriminating statements. Alternatively, the State asserted that Gray validly waived his

Miranda rights and never unambiguously invoked his right to remain silent. (Doc. #22).

{¶ 6} In a July 27, 2016 decision and entry, the trial court sustained Gray’s

suppression motion with respect to all statements he made after 9:57 a.m. on the

interview DVD. (Doc. #23). With regard to the existence of a custodial interrogation and

the corresponding necessity of Miranda warnings, the trial court found it “immaterial

whether the State was required to issue Miranda warnings.” (Id. at 5). Because the

detectives had advised Gray of his Miranda rights, the trial court reasoned that the State

was “estopped to deny these rights on an after the fact assertion that Defendant was not -5-

in custody and therefore the rights did not apply.” (Id. at 6). In any event, the trial court

also found “that this was a custodial interrogation and the Miranda warnings apply.” (Id.).

The trial court next concluded that Gray unambiguously invoked his constitutional right to

remain silent when he made the statements set forth above about wanting to “leave it like

that” and not having anything else to say. (Id. at 14-16). Because Alley continued

questioning Gray, the trial court found his subsequent incriminating statements subject to

suppression. Finally, the trial court also concluded that Gray’s confession was involuntary

under the totality of the circumstances because his will was overborne by coercive police

conduct. (Id. at 16-18).

{¶ 7} In its first assignment of error, the State challenges the trial court’s

determination that Gray unambiguously invoked his right to remain silent. In context, the

State contends Gray’s statement about wanting to “leave it like that” reasonably may be

interpreted to mean only that he did not wish to supplement or amend his previous answer

about not touching the victim inside her pants. Gray’s subsequent statement about not

having anything else to say came in response to Alley asking him why he wished to “leave

it like that.” Therefore, according to the State, the comment about not having anything

else to say reasonably may be interpreted as the rationale for Gray not wanting to

supplement or amend his previous answer. At a minimum, the State argues that Gray’s

remarks about wanting to “leave it like that” because he had nothing else to say did not

unambiguously express his desire to remain silent and terminate the interview. Upon

review, we find the State’s argument to be persuasive.

{¶ 8} “When considering a motion to suppress, the trial court assumes the role of

trier of fact and is therefore in the best position to resolve factual questions and evaluate -6-

the credibility of witnesses. Consequently, an appellate court must accept the trial court’s

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

facts as true, the appellate court must then independently determine, without deference

to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.”

(Citations omitted.) State v. Burnside,

,

,

. Here the facts are not in dispute, and we have a DVD recording of Gray’s interview

to review. Whether he unambiguously invoked his right to remain silent involves a legal

issue that we review de novo. State v. Strong, 1st Dist. Hamilton Nos. C-100484, C-

100486,

; see also United States v. McWhorter,

(6th Cir. 2013) (“Upon de novo review, we conclude that McWhorter’s statement

to Park was not an unambiguous assertion of his right to remain silent.”); United States

v. McCarthy,

(10th Cir. 2010) (“We review legal questions,

including the issue of whether a defendant unambiguously asserted his right to remain

silent, de novo.”).

{¶ 9} For present purposes, we will assume, arguendo, that Gray was subject to a

custodial interrogation, notwithstanding the fact that he voluntarily went to the police

station to speak with the two detectives. Once seated in the interview room, Gray was

advised of his Miranda rights and waived them. In light of that waiver, the detectives were

not obligated to stop questioning him unless he unambiguously invoked his right to remain

silent. State v. Murphy,

,

(2001). If a “suspect says

something that may or may not be an invocation of the right, police may continue to

question him; they need not treat the ambiguous statement as an invocation or try to clear

up the ambiguity.”

We note too that “a suspect’s alleged invocation must be examined -7-

in context, not in isolation.” Strong at ¶ 47, citing

.

{¶ 10} In our view, Gray’s statement about wanting to “leave it like that” appears

to be related to his previous answer about not going inside the victim’s pants. In other

words, he was expressing a desire to stand on that answer without modifying or amending

it in response to Alley’s suggested explanation for what had occurred. When Alley asked

why he wanted to “leave it like that,” Gray responded that he had nothing else to say. This

statement appears to be an explanation for his decision to stand on his previous answer.

The statements are at most ambiguous as to whether he had nothing more to say about

a particular question or whether he more broadly desired to terminate the interview.

{¶ 11} We note that a suspect expressing a desire not to elaborate on a prior

answer because he has nothing else to say about it is not the same as expressing a

desire to invoke the right to remain silent and to terminate the interview. State v. Blythe,

2d Dist. Montgomery No. 24961,

, citing State v. House,

,

(1978), citing State v. Anspaugh,

,

(1976) (finding no rescission of a Miranda waiver where in response to a

certain question the defendant stated that he would “rather not make any other comments

at this time”). Because Gray never unambiguously invoked his right to remain silent, the

trial court erred in suppressing the incriminating statements he made based on a

perceived violation of that right.1

1 In light of this conclusion, we need not address the State’s alternative arguments that the trial court erred in suppressing (1) unsolicited statements Gray subsequently made while alone in the interview room (2) statements Gray made after purportedly re-initiating questioning with the detectives. (See Appellant’s brief at 12-14). Given our determination above that Gray’s right to remain silent was not violated at all, these issues (which the State does not appear to have raised below) are moot. -8-

{¶ 12} In opposition to the foregoing conclusion, Gray cites State v. Miller, 7th Dist.

Mahoning No. 13 MA 12,

, and argues that his case is analogous to it.

(Appellee’s brief at 12). We disagree. The defendant in Miller put his head down and

repeatedly stated unequivocally, “I’m done talking.” He then added, “I ain’t got nothing

else to say.” He also said, “I told you everything I know. There ain’t nothing else to talk

about.” Miller at ¶ 56-60. The Seventh District concluded that the defendant’s initial

statement (“I’m done talking.”) was an unambiguous invocation of his right to remain

silent. Id. at ¶ 61-62.

{¶ 13} As set forth above, Gray did not make clear that he was “done talking” and

wanted to terminate the interview. Instead, after being given an opportunity to modify or

elaborate on an answer he had given, he stated that he would “leave it like that.” This

statement was not an unambiguous invocation of his right to remain silent. Nor was Gray’s

subsequent statement that he had nothing else to say. As we have explained, Gray made

this statement in response to a question about why he wanted to leave his prior answer

“like that.” Again, we see no unambiguous expression of Gray’s desire to terminate the

interview. Accordingly, the State’s first assignment of error is sustained.

{¶ 14} In its second assignment of error, the State contends the trial court erred in

finding Gray’s confession involuntary under the Fifth Amendment. The State asserts that

his confession was voluntary and that nothing about the circumstances surrounding it

established otherwise.

{¶ 15} This court set forth the standards governing the voluntariness of a

confession in State v. Simpson, 2d Dist. Montgomery No. 25069,

, as -9-

follows:

“A suspect’s decision to waive his Fifth Amendment privilege against

self-incrimination is made voluntarily absent evidence that his will was

overborne and his capacity for self-determination was critically impaired

because of coercive police conduct. State v. Otte (1996),

;

State v. Petitjean (2000),

. Coercive police activity is

a necessary predicate to finding a confession involuntary within the

meaning of the Due Process Clause of the Fourteenth Amendment. State

v. Wiles (1991),

.

“The voluntary nature of a defendant’s statement is determined from

the totality of the circumstances. State v. Slagle (1992),

;

State v. Treesh (2001),

. A confession is involuntary if, on

the totality of the circumstances, the defendant’s will was overborne by the

circumstances surrounding his giving of the confession. Dickerson v. United

States (2000),

,

,

;

“The totality of the circumstances test takes into consideration both

the characteristics of the accused and the details of the interrogation.

Factors to be considered include 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. Edwards (1976),

. Use of deceit by the interrogating police officers and -10-

misrepresentations made to the suspect about the evidence police possess

do not per se render a confession involuntary, per se. Rather, it is but one

factor bearing on voluntariness. State v. Cooey (1989),

.

***

“Whether an accused’s confession was voluntary for purposes of the

Fifth Amendment presents a question of law. An appellate court reviews

that issue de novo, not being bound by the trial court’s judgment on the

same legal issue. The appellate court must give strong deference to the trial

court’s findings of the facts which underlie a claim of involuntariness.”

Id. at ¶ 52, quoting State v. Waldo, 2d Dist. Champaign No. 99 CA 24,

(Sept. 21, 2001).

{¶ 16} In addition to its finding that Gray’s right to remain silent was violated when

the detectives questioned him after made the statements discussed above, the trial court

also more broadly found his confession involuntary under the totality-of-the-

circumstances test. The trial court determined that coercive police activity caused Gray’s

will to be overborne and his capacity for self-determination to be critically impaired. It

reasoned:

The facts of this case indicate that the Defendant’s will was

overborne by the circumstances surrounding the giving of the confession.

The Defendant is a seventy three year old man with little prior experience

with law enforcement. Defendant executed a Pre-interview form and was

advised of his right to terminate that interview at any time. The Defendant

attempted to terminate the interview. The Detectives persisted and did not -11-

scrupulously honor the request to terminate the questioning. Rather, the

Detectives prompted him to keep speaking.

***

There is coercive police activity here. Defendant came to the police

station voluntarily, at the request of the investigating Detective. Prior to the

interrogation, a Pre-Interview Form was utilized. Defendant was advised of

his Miranda rights. Defendant signed the waiver. Defendant is an older

adult, he does not have any prior experience with law enforcement.

Defendant is elderly, but is not developmentally disabled or handicapped in

any particular way. He did not graduate from high school and does not have

experience with the criminal justice system. There is no evidence that

Defendant was deprived of food or sleep. There is no evidence that

Defendant was deprived of water. There is no evidence that Defendant was

denied restroom breaks.

The Defendant was interrogated on one occasion. The encounter

was intense but relatively short in time. Defendant was not threatened.

Defendant was not promised anything in exchange for his statements.

Defendant was told he could terminate the questioning at any time.

Defendant attempted to do that. His request was ignored. Defendant

adamantly denied the allegation and continued to do so repeatedly.

Defendant was first advised of the specific allegation about twenty minutes

into the interrogation. Detective Bruss used tactics like offering Mr. Gray

scenarios of how it happened that would not be so bad, suggesting that the -12-

complaining witness deserves an apology, told him that if he did not admit

it he would be seen as a monster. Detective Alley then addressed

Defendant and was initially kind and friendly. She progressively became

more confrontational in her tactics to get Mr. Gray to confess. Once Mr.

Gray said he had nothing else to say, she did not stop until Mr. Gray, as

anyone in his position would have, came to the conclusion that the only way

to end this was to give the Detectives what they wanted to hear.

Defendant was closed in an interrogation room with two Detectives

and read his Miranda warnings, which included the right to stop questioning

at any time. He was then interrogated by the two Detectives, one after the

other, who relentlessly tried to get him to change his denial to an admission.

Eventually, only after Defendant Gray told [them] he had nothing more to

say, invoking his right to stop the questioning, and having Detective Alley

persist, right in his face, Defendant made incriminating statements. The

State has not met its burden of preponderance of the evidence in this

voluntariness-of-confession case. The circumstances of lack of experience

with law enforcement, lack of education for many years, intensity of the

interrogation, and failure to scrupulously honor the right to remain silent,

indicate lack of voluntariness.

(Doc. #23 at 16-18).

{¶ 17} Upon review, we disagree with the trial court’s legal conclusion regarding

the voluntariness of Gray’s confession. In its factual findings, which are supported by the

record, the trial court recognized that Gray was elderly but had no mental or -13-

developmental disabilities. The record does not indicate that he had any prior experience

with law enforcement. Although Gray did not graduate from high school, he reported

having eleven years of education. The DVD recording of his interview reflects that he

understood what was happening and was able to read, albeit with some difficulty. The

trial court noted that he was advised of his rights and waived them, that he was not

deprived of anything, that no impermissible threats or promises were made to him, and

that the interview was “intense” but not particularly lengthy. 2 We note too that the

detectives used interview techniques intended to elicit a confession, such as

sympathizing with Gray, establishing a rapport, minimizing his actions, and offering

alternative scenarios regarding what had occurred. But they did not lie about the evidence

or make false representations to him.

{¶ 18} Although the trial court cited the “intensity” of the interview as a factor

militating toward an involuntary confession, we find nothing remarkable about it. Having

reviewed the DVD recording, we note that the tone was conversational and generally

polite. The detectives never raised their voices, and Gray never appeared to feel

threatened or intimidated. The detectives did tell Gray they disbelieved his denials, but

Alley also urged him to tell the truth and not to tell them something he did not do.

{¶ 19} A significant factor in the trial court’s finding of an involuntary confession

appears to be its belief that the detectives failed to honor Gray’s invocation of his right to

remain silent. As set forth in our analysis of the first assignment of error, however, we

conclude that Gray never unambiguously invoked that right. Therefore, contrary to the

2Although the total length of time Gray spent in the interview room was roughly two and one-half hours, we note that he was not interviewed the entire time. In addition, he began making the incriminating statements at issue approximately 50 minutes into the interview. -14-

trial court’s finding, the detectives did not fail to honor Gray’s invocation of his right to

remain silent.

{¶ 20} In the end, the record reflects a relatively routine and benign interview of an

elderly suspect who possessed a modest education and no prior experience with law

enforcement. Gray was told he could terminate the questioning at any time, but he never

unambiguously did so. We see nothing about the interview to support a finding that his

will was overborne and his capacity for self-determination was critically impaired because

of coercive police conduct. Accordingly, the State’s second assignment of error is

sustained.

{¶ 21} The judgment of the Montgomery County Common Pleas Court is reversed,

and the cause is remanded for further proceedings.

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WELBAUM, J., concurs.

FROELICH, J., dissenting: {¶ 22} The Appellee initialed and signed a pre-interview form listing that he was

being interviewed for “sexual assault” and which stated:

“If you decide to answer questions now without a lawyer present, you will

still have the right to stop answering at any time. You also have the right

to stop answering at any time until you talk to a lawyer.”

Realizing that Appellee had difficulty in reading and writing, the detective orally explained

what this meant: “So if you start talking today and you decide you’re done talking, you

have that right.” (DVD at 9:10:26) The Appellant was then asked questions by the

detective and they began talking about the complainant. -15-

{¶ 23} After a half hour, in response to questions about his touching her vagina,

he says “I know I didn’t go down inside her pants and touch her.” The detective then

asks, “Did she put your hand down there?” The Appellee says twice, “I’m just going to

leave it like that,” and, subsequently, in response to further questions, “Because I don’t

have anything else to say, leave it like that,” and “I don’t have nothin’ else to say.”

{¶ 24} He had been told that if he decided he was done talking, he could stop

answering. True, he could have said “pursuant to my rights under the Fifth Amendment

to the U.S. Constitution as applicable to the states through the due process clause and

pursuant to Article I, Section 10 of the Ohio Constitution, I invoke my right to remain

silent,” or “not only do I have nothing else to say about whether I put my hands in her

pants and touched her ‘down there,’ but I do not have anything else to say about

anything,” or perhaps, as in Miller, “I am done talking.”

{¶ 25} Even assuming he was expressing his decision not to talk about going

inside the victim’s pants, that touching is the gravamen of the crime of sexual assault for

which he was being interviewed – and about which he had “nothin’ else to say.” I would

find that this semi-literate suspect who had no previous contact with law enforcement

unambiguously expressed his desire to stop answering questions.

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Copies mailed to:

Mathias H. Heck Meagan Woodall -16-

Kristine E. Comunale Hon. Timothy N. O’Connell