[Cite as State v. Scullin,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 107866 v. :

JEFFREY W. SCULLIN, JR., :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: August 8, 2019

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-622929-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Christopher D. Schroeder, Assistant Prosecuting Attorney, for appellee.

Patituce & Associates, L.L.C., Joseph C. Patituce, and Megan Patituce, for appellant.

FRANK D. CELEBREZZE, JR., J.:

Defendant-appellant, Jeffrey Scullin, Jr., brings the instant appeal

challenging his convictions for aggravated murder, murder, felonious assault,

tampering with evidence, making false alarms, and endangering children. Specifically, appellant argues that the trial court erred in denying his motion to

suppress and motion to compel discovery. After a thorough review of the record and

law, this court affirms.

I. Factual and Procedural History

The instant matter arose from the murder of Melinda Pleskovic

(hereinafter “victim”) on October 23, 2017, at her residence in Strongsville, Ohio.

The victim was a 49-year-old school teacher.

On October 23, 2017, police were dispatched to the victim’s residence

regarding a possible stabbing. Upon arriving at the home, officers found the victim

laying on the kitchen floor. The victim was unresponsive and bleeding profusely.

She had sustained approximately 35 stab wounds and two gunshot wounds. The

victim was transported to Southwest General Hospital where she was pronounced

dead at approximately 9:00 p.m. (Tr. 156.)

The responding officers also encountered the victim’s husband Bruce

Pleskovic, the victim’s son,1 and appellant at the residence. Appellant was engaged

to the victim’s daughter, and he was living in the basement of the victim’s home at

the time of the murder. Officers spoke with the victim’s husband and appellant at

the scene. Furthermore, officers obtained and executed search warrants for the

residence, three vehicles that were parked in the driveway when officers arrived on

scene, and cell phones belonging to the victim, her husband, and appellant.

1 The victim’s son has Down syndrome. The following day, officers searched one of the vehicles that was parked

in the driveway, a Chevrolet Silverado truck, that appellant had been driving at the

time of the incident. Officers discovered a knife inside the truck that had “some red

staining” on the blade. (Tr. 101.) Preliminary testing of the red substance confirmed

that it was human blood.

The knife was submitted to the medical examiner’s office for DNA

analysis. DNA testing revealed that the victim’s DNA was present on the knife’s

blade and handle, and appellant’s DNA was present on the knife’s handle. After

receiving the results of the DNA testing, officers obtained a warrant for appellant’s

arrest.

On October 31, 2017, after obtaining the DNA testing results and a

warrant for appellant’s arrest, officers asked appellant to come to the Strongsville

Police Department. Appellant was initially interviewed by Strongsville Police

Detective Ron Stolz. During this interview, appellant was placed under arrest.

Subsequently, Lance Fragomeli, an FBI special agent and polygraph

examiner, interviewed appellant and also administered a polygraph examination.

After taking the polygraph examination, appellant ultimately confessed to stabbing

and shooting the victim. Appellant informed the police that he put the gun with

which he shot the victim in a Buick LeSabre, and that the vehicle was parked in the

driveway of his parents’ house. Appellant provided officers with consent to search

the LeSabre. Officers searched the LeSabre and recovered a .357 revolver and a pair

of sweatpants containing blood stains inside. Ballistic testing confirmed that the

victim had been shot by the .357 revolver that was recovered from the LeSabre. DNA

testing of the revolver indicated that appellant’s DNA was on the handle, barrel, and

trigger of the gun. Furthermore, DNA testing of the sweatpants recovered from the

LeSabre indicated that appellant’s DNA was present on the waistband and the blood

stains on the pants were the victim’s blood. (Tr. 232.)

On November 8, 2017, the Cuyahoga County Grand Jury returned a

seven-count indictment against appellant charging him with (1) aggravated murder,

in violation of R.C. 2903.01(A); (2) murder, in violation of R.C. 2903.02(B); (3)

felonious assault, in violation of R.C. 2903.11(A)(1); (4) felonious assault, in

violation of R.C. 2903.11(A)(2); (5) tampering with evidence, in violation of R.C.

2921.12(A)(1), with a forfeiture specification; (6) making false alarms, in violation of

R.C. 2917.32(A)(3); and (7) endangering children, in violation of R.C. 2919.22(A).

Counts 1 through 4 contained one- and three-year firearm specifications. Appellant

was arraigned on November 14, 2017. He pled not guilty to the indictment.

On December 19, 2017, appellant filed a motion for leave to file a

suppression motion after the exchange of discovery. The trial court granted the

motion on December 20, 2017, ordering defense counsel to file a motion to suppress

within 30 days of the exchange of discovery.

On August 16, 2018, appellant filed a motion to compel discovery.

Therein, appellant sought an order compelling the state to turn over any and all evidence related to the polygraph examination that was administered to appellant

on October 31, 2017.

The state filed a brief in opposition to appellant’s motion to compel on

August 27, 2018. Therein, the state argued that the results of the polygraph

examination were not subject to discovery under Crim.R. 16. The trial court denied

appellant’s motion to compel on August 28, 2018.

In addition to the motion to compel, appellant filed a motion to

suppress on August 16, 2018. Appellant filed a supplemental motion to suppress on

August 22, 2018.

In his motions to suppress, appellant requested an order suppressing

the following evidence: (1) the evidence obtained from the search of appellant’s

Chevrolet Silverado truck, which was parked in the driveway of the victim’s

residence on the night of the murder (knife), (2) the evidence obtained from the

search of appellant’s cell phone and phone records, (3) the statements appellant

made to police, and (4) the evidence obtained from the search of the Buick LeSabre,

which was parked in the driveway of appellant’s parents’ house (.357 revolver and

sweatpants containing blood stains). With the exception of the LeSabre, all of these

searches were conducted pursuant to a search warrant. After appellant admitted to

stabbing and shooting the victim during Special Agent Fragomeli’s October 31, 2017

interview, appellant provided officers with consent to search the LeSabre. (Tr. 203.)

On August 27, 2018, the state filed a motion for an extension of time

to respond to appellant’s suppression motion. The trial court granted the motion for an extension of time. The state filed its brief in opposition to appellant’s motion

to suppress on September 18, 2018.

The trial court held a hearing on October 12, 2018. The state placed

the terms of a plea agreement on the record that had been offered to appellant.

Defense counsel indicated that appellant rejected the plea offer. The trial court

proceeded to hold a hearing on appellant’s motion to suppress.

The following six witnesses testified during the suppression hearing:

(1) Dr. Nasir Butt, DNA technical manager and supervisor with the Cuyahoga

County Regional Forensic Science Laboratories; (2) Strongsville Police Officer

Patrick O’Sullivan; (3) Strongsville Police Sergeant Steven Piorkowski;

(4) Strongsville Police Detective Steve Borowske; (5) Detective Stolz; and (6) Special

Agent Fragomeli.

The suppression hearing concluded on October 16, 2018. After

considering the parties’ arguments and the testimony adduced during the hearing,

the trial court denied appellant’s motion to suppress.

On October 17, 2018, appellant withdrew his not guilty plea and

entered a plea of no contest to the seven offenses charged in the indictment. Based

on the evidence proffered, the trial court found appellant guilty on all seven counts

and the underlying specifications. The trial court ordered a presentence

investigation report and set the matter for sentencing.

On October 29, 2018, the trial court held a sentencing hearing. The

trial court determined that Counts 1 through 4 merged for sentencing purposes. The state elected to sentence appellant on Count 1. The trial court also merged the

underlying firearm specifications and elected to sentence appellant on the three-

year firearm specification. The trial court imposed an aggregate prison sentence of

life with the possibility of parole after 33 years: life in prison on Count 1, consecutive

to the three-year firearm specification; three years on Count 5 to be served

concurrently with Count 1; 180 days in jail on both Count 6 and Count 7, to be served

concurrently with Count 1.

On November 2, 2018, appellant filed the instant appeal challenging

the trial court’s judgment. He assigns four errors for review:

I. The trial court erred in improperly shifting the burden from the state to the defense in ruling that the defense did not prove misconduct.

II. The trial court erred in denying appellant’s motion to compel because the evidence sought was material to the defense and relied upon by the state of Ohio.

III. The trial court erred in denying appellant’s motion to suppress because no reasonable person would have believed that the consent to search exceeded beyond the brief period necessary to remove a diaper bag.

IV. The trial court erred in finding the search warrants for appellant’s cell phone and cellular data were supported by probable cause and included particularized descriptions.

For ease of discussion, appellant’s assignments of error will be

addressed out of order.

II. Law and Analysis

A. Motion to Suppress Appellant’s first, third, and fourth assignments of error pertain to the

trial court’s ruling denying his motion to suppress.

1. Standard of Review

This court reviews a trial court’s ruling on a motion to suppress under

a mixed standard of review.

“In a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate witness credibility.” State v. Curry,

,

(8th Dist. 1994). The reviewing court must accept the trial court’s findings of fact in ruling on a motion to suppress if the findings are supported by competent, credible evidence. State v. Burnside,

,

,

. With respect to the trial court’s conclusion of law, the reviewing court applies a de novo standard of review and decides whether the facts satisfy the applicable legal standard.

citing State v. McNamara,

,

(4th Dist. 1997).

State v. Miller, 8th Dist. Cuyahoga No. 106946,

, ¶ 22.

2. Confession

In his first assignment of error, appellant argues that the trial court

erred in denying his motion to suppress with respect to the statements he made to

the police. Specifically, appellant argues that the trial court erred in finding that (1)

Detective Stolz’s initial interrogation on October 31 was noncustodial in nature, and

thus, Miranda warnings were not required, and (2) appellant’s statements were not

coerced and voluntarily made.

a. Detective Stolz’s Initial Interview First, appellant challenges the trial court’s finding that Detective

Stolz’s initial interrogation on October 31 was noncustodial in nature and thus

Miranda warnings were not required.

Prior to a custodial interrogation, the accused must be apprised of his or her right against self-incrimination and right to counsel. Miranda v. Arizona,

,

,

(1966). Miranda defines “custodial interrogation” as any “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”

.

Cleveland v. Oles,

,

, ¶ 13 (8th Dist.).

During the suppression hearing, Detective Stolz testified that on the

morning of October 31, 2017, he received the results of the DNA testing from Dr.

Butt. The results indicated that the victim’s DNA was present on the blade and the

handle of the knife that was found in appellant’s pickup truck, and appellant’s DNA

was present on the knife’s handle. After receiving the testing results, police obtained

an arrest warrant for appellant.

After obtaining a warrant for appellant’s arrest, Detective Stolz

contacted appellant around 10:30 a.m. and asked him to come to the police station.

Appellant arrived at the police station around noon, and Detective Stolz brought him

into the interview room in the police station’s detective bureau.

Detective Stolz explained that appellant had previously came into the

police station, on his own free will, earlier that week on October 24 and 26, 2017.

When appellant came into the station on the 24th and the 26th, he was not under

arrest or detained in any way, and he was free to leave at any time. Detective Stolz interviewed appellant on the 24th and 26th in the same interview room in the

detective bureau.

During the interview on October 31, Detective Stolz testified that when

appellant was initially brought inside the interview room, he was not placed under

arrest or handcuffed. However, he explained that unlike the previous interviews on

October 24 and 26, if appellant attempted to terminate the interview and leave the

police station during the October 31 interview, he would have been placed under

arrest.

During the October 31 interview, before appellant was advised of his

Miranda rights, Detective Stolz began going over appellant’s previous statements

about his whereabouts on the day of the murder. The officers were asking appellant

the same questions they had previously asked him: “[s]imple, open-ended

questions; who, what, where, why. We went over ascertaining change [in appellant’s

responses].” (Tr. 245.) Detective Stolz asserted that he was asking appellant “to

corroborate where he was [on October 23, 2017], not specific questions about the

murder itself.” (Tr. 246.) He confirmed that during this initial interview, he was not

asking appellant whether he murdered the victim or the location of any weapons

that had been used.

Approximately 20 minutes into the interview, Detective Stolz began

confronting appellant with information and evidence that contradicted appellant’s

statements. After he confronted appellant with the evidence that he received from Dr. Butt, Detective Stolz placed appellant under arrest and advised appellant of his

Miranda rights.

After reviewing the record, we find no merit to appellant’s argument

regarding Detective Stolz’s initial interview. Appellant did not confess during

Detective Stolz’s initial interview, nor during the post-arrest phase of Detective

Stolz’s interview. Appellant denied any wrongdoing during Detective Stolz’s

interview, and did not confess to stabbing and shooting the victim until much later

in the day during Special Agent Fragomeli’s post-polygraph interview.

Assuming, arguendo, that the trial court erred in finding that

Detective Stolz’s initial interview was noncustodial in nature, any error in this regard

would be harmless. See State v. Nelson,

,

(8th

Dist.). “Harmless error is an error that does ‘not affect substantial rights.’ Crim.R.

52(A). The harmless error standard asks whether the rights affected are substantial

and, if so, whether a defendant has suffered any prejudice as a result. State v.

Harris,

,

,

.” State v. Lindsey,

8th Dist. Cuyahoga No. 106111,

; see also State v. Durham,

,

, ¶ 172 (8th Dist.), citing State v. Lytle,

,

(1976) (applying harmless error doctrine to a purported

Miranda violation).

In this case, appellant did not make any incriminating statements

during the initial interview with Detective Stolz, nor did he confess to having any

involvement in the murder. Even after Detective Stolz arrested appellant and advised appellant of his Miranda rights, appellant repeatedly insisted that he did

not do anything wrong, that the victim took him in and was like a mother to him,

and that he would not hurt anyone.

For all of these reasons, we find no merit to appellant’s argument that

the trial court erred in concluding that the initial interview conducted by Detective

Stolz was not a “custodial interrogation” implicating Miranda. Appellant’s first

assignment of error is overruled in this respect.

b. Police Misconduct

Second, appellant argues that he did not voluntarily waive his

Miranda rights and that his confession was coerced. In support of this argument,

appellant asserts that (1) Detective Stolz manipulated him using his infant daughter;

(2) Special Agent Fragomeli psychologically coerced him using his infant daughter,

and manipulated appellant into compiling an apology letter addressed to his

daughter; and (3) Detective Stolz repeatedly threatened him with the death penalty

and threatened to charge him with a crime that does not exist in the state of Ohio.

In denying appellant’s motion to suppress, the trial court concluded

that (1) appellant knowingly, intelligently, and voluntarily waived his Miranda

rights and spoke to the police, and (2) appellant’s statements were voluntarily made

and not the result of coercion or police misconduct. The trial court emphasized that

officers read appellant his Miranda rights multiple times, including when he was in

custody, and each time, appellant voluntarily spoke with the officers and never

indicated he did not understand the Miranda rights. The trial court also emphasized that appellant did not attempt to invoke his Miranda rights or his right

to counsel at any time, nor did he attempt to stop the interviews in any way.

In support of these findings, the trial court explained that (1)

throughout the process of interrogating appellant on October 31, 2017, officers

provided food and water to appellant; (2) when appellant complained of a headache,

the officers provided aspirin to him; (3) the officers took several breaks and gave

appellant “more time” when he asked for it (rather than continuously interrogating

him); and (4) officers made sure appellant was comfortable, and they

accommodated appellant when he said his handcuffs were too tight. Regarding

Detective Stolz’s reference to the death penalty, the trial court concluded that it was

not an “illusory promise” and that the death penalty was a possibility at the time.

i. Apology Letter

Regarding Special Agent Fragomeli’s suggestion that appellant write

an apology letter to his daughter, Special Agent Fragomeli testified during the

suppression hearing that he — not appellant — started writing the apology letter

during the pre-polygraph interview. Special Agent Fragomeli explained the purpose

for his suggestion that appellant write the letter:

During our conversation I asked [appellant], I said, Hey, look. I’d like you to consider doing an apology letter to your daughter. And the reason is you can let her know the entire truth [about the October 23, 2017 incident]. If it is not a premeditated murder, if it is something else you’re embarrassed or afraid about, you can let her know right now. And then years down the road when she can read and write, and she’s in school, people on the Internet will not use this situation to bully her, to traumatize her. And that’s why I asked him to write that apology letter. (Tr. 214-215.)

In support of his argument that Special Agent Fragomeli improperly

suggested that appellant write an apology letter to his daughter, appellant directs

this court to State v. Bohanon, 8th Dist. Cuyahoga No. 89443,

. In

Bohanon, the defendant-appellee filed a motion to suppress oral and written

statements she had made to police. During one interview, a detective suggested that

the defendant write an apology letter to her aunt. Following the detective’s

suggestion, the defendant wrote an apology letter to her aunt in which she confessed

to the theft offense with which she was charged. The state introduced a copy of the

defendant’s apology letter into evidence. The trial court granted the defendant’s

motion to suppress the statements she made to police, concluding that the

defendant’s admission to the theft offense and written apology were not voluntarily

made.

On appeal, this court affirmed the trial court’s judgment suppressing

the defendant’s statements. Initially, this court noted that in 1988, the First District

found that it was “suspect” to ask the subject of an interrogation to draft an apology

letter. Id. at ¶ 12, citing State v. MacDonald, 1st Dist. Hamilton No. C-860833,

, 6-7 (Jan. 13, 1988). This court found “subtle inducement” in

the detective’s suggestion that the defendant write an apology letter to her aunt. Id.

at ¶ 11. The court went on to conclude, “the inducement inherent in the officer’s

suggestion that [the defendant] write her aunt a letter of apology, combined with [the defendant’s] limited intelligence and psychological conditions, rendered her

confession in this case involuntary.” (Emphasis added.) Id. at ¶ 12.

After reviewing the record, we find this case to be distinguishable from

Bohanon. First, in Bohanon, the defendant was initially found to be incompetent to

stand trial.2 Id. at ¶ 2.

[The defendant] was found to be mildly mentally retarded, with a documented IQ testing of 66. She also suffered from a psychotic disorder and was taking two anti-psychotic drugs. She was unable to understand the nature and objective of the legal proceedings and to assist her attorney at that time. The report establishing her restoration to competency diagnosed [the defendant] as suffering from bipolar disorder and borderline intellectual functioning.

Id. at ¶ 7.

In this case, unlike Bohanon, appellant’s competency was not called

into question, nor was appellant found to be incompetent at any point. See

MacDonald at 6 (although questions existed regarding the literacy of the defendant,

“there was no allegation that his mentality was subnormal.”). Furthermore, there is

no evidence in the record that appellant has limited intelligence, any mental diseases

or defects, or that he was under the influence of alcohol, drugs, or medications at the

time of Special Agent Fragomeli’s interview.

Second, unlike Bohanon, appellant did not draft, sign, or assent to the

apology letter. Special Agent Fragomeli testified that the letter contained his words,

not appellant’s words, and he compiled the letter using a “reflective listening”

2 The defendant was later restored to competency. technique. (Tr. 215.) Special Agent Fragomeli drafted the letter based on his

understanding of what appellant communicated to him during the interview.

Finally, Special Agent Fragomeli confirmed that the document he compiled during

the interview was not, in fact, a letter because “it was never fulfilled. It was never

verified. It was never signed [by appellant]. * * * It is just notes.” (Tr. 216.)

Third, unlike Bohanon, in which the defendant confessed to the theft

offense with which she was charged in the apology letter, appellant did not confess

to the murder during the pre-polygraph interview during which Special Agent

Fragomeli suggested that he write the letter. Appellant also denied any wrongdoing

during the polygraph examination and during the early stages of the post-polygraph

interview.

Based on the foregoing analysis, we are unable to find that any

inducement inherent in Special Agent Fragomeli’s suggestion that appellant write

an apology letter to his daughter rendered appellant’s subsequent confession

involuntary. Accordingly, appellant’s first assignment of error is overruled in this

respect.

ii. Death Penalty

Appellant further argues that his confession was coerced because the

police repeatedly threatened him with the death penalty.

During the suppression hearing, Detective Stolz acknowledged that

during the October 31, 2017 interview, he asked appellant whether he wanted to see

his daughter again, and he told appellant that he would not get any “breaks” at the sentencing hearing. (Tr. 248.) Detective Stolz asserted that he asked appellant if he

knew the difference between premeditated murder and aggravated murder. (Tr.

249.) Furthermore, Detective Stolz advised appellant that the police would pursue

the charge of premeditated murder. (Tr. 250.)

Detective Stolz acknowledged during the suppression hearing,

however, that (1) premeditated murder and aggravated murder are “the same thing,”

(2) the crime of premeditated murder does not exist, and (3) he mistakenly

referenced the crime of premeditated murder and/or suggested that there was a

difference between premeditated murder and aggravated murder during the

interview.

Defense counsel asked Detective Stolz on cross-examination if he

threatened appellant with the death penalty or told appellant that he was “not going

to be around very long” during the October 31, 2017 interview. (Tr. 251-252.)

Detective Stolz testified that he “asked [appellant] if he knew what could happen

[regarding sentencing].” (Tr. 252.) Detective Stolz confirmed, “I didn’t threaten

[the death penalty]. I asked [appellant] simply did he know that [the death penalty]

was definitely a possibility.” (Tr. 252.)

The trial court rejected the defense’s theory that appellant’s

confession was coerced by the references to the death penalty during the October 31,

2017 interrogation. The trial court explained that it “was not an illusory promise

when Detective Stolz told [appellant] that he faced the possibility of the death

penalty, and there was nothing improper or coercive about that.” (Tr. 278.) In support of his argument that his confession was coerced by

Detective Stolz’s threats regarding the death penalty, appellant directs this court to

State v. Kerby, 2d Dist. Clark No. 03-CA-55,

. In Kerby, the

defendant confessed to his involvement in a murder and attempted robbery. The

defendant filed a motion to suppress his confession, which the trial court denied.

On appeal, the defendant argued, in relevant part, that “his confession

was involuntary because it was obtained through the use of coercion and deception,

along with tactics inducing fright and despair.” Id. at ¶ 19. The Second District

concluded that the trial court erred in denying the motion to suppress because “the

evidence fails to demonstrate that [the defendant’s] confession was voluntary.” Id.

at ¶ 21. In support of its holding, the court explained that the officers’ suggestion

that the defendant could face the death penalty was “deceptively misleading and a

misstatement of the law” which undermined the defendant’s ability to voluntarily

waive his Fifth Amendment privilege against self-incrimination. Id. at ¶ 84-86. The

Second District emphasized that at the time of the interview, the interrogating

officers were aware of the defendant’s age, 17 years old, which eliminated the

possibility of the death penalty. Nevertheless, the officers “attempted to create the

impression that [the defendant] could be facing a death sentence unless he

cooperated with them and confessed.” Id. at ¶ 87. For all of these reasons, the court

concluded that the misstatement about the death penalty

deprived [the defendant] of his capacity to intelligently and voluntarily waive his Fifth Amendment rights. When considering the totality of the surrounding circumstances, these factors outweigh the influence of [the defendant’s] maturity and the overall short duration of the interrogation. Thus, we find that the trial court erred in determining that [the defendant’s] confession to the police was voluntary.

Id. at ¶ 87.

After reviewing the record, we find this case to be distinguishable from

Kerby. First, unlike Kerby, the death penalty was not statutorily precluded based

on appellant’s age. Second, unlike Kerby, Detective Stolz did not deliberately

mislead appellant or misstate the law regarding the possible penalties appellant

could face. Pursuant to R.C. 2929.03(D)(1), the death penalty is a possible sentence

for the offense of aggravated murder. Although Detective Stolz acknowledged that

he made a misstatement of the law during the interview, the misstatement pertained

to his reference of premeditated murder and to the extent that he implied that there

was a difference between premeditated and aggravated murder. Detective Stolz’s

misstatement of law did not pertain to the possible penalties that appellant could

face.

Third, unlike Kerby, Detective Stolz did not definitively know whether

appellant would be charged with any death penalty specifications. At the time of the

October 31, 2017 interview, the case had not been presented to the grand jury. As

such, Detective Stolz had no way of knowing whether the state would pursue and

whether the grand jury would charge appellant with any death penalty specifications

pursuant to R.C. 2929.04(A)(1)-(10).

“An interrogator may inform the suspect of the penalties for the

offense of which he is suspected.” State v. Bays,

,

(1999), citing State v. Arrington,

,

(6th

Dist. 1984), United States v. Ballard,

(5th Cir. 1978), and United

States v. Vera,

(11th Cir. 1983). In State v. Western, 2015-Ohio-

627,

(2d Dist.), the Second District held that the interrogating

detectives’ repeated references to the death penalty were not improper because,

based on the facts of the case, the detectives reasonably suspected that the defendant

committed the offense of aggravated murder with prior calculation and design. Id.

at ¶ 44. Accordingly, the court held that the detectives “did not overstate the

potential charges against [the defendant], and they did not misstate the law in telling

[the defendant] that he faced a possible death sentence if he were charged with

premeditated murder.” Id.

Similarly, in the instant matter, Detective Stolz was permitted to

inform appellant about the penalties for the offenses he was suspected of

committing. The investigators reasonably suspected that appellant committed the

crime of aggravated murder with prior calculation and design, for which one

possible sentence is the death penalty. Furthermore, appellant did not confess to

the murder during the interview with Detective Stolz. As noted above, appellant

continued to deny any wrongdoing during the interview with Detective Stolz, the

pre-polygraph interview, polygraph examination, and the initial stages of the post-

polygraph interview with Special Agent Fragomeli.

Finally, the record reflects that appellant raised the issue of death

penalty prior to the October 31, 2017 interrogations. During the suppression hearing, Detective Stolz testified, “prior to [the October 31 interview] in a different

interview I asked [appellant] what should happen to the person that is responsible

for this crime, and he had offered the death penalty.” (Emphasis added.) (Tr. 253.)

Accordingly, before Detective Stolz referenced the death penalty on October 31,

2017, appellant had an independent and subjective belief that the perpetrator could

be sentenced to death.

Based on the foregoing analysis, we are unable to conclude that

Detective Stolz improperly referenced the death penalty during the October 31, 2017

interview, or that these references rendered appellant’s subsequent confession

involuntary. Accordingly, appellant’s first assignment of error is overruled in this

respect.

iii. Burden

Finally, appellant argues that the trial court “engaged in

unconstitutional burden shifting” and “erred in improperly shifting the burden from

the state to the defense in ruling that the defense did not prove [police] misconduct.”

Appellant’s brief at 4.

Typically, if a defendant “challenges a confession as involuntary, the

state must prove a knowing, intelligent, and voluntary waiver by a preponderance of

the evidence.” State v. Wesson,

,

,

. Appellant appears to argue that the trial court improperly shifted the

burden from the state (to prove that the confession was voluntary and that appellant knowingly, intelligently, and voluntarily waived his Miranda rights) to the defense

to establish the existence of police misconduct or coercion.

The state directs this court to R.C. 2933.81(B), which became effective

in July 2010. In State v. Jallah, 8th Dist. Cuyahoga No. 101773,

,

this court recognized that pursuant to R.C. 2933.81(B), when an interrogation is

recorded electronically, as was the case here, a defendant’s statements during the

recorded interrogation are presumed to be voluntary. Id. at ¶ 80. Furthermore, this

court explained that the statute places the burden on appellant to demonstrate that

the recorded statement or confession was involuntary. Id.

In the instant matter, we initially note that it is undisputed that there

was a period of time, approximately two to three hours, during which the camera

was turned off during the interviews on October 31, 2017. Appellant relies on this

two-to-three-hour gap in the video recording in support of his argument that his

confession was coerced. See appellant’s brief at 9 (“[Special] Agent Fragomeli began

interrogating [a]ppellant only after the cameras were turned off.”).

Special Agent Fragomeli testified during the suppression hearing that

after executing consent and waiver forms regarding the polygraph examination, he

conducted a pre-polygraph interview with appellant. The pre-polygraph interview

was not recorded. (Tr. 191.) Special Agent Fragomeli explained what he discussed

with appellant during the pre-polygraph interview: “I asked him to tell me basically

why he’s here, and just to make sure we’re on the same page. Then I asked him to

go through his day on October 23rd to the best of his recollection.” (Tr. 191.) Special Agent Fragomeli testified that appellant denied any wrongdoing or involvement in

the murder during the pre-polygraph interview: “[appellant] told me that he did not

have any involvement with the injuries to [the victim] in any matter. That was it.”

(Tr. 195.)

The post-polygraph interview, during which appellant confessed, was

electronically recorded. Furthermore, the entire interview conducted by Detective

Stolz was electronically recorded. As appellant acknowledges, “[t]he trial court had

the opportunity to review each of the recorded interviews, and relied upon them

heavily in reaching its decision.” Appellant’s brief at 9.

Because appellant’s statements and confession were recorded

electronically, the trial court did not err in shifting the burden from the state to the

defense to prove coercion. Furthermore, after reviewing the record, and based on

the totality of the circumstances in this case, we find that the evidence supports the

trial court’s findings that (1) appellant knowingly, intelligently, and voluntarily

waived his Miranda rights, and (2) appellant failed to meet his burden of

establishing police misconduct or coercion. Accordingly, appellant’s first

assignment of error is overruled in this respect.

For all of the foregoing reasons, we overrule appellant’s first

assignment of error. After reviewing the record, and based upon the totality of the

circumstances, we are unable to conclude that appellant’s statements were made

involuntarily or that his will was overborne. For purposes of evaluating the voluntariness of a confession, the “totality of the circumstances” includes: “‘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. Lynch,

,

,

, ¶ 54, quoting State v. Mason,

,

(1998).

State v. Martinez, 8th Dist. Cuyahoga Nos. 103572 and 103573,

.

This court will not conclude that appellant’s Miranda waiver was

involuntary “unless there is evidence of police coercion, such as physical abuse,

threats, or deprivation of food, medical treatment, or sleep.” Wesson,

,

,

; see also State v. Treesh,

,

(2001) (finding that a reviewing court need not

assess the totality of the circumstances unless the court finds that the tactics used by

the detectives were coercive).

Appellant was 21 years old when he was interviewed on October 31,

2017. Although appellant did not obtain his high school diploma, he obtained an

HVAC certificate and was employed. During the change-of-plea hearing, appellant

confirmed that he is able to read and write. (Tr. 332.)

Although appellant asserts that he “suffer[s] from educational

deficiencies,” there is no evidence in the record indicating that he has mental or

intellectual deficiencies or defects. Appellant’s brief at 14. There is no indication

that appellant was under the influence of drugs or alcohol during the October 31,

2017 interviews. The October 31 interrogations were not appellant’s first interaction

with the police in this case. Detective Stolz explained that appellant voluntarily came

into the police station and spoke with him on two occasions earlier in the week. The

October 31 interviews were conducted in the same location, the interview room in

the detective’s bureau, as the prior interviews. As such, appellant was familiar with

the location.

Throughout the course of the interviews, appellant was fed. Also, on

several occasions, appellant was offered water and asked if he needed anything else.

Appellant asserted that he had a headache, and he was provided aspirin.

Detective Stolz testified that appellant arrived at the police station on

October 31, 2017, around noon. Thereafter, Detective Stolz interviewed appellant.

During this interview, Detective Stolz placed appellant under arrest. After Detective

Stolz’s interview, Special Agent Fragomeli conducted a pre-polygraph interview, a

polygraph examination, and a post-polygraph interview. Appellant confessed to

stabbing and shooting the victim during the post-polygraph interview. Detective

Stolz testified that after Special Agent Fragomeli’s interviews, appellant was

returned to his cell at approximately 9:30 p.m.

Special Agent Fragomeli did not continuously interrogate appellant

without taking a break. Several breaks were taken over the course of the day. When

appellant requested a break and asserted that he needed more time, the

interrogation was suspended. Detective Stolz and Special Agent Fragomeli were accommodating to

appellant and ensured that he was comfortable during the interrogations. Appellant

was not handcuffed during the initial interview with Detective Stolz. At one point,

after appellant had been placed under arrest and handcuffed, appellant asserted that

the handcuffs were too tight. Officers adjusted the handcuffs and confirmed that

appellant was comfortable. Appellant was not handcuffed when he confessed to the

murder during Special Agent Fragomeli’s post-polygraph interview. Special Agent

Fragomeli testified that he never saw appellant in handcuffs.

At all times during the interrogation, the officers were calm and

respectful towards appellant. Appellant was not verbally abused, and the officers

did not yell or scream at him. There is no evidence that appellant was physically

abused or threatened. Finally, there is no evidence that appellant was subjected to

any physical deprivation or mistreatment at any time during the interrogations.

Finally, a review of the video recordings of the October 31 interviews

supports the trial court’s findings with respect to the voluntary nature of appellant’s

Miranda waiver and confession. For all of the foregoing reasons, we find that the

trial court did not err in concluding that appellant’s statements were voluntarily

made and not the result of coercion or police misconduct.

Appellant’s first assignment of error is overruled.

3. Search of Appellant’s Truck

In his third assignment of error, appellant challenges the trial court’s

judgment as it pertained to the search of his truck. Specifically, appellant contends that the police exceeded the scope of his consent and the search warrant authorizing

the police to search the truck was invalid.

The Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution protect against unreasonable searches and seizures and provide that a warrant can be issued only if probable cause for the warrant is supported by an oath or affirmation and particularly describes the place to be searched and the persons or things to be seized. See also Crim.R. 41(C); R.C. 2933.23.

In deciding whether probable cause exists for the issuance of a search warrant, the issuing judge must make “‘a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” State v. George,

,

(1989), paragraph one of the syllabus, following Illinois v. Gates,

,

,

(1983). “[C]onsiderations to be taken into account when determining whether to issue a search warrant include how stale the information relied upon is, when the facts relied upon occurred, and whether there is a nexus between the alleged crime, the objects to be seized, and the place to be searched.” State v. Castagnola,

, ¶ 34,

,

, citing 2 LaFave, Search and Seizure, Section 3.7(a), (b), (d). “‘To establish probable cause to search a home, the facts must be sufficient to justify a conclusion that the property that is the subject of the search is probably on the premises to search.’” State v. Marler, 2d Dist. Clark No. 2007 CA 8,

, ¶ 26, quoting State v. Freeman, 4th Dist. Highland No. 06CA3,

. “The nexus between the items sought and the place to be searched depends upon all of the circumstances of each individual case, including the type of crime and the nature of the evidence.” State v. Carter, 2d Dist. Greene No. 2011 CA 11,

, citing Freeman at ¶ 13.

The duty of the reviewing court is to ensure that the issuing judge had a “substantial basis” for concluding that probable cause existed. Castagnola at ¶ 35; George at paragraph two of the syllabus. When conducting any after-the-fact scrutiny of an affidavit submitted in support of a search warrant, reviewing courts should accord “great deference” to the issuing judge’s determination of probable cause; “doubtful or marginal cases should be resolved in favor of upholding the warrant.” George at paragraph two of the syllabus. Neither a trial court nor an appellate court may substitute its judgment for that of the issuing judge by determining de novo whether the affidavit provided sufficient probable cause. Id.

State v. Tutt,

,

, ¶ 36-38 (8th Dist.).

As an initial matter, this court need not address appellant’s arguments

pertaining to his consent to search the vehicle and the scope thereof because we find

that the police obtained a valid search warrant authorizing them to search the truck

in which the knife was recovered.

The search warrant references the three vehicles that were located

within the premises of the victim’s residence, and describes the truck as “A red

Chevy pickup truck, Ohio license plate CW40SY, VIN 2GCEC19V321418495[.]” The

search warrant provided that probable cause existed to believe that evidence was

being concealed within the victim’s residence and/or the three vehicles, including,

specifically, “Knives, bladed instruments[.]”

With respect to the search warrant that authorized the police to search

the truck, this court must determine whether, considering the totality of the

circumstances, Officer O’Sullivan’s affidavit provided a substantial basis for the

issuing judge to conclude there was, in fact, a fair probability that there was evidence

related to the murder in appellant’s truck.

The search warrant was issued based on the affidavit of Officer

O’Sullivan, a ten-year veteran of the Strongsville Police Department. In his affidavit,

Officer O’Sullivan referenced the three vehicles that were parked in the driveway of the victim’s residence upon his arrival, and specifically identified the red truck as

one of the vehicles. Officer O’Sullivan averred, in relevant part,

3. Affiant avers that officers learned from Southwest General Hospital that [the victim] died later that night. She suffered 35 stab wounds and two gunshot wounds.

***

11. Affiant avers that there were three vehicles parked in the driveway of the residence at the time officers arrived on scene. * * *

13. Affiant further avers that it is necessary to search the three vehicles located on the premises for all of the same evidence described above,[3] as individuals who commit criminal activity frequently travel to or from the scene of the crime using cars, and leave trace amounts of biological material, weapons, or cellular or electronic devices in their cars after the offense.

“Statements made in a search warrant affidavit enjoy a presumption

of validity. State v. Taylor,

,

,

(1st Dist.). Without evidence to the contrary, this court is bound to find the

statements made in the affidavit valid and, thus, the warrants valid.” State v. Mock,

,

(8th Dist.).

In determining whether to issue a search warrant, one consideration

to be taken into account is “whether there is a nexus between the alleged crime, the

objects to be seized, and the place to be searched.” State v. Castagnola,

,

,

, citing 2 LaFave, Search and Seizure,

Section 3.7(a), (b), (d) (5th Ed. 2012). As noted above, “[t]he nexus between the

items sought and the place to be searched depends upon all of the circumstances of

3 Including, specifically, “[k]ni[v]es, bladed instruments[.]” each individual case, including the type of crime and the nature of the evidence.”

Carter, 2d Dist. Greene No. 2011 CA 11,

, citing Freeman,

4th Dist. Highland No. 06CA3,

.

Appellant appears to argue that the police did not have any specific

information or evidence that the truck was connected to the murder or that any

evidence related to the murder was inside the truck. Appellant’s argument is

misplaced. “The issuing judge need only have concluded that there was a fair

probability that contraband or evidence of a crime would be found inside the [place

to be searched].” Tutt,

,

, at ¶ 47, citing Carter at ¶ 21.

After reviewing Officer O’Sullivan’s affidavit, and considering the

facts set forth therein, we find that probable cause did, in fact, exist to issue the

search warrant entitling police to search the residence and the three vehicles in the

driveway. Officer O’Sullivan’s affidavit provided the issuing judge with a substantial

basis for determining that there was a fair probability that evidence related to the

murder would be found in the truck.

The police were actively investigating the murder, and the search

warrant was issued after the police learned that the victim sustained gunshot and

stab wounds that led them to believe that the perpetrator and the victim knew one

another. Officer O’Sullivan testified that the victim’s injuries were indicative of a

“crime of passion,” and as a result, all of the victim’s family members were

considered as suspects. (Tr. 62.) Sgt. Piorkowski testified that he considered anyone

that was at the scene as a suspect. Officer O’Sullivan explained during the suppression hearing that it

was necessary to search the vehicles because the evidence officers were looking for,

including the knife and gun with which the victim was attacked, could have been

contained in any one of the vehicles. Officers also believed that any of the vehicles

at the scene, including the pickup truck, “could have either brought or removed any

evidence from the scene.” (Tr. 61.) On redirect examination, Officer O’Sullivan

confirmed that the weapons used in the murder were capable of being stored in a

truck. At the time he executed the affidavit in support of the search warrant, Officer

O’Sullivan learned that appellant had been driving the pickup truck that was in the

driveway when he arrived on scene.

Given the fact that (1) the truck was observed in the driveway of the

residence when officers arrived on scene, (2) Officer O’Sullivan initially encountered

appellant standing in the driveway when he arrived on scene, (3) officers learned

that the victim sustained stab and gunshot wounds (as a result, they were looking

for a gun and a knife), and (4) officers suspected that the victim was murdered by

someone she knew, we conclude that the trial court could have concluded that there

was a sufficient nexus between the truck and the murder and a “fair probability”

existed that evidence would be found inside the vehicle.

After reviewing the record, we find that the trial court properly denied

appellant’s motion to suppress as it pertained to the search of the pickup truck. The

totality of the circumstances set forth in Officer O’Sullivan’s affidavit support the

issuing judge’s probable-cause determination. The officers sufficiently established the existence of probable cause to search the truck based on the fact that the truck

was present at the scene of the crime, the victim was stabbed and shot, and officers

reasonably believed that a gun or knife could have been transported, stored, or

concealed in the truck, and the officers reasonably believed that the victim was

murdered by someone she knew — the truck had been driven by appellant who was

engaged to the victim’s daughter and residing in the basement of the victim’s

residence at the time of the murder.

Finally, as noted above, this court is obligated to accord great

deference to the probable-cause determination made by the magistrate or judge who

issues the search warrant and resolve any doubtful or marginal case in favor of

upholding the search warrant. George,

,

,

paragraph two of the syllabus.

Based on the foregoing analysis, we find that the issuing judge had a

substantial basis for finding a fair probability that evidence, weapons, and the other

items specified in the search warrant would be found in the truck. As such, the trial

court did not err in denying appellant’s motion to suppress the evidence seized

during the search of the truck. Appellant’s third assignment of error is overruled.

4. Search of Cell Phone and Phone Records

In his fourth assignment of error, appellant challenges the trial court’s

judgment as it pertained to the search of his cell phone and cell phone records.

Specifically, appellant contends that the search warrants authorizing the police to

search the cell phone and phone records were invalid. In his motion to suppress, appellant argued that the search warrants and affidavits failed to establish probable

cause that evidence would be found on the cell phone or in the phone records.

a. Cell Phone

Police obtained a search warrant authorizing them to search the cell

phones of the victim’s husband, the victim, and appellant. The three cell phones

were seized at the scene of the murder.

The search warrant was issued based on the affidavit of Detective

Borowske, a 28-year veteran of the Strongsville Police Department. This court must

determine whether, considering the totality of the circumstances, Detective

Borowske’s affidavit provided a substantial basis for the issuing judge to conclude

there was, in fact, a fair probability that there was evidence related to the murder on

appellant’s cell phone.

In his affidavit, Detective Borowske identified the three phones that

were seized. He averred, in relevant part,

9. * * * Officer O’Sullivan also obtained a search warrant authorizing him to search the [victim’s] residence * * * for, among other things, “[a]ny cell phones, computers, electronic storage or media devices.” That warrant was signed by the Honorable Judge Steven E. Gall.

***

11. Affiant further avers that both Bruce Pleskovic and [appellant] voluntarily provided their cell phones to officers at the scene. * * *

12. Affiant avers, based on his training and experience, that individuals who engage in criminal activity frequently exchange calls or text messages about the crimes before, during, and after the incidents. Affiant avers that it necessary to search the contents of the cell phones recovered from [Bruce, the victim, and appellant] to determine the nature and extent of any communications they may have had regarding the break-ins, the murder, or anything else relevant to [the victim’s] death, for photographs relevant to the investigation, and for GPS data and cell phone tower data.

13. Affiant avers that it is necessary to search the above-described cell phone for any personal communications including but not limited to opened and unopened e-mail messages, instant messages (IM), text messages, letters, and other electronic records, documents, correspondence stored and/or exchanged in electronic form, notes, memoranda, address lists, telephone directories, screen name lists, buddy lists, advertisements, faxes, audio and visual tape recordings, materials or items reflecting or relating in any way to communications or contacts between any individuals.

After reviewing Detective Borowske’s affidavit, and considering the

facts set forth therein, we find that probable cause did, in fact, exist to issue the

search warrant entitling police to search the cell phones. Detective Borowske’s

affidavit provided the issuing judge with a substantial basis for determining that

there was a fair probability that evidence related to the murder would be found on

the cell phones.

The police were actively investigating the murder, and the search

warrant was issued after the police learned that the victim sustained gunshot and

stab wounds that led them to believe that the perpetrator and the victim knew one

another.

Officer O’Sullivan acknowledged during the suppression hearing

that the police did not have any specific evidence that appellant’s cell phone was

connected to or contained evidence related to the murder. However, he explained

that officers believed there was a possibility that the cell phone contained such

evidence. (Tr. 71.) Detective Borowske explained why it was important to search the cell

phones belonging to the victim’s husband, the victim, and appellant: “[w]e had to

eventually obtain the information from the phones to corroborate testimony or

statements that were given to officers.” (Tr. 131.) He went on, “[w]e were given

information that certain persons that were [at the scene], obviously [the victim],

Bruce, and [appellant], were telling us where they were at certain times so we wanted

to make sure those stories were true or untrue.” (Tr. 132.)

b. Phone Records

Police obtained a search warrant to search appellant’s

T-Mobile/Metro PCS phone records between October 10 and October 23, 2017. The

search warrant was issued based on the affidavit of Detective Borowske.

In his affidavit, Detective Borowske averred, in relevant part,

13. Affiant avers, based on his training and experience, that individuals who engage in criminal activity frequently exchange calls or text messages about the crimes before, during, and after the incidents. Affiant avers that it is necessary to obtain the cell phone records for [appellant’s phone] to determine the nature and extent of any communications that [appellant] may have had with anyone about the murder, as well as to determine [appellant’s] location, and the identities and contact information of the people with whom he communicated. Affiant therefore avers that it is necessary to obtain the cell phone records for [appellant’s] number from T-Mobile.

After reviewing Detective Borowske’s affidavit, and considering the

facts set forth therein, we find that probable cause did, in fact, exist to issue the

search warrant entitling police to search the phone records. Detective Borowske’s

affidavit provided the issuing judge with a substantial basis for determining that there was a fair probability that evidence related to the murder would be found in

the phone records.

Detective Borowske testified during the suppression hearing that it

was important to obtain appellant’s phone records “[t]o corroborate his statements,

his whereabouts, what he had told officers at the scene.” (Tr. 138.) Officers wanted

to learn (1) whether appellant communicated with anyone about the murder, (2)

appellant’s location (using GPS coordinates), and (3) the identities of any contacts

on the phone that could potentially be witnesses. (Tr. 138-139.) Detective Borowske

confirmed that officers believed that this information would be found in appellant’s

phone records.

Furthermore,

[t]his court has previously found no privacy right exists for cell phone records maintained by a phone company. [State v. Crawford, 8th Dist. Cuyahoga No. 98605,

,] ¶ 47 (“telephone users have no right of privacy in the numerical information they convey to the telephone company. Courts have also held that this reasoning applies to cell phone records obtained from cell phone companies as well.”), citing State v. Neely, 2d Dist. Montgomery No. 24317,

; United States v. Dye, N.D.Ohio No. 1:10CR221,

(Apr. 27, 2011). Information that has been voluntarily turned over to third parties does not enjoy protection because a person does not have a legitimate expectation of privacy in such information.

Mock,

,

.

After reviewing the record, we find that the trial court properly

denied appellant’s motion to suppress as it pertained to the search of his cell phone

and phone records. The totality of the circumstances set forth in Detective

Borowske’s affidavits support the issuing judge’s probable-cause determinations. The officers sufficiently established the existence of probable cause to search the

phone and phone records based on the fact that appellant was at the scene of the

murder when officers arrived, and the officers reasonably believed that the victim

was murdered by someone she knew. Furthermore, the officers sufficiently

established that information about appellant’s whereabouts on the day of and at the

time of the murder would be found on the cell phone and in the cell phone records,

and this information could be used to corroborate the statements that appellant

made to police.

Finally, as noted above, this court is obligated to accord great

deference to the probable-cause determination made by the magistrate or judge who

issues the search warrant and resolve any doubtful or marginal case in favor of

upholding the search warrant. George,

,

,

paragraph two of the syllabus.

Based on the foregoing analysis, we find that the issuing judge had a

substantial basis for finding a fair probability that evidence and other items specified

in the search warrants would be found on appellant’s cell phone and in his phone

records. As such, the trial court did not err in denying appellant’s motion to

suppress the evidence seized during the search of the cell phone and phone records.

Appellant’s fourth assignment of error is overruled. B. Motion to Compel

In his second assignment of error, appellant argues that the trial

court erred in denying his motion to compel the state to provide defense counsel

with evidence pertaining to appellant’s polygraph examination.

A trial court enjoys considerable discretion in regulating the

exchange of discovery. State ex rel. Daggett v. Gessaman,

,

(1973). “The granting or overruling of discovery motions in a criminal

case rests with the sound discretion of the trial court.” State v. Spates, 8th Dist.

Cuyahoga No. 100933,

, ¶ 44, citing State v. Shoop,

,

(3d Dist. 1993). A trial court abuses its discretion if its

decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,

,

(1983).

In his motion to compel, appellant requested the trial court to order

the state to produce “any and all documentation, video, audio, data, statements,

charts, graphs, data recordings, data captures, or other evidence related to the

polygraph[.]”4 Appellant asserted that the state’s failure to disclose the evidence

related to the polygraph constituted a violation of appellant’s constitutional rights,

4 During oral arguments, appellant’s counsel explained that he did not want the state to turn over a video recording of the polygraph examination to use at trial; rather, he wanted the state to turn over charts and/or graphs from the polygraph examination that Special Agent Fragomeli used during the post-polygraph interview. a violation of Brady v. Maryland,

,

,

(1963),5

and a violation of Crim.R. 16(B)(1), (4), and (5).

Crim.R. 16(B), governing discovery and inspection, provides, in

relevant part,

Upon receipt of a written demand for discovery by the defendant * * * the prosecuting attorney shall provide copies or photographs, or permit counsel for the defendant to copy or photograph, the following items related to the particular case indictment * * * and which are material to the preparation of a defense, or are intended for use by the prosecuting attorney as evidence at the trial, or were obtained from or belong to the defendant, within the possession of, or reasonably available to the state, subject to the provisions of this rule:

(1) Any written or recorded statement by the defendant or a co- defendant, including police summaries of such statements, and including grand jury testimony by either the defendant or co- defendant;

***

(4) * * * results of physical or mental examinations, experiments or scientific tests;

(5) Any evidence favorable to the defendant and material to guilt or punishment * * *.

Appellant acknowledged in his motion to compel that the evidence is

generally inadmissible at trial. Nevertheless, he maintained that the evidence was

still subject to disclosure as a written or recorded statement by the defendant, the

result of a scientific test, and evidence that was favorable to the defendant and

material to guilt or punishment.

5 In Brady, the United States Supreme Court held that pursuant to the Due Process

Clause, the state is required to disclose evidence that is both favorable to the defendant and material to either guilt or punishment to the defense. In his appellate brief, appellant acknowledges the holdings in Wood

v. Bartholomew,

,

,

(1995), and State v. Davis,

,

(1991). In Wood, the United States Supreme Court

concluded that the results of a polygraph examination administered to a state

witness were not discoverable under state law or Brady v. Maryland. As such, the

court determined that the prosecution’s failure to turn over the polygraph results

did not constitute a discovery violation.

“In [Davis],

,

(1991), the Ohio

Supreme Court determined that due to their scientific unreliability, polygraph

examination results of prosecution witnesses are not considered exculpatory

material discoverable under either Crim.R. 16 nor [Brady],

,

,

(1963).” State v. Penque,

,

, ¶ 61

(8th Dist.). The Ohio Supreme Court explained, “[t]his court has never held that a

defendant is entitled to the results of polygraph examinations, nor has this court

held that polygraph examinations are scientific tests which are discoverable

pursuant to Crim.R. 16.” Davis at 342.

In the instant matter, appellant argues that Wood and Davis are

distinguishable because they involved polygraphs that had been administered to

other third-party individuals, whereas appellant sought evidence related to the

polygraph that was administered to himself. After reviewing the record, we disagree

and find no merit to this argument. The Eleventh District considered a similar argument in State v.

Dykes, 11th Dist. Lake No. 92-L-078,

(Dec. 17, 1993).

In Dykes, the defendant-appellant appeared to argue that the state and the trial

court “circumvent[ed] the discovery rules and appellant’s subpoena power by failing

to produce or order the production of clearly discoverable evidence.” Id. at 42.

Appellant filed a discovery request for the production of the results of a polygraph

examination that had been administered to a codefendant, and the state did not

produce the results during the exchange of discovery. On appeal, in opposing

appellant’s argument, the state cited Davis “for the proposition that polygraph

results are not discoverable as scientific tests under Crim.R. 16(B)(1)(d).” Id. at 45.

In support of his argument, appellant argued that the Davis holding “only applied

to witnesses who were not defendants or co-defendants.” Id.

The Eleventh District rejected appellant’s argument, concluding that

there is no indication that the Davis holding was limited to polygraph examinations

administered to third-party witnesses and did not apply to polygraph examinations

administered to defendants and codefendants. Furthermore, the court emphasized,

“[u]nder no circumstances are polygraph results discoverable scientific evidence.”

(Emphasis added.) Id.

In this case, like Dykes, appellant argues that the Davis holding is

inapplicable because he requested evidence related to his polygraph examination,

not a polygraph examination that was administered to a third-party witness. We

disagree, and find no basis upon which to depart from the Davis holding. The Ohio Supreme Court’s holding in Davis was based on the

subjective and scientific unreliability of polygraph examinations, not the fact that

the defendant-appellant sought the results of polygraph examinations administered

to three witnesses of the prosecution. The court explained,

The nature of polygraphs is different from traditional scientific tests. Most, if not all, scientific tests involve objective measurements, such as blood or genetic typing or gunshot residue. In a polygraph test, the bodily response of the examinee to his answers is dependent upon the subjective interpretation thereof by the examiner. Inasmuch as the test is not perceived by the profession to be reasonably reliable, its admissibility is limited in Ohio to situations where the parties stipulate to its admission.

Davis,

,

, citing State v. Souel,

,

(1978).

Finally, to the extent that appellant argues that the results of the

polygraph examination or answers he gave during the examination were

discoverable under Crim.R. 16(B)(1) as a recorded statement by the defendant, we

disagree. The Fourth District rejected a similar argument in State v. Phillips, 4th

Dist. Pickaway Nos. 89-CZ-32 and 89-CA-33,

(Mar. 5,

1992).

In Phillips, the defendants-appellants argued that the trial court

erred by failing to order the state to disclose to the defense the questions and

answers of a polygraph examination that had been administered to an individual

that was purportedly involved in the arson. Alternatively, the defendants argued

that the defense was, at a minimum, entitled to an in camera inspection of the summary of the polygraph results. The defendants specifically asserted that the

individual’s answers to the polygraph questions were statements for purposes of

Crim.R. 16. Id. at 17. The Fourth District rejected the defendants’ argument,

concluding that “[t]he concluding summary of a polygraph examiner’s

interpretation of [the examinee’s] answers are not [the examinee’s] written, signed,

or adopted statement subject to an in camera inspection by the defense.” (Emphasis

deleted.) Id.; see also State v. Johnson, 2d Dist. Montgomery No. 14176,

, 23 (Sept. 9, 1994) (“[s]tatements of the examinee prior to and

following the polygraph test are not discoverable as scientific tests or witness

statements”).

Similarly, in this case, Special Agent Fragomeli’s summary or

interpretation of appellant’s answers during the polygraph examination do not

constitute a written or recorded statement by appellant. Accordingly, Special Agent

Fragomeli’s summary and conclusions regarding the polygraph examination are not

subject to disclosure under Crim.R. 16(B)(1).

After reviewing the record, we find no basis upon which to conclude

that the trial court abused its discretion in denying appellant’s motion to compel.

The results of polygraph examinations, regardless of to whom they are

administered, are neither admissible at trial, scientifically reliable, nor discoverable

under Crim.R. 16. Accordingly, appellant’s second assignment of error is overruled.

III. Conclusion After thoroughly reviewing the record, we overrule appellant’s

assignments of error. The trial court did not err in denying appellant’s motion to

suppress the statements he made to the police or the evidence obtained from the

searches of appellant’s truck, cell phone, and phone records. Furthermore, the trial

court did not err or abuse its discretion in denying appellant’s motion to compel.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

convictions having been affirmed, any bail pending is terminated. Case remanded

to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., JUDGE

SEAN C. GALLAGHER, P.J., and ANITA LASTER MAYS, J., CONCUR