[Cite as State v. Davis, 2018-Ohio-1763.]


STATE OF OHIO                     )                     IN THE COURT OF APPEALS
                                  )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                           C.A. No.       17CA011091

        Appellee

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
ANTHONY W. DAVIS                                        COURT OF COMMON PLEAS
                                                        COUNTY OF LORAIN, OHIO
        Appellant                                       CASE No.   16CR093262

                                  DECISION AND JOURNAL ENTRY

Dated: May 7, 2018



        CARR, Judge.

        {¶1}     Defendant-Appellant Anthony W. Davis appeals from the judgment of the Lorain

County Court of Common Pleas. This Court affirms.

                                                   I.

        {¶2}     In connection with a homicide, Davis was indicted on two counts of murder, two

counts of felonious assault, one count of tampering with evidence, and two counts of having

weapons while under disability. The murder and felonious assault counts each included a

firearm and repeat violent offender specification. The charge for tampering with evidence

included two accompanying firearm specifications. Ultimately, the State dismissed one of the

firearm specifications accompanying the tampering with evidence charge.

        {¶3}     Davis filed a motion to suppress alleging that police elicited his initial statements

without providing the warnings set forth in Miranda v. Arizona, 384 U.S. 436 (1966). Thus,

Davis argued that his later post-Miranda statements were also inadmissible as fruit of the
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poisonous tree. The State opposed the motion and a hearing was held. The trial court issued a

journal entry overruling the motion to suppress. The trial court found the officer’s testimony

credible and concluded that the public safety exception applied. Thus, the trial court determined

that the officer’s initial questioning inquiring about a weapon did not require Miranda warnings.

          {¶4}   The matter proceeded to a jury trial. Davis was found guilty of the charges and

specifications in the indictment and was sentenced to an aggregate term of 25 years to life in

prison.

          {¶5}   Davis has appealed, raising a single assignment of error for our review.

                                                  II.

                                    ASSIGNMENT OF ERROR

          THE TRIAL COURT ERRED IN FAILING TO SUPPRESS STATEMENTS
          BECAUSE THE INITIAL QUESTIONING OF DEFENDANT-APPELLANT
          ROSE TO THE LEVEL OF CUSTODIAL INTERROGATION AND IS
          SUBJECT TO MIRANDA. (Emphasis added.)

          {¶6}   Davis argues in his sole assignment of error that the trial court erred in failing to

suppress Davis’ statements. Specifically, he maintains that the police officers were required to

Mirandize him prior to asking him about whether he had any weapons. Additionally, Davis

asserts that the trial court’s factual finding concerning what was asked of Davis was not

supported by competent, credible evidence. Davis asserts that, during the initial questioning, he

was asked where the gun was and maintains the trial court’s finding that Davis was asked if he

had any weapons was not based on credible evidence. Davis finally argues that his subsequent

statements to police after receiving Miranda warnings were inadmissible as they were fruit of the

poisonous tree.

          {¶7}   A motion to suppress evidence presents a mixed question of law and fact. State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. “When considering a motion to suppress,
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the trial court assumes the role of trier of fact and is therefore in the best position to resolve

factual questions and evaluate the credibility of witnesses.”   Id., citing State v. Mills, 62 Ohio

St.3d 357, 366 (1992). Thus, a reviewing court “must accept the trial court's findings of fact if

they are supported by competent, credible evidence.” Burnside at ¶ 8. “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.” Id., citing State v.

McNamara, 124 Ohio App.3d 706 (4th Dist.1997).

       {¶8}    “Under Miranda, * * * the prosecution may not use statements, whether

exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it

demonstrates the use of procedural safeguards effective to secure the privilege against self-

incrimination.” (Internal quotations and citations omitted.) State v. Maxwell, 139 Ohio St.3d 12,

2014-Ohio-1019, ¶ 113. “Custody for purposes of entitlement to Miranda rights exists only

when there is a restraint on freedom of movement of the degree associated with a formal arrest.

Whether a suspect is in custody depends on the facts and circumstances of each case.” (Internal

quotations and citations omitted.) State v. Russell, 9th Dist. Wayne No. 16AP0037, 2017-Ohio-

7923, ¶ 6. “However, when officers ask questions necessary to secure their own safety or the

safety of the public as opposed to questions designed solely to elicit testimonial evidence from a

suspect, they do not need to provide the warnings required by Miranda.” (Internal quotations

omitted.) Maxwell at ¶ 113, quoting New York v. Quarles, 467 U.S. 649, 659 (1984).

       {¶9}    In determining whether statements are admissible under the Quarles public-safety

exception, the Supreme Court of Ohio has adopted the test set forth in United States v. Williams,

483 F.3d 425, 428 (6th Cir.2007).      See Maxwell at ¶ 116-122.       “For an officer to have a

reasonable belief that he is in danger, and thus for the exception to apply, he must have reason to
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believe (1) that the defendant might have (or recently have had) a weapon, and (2) that someone

other than police might gain access to that weapon and inflict harm with it.” (Internal quotations

omitted.) Maxwell at ¶ 117, quoting Williams at 428. “Williams stated that this evaluation of the

applicability of the Quarles exception takes into consideration a number of factors, which may

include the known history and characteristics of the suspect, the known facts and circumstances

of the alleged crime, and the facts and circumstances confronted by the officer when he

undertakes the arrest.” (Internal quotations and citations omitted.) Maxwell at ¶ 117.

       {¶10} At the suppression hearing, two officers and Davis testified.          Officer Juan

Rodriguez of the Lorain Police Department was a member of the SWAT team and was called in

on January 17, 2016 to assist in looking for a homicide suspect, Davis. Officer Rodriguez was

aware that the victim had been shot. Around 7 to 8 a.m., he and his partner, Officer Shamblin,

were looking in the area of First and Hamilton, which was a residential area, and two other

officers were searching in a nearby area. Officers Rodriguez and Shamblin observed a male

matching the description walking toward them. Officer Rodriguez approached from his vehicle

and stopped approximately 50 feet from the suspect. At the same time, the other two officers

were approaching from behind. As Officers Rodriguez and Shamblin approached, they realized

that the man was Davis. They approached with weapons drawn and ordered Davis to show his

hands. Davis raised his hands. Officer Rodriguez then asked “Do you have any weapons on

you?” Davis responded, “No, I don’t have no weapons on me. I threw it in the lake.” (Sic.)

The two other officers approached from the rear and secured Davis’ arms and began to pat him

down. Officer Rodriguez testified that he asked the question of Davis “for [their] safety[]” and

acknowledged that Davis was not free to leave. The officers also asked Davis if he was in fact

Davis and found identification on Davis confirming his identity.
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       {¶11} Davis was brought to the police station and was placed in an interview room.

Sergeant Buddy Sivert met with Davis and informed him of his Miranda rights. Davis signed a

waiver of rights form but wrote at the bottom that “[b]efore [he] made it to this point [he] was

questioned without rights being read.” After a short break, requested by Davis, Davis was again

read his Miranda rights. Shortly thereafter, Davis mentioned an attorney and Sergeant Sivert

ceased questioning Davis.

       {¶12} The next day, Davis requested to speak with Sergeant Sivert. Davis again signed

a waiver of rights form. Sergeant Sivert confirmed that Davis had in fact asked to speak with

Sergeant Sivert. Davis then provided a lengthy statement.

       {¶13} Davis testified in support of his motion. He testified that he was walking to the

police station when he saw a police car come up behind him and one of the officers had the door

open with his gun drawn. The officer asked his name and Davis told the officer his name. The

officer told Davis the officer had a warrant for his arrest and an officer handcuffed Davis.

Around that time, Davis asserted Officer Rodriguez arrived on the scene. Davis maintained that

Officer Rodriguez did not question Davis, and instead the officer Officer Rodriguez was with

questioned Davis. Davis asserted that that officer asked Davis what Davis did with the gun and

Davis told the officer that Davis threw it in the river. According to Davis, the officer then asked

Davis why Davis killed the victim. Davis shrugged his shoulders, dropped his head and shook it.

The officer then asked a few more questions, which are not challenged in this appeal, and Davis

was then placed in a police car.

       {¶14} The trial court noted that Officer Rodriguez’s and Davis’ testimony conflicted

with respect to whether Davis was questioned before or after he was handcuffed. The trial court

found Officer Rodriguez’s testimony credible and stated that it “is logical that an officer who
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encounters a suspect in a murder involving a weapon would ask the suspect about any weapons

prior to approaching the suspect to secure him/her.”

        {¶15} Despite Davis’ argument to the contrary, we conclude that, in light of Officer

Rodriguez’s testimony, the trial court’s factual findings about when Davis was questioned and

what he was asked are supported by competent, credible evidence. We remain mindful that the

trial court, as the trier of fact, is in the best position to evaluate the credibility of the witnesses.

See Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶ 8. Given those factual findings, we

conclude that the trial court did not err in concluding that the public safety exception was

applicable. The officers were aware that a woman was recently shot and killed and that Davis

was a suspect. Thus, it would be reasonable for the officers to believe that Davis could be

armed. See Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, at ¶ 117. Further, when Officer

Rodriguez asked Davis if he had any weapons, Davis was not handcuffed. Thus, if Davis did

have a gun, he would pose a threat to the officers and community. See id. Therefore, there was

evidence supporting both prongs of the test articulated in Williams. See Maxwell at ¶ 117.

Accordingly, the trial court did not err in concluding that police were not required to read Davis

his Miranda rights prior to asking Davis if he had a weapon. Further, as Davis’ fruit of the

poisonous tree argument is premised on the foregoing alleged Miranda violation, and we have

concluded there was no Miranda violation, his remaining argument must also fail.

        {¶16} Davis’ sole assignment of error is overruled.

                                                  III.

        {¶17} Davis’ assignment of error is overruled. The judgment of the Lorain County

Court of Common Pleas is affirmed.

                                                                                   Judgment affirmed.
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       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     DONNA J. CARR
                                                     FOR THE COURT




HENSAL, P.J.
SCHAFER, J.
CONCUR

APPEARANCES:

GIOVANNA V. SCALETTA-BREMKE, Attorney at Law, for Appellant.

DENNIS WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.
