[Cite as State v. Montague, 2012-Ohio-4285.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97958


                                     STATE OF OHIO

                                                     PLAINTIFF-APPELLEE

                                               vs.

                                 ALICIA MONTAGUE
                                                     DEFENDANT-APPELLANT



                                           JUDGMENT:
                                            AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-548500

        BEFORE: Stewart, J., Blackmon, A.J., and Boyle, J.

        RELEASED AND JOURNALIZED:                    September 20, 2012
ATTORNEY FOR APPELLANT

Patrick E. Talty
20325 Center Ridge Road, Suite 512
Rocky River, OH 44116


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: John P. Colan
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:

       {¶1} Defendant-appellant Alicia Montague was found guilty of one count of

obstruction of justice for hindering a police investigation of her husband after her

daughter alleged that she had been raped by him. Her sole complaint in this appeal is

that the court erred by refusing to suppress evidence of statements she made during a

police interview because she was in police custody but was not given her rights as

required by Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966).

       {¶2} Testimony offered during the suppression hearing showed that the

grandparents of Montague’s daughter went to the police station to report that they had

received a text message from the daughter claiming that Montague’s husband had raped

her.   The police responded to Montague’s house and spoke to Montague and the

daughter. Montague and the daughter told the police that it was a “misunderstanding”

and that the daughter made up the rape allegation because her father would not allow her

to go to a friend’s house. The police left without arresting the father. The grandmother,

who was also present at Montague’s house, told the police that she would take her

granddaughter home with her. The following day, the police contacted the grandparents.

 The grandparents brought their granddaughter to the police station and she told the

police that her father had digitally raped her. The father was arrested that same day.
       {¶3} The following day, a patrolling police officer received a broadcast saying that

Montague was walking with her son and “needed a ride.” When Montague saw the

police cruiser, she waved at the cruiser and asked for a ride to the police station so she

could see the husband. The officer radioed this request to his dispatcher but was ordered

to take Montague back to her house. Montague and the officer were met at the house by

a police detective.    While at the house, the police collected evidence and took

photographs. When the search concluded, Montague was brought to the police station.

       {¶4} Montague was taken to a conference room and interviewed by the detective

and a social worker. The interview was videotaped and offered into evidence at the

suppression hearing. Montague was not physically restrained in any way and, in fact,

had been provided lunch by the police. The detective conducting the interview told her

that she was not a suspect and that “I’m not looking to get you into trouble.” He asked

her to “lay out” what happened with the daughter and “be truthful * * * don’t cover for

anybody.” He told her that her husband was in trouble regardless of what she said and

that it was unlikely that the husband would be released from custody no matter what she

said about him.

       {¶5} During her interview with the police, Montague admitted that the daughter

said that she had been raped by the father. Montague gave conflicting statements on

whether she believed the daughter’s story: she initially said she believed the daughter;

but then admitted that she found the rape allegation suspicious because the daughter had

been known to fabricate stories and the daughter’s interaction with the father shortly after
the incident was so friendly that it seemed to belie her allegations. Because of these

misgivings, Montague told the daughter to tell the police that the rape story had been a

lie. She thought that doing so would buy her time to “figure everything out.”

       {¶6} Montague testified at the suppression hearing and said that she did not call

the police to ask for a ride to the police station. She said that the police picked her up as

she was walking to the police station and took her back to her house. It was only after

they finished searching the house that she asked to be taken to the police station to see her

husband. She was separated from her son and placed in a conference room. Although

her purpose in going to the police station was to get information relating to her husband,

she said that the police started asking questions and that she did not know that she could

leave. She stated, “I thought when an officer asks you a question, you’re supposed to

answer it.”

       {¶7} The court found that there was no custodial interrogation because Montague

voluntarily went to the police station, was not handcuffed, and indicated that she wanted

to talk to the police. Although Montague said that she did not feel free to end the

questioning, the court found that she had been told that she was not a suspect and at no

point believed that she had been under arrest.

       {¶8} In order for Miranda’s safeguards to apply, a suspect must be in “custody”

and subject to “interrogation.” State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, 964

N.E.2d 1037, ¶ 24. Whether a suspect is in custody turns on whether there is a “‘formal

arrest or restraint on freedom of movement’ of the degree associated with a formal
arrest.” California v. Beheler, 463 U.S. 1121, 1125, 77 L.Ed.2d 1275, 103 S.Ct. 3517

(1983) (per curiam), quoting Oregon v. Mathiason, 429 U.S. 492, 495, 50 L.Ed.2d 714,

97 S.Ct. 711 (1977) (per curiam). This inquiry requires a court to examine the totality of

the circumstances from the perspective of a reasonable person in the suspect’s position.

Berkemer v. McCarty, 468 U.S. 420, 442, 82 L.Ed.2d 317, 104 S.Ct. 3138 (1984).

       {¶9} The location of the interrogation is not dispositive in determining whether a

person is in custody. When the interrogation occurs at a police station, we consider

whether the person being interrogated voluntarily went to the police station.          Even

though a police station can be a coercive environment, such questioning does not amount

to custodial interrogation where the suspect is told that she is not under arrest and is free

to leave. See, e.g., Beheler, 463 U.S. at 1125 (Miranda warnings not required when

defendant, not parolee or arrestee, voluntarily accompanied police to station, talked to

police for 30 minutes, and was permitted to leave); Oregon v. Mathiason, supra (Miranda

warnings not required when parolee voluntarily submitted to questioning at police station

despite being questioned by officer in room with a closed door).

       {¶10} Montague testified that she asked the police to drive her to the police

station, so she went there voluntarily. She was placed in a conference room, not a

holding cell or some other room that would indicate she was being confined under police

authority.   Although the police did not tell Montague that she was free to leave, she was

immediately told that she was not a suspect and that the police were not questioning her

“to get you into trouble.” Nothing in these facts objectively show that Montague’s
freedom of movement had been restrained to the point where she was in “custody” such

that the police were required to advise her of her Miranda rights. United States v.

Galceran, 301 F.3d 927, 930-931 (8th Cir.2002) (Miranda warnings not required because

defendant voluntarily went to police station upon request and was not interviewed in

holding cell area); United States v. Norris, 428 F.3d 907, 912 (9th Cir.2005) (Miranda

warnings not required because defendant voluntarily accompanied officers to police

substation); Peoples v. Campbell, 377 F.3d 1208, 1228 (11th Cir.2004) (Miranda

warnings not required because defendant voluntarily accompanied officer to police

station); State v. Luke, 3d Dist. No. 1-06-103, 2007-Ohio-5906 (Miranda warnings not

required because defendant voluntarily went with police to police station, was never

physically restrained in any manner, was allowed to make telephone calls during an

interview, and was informed that he would be taken home following the interview).

      {¶11} In some cases, “police over-reaching” may demonstrate the involuntariness

of an interrogation. Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473

(1986). For example, coercive tactics like physical abuse, threats, deprivation of food,

medical treatment, or sleep, when viewed under the totality of the circumstances, may

turn a voluntary submission to questioning into a custodial interrogation. State v. Clark,

38 Ohio St.3d 252, 261, 527 N.E.2d 844 (1988).

      {¶12} No voices were raised during Montague’s interview — it was conducted at

all times in a quiet and a respectful manner. Nor was Montague denied any food or drink

or subjected to any other deprivation, either physical or mental. In fact, when the police
learned that she and her son had not eaten, they provided them with lunch. And when

Montague claimed to be suffering a panic attack, the police arranged to have her

transported to the hospital for treatment. There is no evidence of any coercion that

turned Montague’s voluntary agreement to be questioned into a custodial interrogation.

       {¶13} We therefore find no error in the court’s findings of fact and conclusions of

law, so we overrule the assigned error.

       {¶14} Judgment affirmed

       It is ordered that appellee recover of appellant its 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 Cuyahoga

County Court of Common Pleas to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal 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.




MELODY J. STEWART, JUDGE

PATRICIA ANN BLACKMON, A.J., and
MARY J. BOYLE, J., CONCUR
