[Cite as State v. Stephens, 2017-Ohio-9230.]




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

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :   C.A. CASE NO. 27235
                                                     :
 v.                                                  :   T.C. NO. 15-CR-3053
                                                     :
 JOHN K. STEPHENS                                    :   (Criminal Appeal from
                                                     :    Common Pleas Court)
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                               OPINION

                          Rendered on the 22nd day of December, 2017.

                                                ...........

HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

JON PAUL RION, Atty. Reg. No. 0067020 and NICOLE RUTTER-HIRTH, Atty. Reg. No.
0081004, 130 W. Second Street, Suite 2150, P. O. Box 10126, Dayton, Ohio 45402
     Attorneys for Defendant-Appellant

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

DONOVAN, J.

        {¶ 1} Defendant-appellant John K. Stephens appeals his conviction and sentence

for three counts of rape (less than ten years of age), in violation of R.C. 2907.02(A)(1)(b),
                                                                                          -2-


all felonies of the first degree. Stephens filed a timely notice of appeal with this Court on

August 25, 2016.

       {¶ 2} After violating the terms of his probation in Case No. 2013 CR 3550,

Stephens was sentenced to prison for thirty-six months. On May 7, 2015, the trial court

issued an entry granting Stephens judicial release. One of the conditions of his judicial

release required Stephens to become a resident of Talbert House, a locked-down and

secured rehabilitation facility where defendants receive sex offender therapy. Stephens

was required to complete the sexual offender program at Talbert House. If he failed to

complete the program, Stephens would be sent back to prison.

       {¶ 3} Although the record is unclear regarding the specific dates, Stephens was

allowed to participate in the sexual offender program at Talbert House once before in

2013 or 2014 in Case No. 2013 CR 3550, but was discharged before completing the

program because of a probation violation. Thus, we note that the instant case represents

the second time that the trial court permitted Stephens to participate in the sexual offender

program at Talbert House.

       {¶ 4} Upon arriving at Talbert House on May 14, 2015, Stephens was processed

as an incoming resident by administrative specialist Patricia Stanley. Stanley testified

that she was familiar with Stephens because he had been placed in the program once

before and indicated that this was the second occasion upon which she had “briefed him

for intake.” Part of the briefing packet Stanley provided Stephens with included State’s

Exhibit I, the confidentiality form, which stated in pertinent part:

       Federal Laws and Regulations do not protect information about suspected

       child abuse or neglect from being reported under State Law to appropriate
                                                                                        -3-


      State or Local authorities.

After Stanley explained and reviewed the confidentiality form with Stephens, she watched

him sign the document.

      {¶ 5} Once admitted, Stephens was required to participate in sexual offender

treatment at Talbert House. To facilitate his treatment, Stephens was assigned to a

small group which met three times a week for two hours each session. Stephens’ group

was moderated by Sherry Peterson, a clinical service provider for the sexual offenders at

Talbert House in 2015. When beginning treatment, Peterson testified that she always

initially reviews the confidentiality form with her “clients” and explains that she is a

mandated reporter with a legal duty to warn, and if anyone tells her that they have caused

harm to a child or elder, is going to cause harm to a child or elder, or cause harm to

themselves, she has a duty to report that information to the police. Peterson further

testified that due to the serious nature of their charges, she always specifically explains

to sexual offender groups that “if they tell me that they’ve committed an [previously

undisclosed] offense on a child or elder” confidentiality may be breached.

      {¶ 6} Stephens had been placed in sexual offender treatment for an offense

involving only one victim. However, on June 2, 2015, as part of a work assignment for

Peterson’s group treatment class, Stephens turned in five index cards, each containing

the initials of a different victim. Peterson testified that she was surprised by Stephens’

actions because in her experience, she never had a “client” admit to previously

undisclosed victims as part of the assignment.        Peterson further testified that she

assumed Stephens would only want to discuss the victim and offense for which he had

been convicted. Peterson testified that during the group meetings she tries not to guide
                                                                                            -4-


her “clients” regarding what they want to talk about. In fact, Peterson testified that she

never told Stephens that he had to provide any names or initials as part of the assignment.

After Stephens turned in the index cards, the only question Peterson asked him was “do

the people know about these right here?” to which Stephens responded in the negative.

Peterson asked no additional questions regarding the previously undisclosed victims

during the group meeting. We note that Peterson testified that there was only one other

“client” for the group meeting held that day. Peterson testified that because of her duty

to report, she immediately went to Linda Stout, her supervisor, for her guidance on what

steps to take in light of Stephens’ admissions.

       {¶ 7} As an additional component of the sexual offender treatment, Peterson

instructed her “clients” to keep a journal of their thoughts and feelings. Peterson testified

that she did not tell her “clients” what to write in the journal, and Stephens did not write in

his journal during class. Peterson testified that the “clients” were aware that she was

going to review their journal entries. On June 4, 2015, Stephens submitted his journal

to Peterson. In his journal, Stephens disclosed additional initials, which he had not listed

on the index cards submitted to Peterson on June 2, 2015.              Peterson brought the

additional initials to Stout’s attention, and on June 4, 2015, Stout contacted the Talbert

House legal department, otherwise known as QCS. QCS directed Stout to contact the

police. Stout contacted Lieutenant Cavanaugh from the Kettering Police Department.

Lt. Cavanaugh then contacted Detective Gary Schomburg who had previously

investigated Stephens’ underlying conviction in Case No. 2013 CR 3550 for gross sexual

imposition. Det. Schomburg spoke with Stout on June 4, 2015, and she informed him

that Stephens had potentially disclosed additional sex offense victims in his journal and
                                                                                       -5-


on index cards during his treatment at Talbert House. Det. Schomburg directed Stout to

send him copies of the relevant documents but did not ask her to obtain any additional

information from Stephens regarding his admissions. Stout then contacted QCS in order

to confirm it was acceptable to transfer the documents to Det. Schomburg.           QCS

instructed Stout to send copies of the documents to Det. Schomburg.            QCS also

instructed Stout to inform Stephens that the documents were being disclosed to the

police.

          {¶ 8} On June 5, 2015, Stout contacted Schomburg via telephone and informed

him that she could provide the documentation to him.         The documents were later

transmitted via fax to Det. Schomburg. After speaking with Det. Schomburg, Stout and

Peterson had a meeting with Stephens in Stout’s office. At the beginning of the meeting,

Stout reviewed the Talbert House confidentiality agreement with Stephens. Stephens

acknowledged that he first reviewed the agreement when he was processed into the

program, and again when he initially met with Peterson when his treatment began.

Stephens also acknowledged that he had signed the confidentiality agreement. Stout

also reiterated that she and Peterson were mandatory reporters who were legally required

to report sex abuse of a child to the police. Therefore, Stout informed Stephens that she

was required to report to the police the additional victims he had disclosed during his

treatment at Talbert House.

          {¶ 9} At that point, Stephens indicated that there was one less victim than the

number that Stout had indicated. Stephens stated that the initials I.A. and B.A. on the

index cards were the same person, and he listed her initials twice because he “offended

on her twice.”     Stout asked Stephens if he had anything else to tell them, and he
                                                                                        -6-


disclosed the full name of another child that he had abused. Stout testified that Stephens

informed her that he felt relieved for having disclosed the additional sex offenses.

However, when Stephens reviewed the initials R.R. which he had disclosed, he became

upset and requested an attorney. At that point, the meeting was concluded, and Stout

made arrangements for Stephens to retain counsel.

       {¶ 10} After the meeting, Stout contacted Det. Schomburg to verify that he had

received the faxed documents. Stout informed Det. Schomburg of the actual names of

the additional victims that Stephens provided during the earlier meeting. Stout also

informed Det. Schomburg that Stephens had requested that an attorney be present during

any questioning by the police.

       {¶ 11} On October 8, 2015, Stephens was indicted for three counts of rape of a

child under ten years of age. At his arraignment on October 15, 2015, Stephens pled

not guilty to the charges in the indictment. Shortly thereafter, Stephens filed a motion to

suppress on October 28, 2015.1 Stephens amended and supplemented his motion to

suppress on November 4, 2015, and December 14, 2015. A hearing was held on said

motion on February 4, 2016, after which, both parties were permitted to file post-hearing

memoranda in support of their respective positions. In a decision issued on March 14,

2016, the trial court overruled Stephens’ motion to suppress in its entirety.

       {¶ 12} On July 22, 2016, Stephens entered a plea of no contest to each count in

the indictment. On August 12, 2016, Stephens was sentenced to a mandatory term of

fifteen years to life in prison on each count, the sentences to run concurrently.


1 A portion of Stephens’ motion related to the suppression of a search warrant issued in
the instant case. On appeal, however, Stephens does not challenge the trial court’s
denial of his motion to suppress as it pertained to the search warrant.
                                                                                           -7-


       {¶ 13} It is from this judgment that Stephens now appeals.

       {¶ 14} Stephens’ sole assignment of error is as follows:

       {¶ 15} “THE CONSTITUTIONAL RIGHTS OF JOHN STEPHENS WERE

VIOLATED WHEN HE WAS COMPELLED TO MAKE INCRIMINATING STATEMENTS

BY HIS COURT-ORDERED TREATMENT PROVIDER, IN VIOLATION OF PROGRAM

POLICIES, WHICH WERE LATER USED TO INDICT MR. STEPHENS.”

       {¶ 16} In his sole assignment, Stephens contends that the trial court erred when it

overruled his motion to suppress the disclosures he made to Talbert House staff

regarding the additional minor victims that he sexually abused. Specifically, Stephens

argues that he was coerced by Talbert House staff into making incriminating statements

without being first advised of his Miranda rights.

       {¶ 17} In ruling on a motion to suppress, the trial court “assumes the role of the

trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate

the credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d

498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-116, ¶

30. Accordingly, when we review suppression decisions, we must accept the trial court's

findings of fact if they are supported by competent, credible evidence. Retherford at 592,

639 N.E.2d 498. “Accepting those facts as true, we must independently determine as a

matter of law, without deference to the trial court's conclusion, whether they meet the

applicable legal standard.” Id.

       {¶ 18} “The right to [Miranda] warnings is grounded in the Fifth Amendment's

prohibition against compelled self-incrimination.” State v. Strozier, 172 Ohio App.3d 780,

2007-Ohio-4575, 876 N.E.2d 1304, ¶ 16 (2d Dist.), citing Moran v. Burbine, 475 U.S. 412,
                                                                                       -8-


420, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). “The procedural safeguards prescribed

by Miranda apply only when persons are subjected to ‘custodial interrogation.’ ” State v.

Thomas, 2d Dist. Montgomery No. 20643, 2005-Ohio-3064, ¶ 27, citing Miranda v.

Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      {¶ 19} Miranda defined    custodial   interrogation   as   “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.” Miranda at 444, 86 S.Ct. 1602,

16 L.Ed.2d 694. “[T]he ultimate inquiry is simply whether there [was] 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, 103 S.Ct. 3517, 77 L.Ed.2d 1275

(1983), citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714

(1977).

      {¶ 20} “In order to determine whether a person is in custody for purposes of

receiving Miranda warnings, courts must first inquire into the circumstances surrounding

the questioning and, second, given those circumstances, determine whether a

reasonable person would have felt that he or she was not at liberty to terminate the

interview and leave.” State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d

48, ¶ 27, citing Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383

(1995). Therefore, “the test for custody is an objective test.” State v. Chenoweth, 2d

Dist. Miami No. 2010 CA 14, 2011-Ohio-1276, ¶ 8, citing California v. Beheler, 463 U.S.

1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983). “The subjective views of the

interviewing officer and the suspect are immaterial to the determination of whether a

custodial interrogation was conducted.” (Citations omitted.) State v. Earnest, 2d Dist.
                                                                                          -9-

Montgomery No. 26646, 2015-Ohio-3913, ¶ 22. Accord State v. Gray, 2d Dist.

Montgomery No. 26139, 2016-Ohio-1419, ¶ 74.

       {¶ 21} On appeal, Stephens argues that the trial court erred when it denied his

motion to suppress because when he revealed information regarding the previously

undisclosed victims, he did so under threat of being sent back to prison. Stephens

further argues that he was in custody for the purposes of Miranda, and therefore, he

should have been informed of his constitutional rights before being questioned by

Peterson and Stout. Additionally, Stephens contends that Peterson and Stout were

acting as agents of law enforcement when they questioned him about the undisclosed

victims.

       {¶ 22} In support of his arguments, Stephens relies on a case from the First District

Court of Appeals, State v. Evans, 144 Ohio App.3d 539, 760 N.E.2d 909 (1st Dist.2001),

where it was held that some of the statements disclosed to counselors by a juvenile, who

was under involuntary commitment for treatment, were not admissible against the

juvenile.   In Evans, the court noted that the “classic penalty situation” contemplated

in Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), often

arises in the context of sexual abuse treatment programs where participants are required

to divulge specific criminal acts “putatively for therapeutic reasons.” Id. at 557. The court

also reasoned that Evans' participation in the program was not voluntary and the penalty

for his failure to participate was substantial because it would result in a penalty for

violating a court order. Id. at 558.       Thus, according to the court, “Evans was

unconstitutionally forced to choose between a substantial penalty and self-

incrimination.” Id. The facts in the instant case are distinguishable from those presented
                                                                                           -10-

in Evans.

       {¶ 23} As explained in Evans at 557–558, 760 N.E.2d 909, there are three issues

that define the limits of a “classic penalty” situation:

              But other courts have had the occasion to define the limits of the

       “classic penalty” situation. Where (1) the treatment program has been

       deemed voluntary because it is a condition of initial parole eligibility, (2) the

       penalty is insubstantial because the resultant facility transfer is to another

       medium-security prison and therefore essentially lateral, and (3) the denial

       of parole does not automatically follow from a refusal to speak, then

       although the defendant's constitutional privilege has admittedly been

       burdened, the burden is held to be sufficiently mitigated.

       {¶ 24} In State v. Barker, 5th Dist. Richland No. 16CA49, 2017-Ohio-596, the court

stated as follows:

              Imprisonment alone is not enough to create a custodial situation

       within the meaning of Miranda. Howes v. Fields, 132 S.Ct. 1181, 1190, 182

       L.Ed.2d 17 (2012). When a prisoner is questioned, the determination of

       whether the prisoner is in custody should focus on all of the features of the

       interrogation. Id. at 1192. These include the language that is used in

       summoning the prisoner to the interview and the manner in which the

       interrogation is conducted. Id. An inmate who is removed from the general

       prison population for questioning and is subjected to treatment in

       connection with the interrogation “that renders him ‘in custody’ for practical

       purposes ... will be entitled to the full panoply of protections prescribed by
                                                                                      -11-

       Miranda.” Id.

Id. at ¶ 11.

       {¶ 25} In the instant case, Stephens requested, and was granted, judicial release

from prison for his conviction in Case No. 2013 CR 3550. Successful completion of

judicial release meant that Stephens agreed to participate in sex offender treatment.

While we note that Talbert House is a lock-down facility and “clients” were not free to

leave, it was Stephens’ choice to attend the sessions, and a decision not to attend or

participate would not increase his original sentence. During the sessions, he was free

to discuss his previous sex offenses, or not.      Significantly, Peterson testified that

although Stephens was expected to provide information regarding his underlying

conviction, he was neither expected nor encouraged to provide any information regarding

previously undisclosed offenses. Peterson did not directly or indirectly ask Stephens to

provide information with respect to uncharged offenses in the exercise with the index

cards or the personal journal he created. Stephens was not coerced into participation in

the index card and journal exercise at Talbert House, and what he wanted to disclose

during the treatment sessions was entirely at his discretion. On this record, Stephens’

decision to disclose the additional victims was a voluntary one and not the product of

coercion by Peterson or Stout.     Therefore, we find that the record establishes that

Stephens was not in custody for the purposes of Miranda.

       {¶ 26} Additionally, neither Peterson nor Stout were law enforcement officers such

that they were required to provide Stephens with Miranda warnings. Both Peterson and

Stout were employees of Talbert House, not law enforcement officers.          Generally,

questioning by law enforcement is required to trigger the necessity for Miranda warnings.
                                                                                         -12-


On the other hand, the United States Supreme Court has recognized the applicability

of Miranda in situations not involving law enforcement. The “duty of giving ‘Miranda

warnings' is limited to employees of governmental agencies whose function is to enforce

law, or to those acting for such law enforcement agencies by direction of the agencies; it

does not include private citizens not directed or controlled by a law enforcement agency,

even though their efforts might aid in law enforcement.” State v. Bolan, 27 Ohio St.2d 15,

18, 271 N.E.2d 839 (1971). (Emphasis added).

       {¶ 27} In Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981),

syllabus, the U.S. Supreme Court held that a psychiatrist, who performed an involuntary

evaluation of the defendant, could not testify regarding information that had been

gathered by questioning during the evaluation, because the defendant had not been

apprised of his Fifth Amendment rights.        The examining physician was not a law

enforcement officer, but the Court held that the doctor went beyond a routine examination

and gathered information during the evaluation to testify concerning the defendant's

future dangerousness and to assist the prosecution in seeking the death penalty.

“[T]hose tangentially associated with the criminal justice system, but without the requisite

statutory authority, are not law enforcement officials for the purposes of Miranda.” Evans

at 553.

       {¶ 28} Here, neither Peterson nor Stout were acting as agents of law enforcement

officials when they collected and eventually reported Stephens’ admissions regarding the

undisclosed victims. Unlike the treatment counselors in Evans who were employees of

the juvenile court, Peterson and Stout were at all pertinent times employees of Talbert

House. While it is undisputed that Peterson and Stout both had a duty to report any
                                                                                        -13-


previously undisclosed sex offenses against children, this fact, standing alone, did not

render them state actors for the purposes of Miranda.        Significantly, Stephens was

already on notice that Peterson and Stout were mandatory reporters prior to disclosing

the additional victims.    Therefore, once they became aware that Stephens had

committed sexual offenses against several previously undisclosed victims, Peterson and

Stout had a legal obligation to inform the proper authorities.          Before Stephens’

admissions came to light, Peterson and Stout worked with him for treatment purposes

only. At no time was Stephens under any compulsion or threat from Peterson or Stout

to make any admissions regarding the undisclosed victims. There is no evidence that

Stephens was threatened with punishment for failure to admit uncharged offenses or that

he was even initially questioned with respect to anything other than his involvement in the

underlying offense.    There is also no evidence that Peterson or Stout originally

suspected that Stephens committed additional crimes and were seeking to obtain his

confession.

      {¶ 29} Furthermore, the meeting on June 5, 2015, attended by Stephens,

Peterson, and Stout was only held to inform Stephens that they had a mandatory duty to

report his disclosures to the police. The record establishes that the purpose of the

meeting was not to interrogate Stephens or coerce him into providing additional

admissions.    Specifically, Stout began the meeting by reviewing the confidentiality

agreement and the duty to report.       Stephens acknowledged that he reviewed the

confidentiality agreement. Stout testified that Stephens inquired as to why she had to

report the undisclosed victims to the police. Stout testified that she showed Stephens

the index cards and the journal and stated that he had admitted to abusing a number of
                                                                                          -14-


previously undisclosed victims.       Without encouragement of any kind, Stephens

immediately corrected Stout as to the number of victims and stated that B.A. and I.A. were

the same victim, and provided the child’s full name and nickname. Stout then asked

Stephens if there was anything else he wanted to tell them, and he provided the full name

of another previously undisclosed victim. It was only when he acknowledged the initials

R.R. that he became upset and asked for an attorney. At that point, Stout terminated the

meeting.

       {¶ 30} Upon review, we find that the record establishes that at no time was

Stephens directed by Stout or Peterson to provide the full names of his additional victims.

Stephens even testified that he was never asked to provide specific names. Rather, the

record establishes that he provided some of the undisclosed victims’ names on his own

when he interrupted Stout during the meeting. Accordingly, we find that Stephens was

not subject to an interrogation at the meeting on June 5, 2015, and he was therefore, not

entitled to be informed of his Miranda rights.

       {¶ 31} Lastly, Stephens argues that all of his statements and written admissions

were involuntary and violated the Due Process clause of the United States Constitution.

“The Due Process Clause of the Fourteenth Amendment to the United States Constitution

provides that no person shall be ‘deprived of life, liberty or property without due process

of law.’ Confessions that have been coerced by the state and therefore have been

involuntarily given have long been held to violate this guarantee of due process.” Evans at

560, 760 N.E.2d 909.

       {¶ 32} In light of the foregoing analysis, we agree with the trial court and find that

neither Stout nor Peterson were acting on behalf of the police when Stephens disclosed
                                                                                        -15-

the initials and names of the additional child victims. Therefore, Miranda did not apply.

Additionally, we find that Stephens was on notice prior to beginning his treatment that

Stout and Peterson had a duty to report any previously undisclosed sex offenses against

children to the police. Yet after being warned, Stephens still disclosed the initials and

names of several additional victims. Therefore, we find that the trial court did not err

when it denied Stephens’ motion to suppress.

       {¶ 33} Stephens’ sole assignment of error is overruled.

       {¶ 34} Stephens’ sole assignment of error having been overruled, the judgment of

the trial court is affirmed.

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

HALL, P.J., concurs.

TUCKER, J., concurring:

       {¶ 35} I agree with the majority opinion that Stephens was not entitled to Miranda

warnings and that his right against self-incrimination was not otherwise violated. I write

separately to discuss the classic penalty situation and why, given the record before us, it

does not require suppression of Stephens’ statements.

       {¶ 36} The Fifth Amendment states, in pertinent part, that no person “shall be

compelled in any criminal case to be a witness against himself.” The prohibition against

compelled self-incrimination allows a person “not to answer official questions put to him

in any *** proceeding, civil or criminal, formal or informal, where the answers might

incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77, 94

S.Ct. 316, 38 L.Ed.2d 274 (1973). An individual subject to such self-incrimination may

refuse to answer questions and may continue such refusal until his answers are protected
                                                                                        -16-


from use against him in any future criminal case in which he is a defendant. If the person

is compelled to answer without such protection, his answers may not be used against him

in a later criminal case. Lefkowitz v. Turley, at 78, 94 S.Ct. at 322.

        {¶ 37} In most circumstances an individual must assert the privilege or it is lost.

The failure to assert the privilege is often referred to as a waiver, but the Supreme Court

has commented that a person who fails to assert the privilege may be deprived of its

“benefit… without making a knowing and intelligent waiver.” Minnesota v. Murphy, 465

U.S. 420, 427, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), quoting Garner v. United States,

424 U.S. 648, 654, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976), fn.9. In short, “in the ordinary

case, if a witness under compulsion to testify makes disclosures instead of claiming the

privilege, the government has not ‘compelled’ him to incriminate himself.” Minnesota v.

Murphy, at 427, 104 S.Ct. at 1142, quoting Garner v. United States at 654, 96 S.Ct. at

1182.

        {¶ 38} This being said, there are certain situations where the self-incrimination

privilege is triggered in the absence of its invocation. These situations occur when a

person is deprived of a “free choice to admit, to deny, or to refuse to answer.” Garner v.

U.S., at 657, quoting Lisenba v. California, 314 U.S. 219, 241, 62 S.Ct. 280, 86 L.Ed. 166

(1941).    Custodial interrogation is the best known example of the privilege being

triggered without its invocation being required, with the Miranda decision requiring

suppression of a defendant’s custodial statements unless the defendant has been

advised, among other things, of his right against self-incrimination, the consequences of

the failure to assert the privilege, and the defendant’s knowing and voluntary waiver of

the right against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
                                                                                         -17-


L.Ed.2d 694 (1966).

       {¶ 39} A second circumstance where the right against self-incrimination is self-

executing is the so called classic penalty scenario. Garrity v. New Jersey, 385 U.S. 493,

87 S.Ct. 616, 17 L.Ed.2d 562 (1967). Garrity involved a situation where Garrity, a police

officer, was asked investigative questions about a traffic ticket fixing scheme. Garrity

was informed that if he did not answer the questions his employment would be terminated.

Garrity was further informed that if he answered the questions his responses could be

used against him in a future criminal prosecution.

       {¶ 40} Garrity, having been placed between the indicated “rock and a hard place,”

answered the inquiries. Garrity’s answers were then used against him in a subsequent

prosecution for conspiracy. The Supreme Court ruled that in the context of “threat[s] of

removal from office” the act of responding to interrogation was not voluntary. Garrity at

500. Garrity, that is, was compelled to be a witness against himself, and, thus, his

statements, though he did not invoke his right against self-incrimination, could not be used

against him in any criminal prosecution involving the traffic ticket fixing scheme.

       {¶ 41} In Minnesota v. Murphy, the Supreme Court concluded, despite a

probationer’s requirement to meet with and be truthful with his probation officer or face

revocation, that Murphy’s admissions to his probation officer about criminal conduct

unrelated to his probation status were not suppressible in a subsequent criminal

prosecution based upon a classic penalty rationale. The court indicated that the inquiry

was “whether Murphy’s probation conditions merely required him to appear and give

testimony about matters relevant to his probationary status or whether they went farther

and required him to choose between making incriminating statements and jeopardizing
                                                                                         -18-

his conditional liberty by remaining silent.” Minnesota v. Murphy at 436, 104 S.Ct. at

1147.    The Court concluded that “Minnesota did not attempt to take the extra,

impermissible, step,” and, as such, “Murphy’s Fifth Amendment privilege was not self-

executing.” Id.

        {¶ 42} The Court, in reaching this conclusion, noted that it had not been advised

of any situation in which Minnesota “attempted to revoke probation merely because a

probationer refused to make nonimmunized disclosures concerning his own criminal

conduct; and, in light of our decisions proscribing threats or penalties for the exercise of

Fifth Amendment rights, Murphy could not reasonably have feared that the assertion of

the privilege would have led to revocation.” Id. at 439, 104 S.Ct. 1148. The Court, in

summary, concluded that Murphy was not “deterred from claiming the privilege by a

reasonably perceived threat of revocation.” Id.

        {¶ 43} The Murphy Court, before reaching the discussed conclusion, did state

“[t]here is… a substantial basis in our cases for concluding that if the state, either

expressly or by implication, asserts that invocation of the privilege would lead to

revocation of probation, it would have created the classic penalty situation, the failure to

assert the privilege would be excused, and the probationer’s answers would be deemed

compelled and inadmissible in a criminal prosecution.” Id. at 435, 104 S.Ct. at 1146.

        {¶ 44} This gets us to State v. Evans, 144 Ohio App.3d 539, 760 N.E.2d 909 (1st

Dist. 2001), which Stephens asserts supports a suppression conclusion in his case. The

Evans court, using a classic penalty analysis, suppressed statements Evans, a juvenile

offender, made during the course of court ordered treatment.

        {¶ 45} Evans, when he was fifteen, was charged with assault, with the charge
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ultimately being dismissed because the victim died and Evans could not otherwise be

identified as the attacker. Evans, thereafter, was adjudicated delinquent for an unrelated

assault offense. The juvenile court ordered that Evans be confined at, and receive

treatment from, a residential treatment center.

       {¶ 46} Evans, without dispute, was required to engage in therapy. Evans’ failure

to do so would have resulted in an inability to engage in group activities, cancellation of

weekend home visits, and, ultimately, a transfer to a significantly more restrictive juvenile

facility. The record indicated that while some residents were initially resistant to the

therapy, “all juvenile residents eventually succumbed to the pressure and participated.”

Evans at 547, 760 N.E.2d at 915.

       {¶ 47} Evans, as part of his indoctrination into therapy, was required to complete

what was referred to as a “commitment offense paper,” which required Evans to describe

“all the crimes he had committed” whether they related to his current juvenile detention

or not. Id. It seems that in the typical case, the “commitment offense paper” instructions

included a statement that the recounting of unrelated offenses was for therapeutic, not

prosecutorial, purposes. This statement, for unexplained reasons, was not included in

the instructions provided Evans and no one informed him of his right against self-

incrimination.

       {¶ 48} Evans’ initial attempt to complete the “commitment offense paper” was

found deficient because it was not a sufficient recounting of his past criminal conduct. A

counselor, in an attempt to assist Evans, gave him a list of past charges he had faced

which included the assault which had evolved into a murder. Evans was specifically

instructed to provide the details of each charge.
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       {¶ 49} Evans complied and what he wrote about the assault/murder was

“essentially a confession to murder.”       Evans at 547, 760 N.E.2d at 916.          Evans,

thereafter and as a required condition of the program, made an oral confession to the

murder during a group therapy session.

       {¶ 50} A residential treatment supervisor, a week or so later, became aware of

Evans’ confession. It was ultimately decided that the confession should be reported to

the police. Not surprisingly, a murder indictment followed soon thereafter.

       {¶ 51} The First District ruled that Evans’ confession contained in the “commitment

offense paper” and the oral confession made during the group therapy session were

subject to suppression under a classic penalty analysis. The court, it is noted, rejected

an argument that Miranda warnings were required. The court further allowed a third

confession that did not implicate Evans’ court ordered therapy. The rationale for the

suppression conclusion was based upon three factors: (1) Evans’ therapy participation

was not voluntary; (2) the penalties Evans faced if he failed to participate were significant;

and (3) the penalties, imposed in an escalating fashion, were automatic. The court,

based upon these reasons, held that “Evans was unconstitutionally forced to choose

between a substantial penalty and self-incrimination.”        Id. at 558, 760 N.E.2d 924.

Evans, accordingly, was “excused from failing to raise his privilege… ” Id.

       {¶ 52} The present situation, assuming Evans was correctly decided, is

distinguishable.   Stephens’ treatment plan did call for him to admit past uncharged

conduct, the treatment plan manual (Hrg. Ex. 2) did mention the prospect of a polygraph

examination to monitor truthfulness, and successful completion of the Talbert House

program was a condition of Stephens’ judicial release. However, Stephens, in contrast
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to Evans, was informed that an admission regarding a child would be reported to the

police. Further, the treatment plan manual informed treatment participants that “there

are certain circumstances in which your counselor is required to report offenses. You

need to understand these circumstances.” Hrg. Ex. 2, pg.17. Treatment participants

were also told that if there was a “fear” about being “re-arrested”, “talk to your counselor…

[and] [a]sk for clarification of the confidentiality law.” Id. There is nothing in the record

to suggest that if Stephens had sought confidentiality clarification that he would have been

compelled to report past sexual offenses or face a treatment failure conclusion, expulsion

from Talbert House and judicial release revocation.

       {¶ 53} Stephens was not pressed to admit past offenses. Peterson, in fact, was

quite surprised by Stephens’ admissions. Additionally, Peterson testified that Stephens

faced adverse program consequences only if he was not forthcoming about the offense

that led to his Talbert House commitment.

       {¶ 54} The record simply does not support a conclusion that Stephens was forced

to make a choice between making incriminating statements about past uncharged

conduct or jeopardizing his judicial release status by remaining silent. Since Stephens

was not forced to make such a choice, a classic penalty situation was not created, and

Stephens’ privilege against self-incrimination did not become self-executing. The trial

court, under a classic penalty analysis, correctly overruled Stephens’ motion to suppress.



Copies mailed to:

Heather N. Jans
Jon Paul Rion
Nicole Rutter-Hirth
Hon. Dennis J. Adkins
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