[Cite as State v. Laster, 2018-Ohio-3601.]




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

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellee                       :   Appellate Case No. 27762
                                                   :
 v.                                                :   Trial Court Case No. 2016-CR-1814
                                                   :
 ANTONIOS E. LASTER                                :   (Criminal Appeal from
                                                   :   Common Pleas Court)
          Defendant-Appellant                      :
                                                   :

                                              ...........

                                             OPINION

                           Rendered on the 7th day of September, 2018.

                                              ...........

MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

J. DAVID TURNER, Atty. Reg. No. 0017456, P.O. Box 291771, 101 Southmoor Circle
NW, Kettering, Ohio 45429
      Attorney for Defendant-Appellant

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



WELBAUM, P.J.
                                                                                         -2-




       {¶ 1} In this case, Defendant-Appellant, Antonios Laster, appeals from his

conviction and sentence on one count of improper handling of a firearm in a vehicle

(loaded, no license), a felony of the fourth degree. Following Laster’s no contest plea,

the court sentenced him to up to five years of community control sanctions.

       {¶ 2} Laster contends that the trial court’s decision on his motion to suppress is

voidable, and should be voided, because the certificate of assignment from the Supreme

Court of Ohio did not authorize the visiting judge to preside over the suppression hearing.

In addition, Laster contends that the trial court erred in overruling his suppression motion

because he was denied his right to be free from unreasonable searches and seizures and

to be free from self-incrimination during custodial interrogation.

       {¶ 3} For the reasons discussed below, we conclude that no prejudicial error

occurred in the trial court, concerning either the assignment of the trial judge or the

decision overruling the motion to suppress. Accordingly, the judgment of the trial court

will be affirmed.



                              I. Facts and Course of Proceedings

       {¶ 4} On August 18, 2016, the State filed an indictment charging Laster with one

count of improper handling of a firearm in a motor vehicle (loaded/no license), and one

count of carrying a concealed weapon (loaded/ready at hand), both fourth-degree

felonies. After pleading not guilty, Laster filed a motion to suppress on November 15,

2016, and the trial court scheduled a hearing for December 9, 2016.

       {¶ 5} A visiting judge heard the evidence and filed a decision on December 16,
                                                                                           -3-


2016, overruling the motion to suppress. Eventually, on October 5, 2017, Laster pled no

contest to one count of improper handling of a firearm, in exchange for the State’s

agreement to dismiss the charge of carrying a concealed weapon.              After overruling

Laster’s motion for intervention in lieu of conviction, the trial court sentenced Laster to up

to five years of community control sanctions. This timely appeal followed.



                          II. Failure to Correctly Appoint Visiting Judge

       {¶ 6} Laster’s First Assignment of Error states that:

              The Certificate of Assignment From Chief Justice O’Conner

       Assigning the Honorable William H. Wolff, Jr., to Preside for the Period of

       August 8, 2016 through August 12, 2016 Did Not Authorize Judge Wolff to

       Preside Over the Suppression Hearing Held December 9, 2016 and

       Therefore Renders the Decision Overruling the Motion to Suppress

       Voidable.

       {¶ 7} Under this assignment of error, Laster notes that the suppression hearing

began at 1:30 p.m. on December 9, 2016, prior to the filing of the Supreme Court of Ohio’s

certificate of assignment of Judge Wolff later that day. In addition, the date on which the

hearing was held was outside the time period that the certificate filed in the trial court

specified for the assignment. Laster acknowledges that he failed to object to the fact

that Judge Wolff presided over the suppression hearing. However, Laster contends that

trial counsel could not possibly have objected because the certificate was not journalized

until after 3:00 p.m. on the same day that the hearing was held. Laster further argues

that even if he were considered to have waived the point, we should conclude that plain
                                                                                            -4-


error occurred.

       {¶ 8} Article IV, Section 6(C) of the Ohio Constitution provides that “[a]ny

voluntarily retired judge, or any judge who is retired under this section, may be assigned

with his consent, by the chief justice or acting chief justice of the supreme court to active

duty as a judge * * * .” The Supreme Court of Ohio has held that, “[i]n a court that

possesses subject-matter jurisdiction, procedural irregularities in the transfer of a case to

a visiting judge affect the court's jurisdiction over the particular case and render the

judgment voidable, not void.”      In re J.J., 111 Ohio St.3d 205, 2006-Ohio-5484, 855

N.E.2d 851, paragraph one of the syllabus. The court further stressed that complaining

parties have a duty to object in the trial court in order to preserve the error for appeal. Id.

at ¶ 15.

       {¶ 9} The certificate of assignment from the Supreme Court of Ohio that was filed

in the trial court on December 9, 2016, assigned Judge Wolff, “effective April 18, 2016 to

preside in the Montgomery County Court of Common Pleas, General Division, for the

period of August 8, 2016 through August 12, 2016 and to conclude any proceedings in

which he participated that are pending during that period.” Doc. #27, p.1. The number

on the certificate of assignment is 16JA0929, and as the State notes, the above

information conflicts with what is reflected on the website of the Supreme Court of Ohio.

An assignment search on the website of the Supreme Court of Ohio for the listed number

(16JA0929) indicates that Judge Wolff’s assignment was effective April 18, 2016, and

was a general assignment for the period of December 5, 2016 through December 9, 2016.

See http://www.supremecourt.ohio.gov/judgeassignmentsearch/, accessed August 13,

2018. The suppression hearing fell within this latter period.
                                                                                        -5-


       {¶ 10} As was noted, the certificate of assignment that was filed in the trial court

does not reflect the dates the Supreme Court of Ohio apparently intended. Thus, the

assignment as filed did not cover the date on which the suppression hearing was held,

and there is no indication in the record that the suppression hearing was a conclusion of

any proceeding Judge Wolff held between August 8 and August 12, 2016. This could

not have occurred in any event, because the indictment against Laster had not even been

filed by that time.

       {¶ 11} Laster acknowledges that the incorrect assignment would make the

decision only voidable, not void. We agree. However, Laster failed to object in the trial

court. In J.J., the Supreme Court of Ohio concluded that the appellee (a father who had

lost custody) had waived the procedural irregularity by failing to object. J.J., 111 Ohio

St.3d 205, 2006-Ohio-5484, 855 N.E.2d 851, at ¶ 16-17 (noting that “[a] party may timely

object to the authority of a visiting judge on the basis of an improper case transfer or

assignment, but failure to timely enter such an objection waives the procedural error”).

Accord State v. Stansell, 2d Dist. Montgomery No. 23630, 2010-Ohio-5756, ¶ 29.

       {¶ 12} The purpose of making timely objections is to alert trial courts to potential

errors at a time when they can be corrected. See, e.g., State v. Blakeman, 2d Dist.

Montgomery No. 18983, 2002 WL 857659, *3 (May 3, 2002).

       {¶ 13} We also reject the argument that Laster’s counsel could not have known to

object because the certificate of assignment was not filed until after the hearing. As the

State notes, counsel met with the judge in chambers prior to hearing. See Transcript of

Suppression Hearing, p. 39 (indicating that the judge met with counsel before the

hearing). Since a certificate of assignment was obviously not in the record at that time,
                                                                                         -6-


trial counsel could have raised an issue with the judge before the hearing. The judge also

did not file a decision until about a week after the hearing.       If the assignment was

defective (as it clearly appears to have been on its face), the issue could have been raised

before the court filed the suppression decision.

         {¶ 14} More importantly, Laster did not enter a plea until October 6, 2017, almost

ten months after the suppression decision was filed. Notably, rulings on suppression

motions are interlocutory and may be reconsidered before final judgment. State v. Ross,

2014-Ohio-2867, 15 N.E.3d 1213, ¶ 47 (9th Dist.); State v. Donley, 2017-Ohio-562, 85

N.E.3d 324, ¶ 148 (2d Dist.). Therefore, if the certificate of assignment were truly an

issue, Laster could have objected during the lengthy time that elapsed between the

suppression decision and his no contest plea. Accordingly, we conclude that Laster

waived this alleged error.

         {¶ 15} Even if we decided otherwise, and considered the issue on the basis of plain

error, Laster failed to advance any argument concerning what exceptional circumstances

or miscarriage of justice exist that would justify noticing plain error. See State v. Long,

53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

Consequently, even if we applied the plain error doctrine, there is no reason to find plain

error.

         {¶ 16} Based on the preceding discussion, the First Assignment of Error is

overruled.



                                     III. Suppression Decision

         {¶ 17} Laster’s Second Assignment of Error states that:
                                                                                       -7-


             Appellant [Was] Denied His Fourth Amendment Right [Against]

      Unreasonable Search and Seizure and His Fifth Amendment Right

      Prohibiting Self-Incrimination During Custodial Interrogation.

      {¶ 18} Laster advances three arguments under this assignment of error, and we

will consider them separately.



                                 A. The Anonymous Tip

      {¶ 19} Laster first contends that an anonymous tip did not justify his stop and that

subsequent events did not corroborate the tip, making the stop and seizure unlawful

under the Fourth Amendment. Laster has waived this argument, however, because he

failed to raise it in his suppression motion or at the suppression hearing. See Doc. #23,

Motion to Suppress (seeking to suppress only oral and written statements due to lack of

Miranda warnings and failure to fully inform of Miranda rights); and Transcript of

Suppression Hearing, p. 6 (defense counsel indicates that the issue is the failure of the

police to provide Miranda warnings before asking questions during a custodial

interrogation, and perhaps a defect in the Miranda warnings that were subsequently

given). Again, arguments not made in the trial court are waived. Blakeman, 2d Dist.

Montgomery No. 18983, 2002 WL 857659, at *3; State v. Sibole, 2d Dist. Clark No. 2017-

CA-68, 2018-Ohio-3203, ¶ 9.

      {¶ 20} Laster has not claimed a basis for plain error; he has simply presented case

law indicating that that in situations involving anonymous tips, the State must show that

subsequent events corroborated the tip. Appellant’s Brief, p. 12.

      {¶ 21} As was noted, we take notice of plain error “with the utmost caution, under
                                                                                         -8-

exceptional circumstances and only to prevent a manifest miscarriage of justice.” Long,

53 Ohio St.2d 91, 372 N.E.2d 804, at paragraph three of the syllabus. Having reviewed

the transcript of the suppression hearing, we see no evidence of error or plain error.

      {¶ 22} As to the facts, the only witnesses who testified at the suppression hearing

were a University of Dayton ("UD") Police Officer, Joseph Wilhelm, and a city of Dayton

Detective, Mark Gundelfinger. Furthermore, the facts were essentially undisputed

      {¶ 23} According to the evidence, the police received an anonymous call about

weapons on June 10, 2016. The caller stated that an individual with a gun was sitting in

a black car near a Cold Stone Creamery. The gun was described as being in the man's

lap, and the caller indicated that the person did not look as if he should have a gun. In

addition, the caller described the car as a black Nissan Versa and gave the police the

vehicle's license plate. Finally, the caller reported something about loudness.

      {¶ 24} UD Officer Joseph Wilhelm was the first individual on the scene.            He

arrived at 149 Jasper Street, in Dayton, Ohio, at around 6:00 p.m., which was about five

minutes after the call was broadcasted. The area around 149 Jasper contains local

restaurants and businesses, including a pizza place and an ice cream shop (Cold Stone

Creamery). The location was directly adjacent to the UD campus, and numerous people

were in the area.

      {¶ 25} At the time, Wilhelm was working by himself and was in uniform, in a marked

police cruiser. When Wilhelm arrived, he looked for the described vehicle and saw it

parked on the street, close to the sidewalk. Wilhelm parked his cruiser in the middle of

the street, about fifteen feet away, with the overhead lights on and the engine running.

Wilhelm then got out and made contact with the driver, Laster, who was beginning to eat
                                                                                          -9-


an ice cream cone. Two females were also in the car: one was sitting in the front

passenger seat, and the other was in the rear passenger seat.

       {¶ 26} Wilhelm testified that Laster was not under arrest when the initial contact

was made. Wilhelm did not yell at Laster, did not have his firearm out, and did not tell

Laster that he was under arrest. However, Wilhelm did testify that at the point of his

initial contact with Laster, Laster was not free to leave.

       {¶ 27} Based on the caller’s remarks and the fact that a gun may have been on the

scene, Wilhelm ordered Laster to put his hands on the steering wheel. He testified that,

if a gun were present, he did not want Laster to reach for it. This was for his own safety

and the safety of bystanders. Wilhelm was also standing quite close to the driver's side

window of Laster's car.

       {¶ 28} After ordering Laster to put his hands on the wheel, Wilhelm asked if a gun

were in the vehicle, and Laster responded affirmatively. Wilhelm asked where the gun

was, and Laster said it was under the seat. Wilhelm then asked Laster if he had a CCW

permit, and Laster said no. No Miranda warnings had been administered before Wilhelm

asked Laster these questions. Wilhelm testified that while he was asking Laster these

questions, he was trying to investigate the situation.

       {¶ 29} At that point, Wilhelm asked Laster to step out of the vehicle so that he could

separate Laster from the gun.        After patting Laster down, Wilhelm placed him in

handcuffs and seated him in the rear of his police cruiser. Wilhelm did not ask Laster

any further questions.

       {¶ 30} After Wilhelm removed Laster from the Nissan, another UD officer, Officer

Fong, arrived on the scene. Fong did not ask Laster any questions. Three Dayton
                                                                                          -10-


police officers also arrived on the scene, including Detective Gundelfinger (who was a

patrol officer at the time). Gundelfinger was the last officer to arrive. Because the

incident occurred off campus, Gundelfinger took control of the investigation.

       {¶ 31} At that time, the Nissan's doors were open, and Gundelfinger peeked inside.

When he did so, he saw the gun. He then made contact with Laster, who was sitting

inside a police cruiser. Gundelfinger administered Miranda warnings using a card that

the prosecutor supplies to the police. When the warnings were administered, Laster

answered affirmatively to each question. Laster then said that he wanted to speak to

Gundelfinger. No testimony was offered about what Laster said to Gundelfinger.

       {¶ 32} As was noted, Laster was subsequently charged with improperly handling

a firearm in a vehicle and with carrying a concealed weapon. Laster then pled no contest

to the first charge after the court overruled his motion to suppress.

       {¶ 33} “A police officer may rely on outside information provided directly to him,

such as tips from informants, or on information relayed to him via a flyer or radio dispatch.”

State v. Hamilton, 1st Dist. Hamilton No. C-160247, 2017-Ohio-8140, ¶ 13, citing Adams

v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). “Where an informant's

tip is relied upon, the informant's veracity and reliability and his basis for knowledge must

be assessed under the totality of the circumstances to determine whether the tip

establishes reasonable suspicion.” Id., citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct.

2317, 76 L.Ed.2d 527 (1983).

       {¶ 34} While “ ‘an anonymous tip alone seldom demonstrates the informant's basis

of knowledge or veracity,’ * * * under appropriate circumstances, an anonymous tip can

demonstrate ‘sufficient indicia of reliability to provide reasonable suspicion to make [an]
                                                                                          -11-

investigatory stop.’ ” (Emphasis sic.) Navarette v. California, 572 U.S. 393, 397, 134

S.Ct. 1683, 188 L.Ed.2d 680 (2014), quoting Alabama v. White, 496 U.S. 325, 327, 329,

110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

       {¶ 35} In Navarette, a caller described having been run off the road by a vehicle,

and also identified the make and license plate of the truck. Id. at 395. The court noted

that by reporting this, the caller “necessarily claimed eyewitness knowledge of the alleged

dangerous driving. That basis of knowledge lends significant support to the tip's

reliability.” Id. at 399. This is similar to the tip in the case before us, where the caller

described the vehicle, including the license plate, reported seeing a gun in the suspect’s

lap, and indicated that the suspect was sitting in his vehicle near Cold Stone Creamery.

       {¶ 36} In Navarette, the Supreme Court also relied on the timeline of events, which

suggested that the caller had reported the incident soon after she had been run off the

road. The court stressed that this “sort of contemporaneous report has long been treated

as especially reliable.” Id. at 399. Again, in the case before us, the police arrived on

the scene about five minutes after the broadcast and observed the car that had been

identified. In addition, the car was still sitting in the location the caller had described,

near Cold Stone Creamery.

       {¶ 37} The court further observed in Navarette that “[e]ven a reliable tip will justify

an investigative stop only if it creates reasonable suspicion that ‘criminal activity may be

afoot.’ ” Id. at 401, quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889

(1968). This standard requires law enforcement officers to have “ ‘a particularized and

objective basis for suspecting the particular person stopped of criminal activity.’ ” Id. at

396, quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621
                                                                                          -12-


(1981).

       {¶ 38} Given the caller’s description that the individual had a gun visible on his lap

while sitting in a motor vehicle located in a highly populated retail area and that there was

loud behavior, Officer Wilhelm had reasonable suspicion that criminal activity was afoot.

In any event, the record indicates that Officer Wilhelm’s actions constituted a lawful,

consensual encounter.

       {¶ 39} Based on the preceding discussion, there are no exceptional circumstances

that apply here, and the record does not demonstrate manifest injustice that would

warrant notice of plain error.



                   B. Whether the Detention Was Custodial or Investigatory

       {¶ 40} Laster’s second argument is that he was restrained in a way that would have

led reasonable persons to believe that they were under arrest. The trial court overruled

Laster’s motion to suppress based on its conclusion that Laster’s statements to the police

were the product of an investigatory detention, not custodial interrogation.

       {¶ 41} In ruling on a motion to suppress, a 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).     Accordingly, when we review suppression decisions, we must

“accept the trial court's findings of fact if they are supported by competent, credible

evidence.” Id. “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.
                                                                                        -13-


      {¶ 42} According to Laster, Officer Wilhelm restrained him in a way that would have

led a reasonable person in his position to believe he was under arrest, and Wilhelm,

therefore, should have given him Miranda warnings before eliciting incriminating

information.

      {¶ 43} In order to “protect the Fifth Amendment privilege against self-

incrimination,” Miranda requires police to use certain procedures in dealing with accused

persons. Moran v. Burbine, 475 U.S. 412, 420, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986),

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

However, these procedural safeguards apply only where individuals are subjected to

custodial interrogation, which means “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.

      {¶ 44} For purposes of deciding if “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).

“Once the factual circumstances surrounding the interrogation are reconstructed, the

court must apply an objective test to resolve ‘the ultimate inquiry’ of whether there was a

‘ “formal arrest or restraint on freedom of movement” ’ of the degree associated with a

formal arrest.” Id., quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517,

77 L.Ed.2d 1275 (1983). (Other citation omitted.)
                                                                                          -14-


       {¶ 45} In applying the “reasonable person test,” courts consider the following

factors: “whether the encounter takes place in surroundings that are familiar to the

suspect; the number of law enforcement officers present, as well as their conduct and

demeanor; the degree of physical restraint imposed; and the duration and character of

the interrogation.” State v. Farrell, 2d Dist. Miami No. 99-CA-24, 1999 WL 812249, *3

(Oct. 8, 1999), citing State v. Salyer, 2d Dist. Miami No. 97-CA-39 (Apr. 10, 1998).

       {¶ 46} In deciding whether Laster was functionally, if not formally, under arrest

when he was being questioned by Officer Wilhelm, the trial court cited State v. Sell, 2d

Dist. Montgomery No. 26458, 2015-Ohio-1940.           See Doc. #29, Decision and Entry

Overruling Defendant’s Motion to Suppress, p. 2, citing Sell at ¶ 18. After discussing the

facts, the court concluded that Wilhelm’s order for Laster to put his hands on the wheel,

without more, would not have led a reasonable person to believe he or she were under

arrest. Id. at pp. 2-3.

       {¶ 47} We agree with the trial court. Although Wilhelm testified that Laster was

not free to leave, the officer’s subjective intent was irrelevant. Sell at ¶ 17. Instead, “the

issue is whether a reasonable person in the suspect's situation would have understood

that he was in custody.” Id., citing State v. Cross, 2d Dist. Montgomery No. 25838, 2014-

Ohio-1534, ¶ 13.

       {¶ 48} In Sell, we also observed that during typical investigatory detentions like

routine traffic stops, individuals are not “ ‘in custody’ for purposes of Miranda.” Id. at

¶ 18, quoting State v. Cundiff, 2d Dist. Montgomery No. 24171, 2011-Ohio-3414, ¶ 60.

Although the detention in the case before us was not a routine traffic stop, it was similar

to the stop involved in State v. Keggan, 2d Dist. Greene No. 2006-CA-9, 2006-Ohio-6663.
                                                                                               -15-

In Keggan, the police were dispatched to the defendant’s home on a complaint that a

male had threated another male with a shotgun. After pulling alongside the defendant’s

vehicle as he was attempting to leave his house, the police required the defendant to exit

his truck, patted him down for weapons, and then placed him in a police cruiser. Id. at

¶ 6.

       {¶ 49} In discussing the detention, we noted that “police officers may briefly stop

and/or temporarily detain individuals in order to investigate possible criminal activity if the

officers have a reasonable, articulable suspicion that criminal activity has occurred or is

about to occur.” Id. at ¶ 30, citing Terry, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.

       {¶ 50} In Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317

(1984), the Supreme Court stated that “ ‘[T]he stop and inquiry must be “reasonably

related in scope to the justification for their initiation.” ’ * * * Typically, this means that the

officer may ask the detainee a moderate number of questions to determine his identity

and to try to obtain information confirming or dispelling the officer's suspicions. But the

detainee is not obliged to respond. And, unless the detainee's answers provide the

officer with probable cause to arrest him, he must then be released.” Id. at 439-440,

quoting United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 45 L.Ed.2d

607 (1975). (Footnotes omitted.)

       {¶ 51} As the trial court noted, Wilhelm was alone when he approached the car,

ordered Laster to put his hands on the steering wheel, and questioned Laster about the

gun. We agree with the trial court that this would not have led reasonable persons to

conclude that they were under arrest. Wilhelm asked only a few brief questions to obtain

information that could have dispelled his suspicions, and he did not subject Laster to
                                                                                          -16-

treatment that rendered him “ ‘in custody’ for practical purposes * * *.” Berkemer at 440.

Accord Keggan, 2d Dist. Greene No. 2006-CA-9, 2006-Ohio-6663, at ¶ 31; Sell, 2d Dist.

Montgomery No. 26458, 2015-Ohio-1940, at ¶ 18. Accordingly, the trial court did not err

in concluding that Laster was not in custody and that his statements to Wilhelm were

admissible.



                            C. Interrogation After Miranda Warnings

       {¶ 52} Finally, Laster contends that the trial court erred in refusing to suppress any

statements that were made to Detective Gundelfinger.          As was noted, Gundelfinger

administered Miranda warnings to Laster after he arrived on the scene.

       {¶ 53} In this regard, Laster relies on State v. Cook, 2d Dist. Montgomery No.

24524, 2012-Ohio-111. Cook involved a claim of successive interrogations where the

first interrogation was unwarned, and the second contained Miranda warnings. Id. at

¶ 14-17, discussing Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 642

(2004). In addressing this issue, the trial court concluded that any statements made to

Detective Gundelfinger did “not run afoul” of Seibert because Laster was not in custody

when he made his initial statements to Wilhelm. Doc. #29 at p. 3. Again, we agree with

the trial court.

       {¶ 54} Seibert involved “a police protocol for custodial interrogation that calls for

giving no warnings of the rights to silence and counsel until interrogation has produced a

confession,” and an “interrogating officer who follows it with Miranda warnings and then

leads the suspect to cover the same ground a second time.” Id. at 604. The Supreme

Court held that “[b]ecause this midstream recitation of warnings after interrogation and
                                                                                         -17-

unwarned confession could not effectively comply with Miranda's constitutional

requirement, * * * a statement repeated after a warning in such circumstances is

inadmissible.” Id.

       {¶ 55} The fact that a police protocol was involved in Seibert was not the decisive

point, because “the intent of the officer doing the questioning is not relevant in a Miranda

analysis.” State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985, ¶ 35.

As the Supreme Court of Ohio noted, “Seibert presented the rare case in which the officer

admitted that the two-part questioning was intentionally coercive.” Id.

       {¶ 56} Nonetheless, in order for Seibert to apply, there must be a custodial

interrogation. See State v. Hayes, 2d Dist. Montgomery No. 25940, 2015-Ohio-1043,

¶ 23-24 (finding defendant was in custody, but was not interrogated for purposes of

applying Seibert, because she initiated the conversation with a detective and there was

no indication that the detective “made any effort, calculated or otherwise, to elicit

incriminating statements”).

       {¶ 57} Other cases have made similar conclusions. See State v. Zan, 2d Dist.

Montgomery No. 24600, 2013-Ohio-1064, ¶ 28 (distinguishing Seibert because the

defendant was not in custody when she made pre-Miranda statements to the police);

State v. Sosnoskie, 2d Dist. Montgomery No. 22713, 2009-Ohio-2327, ¶ 61-62 (Seibert

did not apply because the defendant was not in custody during her first interview and

police were not required to read her Miranda warnings); State v. Lux, 2d Dist. Miami No.

2010-CA-30, 2012-Ohio-112, ¶ 33 (pre-Miranda statements were made in a non-custodial

context and did not make the defendant’s later statements inadmissible under Seibert).

See also State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, 964 N.E.2d 1037, ¶ 24
                                                                                       -18-

(“the requirement that police officers administer Miranda warnings applies only when a

suspect is subjected to both custody and interrogation”). Accordingly, the trial court did

not err in concluding that Laster’s statements to Detective Gundelfinger were admissible.

       {¶ 58} Based on the preceding discussion, the trial court did not err in overruling

Laster’s motion to suppress evidence.



                                        IV. Conclusion

       {¶ 59} All of Laster’s assignments of error having been overruled, the judgment of

the trial court is affirmed.



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



FROELICH, J. and TUCKER, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Michael J. Scarpelli
J. David Turner
Hon. Dennis J. Langer
