[Cite as State v. Cook, 2012-Ohio-111.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                          :

        Plaintiff-Appellee                             :            C.A. CASE NO.     24524

v.                                                     :            T.C. NO.    10CR2375

YVONNE D. COOK                              :              (Criminal appeal from
                                                                   Common Pleas Court)
        Defendant-Appellant                 :

                                                       :

                                           ..........

                                           OPINION

                         Rendered on the        13th       day of     January   , 2012.

                                           ..........

R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

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

                                           ..........

DONOVAN, J.

        {¶ 1} Defendant-appellant Yvonne D. Cook appeals from her conviction and

sentence for one count of intimidation of a crime victim, in violation of R.C. 2921.04(B), a

felony of the third degree; two counts of felonious assault, in violation of R.C.
                                                                                        2

2903.11(A)(1) & (2), both felonies of the second degree; and one count of having a weapon

while under disability, in violation of R.C. 2923.13.(A)(2), a felony of the third degree.

Each count of felonious assault was accompanied by a firearm specification.

       {¶ 2} Cook filed a timely notice of appeal with this Court on March 9, 2011.

                                              I

       {¶ 3} The incident which forms the basis for the instant appeal occurred on June

19, 2010, at approximately 4:00 a.m., when Dayton Police responded to a 911 call reporting

that a man, later identified as Terence Bolton, had been shot in the DeSoto-Bass apartment

complex located in southwest Dayton, Ohio. After a brief investigation, officers began

looking for a woman going by the name “Granny,” who was purported to have shot Bolton.

Dayton Police Officer Jennifer Stack soon contacted Cook at her nearby home and identified

her as “Granny.” For her own safety, Officer Stack handcuffed Cook and patted her down.

Officer Stack then placed Cook in the back of the police cruiser.

       {¶ 4} While Cook was in the back of the cruiser, Officer Stack engaged her in a

brief conversation, stating “Terry said you shot him.”       Cook denied shooting Bolton.

Shortly thereafter, Officer Stack spoke to a witness named Alves who stated that she had

seen Cook with a firearm earlier. Officer Stack asked Cook for consent to a search of her

apartment, and Cook provided verbal consent. Thereafter, Officer Stack provided Cook with

a consent form for the search of her apartment. Cook signed the consent form. Cook,

however, was never advised of her Miranda rights by Officer Stack.

       {¶ 5} Detective Darryl Smith arrived at the scene at approximately 6:00 a.m. and

was informed that Cook had signed a consent to search form. Two homicide detectives
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were already on scene when Detective Smith arrived, and no evidence was adduced that they

advised Cook of her rights. After searching her apartment, Detective Smith spoke with

Cook while she sat cuffed in the rear of the cruiser. Detective Smith did not advise Cook of

her Miranda rights prior to questioning her. Detective Smith asked Cook a series of

questions about what happened and Cook provided a significant amount of incriminating

information about the incident.      Detective Smith testified that he spoke to Cook for

approximately five minutes. After the interview, Cook was transported to the Dayton

Safety Building at about 6:30 a.m.

       {¶ 6} Prior to interviewing Cook again at the Safety Building, Detective Smith

presented Cook with a pre-interview form which advised her of her constitutional rights.

Detective Smith read the contents of the form to Cook, and she signed it. Cook indicated to

Detective Smith that she had completed ten years of schooling. Cook also informed Smith

that she could read.

       {¶ 7} After Cook signed the pre-interview form, she was questioned a second time

by Smith. The question and answer session lasted about thirty minutes. Cook provided

Detective Smith detailed information regarding the events surrounding the shooting, which

was consistent with the information Cook gave at the scene about an hour earlier.

Thereafter, Cook was transported to jail.

       {¶ 8} On August 27, 2010, Cook was indicted for one count of intimidation of a

crime victim, two counts of felonious assault, each count accompanied by a firearm

specification, and one count of having a weapon while under disability. At her arraignment

on August 31, 2010, Cook stood mute, and the trial court entered a plea of not guilty on her
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behalf.

          {¶ 9} Cook filed a motion to suppress on September 20, 2010. A hearing was held

on said motion on November 5 and 15, 2010. On January 21, 2011, the trial court issued a

decision in which it sustained Cook’s motion to suppress with respect to the statements she

made to Detective Smith while she was seated in the rear of Officer Stack’s cruiser before

she had been Mirandized. The trial court, however, overruled Cook’s motion regarding the

statements she made to Detective Smith at the Safety Building after she had been

Mirandized and signed the pre-interview form.

          {¶ 10} On February 15, 2011, Cook pled no contest to all of the counts in the

indictment. The trial court subsequently found her guilty on all counts and sentenced her to

an aggregate prison term totaling six years.

          {¶ 11} It is from this judgment that Cook now appeals.

                                                II

          {¶ 12} Cook’s sole assignment of error is as follows:

          {¶ 13} “WHETHER THE STATEMENTS APPELLANT COOK MADE AFTER

RECEIVING         A   MIRANDA        WARNING         CONFIRMING     HER    PRE-MIRANDA

STATEMENTS CAN BE USED AGAINST HER.”

          {¶ 14} In her sole assignment, Cook contends that the post-Miranda statements she

made to Detective Smith while in custody at the Safety Building were a mere continuation of

the initial statements she made to the detective earlier at the scene without the benefit of

Miranda warnings, and therefore, should have been suppressed as well. Thus, Cook argues

that the trial court erred when it overruled that portion of her motion to suppress regarding
                                                                                               5

her post-Miranda statements.

       {¶ 15} In regards to a motion to suppress, “the trial court assumes the role of trier of

facts and is in the best position to resolve questions of fact and evaluate the credibility of

witnesses.” State v. Hopfer (1996), 112 Ohio App.3d 521, 548, quoting State v. Venham

(1994), 96 Ohio App.3d 649, 653. The court of appeals must accept the trial court’s

findings of fact if they are supported by competent, credible evidence in the record. State v.

Isaac (July 15, 2005), Montgomery App. No. 20662, 2005-Ohio-3733, citing State v.

Retherford (1994), 93 Ohio App.3d 586. Accepting those facts as true, the appellate court

must then determine, as a matter of law and without deference to the trial court’s legal

conclusion, whether the applicable legal standard is satisfied. Id.

       {¶ 16} In support of her argument that the trial court erred when it found that her

post-Miranda statements were admissible, Cook relies on the United States Supreme Court’s

holding in Missouri v. Seibert (2004), 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 642. In

Seibert, the U.S. Supreme Court considered whether the technique of successive

interrogations, first unwarned and then warned, violated a defendant’s Miranda rights.

       {¶ 17} In Seibert, a police officer questioned the defendant without Miranda

warnings for approximately thirty to forty minutes. The defendant made an admission, and

the officer gave the defendant a twenty-minute break. After the break, the same officer

returned, gave the defendant Miranda warnings, obtained a signed waiver, and resumed

questioning. During the second round of questioning, the officer confronted the defendant

with her pre-Miranda statements, and the defendant repeated her admission. The court

referred to this testimony as “question first” and stated that “[t]he object of question first is
                                                                                            6

to render Miranda warnings ineffective by waiting for a particularly opportune time to give

them, after the suspect has already confessed.” Id. at 611, 124 S.Ct. 2601, 159 L.Ed.2d 643.

The court ultimately held that the post-warning statements were inadmissible. Id. at 617.

       {¶ 18} “In a question first scenario in which the Miranda warning is withheld and

the suspect makes inculpatory statements, the risk is that the warning will mean less when it

is eventually recited.”   State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255.          “The

threshold issue when interrogators question and warn later is thus whether it would be

reasonable to find that in these circumstances the warning could function ‘effectively’ as

Miranda requires. Could the warnings effectively advise the suspect that he had a real

choice about giving an admissible statement at that juncture? Could they reasonably convey

that he could choose to stop talking even if he had talked earlier? For unless the warnings

could place a suspect who has just been interrogated in a position to make such an informed

choice, there is no practical justification for accepting the formal warnings as compliance

with Miranda, or for treating the second stage of interrogation as distinct from the first,

unwarned and inadmissible segment.” Seibert, 542 U.S. at 611-612, 124 S.Ct. 2601, 159

L.Ed.2d 643.

       {¶ 19} In support of its argument that the trial court did not err in ruling Cook’s

post-warning statement admissible, the State relies on Oregon v. Elstad (1985), 470 U.S.

298, 105 S.Ct. 1285, 84 L.Ed.2d 222. The court in Elstad held admissible a post-Miranda

warning confession that followed a pre-warning admission solicited by an officer while the

suspect was in custody.

       {¶ 20} “Elstad and Seibert stand on opposite sides of the line defining where
                                                                                            7

pre-warning statements irretrievably affect post-warning statements. Still, that line cannot

be said to be bright or sharply defined.” Farris, 109 Ohio St.3d at 523, 2006-Ohio-3255.

       {¶ 21} In Elstad, police went to the home of an eighteen-year old defendant with a

warrant for his arrest. While one officer went to the kitchen to explain to the suspect’s

mother that her son was being arrested in connection with a burglary that occurred at the

home of a neighbor, another officer stayed with Elstad in the living room and had a brief

discussion with him. The officer explained the neighbor’s house had been robbed and that

he thought Elstad was involved. Elstad stated to the officer “Yes, I was there.” Elstad, 470

U.S. at 301, 105 S.Ct. 1285, 84 L.Ed.2d 222.

       {¶ 22} Police took Elstad to the police station, and about one hour later, interviewed

him in the office of one of the officers. The police administered Miranda to Elstad for the

first time without mentioning his previous admission.       Elstad subsequently waived his

rights and made a full, detailed confession regarding his involvement in the burglary. Both

confessions were admitted into evidence at trial, and Elstad was convicted. His conviction,

however, was reversed by an Oregon appellate court who found that the post-Miranda

confession was inadmissible. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222.

       {¶ 23} The U.S. Supreme Court reversed the holding of the Oregon appellate court

and allowed the post-Miranda confession to be used. Id. The Elstad court noted that “a

finding of voluntariness for the purposes of the Fifth Amendment is a threshold requirement

in determining whether the confession may be admitted in evidence.” The Elstad Court

emphasized that “there was no warrant for presuming coercive effect where the suspect’s

initial inculpatory statement, though technically in violation of Miranda, was voluntary.” Id.
                                                                                           8

at 318, 105 S.Ct. 1285, 84 L.Ed.2d 222. Instead, “the relevant inquiry is whether, in fact,

the second statement was also voluntarily made.” Id. This is determined by an examination

of the surrounding circumstances and the entire course of police conduct. Accordingly, the

Elstad Court held that a suspect who has once responded to unwarned yet uncoercive

questioning is not thereby disabled from waiving his rights and confessing after he has been

given the requisite Miranda warnings.

       {¶ 24} In State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, the Ohio Supreme

Court found that a defendant’s post-Miranda confession was inadmissible when he was

questioned by a police officer and made pre-Miranda admissions. During a routine traffic

stop, an officer ordered the defendant out of the vehicle after smelling an odor of marijuana

emanating from the defendant's vehicle. The officer conducted a pat-down search of the

defendant, but found no drugs.

       {¶ 25} The officer then ordered the defendant to sit in the front seat of the police

cruiser. While they were seated in the cruiser, the officer told the defendant that he had

smelled marijuana. Without administering Miranda warnings, the officer asked the

defendant about the smell. After the defendant provided an explanation, the officer told

the defendant that he was going to search the car, and specifically asked whether any drugs

or drug devices were in the car. The defendant admitted that there was a marijuana pipe in

his trunk.   The officer testified that after the defendant made these statements, he

immediately administered Miranda warnings, but did not tell the defendant that his previous

admissions could not be used against him. After he administered Miranda, the officer asked

the defendant the same questions and obtained the same responses regarding the location of
                                                                                            9

the drug paraphernalia.

       {¶ 26} Applying the elements discussed in Seibert, the Ohio Supreme Court

compared Farris’s case to the facts of Seibert and Elstad.         The Court held that the

interrogation was much closer to Seibert than to Elstad. Although the whole process was

extremely brief, “[i]t would have been reasonable to regard the two sessions as parts of a

continuum, in which it would have been unnatural to refuse to repeat at the second stage

what had been said before.” Seibert, at 616–617, 124 S.Ct. 2601, 159 L.Ed.2d 643.

Although the questioning was very simple, not in-depth, and not lengthy, it covered exactly

the same subject both before the warning and after the warning. Both of Farris's statements

were made in the police cruiser to the same police officer within moments of each other.

Temporally and substantively, the officer's questioning of Farris constituted a single

interrogation. The officer made no attempt to tailor the Miranda warning he eventually

gave to the particular situation and did not convey any distinction whatsoever between

statements that might come after the warning and those that came before. Thus, the Ohio

Supreme Court held that Farris was not in a position to make a Seibert informed choice

regarding the waiver of his constitutional rights. Importantly, the court held that the intent

of the officer doing the questioning is not relevant in a Miranda analysis. Rather, the

suspect's state of mind is the key.

       {¶ 27} After police arrived at the scene of the shooting, Cook was taken into custody

by Officer Stack, handcuffed, and placed in the back of a police cruiser. After she waited in

the rear of the cruiser for approximately an hour and a half, Cook was questioned by

Detective Smith who did not administer Miranda warnings to her. Cook made admissions
                                                                                            10

regarding her role in the shooting.       According to Detective Smith, the pre-Miranda

interview lasted approximately five minutes, after which Cook was transported to the Safety

Building.   The second interrogation occurred shortly thereafter.        Prior to the second

interrogation, also conducted by Detective Smith, Cook was informed of her constitutional

rights which she subsequently waived.          Detective Smith testified that the second

interrogation was substantially longer than the first. Specifically, Detective Smith testified

that while the second interview covered the same event as the first interview, the second

interview “started at the beginning and went through to the end.”

       {¶ 28} The Seibert Court identified “a series of relevant factors that bear on whether

Miranda warnings delivered mid-stream could be effective enough to accomplish their

object: [1] the completeness and detail of the questions and answers in the first round of

interrogation; [2] the overlapping content of the two statements; [3] the timing and setting of

the first and second; [4] the continuity of police personnel; and [5] the degree to which the

interrogator’s questions treated the second round as continuous with the first.” Id. at 615,

124 S.Ct. 2601, 159 L.Ed.2d 643. Accordingly, in such a scenario, the post-Miranda

warning statements are inadmissible because “the earlier and later statements are realistically

seen as parts of a single unwarned sequence of questioning.” State v. Tate, Mahoning App.

No. 07 MA 130, 2008-Ohio-3245, citing Seibert, 542 U.S. at 612, 124 S.Ct. 2601, 159

L.Ed.2d 643.

       {¶ 29} At the suppression hearing, the State bore the burden of establishing that

Cook’s admissions from the second interview were voluntary, and therefore, admissible.

Based on the record before us, the State failed to meet its burden in that regard. Upon
                                                                                           11

review, we conclude that the instant case falls on the Seibert side of the Elstad/Seibert

continuum.    The record establishes that although the second interview was temporally

longer than the first, both interviews by Detective Smith were thorough and designed to

elicit incriminating   details regarding Cook’s involvement in Bolton’s shooting.         We

recognize that the interrogations were conducted in separate locations, but unlike Elstad,

Cook was not in the comfort of her living room initially.           Rather, Cook had been

handcuffed and seated in the rear of a locked cruiser for almost two hours. Homicide

detectives had been called to the scene and a search of Cook’s residence was conducted.

The content elicited in both interviews clearly overlapped. It is also important to note that

Detective Smith conducted both the pre-Miranda and post-Miranda interviews of Cook.

On the record before us, it appears that the post-Miranda questioning of Cook was merely a

continuation of the pre-Miranda interview initiated by Detective Smith at the crime scene.

The second post-Miranda interview simply memorialized the earlier pre-Miranda

admissions made by Cook. The record contains no explanation regarding how the prior

interview affected any subsequent statements that Cook made after being Mirandized.

Furthermore, it is apparent from the record that the police failed to inform Cook about how

her privilege against self-incrimination applied to her pre-Miranda admissions.

       {¶ 30} We conclude that given the state of this record, Cook was subject to

essentially one continuous custodial interrogation conducted by Detective Smith which was

tainted by the lack of an initial Miranda warning prior to the first interrogation. This is

clearly a case of “question first,” Mirandize later. Accordingly, we find that the trial court

erred when it failed to suppress the statements made by Cook during the second half of the
                                                                                             12

interrogation.

       {¶ 31} Cook’s sole assignment of error is sustained.

                                              III

       {¶ 32}       Cook’s sole assignment of error having been sustained, the judgment of

the trial court is reversed, and this matter is remanded for proceedings consistent with this

opinion.                                 ..........

       FROELICH, J., concurs.

       HALL, J., dissenting:

       {¶ 33} Because I am of the opinion that the interrogations in this case are much more

like Oregon v. Elstad (1985), 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222, than Missouri

v. Seibert (2004), 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643, I would affirm the trial

court’s denial of the defendant’s Motion to Suppress statements she made in an interview

room at the police station after acknowledging and waiving Miranda warnings. The

five-minute questioning in the rear of a police car in the vicinity of the scene of the shooting

differs greatly in time, place, and circumstance from the interview, more than a half hour

later, in a police station office with written Miranda warnings. The trial court did not

conclude that the post-Miranda interview was a continuation of the pre-Miranda

questioning, nor would I. Therefore, I dissent.

                                         ..........

Copies mailed to:

R. Lynn Nothstine
J. David Turner
Hon. Timothy N. O’Connell
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