[Cite as State v. Edmonds, 2018-Ohio-2832.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                 :   JUDGES:
                                               :
                                               :   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                     :   Hon. Patricia A. Delaney, J.
                                               :   Hon. Earle E. Wise, Jr., J.
 -vs-                                          :
                                               :   Case No. 17-CA-53
                                               :
 BRANDON G. EDMONDS                            :
                                               :
                                               :
        Defendant-Appellant                    :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Licking County Court of
                                                   Common Pleas, Case No. 16 CR 00095



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            July 16, 2018




APPEARANCES:

 For Plaintiff-Appellee:                           For Defendant-Appellant:

 WILLIAM C. HAYES                                  PETER GALYARDT
 LICKING COUNTY PROSECUTOR                         ASST. STATE PUBLIC DEFENDER
                                                   250 East Broad St., Suite 1400
 PAULA M. SAWYERS                                  Columbus, OH 43215
 20 S. Second Street, 4th Floor
 Newark, OH 43055
Licking County, Case No. 17-CA-53                                                        2

Delaney, J.

       {¶1} Defendant-Appellant Brandon G. Edmonds appeals his conviction and

sentence on June 19, 2017 by the Licking County Court of Common Pleas.

                          FACTS AND PROCEDURAL HISTORY

       {¶2} On February 12, 2016, Defendant-Appellant Brandon G. Edmonds and co-

defendants went to the home of H.O. located in Newark, Ohio. Edmonds knocked on the

door and when H.O. opened the door, Edmonds and the co-defendants rushed in.

Edmonds brandished a gun at H.O. and other occupants of the house in an effort to steal

drugs or money. A struggle ensued between H.O. and Edmonds, during which Edmonds

fired his gun numerous times. H.O. was shot in the knee, causing serious physical harm.

Edmonds and the co-defendants fled the home.

       {¶3} A warrant was issued for Edmonds’s arrest on February 16, 2016. He was

arrested on March 11, 2016.

       {¶4} On March 24, 2016, the Licking County Grand Jury indicted Edmonds on

the following offenses:

       Count 1: Aggravated Burglary, a felony of the first-degree in violation of R.C.

       2911.11(A)(1) and/or (2)(B);

       Count 2: Aggravated Robbery, a felony of the first-degree in violation of

       R.C. 2911.01(A)(1) and/or (3)(C);

       Count 3: Felonious Assault, a felony of the second-degree in violation of

       R.C. 2903.11(A)(1) and/or (2)(D)(1)(a);

       Count 4: Having Weapons While Under Disability, a felony of the third-

       degree in violation of R.C. 2923.13(A)(3)(B); and
Licking County, Case No. 17-CA-53                                                           3


       Firearm Specifications as to Counts 1, 2, and 3, in violation of R.C.

       2941.145(A).

       {¶5} Edmonds entered a plea of not guilty to all counts. Prior to trial, Edmonds

waived his right to a jury trial on Count 4 and elected to have that count tried to the court.

The matter proceeded to trial on June 12 through June 15, 2017.

       {¶6} During the trial, Detective Art Minton with the Newark Police Department

testified. On direct examination, Det. Minton testified to the following:

       Q. * * * At some point in time did you read or did you advise Mr. Edmonds

       of his Miranda?

       A. We did.

       Q. Did you ask him questions after that?

       A. I did.

       Q. And what – what questions did you remember asking him?

       A. Well the first thing I remember asking him was something to the effect of

       do – do you remember the incident on Dickerson Street involving Cole,

       James, and Marcus?

       Q. And what was his response?

       A. And his response was, “Pretty much.” And then he added, “But I don’t

       know or I don’t remember a James.”

       Q. Okay. Did he say anything else about the case?

       A. Well, he – he kept – he was trying to interview me really to find out what

       – what I knew or what I had been told. And I wouldn’t give him any of that

       information other than what the charges were against him were on the
Licking County, Case No. 17-CA-53                                                          4


       warrant. And then he at some point asked us what kind of deal he would

       get if he talked about that and he asked us at some point about a lawyer

       and if he’s ---

       MS. MENASHE: Objection, Your Honor.

(T. 705-706).

       {¶7} Counsel for Edmonds objected to Det. Minton’s testimony on the basis of a

Doyle violation and requested a mistrial. (T. 706). The trial court excused the jury and the

parties argued their positions. Counsel argued the State improperly elicited testimony that

Edmonds invoked his right to counsel in violation of Doyle v. Ohio, 426 U.S. 610, 618, 96

S.Ct. 2240, 49 L.Ed.2d 91 (1976). (T. 708-709). Counsel argued:

       So the clear implication of this is he asked for a lawyer and noth – and then

       he asked for – and I think where we were headed was, what Mr. Edmonds

       really said on the tape was if – if I get a lawyer can I come back and talk to

       you then. And obviously there’s no evidence that he came back and talked

       to them then, so it’s because the lawyer – in fact Detective Minton actually

       says to him, well they’re not going to let you talk during – during the

       interview. * * * but clearly the – the inference to the jury now is that’s it, he

       asked for a lawyer, they stop because he invoked his right to counsel * * *.

(T. 711-712).

       {¶8} The State responded:

       Your Honor, the statement would not be sufficient for a suppression motion.

       The statement was, “If I got a lawyer, could I come back and talk to you
Licking County, Case No. 17-CA-53                                                          5


       then?” The response was, “Your lawyer is not going to want you to talk to

       us. * * * It was not a clear invocation of the right to counsel.

(T. 712).

       {¶9} The trial court inquired:

       Yeah, but – but what’s any of that – okay, even if it’s not a clear invocation

       of his right to counsel, what’s the probative value of anything he says up

       until that point? I don’t * * * know what we’re even talking about that. I don’t

       know why the jury is even hearing about this portion of the interview if he’s

       not going to make some statement eventually that triggers the right to

       counsel. I mean that’s the problem. What – what other purpose did we hear

       that testimony for if it wasn’t the suggestion that he lawyered up?

(T. 713). The State responded that the testimony was to show that Edmonds wanted to

know what the co-defendants told Det. Minton. Edmonds wanted to know what they said

so he knew what to say. (T. 714). The trial court stayed ruling on the oral motion for

mistrial until he had reviewed Det. Minton’s testimony, heard the recording of Det.

Minton’s interview of Edmonds, and conducted research on the issue. (T. 715).

       {¶10} After the trial court reviewed the trial materials and heard further arguments

from the parties, the trial court overruled the motion for mistrial. The judge stated:

       The question is whether there is a Doyle violation. The jury heard Detective

       Minton say that I Mirandized him, he was aware of his rights, we talked, and

       at some point he mentioned something about a lawyer – and I’m

       paraphrasing. That is not a Doyle violation, in my view. It’s improper, it’s

       prejudicial. I will – I will sustain the objection and issue a instruction if the
Licking County, Case No. 17-CA-53                                                            6

       Defense wants one. * * * Doyle has to do with confronting a Defendant while

       he’s testifying with the fact that he remained silent after being advised of his

       Miranda warnings. He didn’t remain silent here but that – that’s really beside

       the point. The jury’s only heard that he’s asked about a lawyer; that’s all

       they heard.

(T. 729-730).

       {¶11} Edmonds was ultimately convicted on all counts. The trial court sentenced

Edmonds to an aggregate sentence of eleven years.

                                ASSIGNMENT OF ERROR

       {¶12} Edmonds raises one Assignment of Error:

       {¶13} “THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED DUE

PROCESS WHEN IT DENIED BRANDON EDMONDS’S MISTRIAL REQUEST. FIFTH,

SIXTH, AND FOURTEENTH AMENDMENTS, UNITED STATES CONSTITUTION;

ARTICLE I, SECTIONS 10 AND 16, OHIO CONSTITUTION. TR. 705-706, 711, 713, 719-

720, 726, 729-730.”

                                         ANALYSIS

       {¶14} In his sole Assignment of Error, Edmonds argues the trial court erred by

denying his motion for a mistrial after Det. Minton testified in the State’s case-in-chief that

Edmonds asked about a lawyer. We disagree.

       {¶15} “Mistrials need to be declared only when the ends of justice so require and

a fair trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1

(1991). The standard of review for evaluating a trial court's decision to grant or deny

a mistrial is abuse of discretion. State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768
Licking County, Case No. 17-CA-53                                                              7


(1984). In reviewing a claim that a mistrial should have been granted, the Ohio Supreme

Court has noted “[t]his court has instead adopted an approach which grants great

deference to the trial court's discretion in this area, in recognition of the fact that the trial

judge is in the best position to determine whether the situation in his courtroom warrants

the declaration of a mistrial.” State v. Shaffer, 5th Dist. Richland No. 2003-CA-0108, 2004-

Ohio-3717, ¶ 18 quoting [State v.] Widner [(1981), 68 Ohio St.2d 188, 429 N.E.2d

1065]. See, also, Wade v. Hunter (1949), 336 U.S. 684, 687, 69 S.Ct. 834, 836, 93 L.Ed.

974. An abuse of discretion connotes more than an error of law or judgment. It implies

that the trial court ruled arbitrarily, unreasonably, or unconscionably. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

       {¶16} The right to remain silent is conferred by the United States and the Ohio

Constitutions. The privilege against self-incrimination “is fulfilled only when the person is

guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered

exercise of his own will.’ ” State v. Graber, 95 N.E.3d 631, 641 (5th Dist.2003) quoting

Miranda v. Arizona, 384 U.S. at 460, 86 S.Ct. 1602, quoting Malloy v. Hogan (1964), 378

U.S. 1, 8, 84 S.Ct. 1489, 12 L.Ed.2d 653. The United States Supreme Court in Miranda

v. Arizona, supra detailed the well-known procedural safeguards, including the right to an

attorney, to protect the privilege against self-incrimination. “A suspect’s right to an

attorney during questioning * * * is derivative of his right to remain silent.” State v. Leach,

102 Ohio St.3d 135, 2004-Ohio-2147, 807 N.E.2D 335, ¶ 13 quoting Wainwright v.

Greenfield, 474 U.S. 284, 298-299, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986) (Rehnquist, J.,

concurring). In Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976),

the United States Supreme Court held that use of a defendant’s post-arrest, post-Miranda
Licking County, Case No. 17-CA-53                                                         8


silence for impeachment purposes violates the Due Process Clause of the Fourteenth

Amendment. State v. Leach, 102 Ohio St.3d 135, 2004-Ohio-2147, 807 N.E.2d 335, ¶ 16.

In Wainwright v. Greenfield, 474 U.S. 284, 298-299, 106 S.Ct. 634, 88 L.Ed.2d 623

(1986), the United States Supreme Court held the use of a defendant’s post-arrest, post-

Miranda silence as substantive evidence of guilt violated due process. The State may not

use a defendant’s silence to lead the jury to the conclusion that innocent people speak to

the police to clear up misunderstandings, while guilty people consult with their attorneys.

State v. Abraham, 9th Dist. Summit No. 26258, 2012-Ohio-4248, ¶ 42 citing State v.

Leach at ¶ 32.

       {¶17} Det. Minton testified that after Edmonds was advised of his Miranda rights,

Edmonds answered some of his questions. The State asked Det. Minton if Edmonds said

anything about the case. The detective responded that he felt Edmonds was trying to

interview him to see what he knew or had been told by the co-defendants. He next stated

that Edmonds asked about a lawyer. The trial court ruled there was no Doyle violation

when Det. Minton testified Edmonds asked about a lawyer during post-arrest, post-

Miranda questioning.

       {¶18} In State v. Abraham, 9th Dist. Summit No. 26258, 2012-Ohio-4248, the

Ninth District Court of Appeals affirmed a decision to find no Doyle violation in a scenario

where a defendant’s pre-arrest, pre-Miranda silence was referred to in the State’s case-

in-chief. The detective in Abraham testified that during questioning, the defendant stated

he did not know if he needed to talk to an attorney or he may want to talk to an attorney.

Id. at ¶ 43. The State stopped the line of questioning and no more references were made

regarding the defendant’s attorney.
Licking County, Case No. 17-CA-53                                                         9

       {¶19} The Ninth District found no Doyle violation as to the detective’s reference to

the defendant’s question about an attorney. The court differentiated its case from State

v. Leach, supra, wherein the Ohio Supreme Court considered whether a Doyle violation

occurred when the State remarked on the defendant’s silence during opening statement,

repeatedly asked about his silence during direct examination, and introduced the Miranda

rights form he later signed into evidence. Id. The Ohio Supreme Court was asked to

decide whether a defendant’s pre-arrest, pre-Miranda silence may be used as substantive

evidence of guilt in the State’s case-in-chief and whether a defendant’s post-arrest, post-

Miranda assertion of his right to counsel may be used as substantive evidence of guilt in

the State’s case-in-chief. Id. at ¶ 1. The Court held the State violated the defendant’s

privilege against self-incrimination both pre-arrest, pre-Miranda and post-arrest, post-

Miranda by using it against him during the trial, subverting the policies behind the Fifth

Amendment. Id.

       {¶20} The Ninth District found the testimony in Abraham to be distinct from Leach

because the State in Abraham never affirmatively sought to use the defendant’s silence

as evidence. Abraham at ¶ 45. The detective’s reference was “brief and isolated,” the

reference was vague, and there was no evidence the State sought to elicit the response

the detective gave. Id. citing State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, at ¶

162.

       {¶21} In this case, we find that while the defendant’s silence in Abraham was pre-

arrest and pre-Miranda, the facts are similar to the present case where the issue was

raised post-arrest and post-Miranda. First, there is no evidence in this case that the State

sought to elicit the detective’s response. The State asked the detective, “Did he say
Licking County, Case No. 17-CA-53                                                          10


anything else about the case?” The detective responded to the question explaining he felt

Edmonds wanted to know what the detective knew about the case and at the end of his

explanation, he stated Edmonds asked about a lawyer. The statement was vague in that

the detective stated Edmonds asked “about a lawyer,” not “for a lawyer” or “for his lawyer.”

In Leach, the defendant stated “he wished to consult an attorney.” Leach, supra at ¶ 16.

Second, Det. Minton’s statement was brief and isolated. There was no further reference

during the State’s case-in-chief about Edmonds’s attorney.

       {¶22} Third, there is no evidence the State affirmatively sought to use Edmonds’s

question about a lawyer as substantive evidence of Edmonds’s guilt; nor did the State

use the evidence for impeachment purposes. The Ninth District stated, “[t]he thrust of

Leach and its progeny is that the State may not use a defendant’s unwillingness to talk to

the police to infer his guilt.” Abraham at ¶ 45 citing Powell, supra at ¶ 155-156. Det.

Minton’s testimony does not show Edmonds invoked his right to remain silent or was

unwilling to talk to the police. Det. Minton made no comment on Edmonds’s silence.

       {¶23} In this case, we find no abuse of discretion when the trial court did not find

the State elicited a Doyle violation necessitating a mistrial. A mistrial is required when the

ends of justice so require and a fair trial is no longer possible. Det. Minton’s reference to

Edmonds’s question about an attorney did not rise to that level.

       {¶24} Edmonds’s sole Assignment of Error is overruled.
Licking County, Case No. 17-CA-53                                                    11


                                    CONCLUSION

       {¶25} The judgment of the Licking County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, P.J. and

E. Wise, J., concur.
