MAR 21 2007 - Supreme Court of Ohio and the Ohio Judicial ...local detective observed Mr. Kerby and...

IN THE SUPREME COURT OF OHIO

STATE OF OHIO

Appellant/Cross Appellee,

vs.

CARLOS L. KERBY

Appellee/CrossAppellant

Case No. 07-0332

On Appeal from the Clark CountyCourt of Appeals, Second AppellateDistrict

Court of Appeals Case No. 03-CA-55

APPELLEE'S MEMORANDUM IN OPPOSITION TO JURISDICTION ANDMEMORANDUM IN SUPPORT OF JURISDICTION OF CROSS-APPELLANT

CARLOSKERBY

Shawn P. Hooks (0079100)John J. Scaccia (0022217)The Law Office of John J. Scaccia130 West Second StreetSuite 1400Dayton, Ohio 45402(937) 223-7848(937) 223-7845, facsimile

Stephen A. Schumaker (0014643)William H. Lamb (0051808)Damell E. Carter (0020316)Clark County Prosecutor's Office50 E. Columbia StreetP.O. Box 1608Springfield, Ohio 45501

COUNSEL FOR APPELLEE/CROSS-APPELLANT, CARLOS KERBY

F

MAR 21 2007

COUNSEL FOR APPELLANT/CROSS- MARCIA J. MENGEL, CLERKAPPELLEE, STATE OF OHIO SUPREME COURT OF OHIO

TABLE OF CONTENTS

EXPLANATION OF WHY THIS CASE RAISES A SUBSTANTIAL CONSTITUTIONALQUESTION AND INVOKES A OUESTION OF PUBLIC OR GREAT GENERALINTEREST . . . . . .. . .. . .. . .. . . . . .. . .. . . . . ... . . . . . . .. . . .. . . . .. . .. . . . . .. . .. .. . . . . . .. .... .. . .. .. .. .. . . .. .. . . . . ... . .

STATEMENT OF THE CASE AND FACTS .............................................................1

ARGUMENT IN SUPPORT OF CROSS-APPELLANT'S FIRST PROPOSITITION OFLAWProposition of Law No. 1: The Second District Court of Appeals misapplied the law whenit found that there was a lawful arrest because the facts demonstrate that there was notsufficient probable cause to arrest Carlos, and even if there was sufficient probable cause awarrantless arrest is per se unreasonable and is only allowed if it falls under a specificallyenumerated excepdon .... . . . . .. . . . . . . ... . . . . .. . .. .. .. . . . .. . . . . . .. .. . .. . ... .. . .. . . .. .. .. . . ... .. . ... .. . .. . .. . .6

ARGUMENT IN OPPOSITION TO THE STATE'S PROPOSITIONS OF LAW............8Proposition of Law No. 1: The Second District Court of Appeals properly applied the lawand did not exceed its authority by conducting an "independent review" of a motion tosuppress defendant's inculpatory statement to police ofticers ......................................8Proposition of Law No. 2: It is not police overreaching as a matter of law where policeofficers obtain a confession by appealing to defendant's conscience or self-interest, but it isoverreaching to use misstatements, exaggerations, and deceit mixed with the appeal to theconscience in order to elicit a confession ..................................................................9

CONCLUSION . . .. ... . . . . . .. . .. .. . .. . . . . . . .. . . . . . .. . . . . . .. .. . .. . . . . . . . .. . .. . ... .. . .. . . . . .. .. . . .. . .. . .. . . .. ...10CERTIFICATE OF SERV ICE . . .. . .. . .. . ... .. . .. ... .. .. .. . .. .. .. .. . .. . .. .... .. ... . .. . .. . . . . . . . .. . . .. .... . .12

APPENDIX Annx. PageOpinion of the Clark County Court of Appeals in State v. Kerby(January 19, 2007) . . .. . . . . . . . . . .. .. .. . .. . .. . . . . . . . .. . .... . . .. . .. . . . . .. . .. . .. . .. . .. . .. ... . .. . .. .... .. . .. . . . . ....1Notice of filing of final entry: State v. Kerby, January 19, 2007 .......................................25

EXPLANATION OF WHY THIS CASE RAISES A SUBSTANTIALCONSTITUTIONAL QUESTION AND INVOKES A QUESTION OFPUBLIC OR GREAT GENERAL INTEREST

At stake is whether or not an individual is secure in his place of residence from a

warrantless arrest made without sufficient probable cause. Contrary to the State's summary used

in its Memorandum in Support of Jurisdiction there was no direct evidence of Mr. Kerby's

involvement in the shooting other than an unlawfully obtained confession. The Court of Appeals

was correct in reversing the trial court's decision. It erred, however, in finding that the sole basis

for reversing was in the voluntariness of the confession issue. Both lower courts missed a crucial

issue, regardless of whether or not there was sufficient probable cause to arrest Carlos Kerby,

were the police required to obtain a warrant prior to entering his residence in the niiddle of the

night to search for him and then to arrest him.

The lower court properly held that the seizure from Ms. Schnell's house constituted an

arrest, but found that probable cause existed to justify the arrest. Slip. Op. 10-11. It erred in two

respects. First, it found that there was the requisite probable cause to arrest Carlos. The second

respect was that it ignored the requirement that a warrantless arrest of an individual in his or her

home must be made under a recognized narrowly drawn exception to the warrant requirement.

The lower court based its decision that probable cause to arrest existed on these facts: the

association between Mr. Kerby and a co-defendant, Jawhan Massey, an incident that took place

at Shuler's Bakery over one month prior to the incident at issue, an anonymous tip identifying

the getaway car used in the incident as a black Oldsmobile Cutlass Supreme (which Mr. Kerby

and Mr. Massey were seen working on in December), a police officer witnessing Mr. Kerby, Ms.

Schnell and Mr. Massey in a car together traveling towards Indiana, two anonymous phone calls

alleging Mr. Kerby's involvement (one of which identified three Kerby brothers as being

Law Office of John J. Scaccia - 130 West Second Street - 1400 First National Plaza - Dayton, Ohio 45402 ]Phone: (937) 223-7848 - Fax: (937) 223-7845

involved, but not Mr. Massey), and several conversations that took place on December 12, 2001.

Slip. Op. 12-16.

The lower court properly reversed the trial court decision on the grounds that the

`confession' was not voluntary. The lower court based its decision on the totality of the

circumstances. Specifically, there were several factors considered in arriving at the conclusion

that Mr. Kerby's statements were not made voluntarily: the fact that he was seventeen years old

at the time and completing his sophomore year in high school (Slip. Op. 17), the fact that the

officers used "deceptive statements and exaggerations" when talking with Mr. Kerby (Slip. Op.

18-21), his prior experience, the duration and tone of the investigation, the threats of punishment

and the source of the promises. All of these factors were weighed before the lower court

ultimately decided that the statements were not voluntarily made.

This case is of great public interest only on the grounds that a police officer is not and

should not be entitled to invade a person's home in the middle of the night without a warrant and

arrest the individual absent a recognized exception to the Constitution's warrant requirement.

However, this case is not a matter of public interest on the grounds that the State relies on. The

State apparently believes that the murder was "exceptionally bloodthirsty" and that alone makes

it rise to the level needed to invoke a question of public or great general interest. It is interesting

to note that the State does not separate out the various defendants in its explanation, but rather

makes blanket statements that are not supported by the record. First, there is nothing cited by the

State that would make this murder any more bloodthirsty than other murders that, unfortunately,

happen on a daily occurrence throughout the nation. Additionally, the State makes a great deal

of the three defendants pleading no contest, but later being convicted by the trial court. Mr.

Kerby is the second of the defendants to have a motion to suppress decision by the trial court

Law Office of John J. Scaccia ^- 130 West Second Street - 1400 First National Plaza - Dayton, Ohio 45402 2Phone: (937) 223-7848 - Fax: (937) 223-7845

reversed by the lower court. The only other grounds argued by the State in support of

jurisdiction seems to be that the lower court erred in finding that the statements were not

voluntarily made.

STATEMENT OF THE CASE AND FACTS

The nature of this case is an appeal from a judgment denying the Defendant's Motion to

Suppress Evidence that was journalized in an Entry overruling the motion on June 20, 2003. The

decision was made following a suppression hearing that took place on June 9, 10, 13, and 16,

2003. Mr. Kerby changed his plea to no contest following the entry overruling his motion to

suppress on June 24, 2003. He was sentenced to a total sentence of life imprisonment with

eligibility for parole after twenty-seven (27) years.

Notice of Appeal was filed with the lower court on August 18, 2003. On September 23,

2005, the Counsel for Defendant-Appellant filed a Motion to Dismiss the appeal. The Court

treated this motion as an Anders Brief, and upon review of the file the Court found that there

were "non-frivolous" issues for appeal in a decision filed on February 23, 2006. New Counsel

was appointed on March 24, 2006. Following briefing and oral argument the Court of Appeals

issued a decision and order reversing and remanding the trial court on January 19, 2007. The

State filed a notice of appeal and memorandum in support of jurisdiction with this Court on

February 20, 2007.

The facts of this case are relatively straight-forward. The record shows that Mr. Kerby

was arrested in the early motning at his house on December 13, 2001 for allegedly taking part in

the murder of Chad Kautz. A shooting occurred on November 28, 2001 at the Family Video

store on Sunset Avenue in Springfield. Three men were witnessed entering the store and

Law Office of John J. Scaccia - 130 West Second Street - 1400 First National Plaza - Dayton, Ohio 45402 3Phone: (937) 223-7848 - Fax: (937) 223-7845

demanding money from the two store clerks. When one of the three men saw Mr. Kautz on the

phone he fired a shotgun blast in his direction. Mr. Kautz died from injuries related to the blast.

Two days later an anonymous phone call was made to a 9-1-1 dispatcher indicating that

he overheard a conversation with William Kerby whereby he admitted his involvement in the

shooting and identified Terrence Kerby and Carlos Kerby as being present. The caller also

identified the vehicle used as a black Oldsmobile Cutlass Supreme. Another anonymous phone

call was made to a detective that same day relaying similar information. The next day another

local detective observed Mr. Kerby and Mr. Massey standing next to a black Oldsmobile Cutlass

Supreme, later that day the detective observed the two men cleaning out a maroon Oldsmobile.

On December 3, 2001 a different detective saw Mr. Kerby and his girlfriend and an unidentified

male (allegedly Mr. Massey) driving towards Indiana on the highway.

On December 12, 2001 the Springfield police wired Tyrone Knight, who was

apprehended on an outstanding warrant, to record a conversation with Mr. Massey. The tape was

not admitted, but a tape recording of Mr. Knight going over the tape with the police was

admitted into evidence. On the tape Mr. Knight says that Massey admitted his involvement and

also implicated Carlos. A second taped conversation was made between Knight and Massey.

Massey apparently made references to robbing a Little Ceasar's with the help of Carlos. Massey

was arrested later that night.

Upon arresting Massey the police interrogated him. The video of this interrogation was

used at the motion to suppress hearing as a basis for probable cause to question Carlos. After

extensive questioning where Massey denied involvement and sought to end questioning he

eventually admitted to participating in the shooting. He denied that Carlos had anything to do

with it also, but upon repeated questioning he changed his story to implicate Carlos as well.

Law Office of John J. Scaccia - 130 West Second Street - 1400 First National Plaza - Dayton, Ohio 45402 4Phone: (937) 223-7848 - Fax: (937) 223-784S

Early the next morning the police recorded a call that took place between Massey and Carlos.

During the call Massey asked Carlos if he was "all right about the situation" to which Carlos said

that he was "straight." Finally, Massey asked about the gun to which Carlos said his brother had

taken care of it.

Approximately an hour later, around 2:10 a.m., five armed Springfield police officers

went to Ms. Schnell's residence, where Carlos was living. The police arrived without a warrant

and knocked on the door. They were allowed in and Carlos came down the stairs unclothed.

Ms. Schnell went back upstairs to retrieve clothing and Carlos was told that he was to be taken in

for questioning. At no time was he told he could leave or that he did not have to comply. The

police officers admitted that they were there to "pick up" Carlos. Detective Estep even went so

far as to say that Carlos could not have left if he wanted to. He could not recall whether or not

Carlos was handcuffed.but both Carlos and Ms. Schnell were taken into custody and escorted to

the police station in separate vehicles.

While in the police station Carlos was taken into an interview room. The room was small

and had no windows. The interview lasted over one hour in time. Present were Carlos and two

officers. Carlos was a seventeen year old boy who was working towards completing his

sophomore year in high school at the time. While being interrogated the police made several

statements that the lower court found to be either deceptive or misleading. These statements

exaggerated the evidence that the police had against Carlos and implied to him that the only way

he could save himself was by confessing. The police implied that he would be tried as an adult

in a capital case and that if he did not cooperate and "confess" he would be executed. The lower

court found this to be evidence that the will of Carlos was overborne and his statements were not

voluntarily made because he was a minor at the time and could not have been executed. The


officers were aware of Carlos's age and mental ability. The fact that he was seventeen

eliminated the possibility that he would be executed for any crimes committed. The police

officers entire interrogation was built on the premise that he would be executed if he did not

confess and it became stronger and stronger throughout the interrogation.

Again, it is interesting to note that the State ignores these statements in its memorandum

in support of jurisdiction, instead focusing on statements made after the police "broke" Carlos.

The State attempts to use these statements to demonstrate that his "confession" was voluntary,

ignoring the deception and exaggerations that were made to Carlos prior to him making any

statements.

ARGUMENT IN SUPPORT OF THE CROSS-APPELLANT'S FIRST PROPOSITITIONOF LAW.Proposition of Law No. 1: The Second District Court of Appeals misapplied the law whenit found that there was a lawful arrest because the facts demonstrate that there was notsufficient probable cause to arrest Carlos, and even if there was sufficient probable cause awarrantless arrest is per se unreasonable and is only allowed if it falls under a specificallyenumerated exception.

The Second District misapplied the law in finding that a lawful arrest occurred because

the officers arresting Mr. Kerby neither had sufficient probable cause to arrest him nor did the

warrantless arrest inside his home fit into one of the narrow exceptions to the warrant

requirement. The Court of Appeals was correct in finding that the seizure of Mr. Kerby from the

house in which he was living in the middle of the night constituted an arrest. It went on to hold

that the officers had sufficient probable cause to arrest him, however, and this finding ended its

analysis, holding that the arrest was valid.

Searches and seizures inside a home without a warrant are presumptively unreasonable.

Payton v, New York (1980), 445 U.S. 585, 586. The Fourth Amendment protects a person's

reasonable expectation of privacy in a variety of settings, but the chief evil against which the


amendment is directed is the physical entry of the home. Id. at 589. "In [no setting] is a zone of

privacy more clearly defined than when bounded by the unambiguous physical dimension of an

individual's home..:" Id. The Supreme Court in Payton held that the Fourth Amendment draws

"a firm line at the entrance to the house...[and] that threshold may not reasonably be crossed

without a warrant." Id. at 590. The burden is on the government to establish the availability of

an exception to the warrant requirement. U.S. v. Jeffers (1951), 342 U.S. 48, 51. A valid

warrantless arrest in a person's home must have both probable cause and fit into an exception to

the Fourth Amendment warrant requirement.

In the present case the lower court erred in finding that sufficient probable cause existed

to arrest Mr. Kerby, but even if there had been adequate probable cause the arrest was still

unlawful. The State failed to establish that one of the exceptions applied to allow the police

officers to conduct a warrantless search of the home for Mr. Kerby, or his subsequent seizure or

arrest. In fact, the record does not support that any exception would apply. The officers went to

Mr. Kerby's place of residence with the intention of bringing him in for questioning. They

would not have allowed him to refuse to come with them. For all purposes this was an arrest.

With that said the proper avenue was to apply for a warrant based on the evidence that they had

at that time. This was not done here, and none of the other exceptions would apply to allow a

warrantless arrest of Mr. Kerby in his home. The lower courts fundamentally missed this when

holding that the arrest was lawful.

The holding of the lower courts thwart the purpose of the warrant requirement. The

rationale for making an officer apply for a warrant is to have an independent review of the

evidence by a neutral judicial officer to determine if there is adequate probable cause before

depriving an individual of his or her freedom with an arrest whenever possible. There are


reasons that would allow an officer to conduct a warrantless arrest, such as hot pursuit or plain

view, but these reasons do not apply here. Courts have typically placed the burden on the State

to establish that a warrantless arrest of an individual is reasonable and meets one of the narrowly

drawn exceptions, especially when the arrest is effected in the middle of the night in the

suspect's home. The trial court and the lower court have erred in not holding the State to its

constitutional burden in this case. To allow police officers to ignore the warrant requirement in

this case would start a slippery slope that would further erode the warrant requirement in the

Fourth Amendment. Therefore, this Court should accept jurisdiction over this proposition of

law.

ARGUMENT IN OPPOSITION TO THE STATE'S PROPOSITIONS OF LAW

Proposition of Law No. 1: The Second District Court of Appeals properly applied the lawand did not exceed its authority by conducting an "independent review" of a motion tosuppress defendant's inculpatory statement to police officers.

The State argues that the lower court somehow misapplied the law by conducting an

"independent review" of a motion to suppress. The proposition apparently would change the

standard of review that a lower court would use in reviewing a trial court's decision in a motion

to suppress. As the lower court stated in its decision the current standard is that a lower court

must give deference to the factual findings of the trial court, and it "independently determines

whether the trial court applied the proper legal standard to the facts found." Slip. Op. 8.

Therefore, the standard used seemed to be clear error in reviewing the factual conclusions and de

novo in reviewing conclusions of law,

The State's proposition would drastically alter the role of an appellate court to

unconstitutional dimensions. In effect it would change the standard of review to clear error on

all findings of the trial court, not just findings of fact. Clearly this proposition of law cannot be

Law Office of John J. Scaccia - 130 West Second Street - 1400 First National Plaza - Dayton, Ohio 45402 8Phone:(937)223-7848 - Fax: (937) 223-7845

allowed. A trial court is going to make errors. Due process guarantees that an individual faced

with life in prison should be granted an independent review of the decisions made at the trial

court level. Deference is given to findings of fact because the fact finder is generally in the best

position to judge things such as credibility. An independent review of findings of law, however,

is appropriate. A reviewing court is able to look on conclusions of law dispassionately and

determine whether or not any errors occurred, and if so the extent of prejudice that the defendant

suffered. Indeed, this is the fundamental purpose of appellate review. To elevate the standard of

review by giving more deference to the trial court's conclusions of law would result in the loss of

liberty of more individuals by taking away one of the checks that has been put in place to be sure

that fair proceedings are conducted.

The fact that the State seeks to limit the power of reviewing courts by altering the

standard of review that has been entrenched in the legal system should not be adopted by this

Court. The lower court did not exceed its authority or misapply the law by reviewing the trial

court's conclusions of law de novo.

Proposition of Law No. 2: It is not police overreaching as a matter of law where policeofficers obtain a confession by appealing to defendant's conscience or self-interest, but it isoverreaching to use misstatements, exaggerations, and deceit mixed with the appeal to theconscience in order to eticit a confession.

The State seeks to establish a proposition that a police officer can obtain a confession by

appealing to a defendant's conscience or self-interest. While this proposition in a vacuum is not

a problem, the proposition does not address the issue in this case. The issue here is how the State

seeks to apply the proposition to the facts. It is important to note that the trial court issued no

findings of fact either in writing or verbally. The appellate court conducted a review of the

record, including examining the videotape of the interrogation and concluded that the facts

Law Office of John J. Scaccia --- 130 West Second Street - 1400 First National Plaza - Dayton, Ohio 45402 9Phone: (937) 223-7848 - Fax: (937) 223-7845

supported the conclusion that the police officers had exaggerated evidence and deceived Mr.

Kerby.

Again, using the totality of the circumstances the lower court found that the manner in

which the interrogation was conducted outweighed the "influence of [Mr. Kerby's] maturity"

and the "overall short duration of the interrogation." Slip. Op. 23-24. The lower court

detennined that the officers may have been appealing to Mr. Kerby's conscience, but at that

same time were intentionally deceiving him. Slip. Op. 23. In fact, the lower court found that

because these same officers who were appealing to Mr. Kerby's conscience were also

intentionally deceiving him this effectively deprived Mr. Kerby of his "capacity to intelligently

and voluntarily waive his Fifth Amendment rights." Slip. Op. 23. The lower court properly

weighed the evidence in arriving at this conclusion.

On its face the State's second proposition is correct, but the manner in which the State

seeks to apply it to the facts of this case is faulty. If the police officers obtaining a confession

were merely appealing to a defendant's conscience or self-interest when questioning the person

this would not constitute overreaching. The facts in this case, however, demonstrate that the

police did much more than simply appeal to Mr. Kerby's conscience. The lower court properly

found that the totality of the circumstances, including the misstatements and deceit utilized by

the police officers, demonstrate that Mr. Kerby did not voluntarily waive his Fifth Amendment

rights.

CONCLUSION

Accordingly, Mr. Kerby would ask this Honorable Court to accept jurisdiction on the

proposition of law that the lower court erred in finding that the police officers' arrest of him was

valid and lawful. The facts demonstrate that the officers lacked adequate probable cause to make

Law Office of John J. Scaccia - 130 West Second Street - 1400 First National Plaza- Dayton, Ohio 45402 10Phone: (937) 223-7848 - Fax: (937) 223-7845

an arrest. Even if the police officers had probable cause they still conducted a warrantless search

and seizure/arrest of Mr. Kerby in his house which is unlawful absent specific limited

exceptions. This is a significant constitutional issue because to allow police officers to intrude

into an individual's home and arrest that person without a warrant goes against everything that

the Fourth Amendment stands for. The officers went with the intention of arresting Mr. Kerby.

If they had adequate probable cause they should have applied for a warrant, especially since thay

planned entry into the home in the middle of the night. The whole rationale for the warrant

requirement is to have an independent review of evidence to determine if there is probable cause

to arrest before subjecting an individual to a loss of freedom that accompanies an arrest. It is

doubly so when the arrest is precipitated by a midnight search of the home. This Court must

safeguard individuals' rights by adopting the proposition of law that both the trial court and the

lower court erred in holding that the arrest was lawfully conducted.

Furthermore, Mr. Kerby would argue that this Court should not accept jurisdiction on the

State's arguments. First, there is no substantial constitutional issue or question of public or great

general interest that the State's memorandum invokes. The State simply argues that the facts

were incorrectly applied and that the fact that this was a murder case automatically raises this

case to the necessary level for this Court to accept jurisdiction. Furthermore, the two

propositions of law that the State seeks to establish should not be adopted by this Court. First,

the State's proposition that the lower court misapplied the law and exceeded its authority would

drastically alter the role of appellate courts. The State seems to seek a rule of law that appellate

courts are to give deference not only to the findings of fact of a trial court (which in this case

were non-existent), but also to the conclusions of law. This would fundamentally alter criminal

defendants' due process rights and should not be allowed. It would turn trial courts, not

Law Office of John J. Scaccia -- 130 West Second Street - 1400 First National Plaza - Dayton, Ohio 45402 1 lPhone: (937) 223-7848 - Fax: (937) 223-7845

appellate courts into the primary courts of law. Second, the State seeks to establish a rule of law

that allows officers to appeal to the conscience and self-interest of suspects being interrogated.

This proposition is not problematic by itself, but when applied to the facts of this case it clearly

cannot be adopted. As mentioned above, the police officers were doing much more than merely

appealing to Mr. Kerby's self interest or conscience. The lower court properly found that the

exaggerations and deceptions used by the police officers constituted overreaching, and this Court

should not alter that ruling.

Respectfully submitted,

n J. Scacgla;freg. #0022217

LAW OFFICE OF JOHN J. SCACCIA130 West Second Street1400 First National PlazaDayton, Ohio 45402(937) 223-7848(937) 223-7845, facsimtle

ATTORNEY OF RECORD FORAPPELLEE/CR OSS-APPELLANT

CERTIFICATE OF SERVICE

I hereby certify that a copy of the forgoing has been served, by regular U.S. Mail uponStephen Schumaker, Clark County Proseci4ting Attomey, 50 E. Columbia St., Springfield, OH45502, by regular U.S. Mail, on this of March, 2007.

Law Office of John J. Scaccia - !30 West Second Street-- 1400 First National Plaza- Dayton, Ohio 45402 12Phone: (937) 223-7848 - Fax: (937) 223-7845

IN THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

CLARK COUNTY

STATE OF OHIO

Plaintiff-Appellee Appellate Case No. 03-CA-55v.

Trial Court Case No. 02-CR-0005CARLOS KERBY

(Criminal Appeal fromDefendant-Appellant : Common Pleas Court)

OPINION

Rendered on the 19`" day of January, 2007.

WILLIAM H. LAMB, Atty. Reg. #0051808, Clark County Prosecutor's Office, P.O. Box1608, Springfield, OH 45501

Attomey for Plaintiff-Appellee

JOHN J. SCACCIA, Atty. Reg. #0022217, and SHAWN P. HOOKS, Atty. Reg.#0079100, Law Office of John J. Scaccia, 130 West Second Street, Suite 1400,Dayton, Ohio 45402

Attomey for Defendant-Appellant

BROGAN, J.

Appellant Carlos Kerby appeals from the denial of his pretrial suppression motion

and his subsequent conviction in the Court of Common Pleas of Clark County for

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

aggravated murderwith a firearm specification, murder, aggravated robbery and felonious

assault.

The record indicates that the following events took place leading to the arrest and

conviction of Appellant:

On October 19, 2001, a customer going into Shuler's Bakery on East Main Street

in Springfield observed a man approach the store with a gun. The man dropped the gun,

retrieved it, and ran back to a dark blue Nissan truck, whereupon the truck left the scene.

The customer called 9-1-1 and gave the dispatcher a description of the truck. The police

found the truck in the parking lot of Kroger's grocery on East Main Street. With it, they

found Appellant, Jawhan Massey, and Chris Berrian. They also found two guns, a BB gun

and a .22 caliber revolver, and some clothing, including a red jogging suit, inside the truck.

No charges were filed against Appellant.

Approximately one month later, three males attempted to rob the Family Video store

on Sunset Avenue in Springfield early in the morning on November 28, 2001. Two store

clerks were working on this night, Chad Tyler Kautz and Matthew Brown. Mr. Kautz saw

the three men, one of whom was carrying a sawed-off, 20-gauge shotgun, approach the

store; as a result, he attempted to call 9-1-1. The three men entered the outer vestibule

of the store and demanded money from Matthew Brown, who was working at the counter.

When they saw Mr. Kautz on the telephone, one of them fired a shotgun blast through the

glass windows of the outer vestibule in Mr. Kautz's direction. 60 pellet strikes entered into

the area where Mr. Kautz was on the telephone; the evidence shows that Mr. Kautz died

of injuries related to this blast. Mr. Brown, upon hearing the "pump" of a shotgun, jumped

out of the line of fire but was showered with pieces of glass that caused extensive physical


injuries. He did, however, manage to talk with the 9-1-1 dispatcher. Mr. Brown told the

dispatcher that three black men had just shot his fellow clerk with a shotgun. He also

stated that the men were wearing blue masks, that one of them was wearing a red-hooded

sweatshirt, and that all three assailants fled out the back of the video store toward

Limestone Street on foot.

On November 30, 2001, an anonymous caller informed a 9-1-1 dispatcher that he

had overheard a conversation between William Kerby and the caller's friend, William

Kerby's brother-in-law, in which Mr. Kerby said he robbed the Family Video store. The

caller stated that William Kerby was the shooter, and that Appellant and Terrence Kerby

were also involved. In addition, the caller described the car that was present during the

attempted robbery as a black Oldsmobile Cutlass Supreme, and he indicated that William

Kerby probably kept guns in the trunk.

Also on November 30, 2001, Detective Darwin Hicks received an anonymous call

at his desk from an individual who relayed identical information-the caller overheard

William Kerby tell the caller's friend that he, Appellant and Terrence Kerby had attempted

to rob the Family Video store. This conversation was not recorded; however, Detective

Hicks submitted an inter-office memo containing the information from this call on

December 4, 2001.

On December 1, 2001, Detective Douglas Estep personally observed Appellant,

Jawhan Massey, and another male together outside the Kerbys' residence on Rice Street

in Springfield. The three men were standing around a black Oldsmobile Cutlass Supreme.

Detective Estep drove down the street and returned. That time he saw a maroon


Oldsmobile also in the driveway. The three men appeared to be cleaning out the maroon

automobile's trunk.

As part of a drug unit surveillance, Detective Jeffrey Flores observed Appellant,

Suzanne Schnell, and an unidentified male driving around Springfield on December 3,

2001. He followed the three individuals to the Indiana State line. Jawhan Massey later

stated in an interview to the police that he was present with Appellant and Ms. Schnell

when they drove to Indiana.

On December 12,2001, the Springfield police wired Tyrone Knight in order to record

a conversation between Mr. Knight and Jawhan Massey. Mr. Knight had been

apprehended in Greene County on a prior warrant. The taped conversation was not

admitted into evidence because of its poor quality; however, Mr. Knight later discussed its

contents with Detectives Estep, Hicks and Bell. Mr. Knight told the detectives that Mr.

Massey said he and "Los" did the video store robbery. According to Mr. Knight, "Los" is

short for Carlos, i.e., Carlos Kerby. Mr. Massey also told Mr. Knight that there was a girl

who drove the car. Furthermore, Mr. Massey indicated to Mr. Knight that he used a 12-

gauge shotgun, and that it took him two hours to saw off the end. In reference to Chad

Kautz, the clerk who was shot at Family Video, Mr. Massey told Mr. Knight that shooting

him was not intentional, but Mr. Kautz would not put the phone down. Finally, Mr. Massey

discussed robbing Little Caesar's on Fountain Street and Cassano's that night, and his

plan was to do so using a knife.

In a second taped conversation on December 12, 2001 between Tyrone Knight and

Jawhan Massey, Mr. Massey made further references to robbing Little Caesar's and to

"Los" who lives in Donnelsville. Suzanne Schnell, Appellant's girlfriend, lived in


-5-

Donnelsville, and Appellant moved in with her in the beginning of December 2001. Mr.

Massey was arrested later that night outside of a Sunoco gas station on Limestone Street.

At approximately 10:16 p.m. on December 12, 2001, Detectives Estep and Hicks

interviewed Jawhan Massey. During the interview, Mr. Massey told the detectives that Will

Kerby had been carrying out robberies all around Springfield. He further said that Will

Kerby drove a maroon Cutlass or Monte Carlo, and he carried a .20 caliber shotgun. Mr.

Massey also indicated that he knew Carlos Kerby, but he said he did not call him "Los."

Later on, when asked specifically about the Family Video attempted robbery, Mr. Massey

denied his own involvement and suggested that he lied to others about doing it. He

indicated that he was afraid Will Kerby would kill him if he found out that Mr. Massey had

told others Will Kerby actually committed the shooting and attempted robbery. Finally, Mr.

Massey implicated Appellant and Terrence Kerby, a.k.a. T-Curt, as being involved with the

Family Video incident.

Early the next morning, at approximately 1:35 a.m., the Springfield police recorded

a telephone conversation between Jawhan Massey and Appellant. During the course of

the conversation, Mr. Massey asked Appellant if he was "all right about the situation." (Tr.

at 307.) Appellant simply replied that he was "straight." (Id.) Mr. Massey also asked what

happened to the gun that was used, to which Appellant answered that his brother had

taken care of it.

Within the next hour, approximately five Springfield police officers in three police

vehicles arrived at Suzanne Schnell's residence. When the police knocked on the front

door and identified themselves, Ms. Schnell indicated that it would not open, so several

officers went to the back of the house while the others remained in front. Appellant was


upstairs at that time. When Appellant came downstairs, he was not clothed; as a result,

the officers sent Ms. Schnell upstairs to retrieve some clothes for him. When everyone

was downstairs, the officers told Appellant and Ms. Schnell that they wanted to take them

to police headquarters in order to talk. More specifically, one officer asked Appellant, "You

know why we are here, don't you?" (Tr. at 320.) Appellant replied by nodding his head.

At no time was Appellant told he was allowed to leave, nor was he told that he was under

arrest.

Ms. Schnell and Appellant were escorted to police headquarters in separate

vehicles. Detective Estep sat next to Appellant. During the suppression hearing, Detective

Estep testified that Appellant was in custody at that point. (Tr. at 350.)

At the police station, Appellant was taken to an interview room. The room was

approximately six feet by six feet in size, with no windows and one door that remained

unlocked at all times. Present in the room with Appellant were Lieutenant David Swords

and Sergeant Barry Eggers. The interview lasted just over one hour. During this time,

Appellant confessed to being involved with the shooting and attempted robbery at Family

Video on the night of November 28. He also informed the officers that Will Kerby and

Jawhan Massey were with him-Will Kerby supplied the sawed-off shotgun, and Jawhan

Massey pulled the trigger.

Appellant was indicted for the charges of aggravated murder, murder, aggravated

robbery, and felonious assault, all with firearm specifications. On January 18, 2002, he

pled not guilty to this indictment.

Appellant filed a motion to suppress evidence on February 19, 2003. Following a

four day hearing, the trial court denied this motion in an Entry dated June 20, 2003.


Appellant changed his initial not-guilty plea to a plea of no contest on June 25, 2003. In

a judgment entry dated July 25, 2003, Appellant was convicted of aggravated murder with

a firearm specification, murder, aggravated robbery and felonious assault. The courtfound

that the firearm specifications included with the charges of murder, aggravated robbery,

and felonious assault merged with the firearm specification in the aggravated murder

charge. Furthermore, the court found that the charge of murder merged with the charge

of aggravated murder for the purpose of sentencing. Consequently, Appellant was

sentenced to life imprisonment with the eligibility of parole after 27 years.

A notice of appeal was filed with this court on August 18, 2003. On September 23,

2005, Appellant's appointed counsel, Charles A. McKinney, filed a motion to dismiss the

appeal, stating that Appellant's non-frivolous arguments were not supported by Ohio law.

This court construed the motion as a brief filed pursuant to Anders v. California (1967), 386

U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. In a Decision and Entry filed February 23, 2006,

we held that there was a non-frivolous issue as to whether Appellant's confession was

voluntary; thus, we set aside the Anders brief, permitted Mr. McKinney to withdraw, and

appointed new counsel to brief the issue of voluntariness and other issues counsel

determined to be relevant. John J. Scaccia was appointed counsel forAppellant on March

24, 2006.

1.

On appeal, Appellant raises one assignment of error: "The trial court erred as a

matter of law when it overruled the defendant's motion to suppress statements made

because an illegal arrest was made on Mr. Kerby and the confession was involuntary."


-8-

Specifically, Appellant argues that he was unlawfully arrested in the early morning of

December 13, 2001 because the officers lacked the requisite probable cause to take him

into custody against his own free will; as a result, Appellant asserts that his confession

must be suppressed under the fruit of the poisonous tree doctrine. Should the court find

that there was probable cause to seize him, Appellant further argues that his confession

was involuntary because it was obtained through the use of coercion and deception, along

with tactics inducing fright and despair.

This court has recognized that the trial court serves as the trier of fact at a

suppression hearing; thus, it must judge the credibility of the witnesses and the weight of

the evidence. State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437 N.E.2d 583. "In reviewing

a trial court's decision on a motion to suppress, an appellate court accepts the trial court's

factual findings, relies on the trial court's ability to assess the credibility of witnesses, and

independently determines whether the trial court applied the proper legal standard to the

factsfound." State v. Hurt, MontgomeryApp. No. 21009, 2006-Ohio-990, at¶16 (citations

omitted). Hence, this determination requires an independent review, without deference to

the trial court's conclusions. State v. Petitjean (2000), 140 Ohio App.3d 517, 533, 748

N.E.2d 133 (citations omitted).

Upon review of the record, we hold that probable cause existed on December 13,

2001 to arrest Appellant; however, the evidence fails to demonstrate that Appellant's

confession was voluntary. Therefore, we conclude that the trial court erred in overruling

Appellant's motion to suppress. Accordingly, the judgment of the trial court will be

reversed, and the matter will be remanded for further proceedings consistent with this

opinion.


ii.

Under his sole assignment of error, Appellant first contends that he was held in

custody pursuant to an unlawful arrest when the Springfield police took him to police

headquarters early in the morning on December 13, 2001. We agree.

This court has stated that "[a] seizure is an arrest "' * if a'reasonable person' in the

suspect's position would have understood the situation to constitute a restraint on his

freedom of movement of the degree the law associated with formal arrest." State v. Hatch,

Montgomery App. No. 18986, 2002-Ohio-55, 2002 WL 10449, at `4, citing United States

v. Carral-Franco (C.A. 5, 1988), 848 F2d. 536. This is an objective determination based

on the circumstances; consideration should not be made regarding the subjective views

of the officers orthe suspect. Stansburyv. Califomia (1994), 511 U.S. 318, 323, 114 S.Ct.

1526, 128 L.Ed.2d 293. In Stansbury, the Court held that "an officer's views concerning

the nature of an interrogation, or beliefs concerning the potential culpability of the individual

being questioned, may be one among many factors that bear upon the assessment

whether that individual was in custody, but only if the officer's views or beliefs were

somehow manifested to the individual under interrogation and would have affected how

a reasonable person in that position would perceive his or her freedom to leave."

(Emphasis added.) Id. at 325.

During the suppression hearing in the case at hand, Lieutenant David Swords and

Detective Douglas Estep testified that approximately five police officers in three police

vehicles went to the home of Appellant's girlfriend, Suzanne Schnell, at 2:10 a.m. on

December 13, 2001 to "pick up" Appellant. (Tr. at 346; 493.) At the door, they identified

themselves as police officers to Ms. Schnell, who consented to their entrance. Inside,


-10-

Appellant was not told that he was under arrest when confronted by three officers, some

of whom were armed at the time; instead, the officers said they wanted to take him to

headquarters to talk. Detective Estep further testified, however, thatAppellantwas nottold

that he could leave at any point, nor was he told that he could refuse to talk with the

officers. In fact, the detective stated that Appellant would not have been allowed to leave

even if he had requested. Moreover, Detective Estep testified that he couldn't remember

whether Appellant was handcuffed, but he did provide that Appellant was escorted to

police headquarters in the back of a cruiser with the detective at his side.

At the station, Appellant was immediately taken to an interrogation room where he

was questioned by Lieutenant David Swords and Sergeant Barry Eggers. Not long into the

interrogation, but afterAppellant was read and waived his Miranda rights, Sergeant Eggers

told Appellant, "You need to tell us the truth because you're not walking out of here." (Tr.

at 412.)

It is this court's opinion that a reasonable person in Appellant's position would have

understood the actions taken by the police officers to restrain his freedom of movement

to the same degree associated with a formal arrest. "[A] group of police officers rousing

an adolescent out of bed in the middle of the night with the words 'we need to go and talk'

presents no option but'to go.'" Kaup v. Texas (2003), 538 U.S. 626, 631, 1.23 S.Ct. 1843,

155 L.Ed.2d 814.

In Kaup, the United States Supreme Court held that a 17-year-old boy was taken

into custody where he was awakened at three in the morning by police officers; told he

needed to go and talk; escorted out of his home in handcuffs, boxer shorts, and without

shoes; driven to the crime scene; and finally taken to an interrogation room at the sheriff's


office for questioning. Id. at 631. According to the Court, the conduct of the police officers

exemplified the probative circumstances that indicate a seizure, even where the person

being seized did not attempt to leave, as set forth in United States v. Mendenhall (1980),

446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497. These circumstances include "the

threatening presence of several officers, the display of a weapon by an officer, some

physical touching of the person of the citizen, or the use of language or tone of voice

indicating that compliance with the officer's request might be compelled." Id. at 554.

Here, Appellant was confronted by five police officers, some of whom were armed,

at 2:10 a.m., and he was told that the officers wanted to take him to headquarters for

questioning. WhethertheofficersbelievedAppellantwasunderarrestorwouldbeallowed

to leave is irrelevant. At this point, a reasonable person might have begun to feel the

restraints on his freedom. Then, the officers put Appellant in the back of a police cruiser

with a detective and drove him to headquarters. A reasonable person's only option would

have been to ask that the officers turn around and take him home because he had decided

not to comply with their requests. This court finds that scenario to be highly implausible.

Finally, Appellant was led to an interrogation room where he was told that he would not be

permitted to leave. There is no doubt that a reasonable person in Appellant's position

would have understood these events to mean that he was under arrest.

Based on these facts, we agree with Appellant's first claim that he was taken into

custody when the officers came to his house during the early morning hours of December

13, 2001, and escorted him to police headquarters for questioning.

Appellant next argues that the officers lacked the requisite probable cause to arrest

him at the time he was taken into police custody; as a result, he contends that all evidence


obtained from the unlawful arrest must be suppressed pursuant to the fruit of the

poisonous tree doctrine. We find this argument lacks merit.

Arresting officers must possess probable cause to believe that a suspect has

committed a felony when making a warrantless arrest. State v. Cracraft (Dec. 29, 1995),

Montgomery App. No. CA14809, 1995 WL 766011, at *3 (citations omitted). Probable

cause to arrest exists when "the facts and circumstances within [the officers'] knowledge

and of which they had reasonably trustworthy information were sufficient to warrant a

prudent man in believing that the petitioner had committed or was committing an offense."

Beck v. Ohio (1964), 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142. See, also, State v.

Timson (1974), 38 Ohio St.2d 122, 311 N.E.2d 16, at paragraph one of the syllabus.

Moreover, probable cause is a concept that must be based on the totality of the

circumstances because it "deals with probabilities-the factual and practical nontechnical

considerations of everyday life on which reasonable and prudent men act * * *." State v.

Snyder (Aug. 10, 1994), Montgomery App. No. 14089, 1994 WL 420918, at *2 (citations

omitted).

When considered in their aggregate, there are a number of facts and circumstances

in the present case warranting the arresting officers' belief that Appellant had participated

in the shooting and attempted robbery at Family Video on November 28, 2001. First, the

police made several observations that confirmed Appellant's association with co-defendant

Jawhan Massey. On October 19, 2001, Appellant was found in the parking lot of Kroger's

on East Main Street with Mr. Massey and one other male after an eyewitness had informed

a 9-1-1 dispatcher that a man with a gun had approached Shuler's Bakery, also on East

Main Street, but had retreated in a blue Nissan truck. The police found Appellant in that


-13-

truck; they also found a BB gun and.22 caliber revolver. On December 1, 2001, Appellant

and Mr. Massey were seen outside the Kerbys' residence on Rice Street.working around

a black Oldsmobile Cutlass Supreme and a maroon Oldsmobile. An anonymous tip would

later offer that the suspects in the Family Video shooting and attempted robbery drove a

black Oldsmobile Cutlass Supreme, and that co-defendant Will Kerby kept guns in the

trunk. On December 3, 2001, a Springfield drug unit surveillance officer followed

Appellant, his girlfriend, and co-defendant Massey as they drove around Springfield and

eventually crossed the Indiana State line.

Next, the record demonstrates that there were two anonymous phone calls in which

the caller alleged Appellant's involvement in the shooting at Family Video. On November

30, 2001, an anonymous caller told the police that he had overhead a conversation

between William Kerby and William Kerby's brother-in-law, the caller's friend, in which Mr.

Kerby admitted to taking part in the robbery and shooting. According to the caller, Mr.

Kerby was the shooter, while Appellant and Terrence Kerby were present. The caller also

described the car thatAppellant drove as a black Oldsmobile Cutlass Supreme, stating that

he was following Appellant and his girlfriend at the time of the call. Also on November 30,

2001, an individual called Detective Darwin Hicks and informed him of the identical

information.

Finally, the record shows that the police relied on several circumstances involving

informants to warrant their belief of Appellant's participation in the shooting. On December

12,2001, the Springfield police recorded a conversation between informant, Tyrone Knight,

and co-defendant, Jawhan Massey. The quality of this recording prevented it from being

admitted into evidence; however, the record reflects that there was a follow-up


conversation between Mr. Knight and Detectives Estep, Hicks and Bell. Mr. Knight

informed the detectives that Mr. Massey admitted to shooting Chad Kautz at Family Video

on November 28, 2001, and that Appellant was with him at the time. (Tr. at 38; 48.)

Furthermore, Mr. Massey told Mr. Knight that he did not intend to shoot Mr. Kautz, but Mr.

Kautz refused to put down the telephone. Regarding the weapon used in the shooting, Mr.

Massey said that he used a 12-gauge shotgun, and he spent two hours sawing off its end.

The main focus of this conversation, however, was on Mr. Massey's plans to rob Little

Caesar's on Fountain Street and Cassano's that night with the help of Mr. Knight.

Later that same night, the police recorded a second conversation between Mr.

Knight and Mr. Massey. Although they did not discuss the Family Video incident, Mr.

Massey made further references to robbing Little Caesar's. He also indicated that he

wanted to include Appellant in the robberies: "I wish I could get into my nigger Los before

he get out of work and have a -- go out to his house, man. He lives in -- he lives in --

what's that called? Donnelsville? Donnelsville." (Tr. at 72.) Mr. Massey was subsequently

arrested and interviewed later that night.

During his interview with the police, co-defendant Massey stated thatAppellant, Will

Kerby, and Terrence Kerby committed the shooting and attempted robbery at Family Video

on November 28, 2001. When asked about his own involvement, he denied it; however,

he told the police that he had to lie about taking part in the incident in order to keep Will

Kerby from killing him.

Early the next morning, the police recorded a telephone conversation between Mr.

Massey and Appelfant. lmpliedly referring to the shooting at Family Video, Mr. Massey

asked Appellant if he was "all right about the situation." (Tr. at 307.) Appellant responded

THE COURT OFAPPEALS OF OHIOSECOND APPELLATE DISTRICT

-15-

with, "Yeah, I'm straight." (Id.) Mr. Massey also asked what happened to the gun, to which

Appellant replied, "Oh, my brother got it taken care of." (!d.)

In reliance on the foregoing facts and circumstances, the Springfield police took

Appellant into custody at approximately 2:30 in the morning on December 13, 2001. We

believe that this reliance was reasonable because these facts in their aggregate establish

a fair probability that Appellant was involved in the shooting and attempted robbery. When

dealing with probable cause, we are not making the determination that proof beyond a

reasonable doubt exists implicating a suspect's involvement in a crime. As we stated

above, probable cause deals with probabilities - its existence rises from a common sense,

practical consideration of interrelated facts and events leading a reasonable and prudent

person to act. State v. Snyder (Aug. 10, 1994), Montgomery App. No. 14089, 1994 WL

420918, at *2 (citations omitted). From their own observations, the police were able to

determine that a relationship existed between Appellant and co-defendant, Jawhan

Massey. Mixed in with this relationship were several instances of conduct that could

reasonably induce a suspicion of criminal activity when considered under the totality of the

circumstances.

Moreover, a variety of sources alleged Appellant's involvement. Appellant argues

that the information derived from these sources, particularly from Mr. Knight and Mr.

Massey, constitute hearsay evidence, and thus, is impermissible and unreliable. We have

held before that the hearsay exclusionary rule does not apply in a suppression hearing, for

the determination of probable cause "depends upon the information relayed to [the officers]

and whether they could reasonably have relied upon it, based upon what they knew at the

time." State v. Bishop, Clark App. No. 2003-CA-37, 2004-Ohio-6221, at ¶16. In this


-16-

context, the statements of others are not being offered to prove the truth of the matter

asserted; instead, they are offered to prove that the officers relied upon them in deciding

whetherto arrest the suspect. Id. Although the evidence includes some inconsistencies,

the information obtained from both Mr. Knight and Mr. Massey, in concertwith the tips from

the anonymous caller, contains one common element-Appellant was among the men who

attempted to rob Family Video on November 28, 2001. The officers relied upon these

statements in making their decision to take Appellant into custody.

The record also demonstrates that there were facts corroborating information

obtained from the anonymous caller and from Mr. Massey, per Mr. Knight and during his

own police interview. For example, the colors, makes, and models of both Appellant's and

William Kerby's vehicles were accurately identified. Also, it was determined that a sawed-

off shotgun was used during the incident. Mr. Massey revealed this in his recorded

conversations with Mr. Knight and with Appellant. Most importantly, each source's account

of the incident included the presence of Appellant and William Kerby at the scene of the

crime. We do not agree with Appellant's assertion that the information used by the police

was completely void of any indicia of reliability.

Based upon the totality of the circumstances, we cannot say that the police lacked

probable cause to believe that Appellant had participated in the shooting and attempted

robbery at Family Video. The facts and circumstances upon which the officers relied were

sufficient to warrant taking Appellant into custody on the morning of December 13, 2001.

Thus, Appellant's argument that the arrest was unlawful, and that any evidence obtained

as a result of it must be suppressed, is without merit.


.I7.

The second argument made by Appellant under his sole assignment of error is that

his confession to the Springfield police was involuntary. Specifically, Appellant claims that

his confession was the result of coercion, deception, fright and despair when considered

under the totality of the circumstances,

The Fifth Amendment to the Constitution of the United States and Article 1, Section

10 of the Ohio Constitution provide that no individual shall be compelled to be a witness

against himself or herself in any criminal case. An individual may waive this protection;

however, waiver must be voluntary. In determining whether a suspect has voluntarily

waived the privilege against self-incrimination, a court "should consider the totality of the

circumstances, including the age, mentality, and prior criminal experience of the accused;

the length, intensity, and frequency of interrogation; the existence of physical deprivation

or mistreatment; and the existence of threat or inducement." State v. Edwards (1976), 49

Ohio St.2d 31, 358 N.E.2d 1051, at paragraph two of the syllabus, vacated on other

grounds (1978), 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155; State v. Brown, 100 Ohio

St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, at 113.

In the present case, Appellant claims that his confession to the police was not

voluntary because he was 17 at the time and his parents were not present during his arrest

and interrogation, and the officers questioning him made statements of deception and

exaggeration. When considering the totality of the surrounding circumstances, we agree

that Appellant did not voluntarily waive his right against self-incrimination.

The record shows that Appellant was 17 at the time he was interrogated, and he

was completing his sophomore year in high school. In State v. Bell (1976), 48 Ohio St.2d


270, 358 N.E.2d 556, reversed on other grounds (1978), 438 U.S. 637, 98 S.Ct. 2977, 57

L.Ed.2d 1010, the Ohio Supreme Court held that determining whether a minor intelligently

and voluntarily waives his rights during an interrogation cannot always be decided by the

same criteria applied to mature adults. Id. at 277. "Such criteria necessarily varies with

certain factors as the age, emotional stability, physical condition, and mental capacity of

the minor." Id. See, also, State v. Eglin ( Dec. 21, 1983), SummitApp. Nos. 11168/11201,

1983 WL 2257, at *3 (holding that a seventeen-year-old defendant adjudicated to stand

trial as an adult should not be afforded as much protection as a very young child not

capable of intelligently waiving his rights). Here, although Appellant was approximately

seven months from reaching the age of maturity, the circumstances involving his personal

life demonstrated his capacity to assume adult responsibilities. Appellant attended high

school from 8:30 a.m. to 12:45 p.m. After school, he worked at Market USA, serving as

a telemarketer. Prior to working at Market USA, Appellant was employed at Taco Bell.

Furthermore, Appellant moved out of his parent's home on Rice Street and in with his

girlfriend in Donnelsville one week prior to being taken into custody. Finally, the record

does not indicate that Appellant lacked emotional stability or suffered from poor physical

condition, nor does Appellant make such assertions in his argument. Based on these

facts, we do not agree that Appellant's confession was involuntary simply because he was

17 years old at the time.

However, Appellant's age is relevant in supporting his claim that the officers used

deceptive statements and exaggerations concerning the evidence they had obtained to

secure his confession during the interrogation. Specifically, Appellant refers to the


-19-

following statements of Sergeant Eggers and Lieutenant Swords, as transcribed from the

State's Exhibit B:

"Sergeant Eggers: Well, Carlos, obviouslywe wouldn't come knocking at your door

at 2 o'clock in the morning --

"Defendant Carlos Kerby: Uh-huh.

"Sergeant Eggers: -- if we didn't feel like it was necessary for us to talk to you

tonight.

"Defendant Carlos Kerby: All right.

"Sergeant Eggers: And I guess by talking to you, we're gonna give you an

opportunity to save yourself.

"Defendant Carlos Kerby: Okay.

"Sergeant Eggers: Because you've got to be straight with us.

"Defendant Carlos Kerby: All right, sir.

"Sergeant Eggers: Becausewe did ourhomework." (Emphasis added.) (Tr. at407.)

. . .

"Lieutenant Swords: This is serious, Carlos. This is very serious.

"Sergeant Eggers: We're gonna try you as an adult. This is a capital offense.

"Defendant Carlos Kerby: Yes, sir.

"Sergeant Eggers: This is big time, big league.

"Defendant Carlos Kerby: (Inaudible.)

"Lieutenant Swords: But you need to tell us the truth.

"Defendant Carlos Kerby: I'm telling you the truth.

"Sergeant Eggers: If you didn't pull the trigger, you need to save your ass.


"Defendant Carlos Kerby: I did not pull the trigger. I wasn't there.

"Sergeant Eggers: You was [sic] there." (Emphasis added.) (Tr. at 410.)

"Lieutenant Swords: You never thought -- you never thought in the last two weeks

that you'd be sitting here right now. What you got to think is where you gonna [sic] be two

weeks from now? You never thought you'd be here, but here you are. Where are you

gonna [sic] be two weeks from now? What are we gonna [sic] find out? What do we

already know that we haven't discussed? Where are you gonna [sic] be two weeks from

now? Where are you gonna [sic] -- where's your life gonna [sic] go, Carlos? You're

working. You've got a life. You've got a future. You're right on the threshold of -- of your

life. Where's it gonna [sic] go? You can't change what happened two weeks ago. You

can only do your best to go from here where you need to go, and you know where you

need to go with this. What happened happened, and you cannot change that. You cannot

change that. You can only go from here. That's what you have to do. That's what you

need to do. Maybe you're afraid of getting somebody else in trouble. Maybe you're afraid

of getting yourself in trouble. But, Carlos, what happened happened. The truth is the only

thing that you have going for you. That's the only thing you have to rely on. Your parents

have taught you that. Your parents did not raise you to be here today. Your parents have

taught you that. Tell the truth, haven't they?" (Tr. at 413-14.)

. . ,

"Sergeant Eggers: You've got to show -- listen to me. You've go to show remorse

forwhat happened. If you go through this and never show any remorse forwhat happened

to that man, they are going to stake you.


-21-

"Lieutenant Swords: Are you sorry that man died? Are you, Carlos? Are you sorry

that man died?

"(Defendant Carlos Kerby begins to cry.)

"Lieutenant Swords: I know you are. I know you are.

"Defendant Carlos Kerby: My mom and dad -- (Inaudible.)

"Lieutenant Swords: How's that, Carlos?

"Defendant Carlos Kerby: Cause, man, I screwed. I shouldn't have been involved

with -- with them people. I shouldn't have been involved.

"Lieutenant Swords: I know that, but you were; and that's the time to get out of it.

"Sergeant Eggers: You can still make it up to her. You can be man enough to own

up to what's happened here.

"Defendant Carlos Kerby: (Inaudible.)

"Lieutenant Swords: You'd be surprised how mothers understand.

"Defendant Carlos Kerby: I'm sorry. (Inaudible.)

"Lieutenant Swords: Who all was there, Carlos? Who all was there?

"Sergeant Eggers: Carlos, we already knowthe answers to our questions; but we've

got to be able to show prosecutor [sic] that you are sony for what happened. And the only

way you're gonna [sic] convince anybody of that is if you tell us what happened."

(Emphasis added.) (Tr. at 423.)

The suggestion that Appellant could face the death penalty for his involvement in

the shooting was deceptively misleading and a misstatement of the law. In State v.

Petitjean (2000), 140 Ohio App.3d 517, 748 N.E.2d 133, this court provided that "false

promises made by police to a criminal suspect that he can obtain lenient treatment in


-22-

exchange for waiving his Fifth Amendment privilege so undermines the suspect's capacity

for self-determination that his election to waive the right and incriminate himself in criminal

conduct is fatally impaired. His resulting waiver and statement are thus involuntary for Fifth

Amendment purposes. These issues must be resolved on a totality-of-the-circumstances

test, which places both equivocal language and technical possibilities in context." Id. at

534. In Petitjean, interrogating officers told the defendant that he would probably get

probation if he confessed to murder, where the crime itself was so violent in nature that the

defendant would inevitably have been charged with voluntary manslaughter or murder. Id.

at 532. The penalties under both of these charges did not include probation. Id.

We held that the officers' promise "specifically conditioned the availability of

probation on [the defendant's] waiver of his Fifth Amendment privilege." Id. When

considered together with the defendant's prior experience, the duration and tone of the

investigation, the threats of punishment and the source of the promises, the officers'

misstatement of the law equated to a grave misrepresentation of leniency that frustrated

the voluntariness of the defendant's confession. Id. at 533-34.

In the present case, the officers' implication that Appellant could face the death

penalty for his involvement with the shooting and aftempted robbery is a similar

misrepresentation that we believe undermined Appellant's ability to voluntarily waive his

privilege against self-incrimination. At the time of being questioned, it was not unrealistic

for the officers to know that Appellant would be charged with aggravated murder, R.C.

2903.01, andlor murder, R.C. 2903.02, if he confessed his involvement in the death of

Chad Kautz at Family Video. They also were aware that Appellant was only 17. R.C.

2929.02(A) provides that "[w]hoever is convicted of or pleads guilty to aggravated murder


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in violation of section 2903.01 of the Revised Code shall suffer death or be imprisoned for

life, **"' except that no person who raises the matter of age pursuant to section 2929.023

of the Revised Code and who is not found to have been eighteen years of age or older at

the time of the commission of the offense shall suffer death." Under that same statute, a

person found guilty of murder pursuant to R.C. 2903.02 could receive a sentence of

imprisonment only.

At the beginning of his questioning, Sergeant Eggers specifically asked Appellant

his date of birth, which was July 8, 1981. (Tr. at 401.) This made Appellant 17 at the time

of the commission of the offense. Under the statute, this factor eliminated the possibility

of death as one of Appellant's penalties. The record shows, however, that the officers

attempted to create the impression that Appellant could be facing a death sentence unless

he cooperated with them and confessed. Sergeant Eggers initially suggested that the

purpose of the interrogation was to give Appellant "an opportunity to save [himself]." (Tr.

at 407.) He continued by telling Appellant, "We're gonna try you as an adult. This is a

capital offense." (Tr. at 410.) Throughout the interrogation, the officers strengthened the

implication of the death penalty with threats such as "If you didn't pull the trigger, you need

to save your ass"; "If you go through this and never show any remorse for what happened

to that man, they are going to stake you"; and "**"' we've got to be able to show

prosecutor [sic] that you are sorry for what happened." (Tr. at 410; 423.) The fact that

these threats came from the same people who were attempting to appeal to Appellant's

conscience, coupled with Appellant's lack of criminal experience and understanding of the

law, leads us to conclude that the misstatement of the penalty under the statute deprived

Appellant of his capacity to intelligently and voluntarily waive his Fifth Amendment rights.


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When considering the totality of the surrounding circumstances, these factors outweigh the

influence of Appellant's maturity and the overall short duration of the interrogation. Thus,

we find that the trial court erred in determining that Appellant's confession to the police was

voluntary. Accordingly, his sole assignment of error is sustained.

IV.

Having sustained Appellant's sole assignment of error, we reverse the judgment of

the trial court and remand this case for further proceedings consistent with this opinion.

Appellant's oral and written statements made to the police during his interrogation on

December 13, 2001 are ordered suppressed from use by the State in any subsequent

proceeding. Any evidence derived from those statements is also suppressed. However,

any evidence obtained bythe police independent of Appellant's oral and written statements

is not precluded from use.

GRADY, J., and DONOVAN, J., concur.

Copies mailed to:

William H. Lamb, Esq.John J. Scaccia, Esq.Shawn P. Hooks, Esq.Hon. Richard J. O'Neill


RONALD E. VINCENTCLARK COUNTY CLERK OF COURTS

COURT OF COMMON PLEAS AND COURT OF APPEALSCI,ARg COUNTY COURT HOUSE

SPRINGFIELD, OHIO 45502(937) 328-2458

1 /22/07

NOTICE OF FILING OF FINAL ENTRY

Case No: 03CA0055CARLOS L KERBY VS STATE

Please be advised that the Final Entry has been fiied in the above

captioned case on JANUARY 19, 2007.

Disposition as follows: JUDGMENT IS REVERSED AND REMANDED

RONALD E VINCENT, CLERK OF COURTSCOMMON PLEAS COURT & COURT OF APPEAIS

CC: JOHN J SCACCIASHAWN P HOOKSSTEPHEN A SCFiUMARFR

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MAR 21 2007 - Supreme Court of Ohio and the Ohio Judicial ...local detective observed Mr. Kerby and...

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