[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 :

:

. . . . . . . . . . O P I N I O N Rendered on the 13 th day of January , 2012.

. . . . . . . . . . R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W. Third Street, 5 th 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 cr ime 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 viola tion 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 fo r the instant appeal occurred on June 19, 2010, at approximately 4:00 a.m., when Da yton 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 investig ation, officers began looking for a woman going by the name “Granny ,” who was purported to have shot Bolton. Dayton Police Officer Jennifer St ack soon contacted Cook at he r 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 th e back of the police cruiser. {¶ 4} While Cook was in the back of the crui ser, Officer Stack engaged her in a brief conversation, stating “Te rry 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 verb al consent. Thereafter, Offi cer Stack provided Cook with a consent form for the search of her apar tment. 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 detectives3 were already on scene when De tective Smith arrived, and no ev idence was adduced that they advised Cook of her rights. After searchin g her apartment, Detective Smith spoke with Cook while she sat cuffed in the rear of the crui ser. Detective Smith did not advise Cook of her Miranda rights prior to questioning her. Detective Smith asked Cook a series of questions about what happene d and Cook provided a signifi cant amount of incriminating information about the incident. Detective Smith testified that he spoke to Cook for approximately five minutes. After the interview, Cook wa s 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 wh ich advised her of he r 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 y ears 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 la sted about thirty minutes. Cook provided Detective Smith detailed inform ation regarding the events surrounding the shooting, which was consistent with the information Cook ga ve 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 wea pon while under disability. At her arraignment on August 31, 2010, Cook stood mute, and the trial court entered a plea of not guilty on her4 behalf. {¶ 9} Cook filed a motion to suppress on Se ptember 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, ove rruled 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, C ook 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 detectiv e 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 he r motion to suppress regarding5 her post- Miranda statements. {¶ 15} In regards to a motion to suppress, “the trial court assu mes 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 co mpetent, 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, th e appellate court must then determine, as a ma tter of law and without deferen ce to the trial court’s legal conclusion, whether the applicable le gal standard is satisfied. Id. {¶ 16} In support of her argument that the tr ial court erred when it found that her post- Miranda statements were admissible, Cook relie s 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 questione d the defendant without Miranda warnings for approximately thirty to forty minutes. The defendant made an admission, and the officer gave the defendant a twenty-minut e 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 questi oning, the officer confronted the defendant with her pre- Miranda statements, and the defendant re peated her admission. The court referred to this testimony as “question first” a nd stated that “[t]he obj ect of question first is6 to render Miranda warnings ineffective by waiting for a particularly opport une 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 a nd 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 admissibl e 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 interroga ted in a position to make such an informed choice, there is no practical justification fo r accepting the formal warnings as compliance with Miranda , or for treating the second stage of in terrogation 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 tr ial 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 where7 pre-warning statements irretrie vably affect post-warning statem ents. 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 ei ghteen-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 o fficer 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 la ter, 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, detaile d confession regarding his involve ment in the burglary. Both confessions were admitted into ev idence at trial, and Elstad was convicted. His conviction, however, was reversed by an Oregon a ppellate 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 Oreg on 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 th e 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, thoug h 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 on ce responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessi ng 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 defe ndant 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. Af ter the defendant provided an ex planation, the officer told the defendant that he was going to search th e 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 agai nst him. After he administered Miranda , the officer asked the defendant the same questions and obtained the same respons es regarding the location of9 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 reasona ble to regard the two sessions as parts of a continuum, in which it would have been unnatura l 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 length y, 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 ma de no attempt to tailor the Miranda warning he eventually gave to the particular situ ation and did not convey any di stinction 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 th e 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, C ook was questioned by Detective Smith who did not administer Miranda warnings to her. Cook made admissions10 regarding her role in the shooting. According to Detective Smith, the pre- Miranda interview lasted approx imately five minutes, af ter which Cook was trans ported to the Safety Building. The second interrogation occurred shortly thereafter. Prior to the second interrogation, also conducted by Detective S mith, 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 th e first interview, the second interview “started at the beginning and went through to the end.” {¶ 28} The Seibert Court identified “a series of releva nt 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 an swers 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 r ound 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 unw arned 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 faile d to meet its burden in that regard. Upon11 review, we conclude that the instant case falls on the Seibert side of the Elstad/Seibert continuum. The record establishes that a lthough the second interv iew was temporally longer than the first, both interviews by Detective Smith were thorough and designed to elicit incriminating de tails regarding Cook’s involvement in Bolton’s shooting. We recognize that the interrogations were c onducted in separate locations, but unlike Elstad , Cook was not in the comfort of her livin g room initially. Rather, Cook had been handcuffed and seated in the rear of a lock ed 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 contai ns no explanation regarding how the prior interview affected any subsequent st atements that Cook made after being Mirandized

. Furthermore, it is apparent from the record th at 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 cust odial 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 the12 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 af ter acknowledging and waiving Miranda warnings. The five-minute questioning in the r ear of a police car in the vicin ity 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’Connell13