IN THE SUPREME COURT OF OHIO
Supreme Court Case Number 10-0140
On Appeal from the Summit
County Court of Appeals,
Ninth Appellate District
Court of Appeals No. 24716
STATE OF OHIO
Appellee
V.
BETH GRADISHER
Appellant
MEMORANDUM IN OPPOSITION
STATE OF OHIO
SHERRI BEVAN WALSH
Prosecuting Attorney
HEAVEN DIMARTINO (Counsel of Record) #0073423
Assistant Prosecuting Attotney
Appellate Division
Sunnnit County Safety Building
53 University Avenue
Akron, Ohio 44308
(330) 643-7459
Fax(330) 643 2137
Email: [email protected]
Counsel for Appellee,
State of Ohio
EDMUND M. SAWAN (Counsel of Record) #0011718
Attomey at Law
362 South Main Street
Akron, Ohio 44311-1014
(330) 253-3444
Counsel for Appellant,
Beth Gradisher
TABLE OF CONTENTS
PAGE(S)
Proposition of Law I:
The Court Of Appeals Erred In Reversing The Trial
Court's Decision Granting Petitioner's Motion To
Suppress As There Was No Compliance With ORC
Section 9.84 Nor Was Petitioner Given IIer
Miranda Rights Prior To Her Interrogation . .........................
Why Leave to Appeal Should Be Denied..................................................... 8
Proof of Service ............................................................................................ 9
11
PROPOSITION OF LAW I
THE COURT OF APPEALS ERRED IN REVERSING THE TRIAL COURT'S
DECISION GRANTING PETITIONER'S MOTION TO SUPPRESS AS TIIERE WAS
NO COMPLIANCE WITH ORC SECTION 9.84 NOR WAS PETITIONER GIVEN IIER
MIRANDA RIGHTS PRIOR TO HER INTERROGATION.
LAW AND ARGUMENT
In the instant case, Gradisher's statements were not the product of a custodial
interrogation. As such, the protections afforded in Miranda, were not invoked.
It is well-settled that "when an individual is taken into custody or otherwise deprived of
his freedom by the authorities in any significant way and is subjected to questioning, the
privilege against self-incivnination is jeopardized." Miranda v. Arizona (1966), 384 U.S. 436,
478. "The prosecution may not use statements ... stemming from custodial interrogation of the
defendant unlcss it deinonstrates the use of procedural safeguards effective to secure the
privilege against self-incrimination. By custodial interrogation, we mean questioning initiated
by law enforcement officers after a person has been taken into custody or otherwise deprived of
his freedom of action in any significant way." Id. at 444.
In this case, the questioning was not initiated by law enforcement officers. Corrigan and
Mandi were neither law en£orcement officers nor were they the agents of law enforcement
officers. Consequently, the Miranda requirements do not apply. See, State v. Watson, (1971),
28 Ohio St.2d 15, 26, quotitig People v. Morehead (1970), 259 N.E.2d 8, 11.
Moreover, the Miranda warnings were not required because Ms. Gradisher was not
subjected to a custodial interrogation. "Interrogation" is defined as "`any words or actions on
the part of the police (other than those normally attendant to arrest and custody) that the police
should know are reasonably likely to elicit an incriminating response from the suspect.' " State
1
v. Knuckles (1992), 65 Ohio St.3d 494, 496, quoting Rhode Island v. lnnis (1980), 446 U.S. 291,
301.
"Custody" for purposes of entitlement to Miranda rights exists only where there is a
restraint on freedom of inovement' of the degree associated with a fonnal airest."
California
v. Behler (1983), 463 U.S. 1121, 1125, quoting Oregon v. Mathiason (1977), 429 U.S. 492, 495.
"Whether a suspect is in custody depends on the facts and circumstances of each case." State v.
Butler, 9th Dist. No. 23786, 2008-Ohio-781; at ¶ 27, quoting State v. Dunn, 9th Dist: No.
04CA008549, 2005-Ohio-1270, at ¶ 24. The test is "whether, under the totality of the
circumstances, a reasonable person would have believed that he was not free to leave." Butler at
¶ 27, quoting Dunn at ¶ 24.
"Custodial airest is said to convey to the suspect a message that [s]he has no choice but to
submit to the officers' will and to confess ." Minnesota v. Murphy, 465 U.S. 420, 433 (1984).
"Moreover, custodial arrest thrusts an individual into `an unfamiliar atmosphere' or `an
interrogation environment ... created for no purpose other than to subjugate the individual to the
will of his examiner.' " Id., Miranda, at 457. "Many of the psychological ploys discussed in
Miranda capitalize on the suspect's unfamiliarity with the officers and the environinent." Id.
"[T]he coercion inherent in custodial interrogation derives in large measure from an
interrogator's insinuations that the interrogation will continue until a confession is obtained." Id.
"In order to detennine whether a person is in custody for purposes of receiving Miranda
warnings, courts must first inquire into the circumstances surrounding the questioning and,
second, given those circumstances, determine whether a reasonable person would have felt that
he or she was not at liberty to terminate the interview and leave." State v. Hoffner, 102 Ohio
St.3d 358, 2004-Ohio-3430, at 1127 (citing Thompson v. Keohane (1995), 516 U.S. 99, 112.
2
"Once the factual circumstances surrounding the interrogation are reconstructed, the court must
apply an objective test to resolve `the ultimate inquiry' of whether there was a`formal arrest or
restraint on freedom of movement of the degree associated with a formal arrest.' " Id. (quoting
California v. Belteler (1983), 463 U.S. 1121, 1125.
"[A] noncustodial situation is not converted to one in which Miranda applies simply
because a reviewing court concludes that, even in the absence of any formal airest or restraint on
freedom of movement, the questioning took place in a`coercive environment.' " Beheler, 463
U.S. at 1124, quoting Oregon v. Mathiason (1977), 429 U.S. 492, 495. "[T]he only relevant
inquiry is how a reasonable [person] in the suspect's position would have understood [her]
situation." Berlienter v. MeCarty (1984), 468 U.S. 420, 442.
In the instant case, Gradisher was interviewed by Dennis Corrigan, an investigator with
the Ohio Board of Nursing, and Mr. Mandi, an agent from the Pharmacy Board. At the
suppression hearing, Corrigan attested that, his employer, the Board of Nursing, "is an agency
that regulates the licenses of nurses and regulates practices and criminal matters for the state to
provide safe practitioners." [Tr. 9].
Corrigan explained that he is not a member of law enforcement and he does not possess
the authority to make an arrest. [Tr. 10]. Instead, as investigator with the Board of Nursing,
Corrigan reports the facts to the Board. [Tr. 101. T'his can result in disciplinary action. Corrigan
is obligated to report felonies to law enforcement. [Tr. 10].
After receiving a complaint from the Fairlawn Police Department, Corrigan contacted
Gradisher. [Tr. 7 l]. Corrigan asked Gradisher to ineet him at the pubic library, as he usually
does, because it is a public place. [Tr. 12]. Gradisher consented to the interview. [Tr. 12].
Corrigan testified that he has conducted thousands of interviews, and that he always
advises the licensees that the meetings are voluntary. [Tr. 12-13]. And, although Corrigan could
not recall the exact words that he spoke to Gradisher, he believed he told her that the meeting
was voluntary. [Tr. 13, 24].
On May 2, 2005, Corrigan and Mandi met with Gradisher in the conference room at the
Cuyahoga Falls Library. [Tr. 14]. Corrigan noted that the conference room is enclosed in glass
on three sides and the doorremained unlocked during the interview. [Tr. 15]. Gradisher was
seated in the chair closest to the unlocked door. [Tr. 42]. Corrigan did not carrying a weapon
and there were no police officers in the meeting room or waiting outside. [Tr. 17-19].
Corrigan attested that Gradisher never requested to leave during the interview, which
lasted just under one hour. [Tr. 16]. Corrigan never told her that she could not leave and he did
not threaten Gradisher with any consequence if she failed to answer the questions. [Tr. 16].
Corrigan further attested that he never reads the Miranda rights to anyone that he
interviews because he is not amember of law enforcement. [Tr. 21].
Mandi also testified about the interview. [Tr. 44]. Mandi described the conference room
at the Taylor Memorial Public Library in Cuyahoga Falls, Ohio as being enclosed in glass on
three sides and having just one door. [Tr. 46-48]. He noted that Ms. Gradisher was seated
closest to the unlocked door. [Tr. 49-50].
Mandi attested that he is not a law enforcement officer, does not carry a weapon, and
does not have the authority to place soineone under arrest. [Tr. 45]. Mandi attested that, during
the interview, he advised Crradisher that criminal charges would be filed if she continued talking
to him. [Tr. 54].
4
Mandi never threatened Gradisher if she failed to speak to him. [Tr. 54-55]. He attested
that Gradisher was free to leave at any point during the process. [Tr. 57]. In fact, he noted that
Gradisher left on her own free will and was not immediately placed under arrest. [Tr. 57-58].
Moreover, Gradisher never demanded to stop the interview. [Tr. 76].
Mandi attested that, in the approximately 1,500 investigations that he conducted, he has
never Miraradized anyone. ['Fr. 61]. Mandi specifically testified that he was not asked by the
TallmadgePoliceDeparhnent to question Gradisher. [Tr. 65]. He also explained that;pursuant
to the rules that govern Corrigan and himself, Mandi and Corrigan were required to follow up on
the complaint about Gradisher. [Tr. 73].
Gradisher also testified regarding the meeting at the library. [Tr. 82]. She testified that
she felt that she was not free to leave because she was not expecting Mr. Mandi to be present and
he started talking about prosecution. [Tr. 86-87]. Gradislier stated that no one told her she could
leave at any time and that she ever tried to leave because she was afraid. [Tr. 87].
Gradisher also attested that no one forced her to go to the public library to meet with
Con•igan and that she freely and voluntarily drove herself tliere. [Tr. 90-91]. She testified that
there were no police present. [Tr. 91]. She was not handcuffed. [Tr. 91]. Neither Corrigan nor
Mandi had a weapon. [Tr. 92]. Neither of the men prevented her from leaving. [Tr. 92].
Gradisher attested that she freely and voluntarily answered questions. [Tr. 93]. She
continued to answer questions after she was told that criminal charges would be filed. [Tr. 93].
She attested that the men did not tell her that she had to answer questions and did not tell her that
she had to stay in the conference room. [Tr. 97].
Based on the totality of the circumstances, Gradisher was not in custody at the time of the
interview, which was conducted in a glass enclosed, unlocked, conference room in a public
5
library with no members of law enforcement present. A reasonable person in C,rradisher's
position would not have felt as if she "was not at liberty to terminate the interview and leave."
State v. Hofner, 102 Ohio St.3d 358, 2004-Ohio-3430, at ¶ 27, citing Thonapson v. Keohane
(1995), 516 U.S. 99, 112. Gradisher's freedom of movement was not restrained to "the degree
associated with a formal arrest." Id., quoting California v. Beheler (1983), 463 U.S. 1121, 1125.
The evidence presented demonstrated that no member of law enforcement was present,
nor did any member of law enforcement request that the interview be conducted. [Tr. 19, 91,
65]. Neither Corrigan nor Mandi had a weapon. [17, 45]. Instead, the interview was conducted
by individuals who were conducting administrative follow up as required by the Ohio Revised
Code. [9-11, 73].
Moreover, Gradisher freely drove to the public library and entered a conference room that
is surrounded by glass on three of the four walls. [15, 46-48, 90, 91]. The door to the
conference room was not locked and Gradisher was seated closest to the door. [15, 42, 49-50].
At no point did anyone tell Gradisher that she could not leave and no one prevented her from
leaving. [16]. Gradisher expressed a willingness to answer questions<uid never asked to stop the
interview. [Tr. 93]. She never asked to leave. [Tr. 16, 76].
Under the totality of the circumstances, Gradisher was not in custody at the time of the
interview. As such, the trial court incorrectly concluded that Corrigan and Mandi had to give
Gradisher the Miranda wamings before speaking with her.
In addition, a violation of R.C. 9.84 does not rise to the level of a constitutional violation.
Section 9.84 of the Ohio Revised Code provides, in part, that "any person appearing as a witness
before ... any representative of a public official, department, board, bureau, commission, or
agency, in any administrative or executive proceeding or investigation ... shall be pennitted to be
6
accompanied, represented, and advised by an attorney.... The witness shall be advised of the right
to counsel before the witness is interrogated." The trial court concluded that Corrigan and Mandi
violated R.C. 9.84 by failing to advise Gradisher of her right to counsel.
However, "[i]t is well settled in Ohio that courts ordinarily will not apply the
exclusionary rule to evidence that is the product of a statutory violation falling short of a
constitutional violation, unless the legislature specifically mandates such exclusion." Fairborn v.
Mattachinne (1995), 72 Ohio St.3d 345, 346.
Section 9.84 does not specificallymandate
exclusion of evidence. Therefore, the trial court correctly concluded that Gradisher's statements
could not be suppressed solely for a violation of R.C. 9.84. And, because the failure to tell
Gradisher about her right to counsel did not rise to the level of a constitutional violation, the trial
comt should have denied her mofion to suppress.
7
WHY LEAVE TO APPEAL SHOULD BE DENIED
Pursuant to the argument offered, the defendant's inotion for leave to appeal inust be
denied. This is not a case of public or great general interest and does not involve a substantial
constitutional question.
Respectfully submitted,
SHERRI BEVAN WALSH
Prosecuting Attorney
HEAVEN DIIVIARTINO
Assistant Prosecuting Attomey
Appellate Division
Suimnit County Safety Building
53 University Avenue, 6a' Floor
Akron, Ohio 44308
(330) 643-8539
Reg. No. 0073423
8
PROOF OF SERVICE
I hereby certify that a copy of the foregoing Memorandum in Opposition was sent by
regular U.S. Mail to Attorney Edinund M. Sawan, 362 South Main Street, Akron, Ohio 4431110147 on this 22nd day of February, 2010.
T
HEAVEN DIMARTINO
Assistant Prosecuting Attorney
Appellate Division
9