Opinion
No. 07-16-00043-CR
07-25-2016
ANTHONY NGOZI OKERE, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 371st District Court Tarrant County, Texas
Trial Court No. 1407341D, Honorable Mollee Westfall, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
A jury convicted appellant Anthony Ngozi Okere of aggravated sexual assault of a disabled person and assessed punishment at confinement in prison for twenty-five years. The trial court sentenced him accordingly. Through a single issue appellant argues the trial court erred by denying his motion to suppress the video-audio recording of a police interview of appellant. We will overrule appellant's issue and affirm the judgment of the trial court.
TEX. PENAL CODE ANN. § 22.021(a)(2)(C) (West Supp. 2015).
Background
Appellant does not challenge the sufficiency of the evidence and the underlying facts of the case are well known by the parties. We will mention only the background facts necessary for disposition of appellant's issue.
J.L. was a disabled fifty-six-year-old female patient of a long-term, critical care hospital in Tarrant County. Appellant was employed as a certified nurse assistant for the hospital. J.L. was among the patients under his care. Evidence at trial showed that on December 27, 2014, appellant entered J.L.'s hospital room early in the morning hours and sexually assaulted her. J.L. reported the assault to hospital personnel and the police were contacted. A detective was assigned the case for investigation. J.L. was taken to a nearby hospital for a sexual assault examination. DNA evidence was collected and submitted to a laboratory.
The detective requested an interview with appellant. He declined, wishing first to speak with his attorney. The detective later contacted appellant, again for the purpose of obtaining an interview. Appellant's attorney then contacted the detective and made arrangements for the interview. The interview was conducted on January 2, 2015, in an interview room at the police department.
At the interview, the detective refused appellant's attorney admission to the interview room, although he permitted the attorney to view and listen from a viewing room. Present in the room during the interview were appellant, the investigating detective, and another detective.
At the beginning of the interview the detective offered appellant water and coffee. Appellant declined. Before questioning began the detective told appellant he was not under arrest, he was not required to submit to the interview, he was free to leave, and he could stop the interview at any point he wished. An electronic video-audio recording of the interview was made and played at trial for the jury.
During the interview appellant denied J.L.'s allegations. At no point during the interview was appellant provided the Miranda or statutory warnings required for custodial interrogation. After the interview appellant freely left the police station and was not arrested until March 2015. According to the detective's trial testimony, at the time of the interview he "didn't have a lot of evidence to go on." Laboratory DNA test results were still outstanding.
Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
TEX. CODE CRIM. PROC. ANN. art. 38.22 (West Supp. 2015) (codifying the holding of Miranda). --------
After analysis of evidence collected from J.L.'s sexual assault examination revealed the presence of sperm, search and arrest warrants were issued for appellant. He turned himself in to police and his DNA was obtained for comparison.
At trial, J.L. testified, identifying appellant as her attacker. The DNA analyst testified that appellant could not be excluded as the major contributor of the sperm fraction collected from inside J.L. The analyst agreed that appellant was an "exact match."
At a trial hearing outside the presence of the jury, the court considered and denied appellant's motion to suppress his recorded interview with the detective. Findings of fact and conclusions of law concerning the hearing were not requested. The jury found appellant guilty of the charged offense and assessed punishment at twenty-five years' confinement in prison. The court imposed sentence accordingly and this appeal followed.
Analysis
In a single issue appellant asserts the trial court abused its discretion by failing to suppress his recorded statement because the detective did not provide the Miranda warnings and denied him access to his attorney during the interview.
We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to the trial court's determination of historical facts and then review de novo the trial court's application of the law to those facts. Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000); Carmouche, 10 S.W.3d at 327. If, as here, the trial court did not make explicit findings of fact, we review the evidence in a light most favorable to the trial court's ruling and assume it made implicit findings of fact supporting its ruling. Carmouche, 10 S.W.3d at 327-28; State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008) (stating party prevailing in trial court is afforded "strongest legitimate view of the evidence and all reasonable inferences"). We review de novo questions of law and mixed questions of law and fact that do not depend on evaluation of credibility and demeanor. Fienen v. State, 390 S.W.3d 328, 335 (Tex. Crim. App. 2012) (citing Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006)). Mixed questions of law and fact that turn on credibility determinations receive almost total deference if supported by the record. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013).
A trial court's custody determination presents a mixed question of law and fact. Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). As such, we afford almost total deference to the trial court's custody determination when the questions of historical fact turn on credibility. Id. at 527; Rangel v. State, No. 05-15-00609-CR, 2016 Tex. App. LEXIS 5368, at *13 (Tex. App.—Dallas May 19, 2016, no pet. h.) (mem. op., not designated for publication).
The requirements of warning and waiver of rights set forth in Miranda serve to protect the Fifth Amendment right against compelled self-incrimination. Dickerson v. United States, 530 U.S. 428, 440 n.4, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000). It is the defendant's initial burden to establish a statement was the product of custodial interrogation. Herrera, 241 S.W.3d at 525. "A person is in 'custody' only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest." Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury v. California, 511 U.S. 318, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994)); accord Herrera, 241 S.W.3d at 525.
The determination whether a person is in custody within the meaning of Miranda is made on a case by case basis considering all the objective circumstances. Stansbury, 511 U.S. at 323; Dowthitt, 931 S.W.2d at 254-55. Merely because a person is questioned at the police station does not, standing alone, constitute custodial questioning. Dowthitt, 931 S.W.2d at 255.
At least four general circumstances may constitute custody: (1) when the suspect is physically deprived of his freedom of action in any significant way, (2) when a law enforcement officer tells the suspect he cannot leave, (3) when law enforcement officers create a situation that would lead a reasonable person to believe his freedom of movement is significantly restricted, and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect he is free to leave. Dowthitt, 931 S.W.2d at 255.
In the first through third situations, the restriction on freedom of movement must amount to the degree associated with an arrest as opposed to an investigative detention. Id. Here, during the interview appellant was not subject to restriction of movement to the degree associated with an arrest. Therefore, we turn to the fourth situation addressed in Dowthitt, probable cause that the defendant committed the offense.
The officer's knowledge of probable cause must be manifested to the suspect, and such manifestation could occur if information sustaining the probable cause is related by the officer to the suspect or by the suspect to the officer. Dowthitt, 931 S.W.2d at 255; see Ruth v. State, 645 S.W.2d 432, 436 (Tex. Crim. App. 1979) (holding that a suspect's "statement that he had shot the victim immediately focused the investigation on him and furnished probable cause to believe that he had committed an offense; after that time, the continued interrogation must be considered a custodial one").
During the interview the detective gave appellant no indication of evidence amounting to probable cause that appellant committed the offense. As noted, at the time of the interview the DNA analysis was some two months from completion. And the detective acknowledged at trial that at the time of the interview he "didn't have a lot of evidence to go on." Likewise, during the interview appellant did not provide the detective information establishing probable cause. Rather appellant expressly denied any wrongdoing. We find this record supports the trial court's implicit finding that appellant was not subjected to custodial interrogation.
Concerning exclusion of appellant's attorney from the interview room, because appellant's interview with the detective was not a custodial interrogation, even had appellant unambiguously asked for his attorney during the interview, the detective was not obligated to allow appellant's attorney in the interview room or terminate the interview in the absence of appellant's attorney. Smith v. State, No. 14-13-00595-CR, 2015 Tex. App. LEXIS 6050, at *38-39, n.5 (Tex. App.—Houston [14th Dist.] June 16, 2015, pet. refused) (mem. op., not designated for publication). If appellant was displeased with the detective's refusal to allow appellant's attorney in the interview room, appellant was free to terminate the interview and leave the police station. See Estrada v. State, 313 S.W.3d 274, 296 n.26 (Tex. Crim. App. 2010) (noting that the "defendant's remedy in a noncustodial setting where the police continue questioning the defendant after the defendant has unambiguously invoked his right to silence is to simply get up and leave . . . ").
Conclusion
We find the trial court did not abuse its discretion by denying appellant's motion to suppress. Appellant's sole issue on appeal is overruled and the judgment of the trial court is affirmed.
James T. Campbell
Justice Do not publish.