Based on the totality of the circumstances, this Court believes the Defendant’s confession was knowingly and voluntarily given after surrendering his constitutional rights as contained in the Miranda warning.
State v. Penn
2021 – Ohio – 1761
Sixth District Appellate Court
May 21, 2021
On January 26, 2019, Toledo, Ohio Police Officer Benigno Salazar, came into contact with Mr. Marcus Penn. Officer Salazar was dispatched to 219 Maddie Street, Toledo, Ohio when Mr. Penn’s family reported that he was intoxicated and waving a gun around.
Toledo Police Officer Salazar arrested Mr. Penn outside of 219 Maddie Street. Thereafter officers found Keeahra Peeples with a gun shot wound to her head. Ms. Peeples would survive the shooting.
As Officer Salazar arrived on the scene but was still approximately fifty yards from the house. Mr. Penn came around the side of the house, threw down the gun, and laid down in the snow as if he was giving himself up. Officer Salazar believed that Mr. Penn threw down the gun in the manner that he did in order to make it clear to the officer that Mr. Penn no longer possessed the gun. Mr. Penn undertook all of these actions while Officer Salazar was still in his cruiser.
Mr. Penn appeared disheveled and was heavily intoxicated, with Officer Salazar able to smell the alcohol. Officer Salazar handcuffed Mr. Penn and placed him in the back of his patrol car. Mr. Penn was going to be taken to jail and charged with possession of a firearm while intoxicated. Due to his level of intoxication, he lived up to comedian Ron White’s quip … “I had the right to remain silent but not the ability.”
Officer Salazar spoke with Mr. Penn’s sister, who had called the police when she thought that he might have been suicidal. Once in the patrol car, Mr. Penn indicated that he needed some medication and requested to go to St. Charles Hospital. Officer Salazar told him, “[N]o, you are going to jail.”.
Officer Salazar did not read Mr. Penn his Miranda rights, because it is the Toledo Police Department’s policy that officers do not question suspects. Instead, the Toledo Police Department’s policy is to have detectives Mirandize suspects just prior to, and in connection with, their formal questioning. Given this policy, Officer Salazar did not interview, interrogate, or question appellant as Officer Salazar was driving Mr. Penn to jail. At one point, while Officer Salazar was discussing with Mr. Penn the charges that would be filed against him, Mr. Penn became irritated and volunteered a statement to the effect that he had killed a female, and that such was the only offense for which he would be charged.
He further volunteered words to the effect that the devil made him do it, or that the devil told Mr. Penn to set her free. Following Mr. Penn’s statement that he had killed someone, Officer Salazar asked Mr. Penn why he had plastic gloves on his hands, but thereafter Officer Salazar refrained from asking any further questions.
Given Mr. Penn’s statement, Officer Salazar decided not to drive appellant to the jail, and, instead, took him to speak with Detective Jeff Quigley. As they were driving, Mr. Penn asked Salazar if he wanted to “know”—a statement that Officer Salazar took to mean that appellant was asking Officer Salazar if he wanted appellant to keep talking. Officer Salazar did not respond, stating only that they were going to talk with someone else. During the drive, Officer Salazar noticed Mr. Penn mumbling in the back seat of the patrol car, as if he were talking to somebody who was not there.
Once Mr. Penn was brought to Det. Quigley for questioning, and prior to his being questioned, Mr. Penn’s handcuffs were removed. Mr. Penn, who was 30 years old, was read his Miranda rights. He acknowledged that he understood those rights, and he affirmatively waived them. Although the questioning only lasted about forty-five minutes (and for much of that time Det. Quigley was out of the room), Mr. Penn was provided with cigarettes, food, and water. Mr. Penn refused a bag of candy that was provided, stating that he was allergic to chocolate. His refusal of chocolate candy would become a factor later in this case.
According to Det. Quigley, although Mr. Penn was emotional, crying, and upset, it appeared that he understood what Det. Quigley was saying, never giving any indication to the contrary. Supporting Det. Quigley’s testimony was the video of the interview. It showed Mr. Penn begin to orally articulate his Miranda rights along with Det. Quigley as Det. Quigley read them aloud. When Det. Quigley was speaking with Mr. Penn, Mr. Penn engaged directly with Det. Quigley and did not appear disoriented or confused, although Det. Quigley acknowledged that Mr. Penn had indicated something to the effect that the devil made him do it. When Det. Quigley left the room, Mr. Penn would talk to himself and, further, indicated that he was hearing voices. Mr. Penn told Det. Quigley that he suffered from schizophrenia/bipolar and rage disorder and that he had not slept in nine days. He also told Det. Quigley that he wanted to go to St. Charles Hospital so he could get his medication.
During the interview, Mr. Penn stated that he had shot his “wife” in Swanton and he provided Det. Quigley with his wife’s name and address. It would later be determined that Mr. Penn was not married, and the victim was his girlfriend. Mr. Penn also stated that there was a two-month-old baby in the home. Det. Quigley passed this information along to the Fulton County sheriff’s office so that they could check on the wife’s safety. As a result of the safety check, it was discovered that the victim described by Mr. Penn had, in fact, been shot at the address Mr. Penn had provided.
Approximately five and one-half hours after Det. Quigley’s interview ended, Lieutenant Chris Blosser of the Swanton Police Department reported to the Toledo Police Department to conduct a follow-up interview of Mr. Penn. Lt. Blosser confirmed that Mr. Penn had been Mirandized and informed Mr. Penn that those rights were still in effect. Lt. Blosser then asked Mr. Penn if he was willing to speak with Lt. Blosser, and
Mr. Penn stated that he was willing to do so. During this second interview, Mr. Penn’s handcuffs were again removed, and Mr. Penn was provided with cigarettes and water.
According to Lt. Blosser, Mr. Penn did not appear to be confused. This testimony was supported by video of the interview, which showed that Mr. Penn was much less emotional and distraught than he had been while being questioned by Det. Quigley. Lt. Blosser believed that Mr. Penn knew what was occurring and testified that Mr. Penn had been able to effectively communicate with him.
During the course of the interview, Mr. Penn acknowledged that he and the victim had moved to Swanton a few months earlier. Mr. Penn told Lt. Blosser that he had shot his girlfriend in Swanton. Mr. Penn knew that the gun that was used to shoot the victim was a .380. Further, Mr. Penn was able to provide Lt. Blosser with the code to the victim’s cell phone so that law enforcement personnel could contact the victim’s family, and he specifically identified who the officers should contact. Mr. Penn stated that he knew he would be going to jail and he asked Lt. Blosser if he could be segregated while at the Corrections Center of Northwest Ohio, rather than being put in with other inmates, as he feared repercussions from his prior life as a gang member. Mr. Penn reiterated that the devil had made him shoot his girlfriend, in order to set her free. The second interview was roughly twenty-two minutes in length. This case would end up as a juxtaposition since Mr. Penn’s attempt to set his girlfriend free would later keep him incarcerated for over a decade.
As a result of the investigation and Mr. Penn statements he was charged with:
One count of attempted murder in violation of R.C. 2903.02(A) and 2923.02(A), a felony of the first degree (Count 1)
One count of felonious assault in violation of R.C. 2903.11(A)(2), a felony of the second degree (Count 2)
One count of felonious assault in violation of R.C. 2903.11(A)(1), a felony of the second degree (Count 3); and
One count of domestic violence in violation of R.C. 2919.25(A) with a specification of a prior conviction, a felony of the fourth degree (Count 4). Each of the four counts included a three-year firearm specification pursuant to R.C. 2941.145(A) and 2929.14(B)(1)(a)(ii).
Mr. Penn then plead Not Guilty by Reason of Insanity. A hearing was held, and he was determined to be sane. He plead No Contest to each charge, was found guilty and sentenced to fourteen years in prison. He filed an appeal and the Sixth District Court upheld his conviction based on the following:
Officer Salazar did not Mirandize appellant, but because Mr. Penn’s statement to Officer Salazar that Mr. Penn had killed someone was made spontaneously, and was not made in response to questioning, there was no violation of appellant’s Miranda rights.
With respect to Mr. Penn’s interaction with Det. Quigley, the trial court held: Detective Quigley refused to allow the Defendant to make any statements until the Defendant was mirandized. The Defendant indicated before the Miranda warnings were given, that he understood his rights. In the video which was presented, the Defendant began stating the rights simultaneously with Detective Quigley. The Defendant indicated he understood his rights. The Defendant then stated that he thought he had killed his fiancée. During the period while the detective was not in the office, the Defendant appeared to have a running conversation with the voice in his head. However, the Defendant had no trouble responding to the detective’s questions. The Defendant frequently asked what was going to happen to him; what charges he was going to receive; and if he could be taken to St. Charles Hospital. The Defendant was also cognizant of the fact that he was allergic to chocolate and could not eat the M&M’s that had been provided by Detective Quigley. [This refusal provided a foundation that Mr. Penn was sane in that moment.]
In reviewing the totality of the circumstances, the Court notes the Defendant was aware of his constitutional rights and in fact began quoting them along with Detective Quigley. The Defendant indicated that he was suffering from mental illness, had not taken his meds, had not slept, and was concerned for his fiancée’s well-being because there was one less bullet in the chamber of the gun. The Defendant knew that it was possible he might be incarcerated and indicated to the detective he preferred to go to St. Charles Hospital to get his medication. The Defendant repeatedly asked what was going to happen to him as a result of what he did to his fiancée. The Defendant repeatedly said [and the court is paraphrasing here] that he had made a terrible mistake and people don’t do this sort of thing to people they care for. All this indicates the Defendant was cognizant of his surroundings, the seriousness of what may have happened and the jeopardy into which he had placed himself.
The Defendant had no problem responding to Detective Quigley’s questions. He was aware of the potential consequences for his actions. He never claimed the voices in his head were telling him to confess.
He simply indicated the voices in his head were the reason he shot his fiancée — to set her free.
Based on the totality of the circumstances, this Court believes the Defendant’s confession was knowingly and voluntarily given after surrendering his constitutional rights as contained in the Miranda warning.
Finally, with respect to appellant’s interaction with Lt. Blosser, the trial court
recognized that:
(1) Lt. Blosser had asked appellant if he remembered the Miranda warnings that he had been given previously;
(2) Mr. Penn acknowledged that he did remember the warnings;
(3) Lt. Blosser reiterated that the warnings were still applicable to Lt. Blosser’s questioning; and
(4) Mr. Penn acknowledged that he understood.
The trial court then stated: In this case, the lapse of time was not significant other than it
provided the Defendant an opportunity to compose himself. The
interrogations occurred in the same building although not in the same room.
The Defendant acknowledged he recalled his Miranda warnings and
understood they were applicable to the second interview. The statement the Defendant made did not significantly differ from (in fact the second
statement was almost identical to) the first statement. The Defendant was
far less stressed than he was during the initial interview by Detective
Quigley.
Information for this article was obtained from State v. Penn, 2021 – Ohio – 1761.
This case is binding in the Sixth District, Erie, Fulton, Huron, Lucas, Ottawa, Sandusky, Williams and Wood Counties only.
Mr. Penn’s Ohio Department of Corrections and Rehabilitation link: https://appgateway.drc.ohio.gov/OffenderSearch/Search/Details/A776108
Lessons Learned:
- When Mr. Penn told Det. Quigley that he was allergic to chocolate who could have guessed that the statement would be relevant when evaluating sanity and admissibility of his statements? Law enforcement should document each interview with specificity. The applicability of a chocolate allergy statement could not have been predicted in that moment. Well done Det. Quigley!
- When a suspect is given Miranda, the warning remains in effect for a reasonable amount of time. Here Lt. Blosser re-interviewed Mr. Penn five and a half hours after the original Miranda warning was given. The Sixth District Appellate Court held that law enforcement did not need to restate Miranda to Mr. Penn.
- Law enforcement should always record interviews to include the Miranda warning so allegations of misconduct can be refuted.
- All non-Miranda statements suspects make should be recorded, even if the officer makes a written recordation in the absence of an actual audio or video recording. These statements will often be admissible so long as the officer does not influence the suspect into making a statement.
- Officer Salazar, Det. Quigley and Lt. Blosser are to be commended for their professionalism in Mr. Penn’s investigation that ultimately led to his conviction.
Does your agency train on Miranda warnings?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!