Because Mr. Trigg did not unambiguously or unequivocally invoke his right to counsel, the interviewing detectives were not required to terminate the interview.

State v. Trigg

2023 – Ohio – 3660

Second District Appellate Court

Montgomery County, Ohio

October 6, 2023

 

Mr. Trigg shoots Mr. Taylor Outside his Apartment

At Mr. Johnny Trigg’s jury trial, the State presented testimony from Mr. Myquan Taylor’s girlfriend, Dareona Acker, who witnessed the shooting incident in question. Ms. Acker testified that on the morning of Wednesday May 18, 2022, she had been with Mr. Taylor at their apartment, located in the 1700 block of Stewart Street, helping Mr. Taylor get ready to leave for work. Ms. Acker testified that after Mr. Taylor kissed her and their seven-week-old daughter goodbye, she watched Mr. Taylor walk outside to his car and light a blunt. Before Mr. Taylor was able to step inside his car, Ms. Acker saw Mr. Trigg, who lived two doors down, rush out of his apartment holding a gun. Ms. Acker testified that Mr. Trigg ran toward Mr. Taylor and said something to Mr. Taylor in an angry tone. Ms. Acker testified that she then saw Mr. Trigg attempt to fire his gun twice at Mr. Taylor’s face, but the gun jammed both times. Ms. Acker then saw Mr. Taylor back up and run away from Mr. Trigg.

Mr. Johnny Trigg shot and killed Mr. Myquan Taylor here in the 1700 block of Stewart Street in Dayton, Ohio.  Mr. Trigg argued his inculpatory statement should be suppressed as a Miranda violation.  But did Mr. Trigg’s statement comport or oppose the long-established Davis Doctrine?

Mr. Taylor’s Girlfriend Testifies Mr. Trigg Shot Mr. Taylor While he was on the Ground

Continuing, Ms. Acker testified that Mr. Trigg had chased Mr. Taylor and then successfully fired his gun twice at Mr. Taylor. When Mr. Trigg’s gun fired the second time, Ms. Acker saw Mr. Taylor fall to the ground. Ms. Acker testified that while Mr. Taylor was lying on the ground, she saw Mr. Trigg stand at Mr. Taylor’s feet and shoot Mr. Taylor again. Ms. Acker then saw Mr. Trigg run to his apartment. After witnessing the shooting, Ms. Acker called 9-1-1. Ms. Acker, Ms. Acker’s twin brother who ran outside to check on Mr. Taylor, and the first police officer to arrive at the scene of the shooting all testified that Mr. Taylor did not have a gun on or near his person.

Mr. Taylor Died Three Days after the Shooting as His Right Femoral Artery was Severed

Mr. Taylor was taken to the hospital and treated for three days before succumbing to his injuries. The testimony from the coroner who examined Mr. Taylor’s body and the autopsy photographs admitted into evidence established that Mr. Taylor had two gunshot wounds to the backside of his body. The coroner testified that one of the wounds was a graze wound to Mr. Taylor’s right hip and the other wound was an entrance wound to Mr. Taylor’s right buttocks. The coroner testified that the gunshot to Mr. Taylor’s right buttocks was the cause of Mr. Taylor’s death, as the bullet moved through Mr. Taylor’s pelvis, hit his right femoral artery, and caused significant internal bleeding.

Mr. Trigg Testifies His Dispute with Mr. Taylor Began Over a Parking Space

In his defense, Mr. Trigg testified that he had first encountered Mr. Taylor in 2013 or 2014. Mr. Trigg claimed that during that encounter, Mr. Taylor had banged on the door to his residence and complained about one of his friends taking Mr. Taylor’s parking space. Mr. Trigg testified that he next encountered Mr. Taylor in the spring of 2022 on Mother’s Day weekend. During that encounter, Mr. Trigg claimed that Mr. Taylor had approached him in a hostile manner for an unknown reason after Mr. Trigg drove up to his residence. Mr. Trigg testified that he and Mr. Taylor had argued and that the argument had escalated. According to Mr. Trigg, Mr. Taylor hit him in the mouth twice with a pistol, which caused him to suffer a “fractured dental line” and cut gums. Mr. Trigg also claimed that Mr. Taylor had pointed the pistol at his (Mr. Trigg’s) head for five to seven minutes, which led him to believe that Mr. Taylor was going to kill him.

Mother’s Day [?] Dispute

Mr. Trigg testified that after Mr. Taylor assaulted him on Mother’s Day weekend,he encountered Mr. Taylor again on the morning of May 18, 2022, when Mr. Trigg was transferring his belongings from his residence to his truck because he was moving.

Not Mother’s-Day-Dispute?

Footnote #1 – During trial, Trigg insisted that Taylor had assaulted him over Mother’s Day weekend, which fell on May 7-8, 2022. However, medical records obtained from the hospital where Trigg sought treatment for the injuries he sustained during the assault indicated that the assault had occurred on April 24, 2022.

Mr. Trigg Testifies He Shot Mr. Taylor in Self-Defense

Mr. Trigg testified that while he was in the process of transferring his belongings, he heard a door slam and saw Mr. Taylor coming out of his residence. According to Mr. Trigg, Mr. Taylor saw him outside and then went back into his residence. Mr. Trigg testified that after he saw Mr. Taylor go back inside his residence, he (Mr. Trigg) grabbed his gun for protection and hid behind the driver’s side of his truck. Mr. Trigg testified that his truck had tinted windows, which allowed him to watch Mr. Taylor without Mr. Taylor seeing him. Mr. Trigg testified that while he was hiding behind his truck, he saw Mr. Taylor come back out of his residence with a pistol hanging out of his pocket. Mr. Trigg testified that Mr. Taylor then walked toward the front of his truck, lit a blunt, and said something that Mr. Trigg couldn’t make out. Mr. Trigg testified that Mr. Taylor’s voice was loud and aggressive and that Mr. Taylor’s hand was on the pistol in his pocket. At that point, Mr. Trigg testified that he came out of hiding and said “here I am” to Mr. Taylor.

Mr. Trigg Testified He Hid at His Cousins House for Eight Days following his Self-Defense

Mr. Trigg testified that when he came out of hiding, Mr. Taylor, who had been facing the other direction, turned around and aimed his gun at him (Mr. Trigg). Mr. Trigg testified that Mr. Taylor then attempted to shoot his gun, but the gun did not fire. Mr. Trigg testified that after Mr. Taylor’s gun failed to fire, Mr. Taylor ran away. Mr. Trigg then admitted to firing his gun at Mr. Taylor three to five times. Mr. Trigg specifically testified that he had fired his gun at Mr. Taylor as Mr. Taylor was running away from him. After shooting Mr. Taylor, Mr. Trigg ran into his apartment and then fled on foot to his cousin’s house, where he was apprehended by law enforcement eight days later.

Mr. Trigg was a Convicted Felon in Possession of a Firearm – WUD

In addition to admitting that he had shot Mr. Taylor, Mr. Trigg admitted to having prior felony convictions in Ohio for having weapons while under disability, improper handling of a firearm in a motor vehicle, aggravated burglary, felonious assault, and a federal conviction for aiding and abetting in the possession of cocaine with intent to distribute. Mr. Trigg also admitted that he was not allowed to have a firearm in his possession.

Trial Court Determines Mr. Trigg was Not Entitled to a Self-Defense Defense

After the defense rested its case, Mr. Trigg’s trial counsel requested a jury instruction on self-defense. The trial court, however, found that Mr. Trigg’s testimony established that Mr. Trigg was not entitled to a self-defense instruction and therefore denied the request. The jury thereafter deliberated and found Mr. Trigg guilty of both counts of felony murder, both counts of felonious assault, and the accompanying firearm specifications. The trial court also found Mr. Trigg guilty of both counts of having weapons while under disability.

Mr. Trigg was Sentenced to Twenty-Years-to-Life Plus 1,220 Days

At sentencing, the trial court merged all the felony murder and felonious assault counts into one conviction. The State elected to have Mr. Trigg sentenced for the first count of felony murder, i.e., felonious assault/serious physical harm. The trial court also merged the two counts of having weapons while under disability, and the State elected to have Mr. Trigg sentenced for the prior-felony-offense-of-violence count. The trial court imposed a prison term of fifteen years to life for felony murder, a consecutive three-year prison term for the accompanying firearm specification, and a consecutive thirty-six-month prison term for having weapons while under disability. The trial court also imposed 1,220 days in prison for Mr. Trigg’s violating his parole in another case. Accordingly, Mr. Trigg received a total, aggregate term of twenty-one years to life in prison plus 1,220 days for his parole violation.

Appeal

Mr. Trigg Attempts to Suppress his Statements to Law Enforcement

Under his first assignment of error, Mr. Trigg challenges the trial court’s decision overruling his motion to suppress the statements he made during his May 25, 2022 interview with Dayton Police Det. Posma and Det. Farkas. Mr. Trigg argues that his statements should have been suppressed because the detectives proceeded with the interview despite his invoking his right to counsel. According to Mr. Trigg, this violated the constitutional protections set forth in Miranda v. Arizona, 384 U.S. 436 (1966). Under the circumstances of this case, we disagree.

Miranda Protections and Waiver of Rights

In Miranda, the United States Supreme Court adopted procedural safeguards to secure the right against compulsory self-incrimination as guaranteed by the Fifth Amendment to the United States Constitution.

Facts Not in Dispute

In this case, the parties do not dispute that Mr. Trigg’s interview with Det. Posma and Det. Farkas was a custodial interrogation that required Miranda warnings. There is also no dispute that Det. Posma provided Miranda warnings to Mr. Trigg prior to the interview by going over a pre-interview form that set forth each of the Miranda rights, which Mr. Trigg initialed and indicated he understood. In addition, there is no dispute that Det. Posma went over a waiver of rights section on the pre-interview form, which Mr. Trigg signed and indicated he understood. Despite this, Mr. Trigg claims that his Miranda protections were violated because the detectives failed to terminate the interview after he made a statement that invoked his right to counsel.

Established Case Law

Unambiguous Request for Counsel?

When a suspect invokes his right to counsel, police officers must cease interrogation until counsel is present.”State v. Adams, 2015-Ohio- 3954, citing Edwards v. Arizona, 451 U.S. 477, 484-485, (1981). “However, for this principle to apply, ‘ “the suspect must unambiguously request counsel.” ’, quoting State v. Williams, 2003-Ohio-4164, quoting Davis v. United States, 512 U.S. 452, 459, (1994). “If an accused makes a statement concerning the right to counsel ‘that is ambiguous or equivocal’ or makes no statement, the police are not required to end the interrogation … or ask questions to clarify whether the accused wants to invoke his or her Miranda rights.”Berghuis v. Thompkins, 560 U.S. 370, 381, (2010), quoting Davis at 461-462.

“[W]ell, my attorney advised me not to, but I am going to say what happened that night.”

In this case, the trial court found that after going over the waiver of rights section of the pre-interview form with Mr. Trigg, Det. Posma asked Mr. Trigg if he wanted to talk with him and Det. Farkas. The trial court found that Mr. Trigg responded: “[W]ell, my attorney advised me not to, but I am going to say what happened that night.” The trial court found that Det. Posma thereafter instructed Mr. Trigg to sign the waiver portion of the pre-interview form if he wanted to talk, and that Mr. Trigg then immediately executed the waiver and participated in the interview.

Mr. Trigg’s Expressed His Desire to Speak with the Detectives

The aforementioned findings of fact were supported by competent, credible evidence in the record. When applying the applicable legal standard to those findings, we conclude that Mr. Trigg did not make an unambiguous or unequivocal statement invoking his right to counsel; Mr. Trigg simply stated that he had previously talked to an attorney who had advised him to remain silent—not that he wanted to speak with an attorney or have one present during the interview. Although Mr. Trigg mentioned that the attorney had advised him to remain silent, Mr. Trigg specifically told the interviewing detectives that he was going to say what had happened, and then he proceeded to sign the Miranda waiver and talk to the detectives. When viewed objectively, Mr. Trigg’s statement and actions could not have reasonably been construed to be “an expression of a desire for the assistance of an attorney.Davis, 512 U.S. at 459. Rather, they indicated an express desire to speak with the detectives.

Conclusion and Holding

Because Mr. Trigg did not unambiguously or unequivocally invoke his right to counsel, the interviewing detectives were not required to terminate the interview. As a result, the statements Mr. Trigg made during the interview were not subject to suppression on Fifth Amendment self-incrimination grounds.

Mr. Trigg’s first assignment of error is overruled.

Additional Appeal

There was another appeal based on the lack of jury instruction on the doctrine of Self-Defense which was also denied.  I have not included an analysis of that appeal in this article.

Information for this article was obtained from State v. Trigg, 2023 – Ohio – 3660 and news reports.

State v. Trigg, 2023 – Ohio – 3660 was issued by the Second District Appellate Court on October 6, 2024 and is binding in the following Ohio Counties: Champaign, Clark, Darke, Greene, Miami and Montgomery.

Lessons Learned:

  1. Established Case Law – On Friday June 24, 1994 the U.S. Supreme Court issued Davis v. United States, 512 U.S. 452 (1994). In that case killer Robert Davis was read the Miranda warning and asked the detective “Maybe I should talk to a lawyer?”.  The detective did not acknowledge the question and continued his interview.  Davis gave inculpatory statements about his pool stick homicide of Mr. Keith Shackleford at the Charleston, South Carolina Naval Air Base NCO Club on Sunday October 2, 1988.  The U.S. Supreme Court held “But we decline to a adopt a rule requiring officers to ask clarifying questions.  If the suspect’s statement is not unambiguous or unequivocal request for counsel the officers have no obligation to stop questioning him.”. Note that the suspect can only request a lawyer, not a family member, friend, co-conspirator, parole or probation officer, ONLY a lawyer.
  2. Statement or a Question? In this case, Mr. Trigg was read the Miranda warning on May 25, 2022 by Det. Posma and Det. Farkas. In response Mr. Trigg made the statement ““[W]ell, my attorney advised me not to, but I am going to say what happened that night.”. This statement was not a request for a lawyer and consequently the statements that followed were admissible under Davis.
  3. Pre-Sent Arms! It is important that detectives and officers know, understand and apply the Davis Doctrine when interviewing suspects.  The request for counsel must be unambiguous or unequivocal, that means a clear demand for a lawyer.  If the request is unclear the detective/officer does not have to ask clarifying questions as the U.S. Supreme Court held on Friday June 24, 1994 in Davis v. United States, 512 U.S. 452 (1994).  Both Dayton Police Det. Posma and Det. Farkas should be highly commended for their interview prowess.  Well done!

Does your agency train on Custodial Interrogation?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.