State v. Graham

[Cite as State v. Graham, 136 Ohio St.3d 125, 2013-Ohio-2114.]

THE STATE OF OHIO, APPELLEE, v. GRAHAM ET AL., APPELLANTS.

[Cite as State v. Graham, 136 Ohio St.3d 125, 2013-Ohio-2114.]

Statements made by employees of state agency during an investigation conducted

by the Ohio inspector general were coerced and are therefore

inadmissible in subsequent criminal proceedings—Garrity v. New Jersey

applied.

(No. 2012-0338—Submitted January 22, 2013—Decided May 29, 2013.)

APPEAL from the Court of Appeals for Brown County, Nos. CA2010-10-016,

CA2010-10-017, CA2010-10-018, CA2010-10-019, and CA2010-10-020,

2012-Ohio-138.

____________________

FRENCH, J.

{¶ 1} This appeal asks whether the United States Supreme Court’s

holding in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562

(1967)—that statements obtained from a public employee under threat of job loss

are unconstitutionally coerced and inadmissible in subsequent criminal

proceedings—required the trial court to suppress statements by employees of the

Ohio Department of Natural Resources (“ODNR”) during an investigation

conducted by the Ohio inspector general (“OIG”). We hold that it did.

Facts and Procedural History

{¶ 2} At all relevant times, appellants were five upper-level employees

of ODNR’s Division of Wildlife (“DOW”): Division Chief David Graham,

Assistant Chief Randy Miller, Human Resource Manager Michele Ward-Tackett,

Law Enforcement Executive Administrator James Lehman, and District Manager

Todd Haines.

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{¶ 3} In September 2009, a confidential informant contacted the OIG to

allege that Brown County DOW wildlife officer Allan Wright had engaged in

misconduct that DOW officials had not investigated properly. According to the

informant, Wright assisted his nonresident friend, a South Carolina wildlife

officer, in obtaining an Ohio-resident hunting license by allowing him to list

Wright’s home address as his own. This allowed Wright’s friend to pay a resident

license fee of $19 instead of the nonresident license fee of $125.

{¶ 4} The OIG asked ODNR Director Sean Logan to investigate the

alleged 2006 misconduct involving Wright and to prepare a report. The following

month, Logan responded that the DOW had already completed an investigation in

August 2008. Dissatisfied with the DOW investigation, the OIG assigned Deputy

Inspector Ron Nichols to investigate. Nichols interviewed appellants—the DOW

personnel involved in the Wright investigation—at different times between

December 22, 2009, and February 1, 2010. Prior to the questioning, each

appellant signed an oath that included the following statement: “I understand that

by affirming my truthfulness under oath, I am subject to criminal sanctions if I

provide false information.” Nichols did not advise appellants of any right to

counsel before each interview.

{¶ 5} During the interviews, appellants revealed that consistent with

reciprocal practices in other states, prior practice within the DOW allowed

wildlife officers from other states to obtain Ohio-resident hunting licenses as a

way to encourage interstate networking and cooperation, although there are some

discrepancies between the appellants’ statements as to when the practice began

and when it ended. In March and October 2008, appellant Graham issued

memoranda reminding division employees about the need to purchase out-of-state

licenses; the October memorandum expressly prohibited DOW employees from

accepting free or discounted licenses in other states (even if those other states

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allowed it) and from permitting nonresident friends to obtain free or discounted

licenses in Ohio.

{¶ 6} Appellants told Nichols that after learning that Wright had allowed

an out-of-state wildlife officer to use Wright’s home address, they had decided to

handle Wright’s misconduct administratively rather than report it to the ODNR

director as a possible criminal violation. Collectively, appellants determined that

Wright’s misconduct fell into the ODNR disciplinary-guidelines category of

“failure of good behavior” and decided that a verbal reprimand was the proper

sanction.

{¶ 7} During his questioning, Nichols asked each appellant whether

Wright’s falsification of the license was a crime and why they, collectively, had

decided not to pursue a criminal investigation. He asked several of the appellants

how they could have disciplined Wright administratively for a 2006 violation of

an internal prohibition that did not exist until Graham’s 2008 memo. And he

suggested to appellants Haines and Graham that perhaps appellants had decided to

issue a verbal reprimand for this nonexistent violation under the catchall category

of “failure of good behavior” because then Wright could not file a grievance over

it and no one would ever know about it. Each appellant testified at length,

however, about the various factors that went into his or her decision-making,

including the DOW’s past practice of allowing nonresident wildlife officers to

obtain resident licenses, Wright’s history and tenure at the ODNR, and Wright’s

use of his own home address, which indicated that he was not trying to hide

anything.

{¶ 8} In March 2010, the OIG issued an investigative report. The report

concluded that Wright had committed wrongdoing by allowing an out-of-state

wildlife officer to obtain an Ohio-resident hunting license using Wright’s home

address. Wright’s excuse for doing so, according to the report, was that it was

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common practice in southwest Ohio to allow out-of-state wildlife officers to

obtain resident licenses.

{¶ 9} The report also concluded that appellants had improperly failed to

report Wright’s criminal conduct to the ODNR director or chief legal counsel, as

required by the policies of the governor and the ODNR. The report stated that

appellants had not verified whether Wright had been adhering to a common

practice that his supervisors were aware of, as Wright claimed, and that appellants

used the alleged practice as an “excuse to disregard the criminal violation.” The

OIG forwarded the report to the Brown County prosecuting attorney.

{¶ 10} In April 2010, a Brown County grand jury indicted each appellant

on one count of obstructing justice and one count of complicity in obstructing

justice, each a fifth-degree felony. Appellants filed motions to suppress or,

alternatively, dismiss, on the ground that their statements to Nichols were coerced

by threat of job loss and were therefore inadmissible under Garrity, 385 U.S. 493,

87 S.Ct. 616, 17 L.Ed.2d 562. The state countered that Garrity did not prevent

the state from using the statements in the criminal proceedings, because Nichols

had never threatened appellants with job loss or employment-related discipline

and because the OIG lacked the authority to discipline appellants.

{¶ 11} At the suppression hearing, Nichols testified that he had contacted

appellants by phone to set up the interviews and had not subpoenaed them.

Nichols stated that he had never threatened appellants with termination or any

form of job-related discipline. Appellants did not testify, although the state

introduced transcripts of the statements appellants had made to Nichols.

{¶ 12} ODNR Labor Relations Administrator Bret Benack testified that

appellants had known that they could be disciplined for refusing to cooperate with

the investigation. Benack explained that under the ODNR disciplinary guidelines

in effect at the time, an ODNR employee who failed to cooperate in an

administrative investigation would have been subject to discipline ranging from

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an oral reprimand up to removal, based on the number of prior offenses and the

severity of the offense. According to Benack, appellants were aware of these

policies and, as employees in “senior leadership” positions, would expect to

receive more severe discipline.

{¶ 13} Benack also testified that appellants each received an ODNR

“Notice of Investigatory Interview,” which informed them that their refusal to

cooperate could subject them to discipline. The notice contained the following

warning: “This interview is part of an official investigation and failure to answer

questions, completely and accurately, may lead to disciplinary action up to and

including termination.” Benack could not remember when appellants had

received the interview notice, only that ODNR had issued the notice to appellants.

{¶ 14} The trial court suppressed appellants’ statements, declaring them to

be compelled statements and therefore inadmissible under Garrity, 385 U.S. 493,

87 S.Ct. 616, 17 L.Ed.2d 562. Acknowledging that Nichols had never expressly

threatened appellants with termination, the trial court found that appellants had

been “told by State’s Exhibit 20 [the ODNR Notice of Investigatory Interview]

they had to answer fully and truthfully or risk disciplinary action up to and

including termination.” The trial court further determined that appellants had

known that ODNR’s disciplinary policies and R.C. 121.451 required them to

participate in the OIG investigation.

{¶ 15} The court of appeals reversed. Before conducting its legal

analysis, the court of appeals rejected the trial court’s finding that appellants had

received an express threat of discipline via the ODNR Notice of Investigatory

Interview. 2012-Ohio-138 at ¶ 32. Specifically, the court of appeals stated that it

1. R.C. 121.45 provides, “Each state agency, and every state officer and state employee, shall

cooperate with, and provide assistance to, the inspector general and any deputy inspector general

in the performance of any investigation. In particular, each state agency shall make its premises,

equipment, personnel, books, records, and papers readily available to the inspector general or a

deputy inspector general.”

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could not consider Benack’s testimony that appellants had received the notice,

because the copy of the notice admitted into evidence was undated and unsigned

and because Benack’s testimony as to when appellants received the notice had

been stricken. Id. The court went on to determine that in the absence of any

express threat, appellants had not been compelled within the meaning of Garrity.

Id. at ¶ 145.

{¶ 16} We accepted appellants’ discretionary appeal. State v. Graham,

131 Ohio St.3d 1539, 2012-Ohio-2025, 966 N.E.2d 893.

Analysis

{¶ 17} We must decide whether the trial court was correct in suppressing

appellants’ statements to Nichols, pursuant to Garrity, 385 U.S. 493, 87 S.Ct. 616,

17 L.Ed.2d 562.

{¶ 18} Appellate review of a suppression ruling involves a mixed question

of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797

N.E.2d 71, ¶ 8. If competent, credible evidence supports the trial court’s findings

of fact, then the appellate court must accept those findings as true. Id. “[T]he

appellate court must then independently determine, without deference to the

conclusion of the trial court, whether the facts satisfy the applicable legal

standard.” Id., citing State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539

(4th Dist.1997).

{¶ 19} The Fifth Amendment to the United States Constitution, made

applicable to the states by the Fourteenth Amendment, Malloy v. Hogan, 378 U.S.

1, 6, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), states that “[n]o person * * * shall be

compelled in any criminal case to be a witness against himself * * *.” Article I,

Section 10 of the Ohio Constitution similarly provides that “[n]o person shall be

compelled, in any criminal case, to be a witness against himself * * *.” The

privilege against self-incrimination is generally not self-executing; a person

“ordinarily must assert the privilege rather than answer if he desires not to

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incriminate himself.” Minnesota v. Murphy, 465 U.S. 420, 429, 104 S.Ct. 1136,

79 L.Ed.2d 409 (1984).

{¶ 20} This general rule is inapplicable, however, in certain well-defined

situations, such as when a person’s assertion of the privilege is penalized in a way

that precludes that person from choosing to remain silent and compels his or her

incriminating testimony. Id. at 434, quoting Garner v. United States, 424 U.S.

648, 661, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976). For instance, a person need not

assert the privilege in cases in which the state compels the person to give up the

“privilege by threatening to impose economic or other sanctions ‘capable of

forcing the self-incrimination which the Amendment forbids.’ ” Murphy at 434,

quoting Lefkowitz v. Cunningham, 431 U.S. 801, 806, 97 S.Ct. 2132, 53 L.Ed.2d

1 (1977).

{¶ 21} In Garrity, the United States Supreme Court held that the

constitutional protection “against coerced statements prohibits use in subsequent

criminal proceedings of statements obtained under threat of removal from office,

and that it extends to all, whether they are policemen or other members of our

body politic.” Id., 385 U.S. at 500, 87 S.Ct. 616, 17 L.Ed.2d 562. Garrity does

not, however, discount the important public interest in obtaining information to

ensure effective governmental functioning. Lefkowitz v. Turley, 414 U.S. 70, 81,

94 S.Ct. 316, 38 L.Ed.2d 274 (1973), citing Murphy v. Waterfront Comm. of New

York Harbor, 378 U.S. 52, 93, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964) (White, J.,

concurring). Indeed, the United States Supreme Court has recognized that

Garrity rests on reconciling the recognized policies behind the privilege against

self-incrimination and the government’s need to obtain information. Turley at 81.

A state may compel a public employee’s cooperation in a job-related

investigation, so long as the employee is not asked to surrender the privilege

against self-incrimination. Id. at 84. For example, the state may compel

incriminating answers from its employee if neither those answers nor the fruits

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thereof are available for use against the employee in criminal proceedings. Id.;

Jones v. Franklin Cty. Sheriff, 52 Ohio St.3d 40, 44, 555 N.E.2d 940 (1990) (a

grant of immunity preserves the privilege because no statement made in that

context is incriminatory). But when the state compels testimony by threatening

potent sanctions unless the witness surrenders the constitutional privilege, the

state obtains the testimony in violation of the Fifth Amendment, and it may not

use that testimony against the witness in a subsequent criminal prosecution.

Cunningham at 805; State v. Jackson, 125 Ohio St.3d 218, 2010-Ohio-621, 927

N.E.2d 574, ¶ 14 (plurality opinion) (a prosecutor cannot make “direct or

derivative use” of statements that were compelled under threat of termination).

This balance “provid[es] for effectuation of the important public interest in

securing from public employees an accounting of their public trust.” Cunningham

at 806.

{¶ 22} The public employees in Garrity were New Jersey police officers

whom the state attorney general investigated, under the direction of the state

supreme court, for fixing traffic tickets. Id. at 494. A New Jersey forfeiture-of-

office statute in effect at the time stated that public employees would forfeit or be

removed from their employment if they refused to testify upon matters relating to

the employment on the ground that their statements might incriminate them. Id.

at 494, fn. 1. Consequently, prior to questioning, each officer received warnings

“(1) that anything he said might be used against him in any state criminal

proceeding; (2) that he had the privilege to refuse to answer if the disclosure

would tend to incriminate him; but (3) that if he refused to answer he would be

subject to removal from office.” Id. at 494. The officers answered the questions,

and their statements were used against them in subsequent prosecutions for

conspiracy to obstruct the administration of traffic laws. Id. at 495. The United

States Supreme Court held that the statements had been coerced because the

officers had been forced to choose between self-incrimination or job forfeiture

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and so the statements could not be used in the officers’ subsequent prosecutions.

Id. at 496-497. According to the court, “[t]he option to lose their means of

livelihood or to pay the penalty of self-incrimination is the antithesis of free

choice to speak out or to remain silent.” Id. at 497.

{¶ 23} Compulsion within the meaning of Garrity is obvious in cases in

which, as in Garrity, the state has expressly confronted the public employee with

the inescapable choice of either making an incriminatory statement or being fired.

In the absence of an express threat, however, several jurisdictions follow the

holding of the United States Court of Appeals for the D.C. Circuit in United

States v. Friedrick, 842 F.2d 382, 395 (D.C.Cir.1988), that an employee claiming

compulsion “must have in fact believed his * * * statements to be compelled on

threat of loss of job and this belief must have been objectively reasonable.” See,

e.g., McKinley v. Mansfield, 404 F.3d 418, 436 (6th Cir.2005), fn. 20. Stated

differently: “ ‘[F]or statements to be considered compelled by threat of discharge,

(1) a person must subjectively believe that he will be fired for asserting the

privilege, and (2) that belief must be objectively reasonable under the

circumstances.’ ” State v. Brockdorf, 291 Wis.2d 635, 2006 WI 76, 717 N.W.2d

657, ¶ 25, quoting People v. Sapp, 934 P.2d 1367, 1372 (Colo.1997).

Determining whether an employee’s subjective belief was objectively reasonable

requires a court to examine the totality of the circumstances. Brockdorf at ¶ 36.

The circumstances must show some demonstrable coercive action by the state

beyond “[t]he general directive to cooperate.” United States v. Vangates, 287

F.3d 1315, 1324 (11th Cir.2002). “[O]rdinary job pressures, such as the

possibility of discipline or discharge for insubordination, are not sufficient to

support an objectively reasonable expectation of discharge.” Sapp at 1372.

{¶ 24} In our view, the Friedrick analysis is persuasive, as it ultimately

examines the totality of the circumstances, an approach that is in keeping with this

court’s voluntariness jurisprudence, as well as that of the United States Supreme

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Court. See State v. Clark, 38 Ohio St.3d 252, 261, 527 N.E.2d 844 (1988), citing

Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979) (“While

voluntary waiver and voluntary confession are separate issues, the same test is

used to determine both, i.e., whether the action was voluntary under the totality of

the circumstances”). We therefore conclude that for a statement to be suppressed

under Garrity, the employee claiming coercion must have believed that his or her

statement was compelled on threat of job loss and this belief must have been

objectively reasonable. In examining whether an employee’s belief was

objectively reasonable under the circumstances, evidence of an express threat of

termination or a statute, rule, or policy demanding termination will almost always

be sufficient to show coercion. Brockdorf at ¶ 3.

{¶ 25} In this case, the trial court and appellate court disagreed as to

whether appellants had received an express threat before Nichols interviewed

them. In suppressing appellants’ statements, the trial court relied heavily on its

finding of fact that appellants had received the ODNR Notice of Investigatory

Interview warning that their failure to answer truthfully “may lead to disciplinary

action up to and including termination.” The court of appeals concluded that the

record did not support this finding, because the copy of the ODNR notice,

introduced as Exhibit 20, was undated and unsigned, and it did not indicate if or

when appellants received it. Graham, 2012-Ohio-138, at ¶ 32. Given that

Benack could only speculate (in testimony that was stricken) as to when

appellants received the notice, the court of appeals stated that it could not

“consider Benack’s testimony that [appellants] received Exhibit 20.” Id.

{¶ 26} The court of appeals’ concern with the state of the record is

understandable, but ultimately insufficient to justify discarding the trial court’s

factual finding. Although Benack could only speculate as to when appellants

received the ODNR notice, he never wavered in his testimony that appellants had

in fact received the notice. Benack, the senior adviser to the ODNR director on

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issues relating to human resources, had personal knowledge that ODNR had

notified appellants that they were the subject of an investigation and that “all of

the [appellants] were issued Exhibit 20.” The language in the notice itself implies

that it is to be given to employees prior to an investigatory interview: “the

investigatory interview will be held with you at [time] on [date] at [location].”

(Emphasis added.) And given Benack’s testimony that ODNR did not conduct its

own interrogation of appellants, the trial court was free to conclude that ODNR

issued the notice in relation to the OIG’s investigation. This testimony was

adequate to support the trial court’s finding; the court of appeals should have

accepted it and considered that finding as true in its analysis. See Burnside, 100

Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 8.

{¶ 27} Appellants’ receipt of the ODNR notice is dispositive. Although

appellants did not testify at the suppression hearing, the threat of discharge

contained in the notice was sufficient proof that they subjectively believed they

could be fired for refusing to cooperate with Nichols. The threat also establishes

that their belief was objectively reasonable, as it represented some demonstrable

state coercion above the general directive to cooperate. Because appellants spoke

to Nichols after being expressly warned by ODNR that their failure to do so

would subject them to disciplinary action up to and including termination, we

conclude that their statements were compelled under Garrity, 385 U.S. 493, 87

S.Ct. 616, 17 L.Ed.2d 562, as interpreted by Friedrick, 842 F.2d 382.

{¶ 28} In reaching this conclusion, we reject the state’s characterization of

the OIG as a toothless agency with little or no coercive power. While it was the

ODNR (not the OIG) that compelled appellants’ statements in this case, we reject

the notion that the OIG is incapable of compulsion simply because it lacks the

ability to arrest or directly discipline employees of other state agencies. The

General Assembly established the office of the OIG in 1990 to “investigate

alleged wrongful acts and omissions by state officers and state employees.”

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Am.Sub.H.B. No. 588, 143 Ohio Laws, Part IV, 5930. Pursuant to R.C. 121.42,

the OIG has broad investigative powers. To determine whether wrongful acts or

omissions have been committed, the OIG may “enter upon the premises of any

state agency at any time, without prior announcement,” question state employees,

and inspect and copy any documents in the agency’s possession. R.C. 121.45.

Although the OIG cannot directly discipline employees of other state agencies, it

is statutorily required to “report the wrongful acts or omissions, as appropriate

under the circumstances, to * * * the person’s public or private employer for

possible disciplinary action.” R.C. 121.42(C). In this respect, the purpose of the

OIG’s investigation is similar to the scope of the investigation conducted by the

state attorney general in Garrity, who was ordered by the state supreme court to

make a report.

{¶ 29} Nor do we embrace appellants’ sweeping proposition that every

OIG investigation is coercive within the meaning of Garrity. To be sure, this case

has more in common with cases extrapolating from Garrity than it does with

Garrity itself. Other than the express threat contained in the ODNR notice, there

is scant evidence establishing that appellants subjectively believed that they were

compelled to cooperate with the OIG investigation. Appellants did not testify at

the hearing, and their claim of compulsion relied primarily on the ODNR

disciplinary policy and the general duty to cooperate with OIG investigations

under R.C. 121.45. Unlike the officers in Garrity, appellants were neither

threatened by their interrogator nor confronted with a statute mandating removal

from office. See Murphy, 465 U.S. at 437-438, 104 S.Ct. 1136, 79 L.Ed.2d 409

(“Unlike the police officers in Garrity * * *, Murphy was not expressly informed

during the crucial meeting with his probation officer that an assertion of the

privilege would result in the imposition of a penalty”). R.C. 121.45 does not, as

appellants suggest, threaten any form of employment-related discipline.

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Nevertheless, the express threat in the ODNR notice was sufficiently coercive so

as to trigger the protections of Garrity.

Conclusion

{¶ 30} Appellants answered questions after receiving a warning that they

could be fired for failing to do so. Statements extracted under these

circumstances cannot be considered voluntary within the meaning of Garrity.

Accordingly, the court of appeals erred by reversing the trial court’s suppression

order. We therefore reverse the judgment of the court of appeals and reinstate the

judgment of the trial court.

Judgment reversed.

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY, and

O’NEILL, JJ., concur.

____________________

Jessica A. Little, Brown County Prosecuting Attorney, for appellee.

Gary Rosenhoffer, for appellant David Graham.

John Woliver, for appellant Randy Miller.

Michael P. Kelly, for appellant Michelle Ward-Tackett.

Michael E. Cassity, for appellant James Lehman.

J. Michael Dobyns, for appellant Todd Haines.

Paul L. Cox and Mike Piotrowski, urging reversal on behalf of amicus

curiae, Fraternal Order of Police of Ohio, Inc.

________________________

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