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State v. Raber
Citations: 189 Ohio App. 3d 396; 938 N.E.2d 1060Docket: No. 09CA0065
Court: Ohio Court of Appeals; August 30, 2010; Ohio; State Appellate Court
Defendant-appellant Barbara Raber appeals her conviction for aggravated murder in the Wayne County Court of Common Pleas, which has been affirmed. On June 2, 2009, Barbara Weaver was found shot dead in her bed, with the coroner estimating her time of death between midnight and 6 a.m. The cause of death was identified as a close-range gunshot from a .410-gauge shotgun. Eli Weaver, Barbara's husband, who was on a fishing trip at the time, initially denied involvement but later confessed that he and Raber had conspired to kill Barbara, with Raber executing the murder. Eli and Raber had developed a personal relationship over the years, involving numerous text messages discussing their murder plan. Raber was arrested on June 10, 2009, and during interrogation, she confessed to the murder but declined to provide a written statement. After asserting her right to counsel, the interrogation ceased. A grand jury indicted her on June 12, 2009. Raber filed a motion to suppress her oral statements, which the trial court denied after a hearing. Subsequently, a jury found her guilty of aggravated murder with a firearm specification, leading to a 23-year prison sentence. Raber's appeal includes four assignments of error, with the first arguing that the trial court improperly denied her motion to suppress her statements made after requesting an attorney. The court disagrees with this argument. The Ohio Supreme Court establishes that appellate review of a motion to suppress involves a mixed question of law and fact, with trial courts acting as triers of fact who evaluate credibility and resolve factual disputes. Appellate courts must accept the trial court’s factual findings if supported by competent, credible evidence, while applying a de novo standard to legal conclusions. In this case, neither party disputes the facts from the suppression hearing, which centered on Detective John Chuhi’s testimony regarding the arrest of Barbara Raber for the murder of Barbara Weaver. On June 10, 2009, Detective Chuhi arrived at Raber's home at approximately 4:20 p.m. to execute a search warrant and arrest her. After reading her the warrant, Raber was placed under arrest by Detective Michael Maxwell, who also read her Miranda rights. Raber appeared to understand her rights but expressed a desire for an attorney before becoming emotional and asking about her children. Detective Chuhi provided reassurance before transporting her to the police car. In the car, Detective Chuhi reiterated Raber's request for an attorney, confirmed her understanding of her rights, and asked if she was willing to speak with them, to which she agreed. At the Justice Center, Raber was offered refreshments and did not request an attorney during the subsequent interview. During this conversation, she admitted to causing the incident but declined to provide a written statement. The interview concluded at 6:45 p.m., after which Raber was held overnight in jail. Detectives Chuhi and Maxwell re-interviewed Raber in jail, re-reading her Miranda rights, which she waived. During the conversation, Raber requested a lawyer, prompting Detective Chuhi to terminate the interview. Raber does not contest having received or understood her Miranda warnings but argues that her request for an attorney was clear and unambiguous, asserting that the state failed to prove she knowingly waived her right to counsel afterward. Legal principles state that a waiver of Miranda rights can continue until a clear request for an attorney is made, as established in *Davis v. United States*. Raber’s claim hinges on whether her invocation of the right to counsel was unequivocal. Courts differentiate between invocation and waiver, requiring clarity in the request for an attorney before considering waiver issues. Raber has not provided sufficient legal authority for her position, and the determination of whether her request was clear involves an objective, contextual analysis. Ambiguous statements, such as suggesting a need for a lawyer without a clear request, do not necessitate halting police questioning, as illustrated by previous cases. In *State v. Stover*, the court examined whether the defendant made a clear request for counsel during police questioning. After being indicted and retaining an attorney, Stover engaged in a dialogue with a detective who provided Miranda warnings. During the exchange, Stover expressed a desire to have his lawyer present but also indicated he would talk to the detective. The court found that Stover’s statements were not unambiguous or unequivocal requests for counsel. The detective's follow-up questions aimed at clarifying Stover's intentions were deemed reasonable. Consequently, the court ruled that the statements made did not constitute a clear request for legal representation. Multiple Ohio courts have consistently held that certain statements made by defendants do not constitute an unambiguous and unequivocal request for counsel. For example, in *State v. Long*, a defendant's desire to speak with a district attorney for a deal was not interpreted as a request for an attorney during interrogation. Similarly, in *State v. Knight*, inquiries about needing a lawyer were deemed equivocal rather than clear requests. Other cases, like *State v. Simmons*, demonstrated that speculative statements about needing a lawyer did not fulfill the requirement for an unequivocal request. The courts ruled that phrases like "I think I need a lawyer" or asking "Where’s my lawyer?" lacked the clarity needed for invocation of counsel rights, as seen in *State v. Neal* and *State v. Revels*. Furthermore, asking if one could have a lawyer present or expressing uncertainty about the necessity of an attorney did not meet the standards set by the U.S. Supreme Court for an unequivocal request. Overall, these rulings highlight the need for precise language when invoking the right to counsel, as many statements considered were ultimately ambiguous or conditional. Raber asked Detective Chuhi, "Can I have an attorney?" following the reading of her Miranda rights. The Tenth District's decision in State v. Curtis established that a similar inquiry did not constitute an unambiguous invocation of the right to counsel. In Curtis, the defendant's question about obtaining a public defender was interpreted as either seeking clarification of his rights or inquiring about access to legal representation, rather than a clear request for counsel. The court concluded that a reasonable officer would perceive this ambiguity, allowing for continued questioning without a lawyer present. In Raber's case, after her Miranda rights were read, she did not respond initially but later combined her question about an attorney with concerns for her children. This context led Officer Chuhi to reasonably interpret her question as seeking clarification rather than asserting her right to counsel. Citing precedents, the document emphasizes that a request for clarification does not equate to invoking the right to counsel, as illustrated in cases like Dormire v. Wilkinson and United States v. March, where similar ambiguous inquiries were deemed insufficient to invoke the right to an attorney. Detective Chuhi prioritized addressing Raber's concerns about her children before responding to her inquiry about an attorney. After allowing her time to compose herself, he confirmed her right to an attorney and ensured she understood her Miranda rights, to which she affirmed. The legal precedent indicates that officers are not mandated to ask if a suspect wants an attorney or to clarify ambiguous requests for counsel, as established in State v. Edwards and Davis v. United States. The Supreme Court encourages clarifying questions as a best practice to safeguard a suspect's rights. Detective Chuhi's actions aligned with this practice, as he clarified Raber's rights before proceeding with questions related to the investigation. Raber did not explicitly invoke her right to counsel until the following day, indicating she had the opportunity to do so earlier. The trial court correctly determined that she had not invoked her right to counsel, rendering her argument regarding the waiver unnecessary. The record indicates no coercive behavior from Detective Chuhi, as he did not pressure Raber to continue speaking and only inquired about her willingness to engage in conversation after confirming her understanding of her rights. Raber acknowledged receiving and understanding her Miranda warnings, as evidenced by Detective Chuhi's testimony that she initially showed comprehension when they were read by Detective Maxwell. Raber explicitly confirmed her understanding of her right to an attorney during an interaction with Detective Chuhi in the police car. Furthermore, she did not claim that her confession was involuntary or coerced. Detective Chuhi addressed Raber's concerns regarding her children and allowed her time to gather herself during the less-than-two-hour interrogation, which included offers of refreshments and a bathroom break. Consequently, the trial court correctly admitted her oral statements, as supported by precedent indicating that a defendant's statements can be admitted if there is no evidence of misunderstanding or coercion. In her second assignment of error, Raber contended that the trial court erred by admitting evidence of text messages exchanged between her and Eli Weaver without demonstrating compliance with Ohio Revised Code 2933.51 et seq., which pertains to the requirements for admitting electronic communications. She argued that the state needed an interception warrant for these messages. Raber’s assertion regarding the supposed invalidity of the warrant constitutes a suppression-based argument. However, she did not file a motion to suppress the text messages before or during the trial and instead raised a plain error argument on appeal. To establish plain error, three criteria must be met: there must be an error, the error must be obvious, and it must affect substantial rights, impacting the trial's outcome. Courts typically recognize plain error only to prevent significant injustice. Raber's brief primarily includes citations to the Revised Code regarding interception warrants and asserts that the state failed to comply with the relevant statutes. However, she does not provide specific legal support for her claim that a warrant was required under R.C. 2933.51 et seq. Additionally, the warrant used by the state to obtain the text messages is absent from the appeal record because Raber did not contest it during the trial. The only case she references, State v. Bidinost, involved police unlawfully recording a conversation without a warrant, but it is distinct from Raber's situation. In this case, the state acquired text messages post-communication rather than seizing an ongoing conversation, and Eli Weaver, a participant in the texts, testified about their content. R.C. 2933.52 allows for exceptions where a party to a conversation can disclose it without violating interception laws. Raber has not indicated any legal restrictions preventing Weaver from sharing their communication's content. Consequently, Raber's claim of plain error regarding the admission of her text messages with Weaver is unfounded. Furthermore, she raises a third assignment of error, suggesting the trial court erred in admitting evidence from computers and digitally stored information. Raber's third assignment of error claims that the court erred in admitting testimony regarding digitally stored information from her computers, asserting this violated R.C. 2933.51 et seq. due to the lack of an interception warrant. She contends, without legal backing, that such information constitutes an "electronic communication" but fails to demonstrate how the state "intercepted" this information or to identify any interception device used. The court emphasizes that the appellant bears the burden of substantiating arguments with applicable legal authority, and Raber has not met this burden, leading to the overruling of her third assignment. In her fourth assignment of error, Raber argues that her conviction is against the manifest weight of the evidence. The court explains that in assessing this claim, it must review the entire record and determine if the trier of fact lost its way, leading to a manifest miscarriage of justice. A weight-of-the-evidence challenge indicates that more credible evidence supports one side. The appellate court, acting as the "thirteenth juror," should only reverse a conviction in exceptional cases where the evidence heavily weighs against it. The relevant law under R.C. 2903.01(A) defines aggravated murder and establishes the requisite intent for such a conviction. Eli Weaver testified against Raber in her trial, revealing that his cooperation stemmed from a plea agreement with the state. He acknowledged his multiple affairs during his marriage and expressed a lack of love for his wife. Eli had left his Amish community multiple times seeking freedom and began a relationship with Raber approximately six years prior to his wife's murder. He indicated that after expressing a desire to rid himself of his wife, Raber proposed various methods, including poisoning, suffocation, and using a firearm. Eli detailed text exchanges with Raber regarding plans for the murder, particularly on June 2, 2009, when he planned a fishing trip. Raber suggested this date would be opportune since Eli would be away. Eli left home around 3:00 a.m., leaving the basement door unlocked, and communicated this to Raber. During the early morning hours, Raber expressed her fears about proceeding with the plan and sought guidance from Eli, who reassured her. At approximately 6:00 a.m., Eli received a call from a neighbor, Firman Yoder, stating that Barbara was unresponsive, prompting Eli to return home. Upon his arrival, he spoke with Detective Chuhi, denying involvement in his wife's death but revealing his affair with Raber. Later that day, Raber texted Eli advising him not to disclose his cell phone, suggesting they change numbers to avoid detection. About a week later, Raber visited Eli's barn, where they discussed the murder. She expressed remorse and inquired about cleaning a gun and what to say if her husband noticed the absence of a shotgun. Witnesses Linda and Firman Yoder testified about a voicemail they received on June 3, 2009, from an unidentified male, later identified as David Weaver, a friend of Raber's family, who indicated that the police had misidentified the suspect. David testified that Raber had contacted him to leave the message. Raber borrowed a .410-gauge shotgun from a witness four to five years prior to Barbara Weaver’s murder, but failed to return it. Dr. Amy Joliff, the Wayne County coroner, arrived at Weaver's home at approximately 11:30 a.m. on June 2, 2009, and found a gunshot wound to the chest without stippling, indicating a close-range shot. She recorded the time of death as 2:00 a.m., although the actual time could range from midnight to 6:00 a.m. Dr. Lisa Kohler, the Summit County chief medical examiner, performed the autopsy and confirmed the cause of death was a single gunshot wound to the right side of Weaver's chest, noting the presence of shotgun pellets but no wadding, which could suggest the shot was fired through a barrier. John Gardner, a firearms examiner, analyzed the shotgun pellets and determined they were number six shot, typically used in various shotgun gauges, concluding that either a .410-gauge or .410-bore shotgun was used in the murder. Detective Maxwell from the Wayne County Sheriff's Office testified about the investigation, noting the absence of stolen money at the Weaver home and the collection of two .410-gauge shotguns and missing slugs from Eli's gun shop. During an interview, Raber initially claimed her texts to Eli were a joke but later admitted that the shooting was accidental, stating she intended to scare Weaver, and that the gun discharged while she was in the bedroom doorway. Raber could not recall the specific type of gun she had but stated that she placed it in her husband’s gun cabinet after returning home. She claimed it was Eli’s idea to kill his wife and that he pressured her to do so. Detectives Maxwell and Chuhi doubted Raber's truthfulness due to inconsistencies in her statements and evidence that contradicted her claims, such as the absence of a .410-gauge shotgun at her home and the nature of the victim's wounds indicating she could not have accidentally shot from a distance. When pressed for details, Raber invoked her right to counsel and ended the interview. Initially, Raber denied any knowledge of Barbara Weaver’s murder, but later, after her arrest and discussion of text messages with Eli, she confessed to the murder, framing it as an accident and maintaining it was Eli's idea. Her cellmate, Dena Unangst, testified that Raber admitted to purchasing a .410-gauge shotgun and expressed knowledge of Eli’s desire to kill his wife. Evidence presented at trial included Raber borrowing a .410-gauge shotgun and purchasing another one shortly before the murder, as well as a notebook listing various poisons. Furthermore, Raber had conversations with her husband while in jail, where she acknowledged sending texts to Eli but claimed they were manipulative rather than indicative of intent. The court found sufficient evidence supporting Raber’s conviction, including her access to two .410-gauge shotguns, her confession, and her inconsistent statements. The court's judgment was affirmed, and Raber's claims regarding the translation of text messages were limited after she conceded they were in English. All assignments of error by Raber were overruled, confirming the lower court's decision.