The Supreme Court of Ohio ruled today that police officers are not exempt from prosecution under the state’s witness intimidation law when the state presents evidence that an officer knowingly filed a false criminal complaint in order to influence or intimidate a witness. 

In a 6-1 decision authored by Justice William M. O’Neill, the court also held that when an officer is charged with the crime of abduction based on alleged intentional abuse of his privilege to arrest and detain crime suspects, a trial court does not commit plain error by instructing the jury to analyze the officer’s privilege to make arrests according to the statutory definition of “privilege” set forth in R.C. 2901.01(A)(12)

Applying those holdings to a Hamilton County case, the court: 1) affirmed the conviction of  former Cincinnati police officer Julian Steele for intimidation of a juvenile witness identified as R.M. by using threats against R.M.’s family to coerce a false confession; and 2) reinstated Steele’s conviction for abduction based on his arrest and detention of R.M. in a juvenile prison for nine days despite Steele’s knowledge that R.M. had not committed a crime. 

While investigating a series of robberies in a Cincinnati neighborhood, Steele received a tip that a car registered to Alicia Maxton, R.M.’s mother, had been seen driving suspiciously in the area shortly after one of the crimes. After learning that Maxton had children and where they attended school, Steele went to the school  where he placed R.M. and two other juveniles in custody and searched their lockers. He then handcuffed and transported R.M. to the police station and subjected him to intensive questioning without informing him of his Miranda rights.  After R.M., who did not match the description of the robbers, strongly denied any involvement in the crimes, Steele threatened R.M. by telling him that his mother would be jailed and his siblings would be removed from their home if R.M. did not confess to the robberies. R.M. made a false confession.  Steele then Mirandized R.M. and taped his confession. 

Using R.M.’s false statement, Steele filed a criminal complaint charging  R.M. with six robberies and had him imprisoned in juvenile detention. While R.M. was in detention, Steele repeatedly persuaded Alicia Maxton to meet with him under the guise of talking about R.M.’s case, and eventually convinced her to come to his apartment. Steele stated to Alicia that he would be able to get R.M. out of detention, but that it would involve quite a “process.”  During one of Alicia’s visits to Steele’s apartment, Steele asked her to engage in sexual activity with him.  Alicia testified that she complied with Steele’s requests because she believed that he had the power over R.M.’s release.

While R.M. was spending nine days in detention, Steele repeatedly told the assistant prosecutor that he knew that R.M. had nothing to do with the robberies, but that he had locked R.M. up in order to compel Alicia to cooperate with the investigation. The prosecutor mistakenly assumed that R.M. had been sent home on the day of his arrest.  When, on the ninth day, she discovered that R.M. was still in lock-up, she immediately had R.M. released and dismissed his charges. 
The prosecutor’s office then had Steele questioned about his actions.  During that questioning, which was recorded, Steele admitted that he had excluded R.M. as a suspect prior to locking him up.  Steele admitted that he thought R.M. had given a false confession.  Steele admitted that he had told Alicia that he did not think R.M. committed any of the robberies. He also indicated that he sometimes made arrests with less than probable cause in order to obtain the cooperation of the arrested person or other witnesses.

The prosecutor’s office indicted Steele on two counts of abduction, three counts of extortion, two counts of rape, one count of sexual battery, and two counts of intimidation, all with firearm specifications.  A jury trial was held, at which Steele did not testify.  At the close of evidence, the parties and the court negotiated and ultimately agreed on the instructions that would be given to jurors, including definitions of the terms “privilege,” “arrest,” “probable cause,” and “reasonable grounds,” as those terms applied to the charged offenses of witness intimidation and abduction. Steele and his attorneys made no objection to the instructions given to the jury.

The jury found Steele guilty of abduction of R.M. in violation of R.C. 2905.02(A)(1) and (A)(2) and intimidation of R.M. in violation of R.C. 2921.03. He received a prison sentence of five years and an additional five years of community control.  On appeal, the First District Court of Appeals affirmed Steele’s  conviction for intimidation but reversed his convictions for abduction, holding that the trial court’s instructions to the jury on the offense of abduction were fatally deficient.  The appellate panel held that the trial court should have explained to the jury that a police officer does not lose the privilege to arrest and detain a citizen merely because it is later determined that he lacked probable cause, but loses the privilege only if it is shown that he did not have a good-faith belief that there was probable cause for the arrest.  The court of appeals held that the trial court’s failure to instruct the jury on the good-faith element of an officer’s arrest privilege constituted “plain error,” and therefore required reversal of Steele’s convictions for abduction despite his agreement to the defective instruction. 

The state sought and was granted Supreme Court review of the First District’s ruling vacating Steele’s abduction convictions. The court also agreed to review Steele’s cross-claim that the First District erred in affirming his conviction for intimidation.

In affirming the First District’s holding that Steele was properly convicted of intimidation, Justice O’Neill wrote: “Steele proposes that a police officer cannot be prosecuted for the offense of intimidation, in violation of R.C. 2921.03(A), based on actions taken by the police officer while conducting an interrogation. We disagree.

“R.C. 2921.03 makes it unlawful for a person to knowingly take certain actions to influence, intimidate, or hinder a witness, a party official, or a public servant in the discharge of a duty. ...  The ways in which it is illegal to exert such improper influence are by knowingly (1) using force, (2) unlawfully threatening harm against any person or property, (3) using a materially false or fraudulent writing in any way with malice, bad faith, wantonness, or recklessness.”

Pointing to multiple provisions in other state laws that expressly exempt law enforcement personnel from criminal prosecution for conduct such as possession of illegal drugs and carrying weapons in prohibited places, Justice O’Neill noted that the legislature included no such exception in the intimidation statute.  He wrote: “We cannot add an exception to R.C. 2921.03 where there is none present. ... Further, it is true that police may draw from a wide variety of interrogation tactics and may even use certain kinds of deception to elicit a confession. ... However, there is no authority for the contention that police officers may use physical force, unlawful threats of harm, or a materially false or fraudulent writing with malice, bad faith, wantonness, or recklessness as part of a legitimate interrogation of a suspect.”

“The evidence submitted at Steele’s trial indicated that despite Steele’s repeatedly stated belief that R.M. was not involved in the robberies, Steele coerced R.M. into giving a false confession. Despite knowing that the confession was false, Steele filed a criminal complaint against R.M. using that false writing in an attempt to force R.M.’s mother to admit what he believed she knew about the robberies. Thus, Steele used a materially false writing in bad faith to influence and  intimidate a witness within the meaning of R.C. 2921.03(A). We therefore affirm the First District’s conclusion that Steele’s intimidation conviction was supported by sufficient evidence and was not against the manifest weight of the evidence.”

In reversing the First District’s judgment vacating Steele’s convictions for abduction, Justice O’Neill wrote: “(I)n order to convict a defendant for the offense of abduction, the finder of fact must determine that the defendant removed and/or restrained the victim by force or threat ‘without privilege to do so.’ ...  A police officer has a right conferred by law to execute a warrantless arrest of any person who the police officer has reasonable cause to believe is guilty of certain enumerated offenses, including theft offenses and offenses of violence. ... (T)he trial court explained when probable cause exists and when it does not. It explained that a privilege to arrest exists when there is probable cause, but it did not explain that the privilege is not lost merely because probable cause was lacking. It is this omission that the court of appeals found to be fatal.”

“It would have been ideal for the trial court to provide additional instructions regarding the loss of privilege in the specific context of a police officer’s authority to arrest. However, it must be remembered that we are not looking for the ideal in this case.  We are merely looking for the absence of plain error.”

“The totality of the instructions and of the record in this case does not support a finding of plain error, particularly when considering Steele’s intimidation and abduction charges together. ... Steele admitted to school employees, R.M.’s mother, and to the prosecutor that he knew that R.M. was not involved with the robberies.  He coerced a confession from R.M., which he admittedly thought was false, and filed a criminal complaint against R.M. using that false confession. ... If Steele believed that R.M. had not committed a crime, then a reasonable police officer in Steele’s position would have understood that probable cause was clearly lacking. ... (T)here is nothing to indicate that the trial court’s failure to explain a higher standard of loss-of-privilege for police officers affected Steele’s convictions for abduction.”

In reinstating Steele’s abduction convictions, Justice O’Neill emphasized that today’s ruling is not intended to make police officers liable to criminal prosecution for making an arrest except under the extreme circumstances present in this case.  He wrote: “Police officers must often act quickly and decisively, as a delay in response could have dire consequences or even constitute dereliction of duty. ... Police officers performing their valuable and often dangerous duties cannot be made to fear criminal charges any time an arrest or detention is made with what turns out to be less than probable cause. Thus, our holding today would reach only the rare circumstance of a police officer depriving a person of his or her liberty when a reasonable police officer would know that there is no probable cause supporting the detention, no matter how brief. Because the trial court’s erroneous jury instruction did not rise to the level of plain error, we reverse the First District’s decision to reverse and remand Steele’s abduction convictions.”

Justice O’Neill’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Judith Ann Lanzinger, Sharon L. Kennedy and Judith L. French.  Justice Terrence O’Donnell dissented without opinion.

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2011-2075 and 2011-2178.  State v. Steele, Slip Opinion No. 2013-Ohio-2470.
Hamilton App. No. C-100637, 2011-Ohio-5479.  Judgment reversed in part and cause remanded.
O’Connor, C.J., and Pfeifer, Lanzinger, Kennedy, French, and O’Neill, JJ., concur.
O’Donnell, J., dissents.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2013/2013-Ohio-2470.pdf

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