United States v. Cortner

1

UNITED STATES OF AMERICA, Plaintiff, v. CAHKE CORTNER, Defendant.

No. 3:19-cr-171-MJN-2

United States District Court, S.D. Ohio, Western Division, Dayton

October 4, 2022

ORDER: (1) GRANTING IN PART AND DENYING IN PART THE REMAINDER OF DEFENDANT'S MOTION TO SUPPRESS (DOC. NO 126); (2) SUPPRESSING THE PORTION OF THE VIDEOTAPED INTERROGATION CONTAINED IN GOVERNMENT'S EXHIBIT 1 FROM 1:20:01 TO 1:21:30 FROM USE IN THE GOVERNMENT'S CASE-IN-CHIEF; (3) DENYING THE MOTION IN ALL OTHER RESPECTS AND (4) SCHEDULING A TELEPHONE STATUS CONFERENCE WITH COUNSEL ON OCTOBER 25, 2022 AT 10:30 A.M.

Hon Michael J. Newman United States District Judge

Defendant Cahke Cortner (“Cortner”) is charged, with two other defendants, in a ten-count superseding indictment for the fatal shooting of DEA Task Force Officer and Dayton Police Department Detective Jorge Del Rio (“Detective Del Rio”). Doc. No. 142. Cortner moved in his motion to suppress, which this Court denied in part, to suppress statements allegedly obtained in violation of Miranda v Arizona. Doc. No. 126 at PageID 583. The Court held a hearing on this portion of Cortner's motion on July 7, 2022. See Doc. No. 143. The Court heard testimony from David House, a homicide detective for the City of Dayton Police Department (“Detective House”). Id. at PageID 799. The parties also presented video from a camera that recorded Cortner's questioning by Detective House and FBI Special Agent Robert Buzzard (“Agent Buzzard”). Gov't Exh. 1.^[1] During the hearing, the Court accepted the parties' exhibits into evidence. Doc. No. 143 at PagelD 837-40. After the hearing, the parties, pursuant to this Court's order, filed post-hearing briefs. See Doc. Nos. 141, 144, 146. The motion is now ripe for review.

I. Underlying Facts

The Court presumes the reader's familiarity with the facts at issue in this case and refers any unfamiliar reader to United States v. Goddard, No. 3:19-cr-171, 2022 WL 1569985, at *1-3 (S.D. Ohio May 18, 2022) for a full recitation of the underlying events. Those established facts are incorporated by reference into this opinion. The events pertinent to this motion occurred after the fatal shooting of Officer Del Rio on the evening of November 4, 2019.

A. The Interrogation

Detective House testified at the suppression hearing that, beginning at 12:55 a.m. on November 5, 2019, he and Agent Buzzard questioned Cortner at the Dayton Police detective section, “located on the second floor of the Safety Building at 335 West Third Street.” Doc. No. 143 at PageID 800, 801. An audio-video recording of the questioning was admitted at the hearing. Id. at PageID 844. As Detective House testified, Cortner was detained during the questioning, and he was in the room for around 40 minutes. Id. at PageID 810.

The video started with Cortner sitting in a chair in the corner of the room where he was questioned, wearing socks without shoes. Gov't Exh. 1 at 52:12. Detective House entered, identified himself and Agent Buzzard, and told Cortner they were going to ask him what happened that night at 1454 Ruskin Road. Id. at 52:36; Doc. No. 143 at PageID 802.

Before proceeding further, Detective House told Cortner that he would “read him his [Miranda] rights[,]” and asked Cortner if he had ever received Miranda warnings. Gov't Exh. 1 at 52:50-:53; Doc. No. 143 at PageID 804. Cortner replied that the police had warned him in past incidents. Gov't Exh. 1 at 52:59-:01; Doc. No. 143 at PageID 804.

Detective House had Cortner recite identifying information, including his name; address; cell phone number; and date of birth. Gov't Exh. 1 at 53:08-54:17. After Cortner answered, Detective House informed Cortner that his interrogation was being recorded. Id. at 54:18-:37. Next, Detective House asked Cortner if he had any problems reading or writing, to which he replied that he did not. Id. at 55:06-:25. Likewise, Cortner told Detective House that English was his first language. See id.

With those preliminary questions out of the way, Detective House then proceeded to walk Cortner through, line by line, the Miranda waiver form-listing out each right and describing the consequences of waiver. Id. at 55:40-:44. He informed Cortner that his interrogation related to the murder of a police officer, to which Cortner expressed surprise. Id. at 55:44-:49. Then, Detective House read to Cortner the provision of the waiver form indicating that Cortner must understand his rights before waiving them. Id. at 55:49-:59.

Detective House subsequently had Cortner review each Miranda right (either by having Cortner read it aloud or listening to Detective House read it aloud); indicate if he understood that right; and affirm whether he was willing to waive that right by stating so and signing his initials. Id. at 55:59-57:27; see Gov't Exh. 2. In particular, Detective House explained that, at any point, Cortner could terminate the interrogation and consult with an attorney. Gov't Exh. 1 at 57:07-:21.

Detective House moved next to the “waiver” provision of the form. Id. at 57:31. He asked Cortner his education level. Id. “I finished high school,” Cortner replied, before marking this on the form. Id. at 57:31-:45. Finally, Detective House had Cortner read the following out loud:

The above statement of rights has been read to me. I understand what my rights are. I'm willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion has been used against me.

Id. at 57:47-58:20; see Gov't Exh. 2.

Cortner paused at the word “coercion,” before Detective House pronounced it for him. Gov't Exh. 1 at 58:12-:17. Detective House asked Cortner if he knew what “coercion” meant, later testifying that he did this to ensure that Cortner fully understood what he was attesting to. Id. at 58:20-:24; Doc. No. 143 at PagelD 806-07, 815-16. Cortner answered that it meant, “no one was telling [him] what to say,” to which Detective House explained that it also meant no one was forcing or threatening him to talk. Gov't Exh. 1 at 58:24-:34. Subsequently, upon being asked, Cortner agreed that he was not coerced into speaking. Id. at 58:36-:53. He then agreed to speak with the officers “to a certain extent[.]” Id. at 58:55-59:00.

After Cortner signed the form for a final time, the questioning began. Id. at 59:12-:20; see Gov't Exh. 2; Doc. No. 143 at PageID 807-08. For the purposes of this opinion, and as clarified by counsel at the hearing, only certain instances from the questioning are at issue in this motion. See, e.g., Doc. No. 143 at PageID 816-17 (describing the questioning as mostly “low-key” while identifying some instances as contentious); Id. at 836-37 (Cortner's counsel noting there are “three issues” to address in the motion to suppress). Outside of these instances, the officers questioned Cortner about that night without controversy. See Gov't Exh. 1 at 59:22-1:06:55.

Detective House testified at the hearing that, at certain moments, he raised his voice at Cortner while questioning him. Doc. No. 143 at PageID 817-18. When Cortner stated that he did not notice that a coffee table in the basement of the house was covered with thousands of dollars, Detective House yelled that Cortner was “f-cking playing games” and expressed disbelief that he did not “see a f-cking coffee table full of thousands of dollars” in front of him. Gov't Exh. 1 at 1:07:45-1:08:20. Detective House also raised his voice when he asked Cortner about the gun he owned, which he stated “was identical” to the one used to kill Officer Del Rio. Id. at 1:09:37-:55.

Detective House further asked Cortner if he would be willing to give the police a DNA sample, using a cotton swab to swab the inside of his cheek. Id. at 1:16:13-:39. After expressing, again, that he had nothing to do with the drug dealing at 1454 Ruskin Road or Officer Del Rio's death, Cortner agreed to give a DNA sample. Id. at 1:16:39-1:17:08. But once Detective House offered Cortner the swab and instructed him, Cortner paused. Id. at 1:17:21-:28.

Cortner then stated, “I have nothing to hide. I just- this right here is kind of making me- I don't know if I need a lawyer for that.” Id. at 1:17:18-:42. When Detective House moved to put the swabs back, Cortner hurriedly said, “No, no, no, no” while shaking his hand. Id. at 1:17:40:42. Detective House then told Cortner that the co-defendants in this case agreed to give DNA samples. Id. at 1:17:42. After this, Cortner quickly told Detective House that he was willing to take the swab. Id. at 1:17:50-:57.

Shortly after Cortner swabbed his mouth, Agent Buzzard asked him if he has ever touched Goddard's^[2] firearm-which was used to shoot Officer Del Rio. Id. at 1:18:42. Cortner replied that he was not aware that Goddard had a gun. Id. at 1:18:42-:51. Detective House interjected, asking if Cortner bought the laser sight on Goddard's gun; Cortner denied this, prompting Detective House and Agent Buzzard to ask him about this further. Id. at 1:18:51-1:19:00. Once Detective House stated that Goddard told him that Cortner was the one who bought the gun and the laser, Cortner stated that, “I only know about my gun, sir.” Id. at 1:19:01-:09.

Detective House further probed Cortner's answer, noting that Goddard's gun was set up the same as Cortner's, both with extended magazines and laser sights. Id. at 1:19:09-:20. Cortner gave the same answer. See id. Growing frustrated, Detective House raised his voice and asked again. Id. at 1:19:20-:54. After Cortner refused to answer, Detective House asked, “Should we take it by your reluctance to answer that that's a ‘yes'- that you did?” Id. at 1:20:10-:40. Cortner replied, “I choose not to answer...