COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68457 CITY OF CLEVELAND : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION TIMOTHY WHITE : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 3, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Cleveland Municipal Court, Case No. 94-TRC-34499. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Anita Laster Carol M. Skutnik Assistant City Prosecutors Cleveland Municipal Court 1200 Ontario Street, 8th Floor Cleveland, Ohio 44113 For Defendant-appellant: Larry W. Zukerman, Esq. Paul B. Daiker, Esq. Zukerman & Associates 160 Signature Square I 25201 Chagrin Boulevard Cleveland, Ohio 44122 SWEENEY, JAMES D., P.J.: Defendant-appellant Timothy White appeals from the jury trial verdict of the traffic related offenses of Driving Under the Influence of Alcohol [in violation of Cleveland Codified Ordinance 433(A)(1)] and Weaving [in violation of Cleveland Codified Ordinance 431.34(B)]. For the reasons adduced below, we affirm. A review of the record on appeal indicates that White was stopped while operating his vehicle on May 9, 1994, at approximately 10:30 p.m., in the vicinity of Meyer and Fulton Roads, and charged with the offenses named above and, in addition, the offenses of Operating a Vehicle While Under Suspension [in 1 violation of Cleveland Codified Ordinance 435.07] and Driving Without a Seat Belt [in violation of R.C. 4513.263(B)(1)]. On January 9, 1995, the trial court conducted a hearing relative to defendant's: (1) motion to dismiss the case based on Double Jeopardy; (2) motion to suppress the evidence due to a lack of probable cause to make the traffic stop; and, (3) motion to suppress all statements made following the traffic stop due to the failure of the officers to timely inform the defendant of certain constitutional rights. At the pre-trial suppression hearing, two witnesses were offered by the prosecution. These witnesses were the police officers who instituted the traffic stop and arrested the 1 This particular offense, Driving Under Suspension, was dismissed by the prosecution prior to trial. - 3 - defendant. The first witness was Cleveland Police Officer Virgil Williams, who testified in pertinent part as follows (Supp.R. 26- 43): (1) she and her partner, Officer Oliver, were on patrol in their marked police cruiser at the time of the offense on Fulton Road, a four-lane roadway with two lanes in each direction, when they observed a vehicle travelling directly in front of their cruiser in a weaving manner; (2) the weaving manner constituted being all over the road, to-wit, at one point straddling the yellow line in the middle of the roadway and at another point being near the curb of the roadway; (3) the witness observed this "continuous" weaving pattern for approximately six to ten blocks; (4) the witness then activated the overhead lights and siren, the vehicle continued on for about a block before the vehicle then pulled over and the witness, who was seated in the passenger seat of the cruiser, approached the offending vehicle; (5) the traffic at the time was moderate; (6) the defendant was driving the offending vehicle. The second witness at the probable cause suppression hearing was Cleveland Police Officer Nathanial Oliver who generally corroborated the testimony of Officer Williams, adding in pertinent part as follows (Supp.R. 44-49): (1) the police cruiser followed the suspect vehicle, which was weaving, for approximately five blocks; (2) the suspect vehicle weaved in the high-speed lane only because the slow-speed lane was occupied at points by parked cars. - 4 - The defense put on no evidence at the probable cause suppression hearing. Subsequent to oral argument, the trial court denied the motion to suppress for lack of probable cause. The court then conducted a hearing on the motion to suppress statements made by the defendant based on constitutional infirmities. The first witness called by the defense, as if on cross-examination, was Officer Williams, who stated the following in pertinent part (Supp.R. 61-82): (1) after stopping the suspect vehicle, the witness approached the driver's door; (2) when he reached the vehicle, he noticed a strong odor of alcohol emanating from the suspect vehicle; (3) he then asked the defendant to exit the vehicle; (4) the defendant stumbled while exiting the vehicle; (5) the witness then asked the defendant to come to the rear of the suspect vehicle; (6) at this point, the defendant was not free to leave because the officers were investigating, but the defendant was not in custody at that point (Supp.R. 63); (7) the witness then interrogated the defendant; (8) the witness is unsure when the suspect was read his constitutional rights, but he indicated that the partner officer performed that obligation; (9) prior to being placed under arrest, the defendant failed to repeat the alphabet the first time and refused to repeat the alphabet when requested a second time; (10) the suspect was handcuffed by the witness's partner; (11) he does not recall if the suspect invoked a right to remain silent; (12) after the suspect was handcuffed and placed into the rear of the cruiser, the witness searched the suspect's - 5 - vehicle; (13) the officers then returned to the cruiser, got in, and proceeded to question the suspect regarding basic booking information; (14) it was at the point in time that the suspect was arrested, meaning when he was placed into the rear of the cruiser, that he was not free to leave; (15) prior to being placed in custody within the cruiser, the suspect was merely under investigatory detention and was free to leave; (16) had the suspect attempted to leave after having been stopped, the suspect would have been prevented from leaving by the witness; (17) an individual who is stopped under suspicion of driving drunk is not placed under arrest until after the investigation at the scene is completed; (18) a suspect is advised of his constitutional rights after being placed under arrest, not during the investigatory phase of the stop; (19) the defendant stated, immediately after having exited the vehicle and prior to being placed under arrest and prior to the administration of field sobriety tests, that he had been drinking at Johnny's Bar. The defense then offered the testimony of Officer Oliver, who generally corroborated the testimony of the previous witness, adding (Supp.R. 82-93): (1) the suspect stumbled as he exited from the stopped vehicle; (2) it was after he refused to complete the second attempt at reciting the alphabet that the suspect invoked his right to remain silent, after which he was placed under arrest, placed in the rear of the cruiser and advised of his constitutional rights; (3) the suspect was not free to leave after he exited the - 6 - vehicle because the officers were conducting the investigation phase of the stop; (4) after he invoked his right to remain silent, the suspect was interrogated further in the cruiser as to the ownership of the stopped vehicle, where the suspect was coming from 2 and how much he had had to drink before being stopped. Subsequent to oral argument, the trial court granted the motion in part and denied the motion in part, suppressing the statement that the suspect admitted to having had two glasses of wine because it was stated after he had invoked his right to remain silent. The trial court commenced the jury trial the following day. At this trial, both of the arresting officers testified on behalf of the prosecution, repeating their earlier testimony from the pre- trial suppression hearing and adding that they observed the suspect vehicle use its turn indicator after the car had pulled over and stopped in response to the pursuing officers. Officer Williams also testified that he assisted the defendant to the rear of the suspect vehicle, the defendant's weight leaning against the officer, and that defendant could not recite the alphabet past the letter O. In addition, these officers testified that the defendant, after being placed under arrest, was transported to the Second District Police Headquarters. At the station, the police 2 A videotape of the stop, prepared by the arresting officers from a camera mounted in the cruiser during the stop, was played during the suppression hearing, but this tape does not appear in the record on appeal. - 7 - asked the defendant to submit to a breathylizer test so as to measure his blood alcohol content. The defendant twice failed to perform the test adequately, blowing lightly into the tube so that breath escaped around the outside of the tube into the general atmosphere. Fearing this effort by defendant would not give an adequate sample of breath to give a good test result, the police requested that defendant urinate into a bottle. Despite two separate requests to perform the collection of a urine sample, the defendant refused to do so. (R. 22-220.) The defendant was advised by the reading of a written form that the failure to submit to testing could trigger an administrative license suspension. The defendant and one of the officers signed the form. The defense offered the testimony of two witnesses, the first being Ms. Christine Warren, who testified in pertinent part as follows (R. 224-244): (1) she is employed at Johnny's Bar as a bartender; (2) she observed the defendant at the bar on the night of the offense; (3) the defendant had one drink (not wine) at the bar while waiting for his large party of friends to come before going to a table for dinner; (4) she spoke very briefly with the defendant before he left the establishment with his dinner companions and he appeared to be fine; (5) she does not know if the defendant drank intoxicating beverages at his dinner table. The second trial witness for the defense was Mr. Daniel P. DiRenzo, who stated the following in pertinent part (R. 247-258): (1) he is the defendant's direct supervisor at defendant's - 8 - employer, Nestles Frozen Foods; (2) the witness was among the defendant's dinner party at the bar that night; (3) the group, which had just conducted a business meeting at the employer's building with suppliers, left work and went directly to the bar, arriving in three separate cars at the bar between 6:30 p.m. to 7:00 p.m.; (4) the dinner lasted for approximately 2 1/2 to 3 hours; (5) everyone had a cocktail at the bar before dinner and wine during dinner; (6) he knew at least two bottles of wine were consumed at the dinner table, although he wouldn't swear to that being the only amount ordered that night because he did not place the beverage order; (7) he did not consider the defendant to have been driving impaired after dinner, even though he did not focus his attention on the defendant that evening; (8) the group left the bar at approximately 10:00 p.m.. The defendant did not testify. At this point the defense rested without making a motion for acquittal pursuant to Crim.R. 29. Subsequent to closing arguments the trial court issued its jury instructions. The court recessed for lunch, returning at 1:00 p.m.. The jury began its deliberations and returned its verdict at 2:05 p.m.. Following the preparation of a pre-sentence investigation report, the defendant was sentenced to the following: (1) 180 days imprisonment with 120 days suspended, the remaining 60 days under house arrest; (2) a total of $1550.00 in fines with $750.00 suspended; (3) 2 years of active probation; (4) drivers' license - 9 - suspended for 3 years; (5) vehicle immobilized for 6 months; (6) court costs. This appeal presents five assignments of error. In order to preserve a more logical review, the assignments will be addressed in an order other than the one presented by the appellant's brief. III WHETHER THE TRIAL COURT ERRED WHEN IT FAILED TO SUPPRESS ANY AND ALL EVIDENCE RESULTING FROM THE TRAFFIC STOP. Appellant argues that the police lacked probable cause to stop the defendant's vehicle. The standard of review for determining whether probable cause existed to justify an investigative traffic stop is stated in State v. Robinette (1995), 73 Ohio St.3d 650, 652, 653 N.E.2d 695: In order to justify any investigative stop, a police officer "must be able to point to specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio (1968), 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906. In the present case, the officers could point to specific and articulable facts which would warrant the initial stop. These facts consist of the observed weaving of the suspect vehicle over a sustained period of time, straddling the yellow line, and the use of the turn signal by the defendant after the car had pulled over and stopped. A reasonable police officer would view these facts as evidence of a traffic offense and not a pretext for a warrantless search. - 10 - The third assignment is overruled. V WHETHER THE TRIAL COURT ERRED WHEN IT FAILED TO SUPPRESS ALL STATEMENTS MADE BY THE APPELLANT IN VIOLATION OF APPELLANT'S FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. In this assignment appellant argues that the statements made after the initial stop should be suppressed because he was not free to leave after having been stopped and before any interrogation took place, and the police untimely advised him of his constitutional rights, rendering the statements and information taken between the time of custody and the reading of the rights to be inadmissible. The first question which must be determined in our analysis is at what point the defendant was "seized" for purposes of the Fourth Amendment. It is at the point of "seizure" when the protections afforded by the Fourth Amendment attach. A person is "seized" only if, after viewing the "circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall (1980), 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497, 509. Applying the totality of the circumstances test to the case sub judice, we conclude that the defendant was seized after the defendant was placed under formal arrest after having failed the field sobriety tests by not reciting the alphabet and then invoking his right to silence. Up to the point where the defendant invoked - 11 - his right to silence after having exited the vehicle at the request of the officer, the defendant was in a period of investigatory detention. During this period, the police legally detained the suspect only for as long as it took to resolve their suspicion of a traffic offense which was the original purpose of the stop. See State v. Chatton (1984), 11 Ohio St.3d 59, 63. It was during this period of investigatory detention that the police learned that there was a pronounced odor of alcohol coming from the suspect vehicle, the defendant's identity, that he had imbibed some alcoholic drinks at a bar earlier that evening, that he needed assistance in walking to the rear of the suspect vehicle, and that he could not recite the alphabet. We find no error in the admission into evidence of these items. Even if the fact that he had been drinking earlier was learned after the defendant had invoked his right to silence, which point is advanced by the appellant and is debatable given the testimony of the officers at the pre-trial hearing, we would be forced to find no error where the entire defense case at trial openly admitted the fact of the earlier drinking by defendant. The fifth assignment is overruled. The first and second assignments will be discussed jointly since they are based on the same facts. I THE TRIAL COURT'S PREJUDICIAL COMMENTS TOWARD COUNSEL FOR THE APPELLANT THROUGHOUT THE ENTIRE TRIAL IN THE PRESENCE OF THE JURY VIOLATED APPELLANT'S CONSTITUTIONAL RIGHTS UNDER THE - 12 - FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AS WELL AS ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION. II THE TRIAL COURT'S PREJUDICIAL COMMENTS TOWARD COUNSEL FOR APPELLANT IN THE PRESENCE OF THE JURY CONSTITUTES REVERSIBLE ERROR. These assignments argue that the behavior of the trial court toward the defendant, exhibited by (1) allegedly abusive verbal behavior directed at defense counsel and (2) the court's prevention of allegedly effective cross-examination of a prosecution witness, denied him a fair and impartial trial. The appellant points to five instances of allegedly abusive verbal behavior by the trial court. The first instance is the following excerpt which occurred near the close of Officer Oliver's cross-examination (the entirety cross-examination of this witness is reflected at R. 42-107): * * * Q. His actions were appropriate? MS. SKUTNIK: Objection. MS. LASTER: Objection. THE COURT: Sustained. Q. He [the defendant] did what you asked him to do? A. Yes. Q. He wasn't laughing? A. No. Q. He wasn't belligerent? - 13 - THE COURT: Counselor, these questions have been asked and answered. I don't know why -- I mean nobody is an idiot here, and I don't know why you have to enumerate it like elementary children. You say his behavior was not inappropriate, and he said no, so I don't know -- MR. ZUKERMAN: You sustained the objection, now you won't let him answer the question. THE COURT: Oh. MR. ZUKERMAN: That's why I had to go into this line of questioning. THE COURT: Okay. Q. His behavior was appropriate, correct, sir? MS. LASTER: Objection. MS. SKUTNIK: Objection. THE COURT: He can answer that it was appropriate. [Explanation added.] * * * (R. 103-104.) The second instance elucidated by appellant occurred near the end of the cross-examination of Officer Williams (the entirety of the cross-examination of this witness is reflected at R. 155-215): * * * THE COURT: And then I think, Mr. Zukerman, if he [the witness] said the guy [the defendant] didn't almost cause an accident, then that should be the end of it. You don't need to go through every step. MR. ZUKERMAN: But he [the witness] has to editorialize, your Honor. I just want to get - 14 - to the jury that if he [the defendant] had almost caused an accident, he [the witness] certainly would have written it on his [the defendant] ticket. THE COURT: He didn't say he almost caused an accident. That was the first question you asked, and Lord knows I don't want to be in a fight with you either, so I'm going to be quiet. But all I'm saying for judicial expediency is we're not children, we're not imbeciles, we're not retarded. When he [the witness] gives an answer that's understandable, you don't need to go through the litany of tests to see if he [the defendant] almost caused an accident. That's all I'm saying. MR. ZUKERMAN: Okay. [Explanation added.] * * * (R. 189-190.) The third instance also occurred near the end of the cross- examination of Officer Williams: * * * THE COURT: Let me say something, Mr. Zukerman. I truly don't know why we're going through this vigorous interrogation. That was the point of showing this film. The jury saw everything that happened. Whether the officer told the truth, or the defendant told the truth, or whomever, I really believe that this film told the truth. Now they see everything that was in the film. If the officer did not describe it accurately surely that film can impeach him to your sufficiency. If he told the truth that film can verify it and I don't know why we are spending 30 minutes or fifteen minutes, or however long it was to watch that film. Now we (sic) got to regurgitate it in a very painful interrogation kind of setting all over again. - 15 - MR. ZUKERMAN: I'm just trying to defend my client, your Honor. That's all I'm trying to do. THE COURT: I appreciate it and I think that it's very noble. But I'm also trying to save some time, not because I have a problem sitting here, but I have a problem with the jury sitting here for two, three, five, ten days, I really do. These people will never want to serve on a jury again if we don't (sic) be aware of the importance of their time. Now they saw it and it just dawned on me we saw everything on that film. And if you want to show it again -- MR. ZUKERMAN: I intend to do that. THE COURT: --after you cross-examine him. How much longer do you think you're going to be? MR. ZUKERMAN: I'm trying to be as brief as possible. * * * (R. 195-195.) The fourth instance also occurred near the end of Officer Williams' cross-examination, immediately following a review of the stop and a second viewing of the videotape by the jury of the defendant at the stop: * * * Q. I'm going to question you on this whole tape, sir. A. Okay. Q. Please pay attention. MS. SKUTNIK: Objection. MS. LASTER: Your Honor, I believe the witness just testified as to what the tape -- - 16 - THE COURT: I understand that, I understand that. And Mr. Zukerman, just hold that tape one moment. I would like for you to treat everybody in this courtroom with dignity and respect. This man [the witness] is not a child, this man is a police officer. And I think it's unprofessional of you to try to infer that he is anything less than a man and a police officer. MR. ZUKERMAN: I would never infer that. THE COURT: Pay attention, will you please, do you understand that? Everything that you said to him almost has been to the extent of being degrading like he was an imbecile. I think this man understands English, I think he's an intelligent person. I think he's a professional police officer, and I certainly think you should treat him with that kind of dignity and respect, that's the kind he wants to treat you with. So let's all be grown-up, professional people here. I do not like and I cringe every time that you make a remark to him almost sarcastically, like he's an ignorant imbecile. Why do you have to tell him to pay attention? He's trying to answer your questions and cooperate. I don't see him uncooperative, I really don't. And I think you had intimidated him to the point that this guy is afraid to answer a question for fear you got some kind of a secret motive. And I can tell him you don't, so just answer the question in the normal course of human events, if you're telling the truth then just answer the question. We shouldn't have to spend all this time fighting and arguing, there is no reason for that. And do you know who suffers is these people sitting here, trying to make a decision. They'll leave the Justice Center thinking we're all a bunch of clowns. - 17 - Now we can get to this matter. All right, now you may proceed. MR. ZUKERMAN: Can I approach the side bar on the record? THE COURT: I'm telling you to treat him with dignity and respect. MR. ZUKERMAN: Can we approach the side bar with the court reporter, your Honor. THE COURT: If there's anything you want to proffer, you can do it later. I would be happy for you to say anything you want to, but we do not have time for you to put anything on the record. MR. ZUKERMAN: Just to protect the record. THE COURT: It will be protected, it will be in the record. MR. ZUKERMAN: Move for a mistrial. THE COURT: Now will you carry on with your cross-examination. * * * (R. 201-204.) The fifth instance occurred a short time later in Officer Williams' cross-examination: * * * - - - (Thereupon, the video tape was viewed by the Court and the jury.) - - - Q. The car pulled over perfectly, correct? A. Aside from the sudden stop. - 18 - Q. Did you see it jerk in the car? A. Yes. THE COURT: Go on with the next part, please. And I think that the questions you are asking him are questions for the jury. They can look at the tape themselves. I don't know why he has to put the stamp of approval on a perfect stop. Everybody in that jury box is capable of deciding whether this guy pulled over properly or not. You may proceed. * * * (R. 205.) It is axiomatic that the trial court controls the proceedings before it, particularly with regard to the arguments before the court, the introduction of evidence, and the expeditious and economical use of time and juror services. See R.C. 2945.03; State v. Wells (1938), 134 Ohio St. 404. Contrary to the asseverations of appellant's counsel, the remarks of the court to counsel do not demonstrate that the jury was unfairly biased by such remarks. This is an unremarkable drunk-driving case. The evidence is straight forward and concise. These remarks by the court, rather than evidencing verbal abuse of defense counsel, evidence an intention by the court to have the proceedings advance in a timely fashion, overcoming the lethargic pace of the cross-examination which regularly rehashed the evidence ad nauseam or attempted to discover a previously unidentified interpretation to the videotape, which was unnecessary given the fact that the jury could see the videotape and judge its images - 19 - according to its own interpretation. Any negative inference from these remarks relative to the effectiveness or competence of trial counsel, which is pure speculation by appellant's counsel, is offset by the trial court's statements before the jury complementing defense counsel's performance and ability. See R. 97, 174-175. Additionally, the assertion that defense counsel had an insufficient opportunity to cross-examine the prosecution's witnesses is not supported by the record. There was ample latitude in cross-examination exhibited by the court, with the evidence being reviewed several times with each witness. We find no abuse of discretion in the court's control over the proceedings and the introduction of evidence and argument sufficient to call the verdict into question, particularly when the totality of the evidence is viewed. Assignments one and two are overruled. IV WHETHER THE TRIAL COURT ERRED WHEN IT FAILED TO RECOGNIZE THE ADMINISTRATIVE LICENSE SUSPENSION AS A PUNISHMENT WHICH WOULD VIOLATE THE APPELLANT'S FIFTH (SIC) CONSTITUTIONAL RIGHTS AS HE WAS PLACED IN DOUBLE JEOPARDY WHEN COUPLED WITH THE CHARGE OF DRIVING WHILE UNDER THE INFLUENCE OF ALCOHOL. Appellant argues in this assignment that the continued prosecution for the drunk driving offense after having had his license suspended administratively pursuant to R.C. 4511.191 constitutes Double Jeopardy in violation of the Fifth and Fourteenth Amendments to the United States Constitution. This - 20 - argument is without merit. See State v. Gustafson (July 30, 1996), 76 Ohio St.3d 425, paragraph one of the syllabus, 1996 Ohio LEXIS 552. The fourth assignment is overruled. Judgment affirmed. - 21 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cleveland Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, J., and TIMOTHY E. McMONAGLE, J., CONCUR. JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .