Defendant’s statement thrown out


Tucker’s motion to suppress alleged confession granted

By Sarah Hawley - shawley@aimmediamidwest.com



POMEROY — The judge in the case against a former corrections and probation officer has ruled that the statement given by the defendant in initial questioning can not be used in the case.

Larry Tucker’s attorney filed a motion to suppress in October asking that Judge Linton Lewis, who is assigned to the case, rule that the statement was not obtained legally and therefore could not be used in the case.

Tucker, who was a corrections officer at the Middleport Jail and a probation officer and bailiff for Meigs County Common Pleas Court, is charged in a 28-count indictment for crimes alleged against 11 victims.

Charges include: six counts of Sexual Battery, third-degree felonies; six counts of Kidnapping, first-degree felonies; five counts of Gross Sexual Imposition, fourth-degree felonies; five counts of Attempted Sexual Battery, fourth-degree felonies; four counts of Attempted Compelling Prostitution, fourth-degree felonies; one count of Theft in Office, a fifth-degree felony; one count of Soliciting, a third-degree misdemeanor.

At a hearing on the motion in late October, Tucker’s attorney, Public Defender Kirk McVay, and Special Prosecutor Angela Canepa of the Ohio Attorney General’s Office questioned Special Agent Jonathan Jenkins from the Ohio Bureau of Criminal Investigation’s Special Investigation Unit, who conducted the Nov. 15, 2017, interview of Tucker.

Under oath, Jenkins recalled the events of Nov. 15 when he first interviewed Tucker regarding allegations against him.

Tucker was not in custody at the time of the interview and appeared without an attorney. Jenkins said he had Tucker called to come to the sheriff’s office where the two met in the upstairs interview room. Before going to the room, according to testimony, Tucker asked Jenkins if he needed to bring anyone with him to which Jenkins said “I don’t think so” and Tucker replied “me either.”

McVay argued that Tucker repeatedly mentioned having an attorney present, although Jenkins said he felt Tucker was trying to decide if he wanted an attorney present and that Tucker never asked to wait to be questioned with an attorney present. At one point during the questioning by Jenkins, Tucker reportedly attempted to “phone a friend,” but Jenkins said Tucker never stated the friend was an attorney. Given that he thought Tucker was calling a friend, Jenkins asked that he hold off on the call until after the interview, according to the agent’s testimony.

Later in the interview, Tucker reportedly admitted to an allegation involving a female victim.

Jenkins testified that, toward the end of the interview, Tucker made threats to harm himself rather than go to jail regarding the case, later backtracking from that statement. Jenkins said he took Tucker’s statement about harming himself seriously, and at the end of the interview, took Tucker to Major Scott Trussell’s office to talk further about the threat of suicide.

Tucker was not read his Miranda Rights prior to questioning, and was not under arrest at the time of questioning.

“The defendant was told he was not under arrest and that Agent Jenkins couldn’t keep him from walking out, however; on two occasions when he stood up to leave, he was told ‘hold on Larry’ and ‘have a seat’”, writes Judge Lewis in his order granting the motion to suppress the statement.

Lewis goes on to write, “Additionally, when the defendant did in fact walk out of the door, it appears from the recording that Agent Jenkins hurries behind him to stop him and he is immediately rushed into the office of Major Trussell where he is eventually placed under arrest.”

“Based on the conflicting statements made by Agent Jenkins, the reasonableness of the defendant in believing he was not free to leave, the subsequent arrest upon leaving the interview room and the lack of mental exam to justify the self-harm basis for arrest, this court finds that the defendant was subjected to in custodial interrogation without benefit of receiving his Miranda Rights.

Regarding Tucker’s right to an attorney, Lewis states that throughout the interrogation Tucker made reference to his desire to have an attorney present with statements such as “Should I bring somebody in here with me?”; “I’ve always been told to bring your attorney in…”; “You’re not going to let me make this phone call so I can have some advice on what to do”; and “Just let me call my attorney, let him sit here with me.”

“The defendant’s statements were rebuffed by Agent Jenkins such that the defendant was denied his right to counsel and his Fifth Amendment privilege to remain silent,” wrote Lewis.

Regarding if the statement given by Tucker was given voluntarily, Lewis wrote, ” The burden is on the prosecution to show that, considering the totality of the circumstances, the statement was voluntarily given. … Psychological as well as physical coercion may render a confession involuntary … In the case at bar, the interrogation was not for an extremely long period of time and the defendant was not deprived of food, water, sleep or other necessities of life. Nevertheless, this court finds the defendant’s statement to be involuntarily given.”

“Even though the defendant was told he could contact his attorney, when he attempted to dial his attorney, he was interrupted. The defendant was also coerced by being given the unmistakable impression that if he contacted his attorney that his actions would be deemed to be uncooperative,” added Lewis.

Prior to the motion to suppress hearing in October, Special Prosecutor Angela Canepa told the court of a proposed plea offer to the defendant which was rejected.

Canepa explained that under the proposed plea agreement, Tucker would have pleaded guilty to four third degree felony counts of sexual battery, two fourth degree felonies and some misdemeanors with a recommendation for an eight year prison sentence. Additionally, the state would not have opposed judicial release after five years. Canepa added that the offer would not be available after the hearing.

McVay stated that he had discussed the offer with Tucker who decided to reject the offer from Canepa.

The case is currently scheduled for a jury trial on March 6.

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Tucker’s motion to suppress alleged confession granted

By Sarah Hawley

shawley@aimmediamidwest.com

Sarah Hawley is the managing editor of The Daily Sentinel.

Sarah Hawley is the managing editor of The Daily Sentinel.