Motion to suppress evidence undecided in 2011 murder case
By Randa Wagner
The case involving the July 4, 2011 murder of a Congress Twp. man is still ongoing in the Morrow County court system.
Cory Kelly, of Galion, appeared with defense attorneys Earl Desmond and Don Wick Friday for a motion to suppress evidence hearing before Common Pleas Court Judge Robert Hickson, Jr.
Asst. Prosecutor Jocelyn Stephancin represented the state and Prosecutor Charles Howland was present in the courtroom, along with members of Kelly’s family.
Kelly is charged with aggravated murder and tampering with evidence in the death of Joseph Rosella of TR 87. He is seeking to suppress a videotaped interview between himself and sheriff’s detectives shortly after the murder on the grounds his Miranda rights were violated and he felt he was held under ‘custodial interrogation.’
Custodial interrogation involves questioning initiated by law enforcement officers after a person is taken into custody or otherwise deprived of his or her freedom in any significant way, requiring that the person be advised of his or her applicable constitutional rights. Under Miranda, unless those warnings are given, no evidence obtained during the interrogation may be used against the accused.
Kelly was not in custody initially when he was questioned by detectives July 5, 2011 but now maintains he felt he was not free to leave the sheriff’s office and had to keep answering their questions. He also says he was not provided with an attorney when the subject came up in the course of conversation.
Detectives John Hinton and Marissa Gibson testified and were cross examined by the state and the defense on the interview, and the entire session from 2011 was played on a monitor in the courtroom. When the interview got to a certain point, Det. Gibson began to recite the Miranda rights to Kelly, who stated he knew what they were already. The subject of an attorney and their availability at that time of night came up, but no action was taken. Kelly signed a waiver and proceeded with the conversation. He was placed under arrest at the end of the conversation and charges were filed.
Kelly testified he was not in a coherant state when he made statements to law enforcement officials July 5 and also felt he was being detained (in that he was not free to leave). Defense attorneys maintained because doors in the facility where Kelly was interviewed were locked to gain entry, it was not clear to Kelly that they were unlocked (to exit) and he could leave the facility if he wanted to. Kelly also said he had a lot to drink (alcohol) and was under the influence before he came in, and so was not fully aware of what was happening.
“You want us to believe you had no understanding of what was taking place that day, correct?” asked Stephancin.
“I didn’t say that,” said Kelly.
“Well that’s what you testified to – you had no idea what was going on.”
“I just don’t recall everything that happened that night,” he said.
“You want us to understand you didn’t know you didn’t have to talk to the officers?” Stephancin asked.
“I was called in for questioning, so it was my assumption I had to talk to the officers,” Kelly said.
“When the detective started to read you your Miranda rights, you told her you knew your rights – do you remember that?” asked Stephancin.
“I remember that,” Kelly responded.
“And the first right you recited was your right to remain silent,” Stephancin recalled. “You knew you could invoke your right to remain silent?”
“Not fully,” answered Kelly.
“Mr. Kelly — do you understand that you had the right to remain silent?” Stephancin asked.
“Did you understand you had the right to consult with an attorney?” she asked.
“Why did you bring up the attorney?” she queried.
“At the time I was wanting one,” Kelly said.
“Why didn’t you ask for one?” she asked.
“I pretty much did,” Kelly answered.
“You asked how long it would take an attorney to get there,” she recited.
“The questions were supposed to stop then, when I asked about an attorney and how long it would take to (get one) be there,” Kelly responded.
“Why did you think the questioning is supposed to stop when you mention an attorney?” asked Stephancin.
“From people who have – from watching criminal cases on TV.”
Stephancin reminded Kelly he’d signed the Rights Waiver Form that night, indicating he understood his rights and he was willing to make a statement and answer questions.
He recalled that yes, he did.
She asked why, if he wanted to talk to a lawyer, did he sign the form and agree to speak to law enforcement?
“I was tired of answering questions at that point,” Kelly responded.
Attorney Desmond asked Kelly if he actually intended to go to the Morrow County Sheriff’s office that night.
“No, I did not,” Kelly responded.
“Did you intend to speak to the detectives that night?” Desmond asked.
“No, I did not,” Kelly said.
After testimony was complete, Judge Hickson said, “We do want to make sure the court issues are addressed in this, especially when constitutional rights are involved.”
He said he would review the videotape again to discern whether Kelly was coherant enough to understand what was taking place at the time of the interview, if his Miranda rights were violated, and if he was held in a ‘custodial’ method. He asked the state and the defense to prepare their briefs and submit them as soon as possible, and he would rule on the matter.
Kelly is currently being held at the Ross Correctional Institution in Chillicothe, Ohio.