Motion to suppress evidence undecided in 2011 murder case

By Randa Wagner

Sen­tinel Editor

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.

“No ma’am.”

“Did you under­stand you had the right to con­sult with an attor­ney?” she asked.

“No ma’am.”

“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 coher­ent 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.

Posted by Rachel Mendell on Feb 14 2013. You can follow any responses to this entry through the RSS Feed. Both comments and pings are currently closed.