In re S.W.

[Cite as In re S.W., 2022-Ohio-854.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: S.W. : APPEAL NO. C-210350
TRIAL NO. 20-1857X
:
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: March 18, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellant,
Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson,
Assistant Public Defender, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Thirteen-year-old S.W. was arrested and charged with aggravated
robbery, a felony of the first degree if committed by an adult, and accompanying
firearm specifications. He filed a motion to suppress statements he made to police at
the time of his arrest. Following a hearing, a magistrate granted the motion to
suppress S.W.’s statements, which included statements made to two different police
officers. The state objected only to the magistrate’s suppression of S.W.’s statement
to the second officer, asserting that it was not made in response to an interrogation.
The juvenile court overruled the objection and adopted the magistrate’s decision.
The state now appeals.
{¶2} Because the juvenile court erred by finding that S.W.’s statement to
police was made during a custodial interrogation, we reverse the juvenile court’s
judgment.
Background Facts and Procedure
{¶3} At the suppression hearing, Cincinnati Police Sergeant Michael Roth
testified that he responded to a radio run for an aggravated robbery that occurred in
the area of 601 Maple Avenue. Another officer radioed that he saw three individuals
running to the back of an apartment building on Maple Avenue, which was close to
where the robbery had occurred. As Sergeant Roth entered the front door of the
three-story apartment building, he heard what he described as “some wrestling going
on up on the top floors.”
{¶4} Sergeant Roth walked up the stairs toward the third floor, where he
saw three juveniles, one of whom matched the description given in the police
dispatch. Sergeant Roth testified that he “had all three at gunpoint” as a matter of
officer safety because a handgun had been used in the robbery.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} Video from Sergeant Roth’s body-worn camera was admitted into
evidence. It showed that S.W. was the first of the three juveniles that Sergeant Roth
ordered to come down the stairs to the landing where he stood. He placed S.W. in
handcuffs, asked S.W. if he had “anything else” on him, and asked, “Where’s the
gun?” After S.W. replied that he did not have a gun, Sergeant Roth again asked,
“Where’s the gun?” When S.W. responded that he threw it, the sergeant asked him
where, and S.W. responded that he threw it in the woods. The sergeant then
informed S.W. of his Miranda rights and asked S.W. if he understood. S.W. replied,
“Yes, sir.” Sergeant Roth testified that he believed that S.W. understood what his
rights were.
{¶6} Sergeant Roth asked S.W. his age, where he had gotten the gun, and
where in the woods he had thrown the gun. He told S.W. that they had better find
the gun before someone found it and shot themselves, and told him that he had
better start talking about where the gun could be found. As he walked S.W. down the
stairs to the building’s first floor, he said, “I want to know where you threw it, buddy.
‘Cause if not you’re in a whole heap of trouble.”
{¶7} When they went outside, S.W. indicated that he had thrown the gun
behind the building. So Sergeant Roth walked him around the back of the apartment
building toward some woods adjacent to the building’s rear parking lot. The
sergeant continued to ask questions as they walked. Once there, S.W. pointed to an
area of the woods, indicating where he had thrown the gun.
{¶8} Sergeant Roth asked S.W. the type and color of the gun, and S.W.
replied that it was “a nine” and was silver and black. The sergeant asked S.W. if he
was positive that the gun was in the woods because he would only ask him that once.
He told S.W. that he was “not going to play games on this,” and that “if this is where
it is and it’s truthful, then then [sic] it’s going to go a lot easier on you.” S.W. said,
“This is where I threw it.” After ascertaining the location identified by S.W., the
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OHIO FIRST DISTRICT COURT OF APPEALS
sergeant asked, “You threw it from this parking lot?” S.W. replied, “Yes.” Sergeant
Roth concluded his interaction with S.W. by telling him, “All right, [S.W.], I’ll come
back and talk to you in a minute.” Sergeant Roth handed S.W. off to Officer
Wermuth who was to take S.W. to his cruiser.
{¶9} Officer Wermuth did not testify at the suppression hearing, but video
from his body-worn camera was introduced into evidence. The video showed that
Officer Wermuth walked S.W. down the driveway from the parking lot behind the
apartment building to the sidewalk in front of the building. He did not ask S.W. any
questions or engage him in conversation.
{¶10} The officer told S.W., “Right this way,” and walked S.W. out into the
road near two officers and a civilian for an apparent identification procedure.
Neither Officer Wermuth nor either of the other officers asked S.W. anything.
{¶11} Then Officer Wermuth turned and walked S.W. back in the direction of
the apartment building and away from the other officers, and he radioed, “14,
positive ID.” S.W. asked Officer Wermuth what would happen to the stuff in his
pockets, and the officer replied, “That’s got to stay on you. It’ll all go with you and
you can pick it up when you get released.” They walked back past the apartment
building, and the officer asked S.W., “You stay here, sir? Is this a good address for
you?,” to which S.W. replied no.1 They continued walking to the officer’s cruiser,
which was parked several car lengths past the apartment building.
{¶12} Officer Wermuth stopped S.W. at the cruiser and began to pat S.W.
down. He pulled what appeared to be a paper packet and a thin cord from S.W.’s left
front pants pocket and asked him if it was just a phone charger. The officer put the
1 S.W. does not argue, and the juvenile court did not find, that Officer Wermuth’s question about
the apartment constituted interrogation. An officer’s request for routine information necessary
for basic identification purposes is not interrogation unless the officer should have known that it
was reasonably likely to elicit an incriminating response. See United States v. Tapia-Rodriguez,
958 F.3d 891, 894 (8th Cir.2020) (asking suspect whether he lived in the apartment was a request
for routine information and did not constitute interrogation under Miranda).
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OHIO FIRST DISTRICT COURT OF APPEALS
items back in the pocket. Then the officer began to pat down S.W.’s right leg, when
S.W. suddenly said, “Can you release them? Like, they weren’t really like -- I did it,
like.” Officer Wermuth immediately told S.W. to say nothing and placed him in the
cruiser.
{¶13} After the state presented its evidence, S.W. introduced the testimony
and report of clinical psychologist Richard Rothenberg, Psy.D., who had conducted
an evaluation to determine S.W.’s competency to waive his Miranda rights. Dr.
Rothenberg opined that, because of age-related, intellectual, and academic
limitations, S.W. was not competent to waive his Miranda rights. He did not testify
that S.W. was incompetent for any other purpose.
{¶14} According to Dr. Rothenberg’s report, at the time S.W. waived his
Miranda rights, he was “chronologically” 13 years and four months old and in the
seventh grade. Dr. Rothenberg stated that S.W.’s “language skills and abilities are
consistent with those of younger individual [sic], approximately 4 years old and with
a grade equivalent of that of an individual in pre-kindergarten.”
{¶15} The magistrate granted S.W.’s motion to suppress statements that he
made to police, finding that he did not knowingly, intelligently, and voluntarily waive
his Miranda rights. The magistrate agreed with the state that S.W.’s “I did it”
statement to Officer Wermuth was a voluntary statement made without any
prompting by police. Nonetheless, the magistrate concluded that S.W. did not fully
understand that he had the right to remain silent when Sergeant Roth advised him of
his Miranda rights. The magistrate suppressed all of S.W.’s statements, which
included those made in response to Sergeant Roth’s questions and the statement
volunteered to Officer Wermuth.
{¶16} The state objected to the magistrate’s decision. In its objection, the
state did not challenge the decision with respect to S.W.’s waiver of his Miranda
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OHIO FIRST DISTRICT COURT OF APPEALS
rights. The state challenged only the suppression of S.W.’s volunteered statement to
Officer Wermuth.
{¶17} The juvenile court found that the magistrate properly suppressed
S.W.’s statement to Officer Wermuth, but “clarifie[d] the reasoning.” The court
determined that S.W. had made the statement involuntarily as part of the prior
questioning by Sergeant Roth. The court overruled the state’s objection to the
magistrate’s decision and adopted the decision as its judgment. This appeal
followed.
S.W.’s Volunteered Statement
{¶18} In its sole assignment of error, the state argues that the juvenile court
erred when it granted the motion to suppress S.W.’s volunteered statement to Officer
Wermuth because volunteered statements are not subject to exclusion under
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The state
asserts that the court improperly equated S.W.’s spontaneous statement with a
waiver of his right to remain silent.
{¶19} Appellate review of a motion to suppress presents a mixed question of
law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,
¶ 8. The reviewing court must accept the trial court’s findings of fact if they are
supported by competent, credible evidence, but “must then independently
determine, without deference to the conclusion of the trial court, whether the facts
satisfy the applicable legal standard.” Id. Before we review the juvenile court’s
factual findings, we set forth the appropriate legal standard.
{¶20} The Fifth Amendment to the United States Constitution provides that
no person “shall be compelled in any criminal case to be a witness against himself.”
To protect a person’s Fifth Amendment privilege against self-incrimination, the
United States Supreme Court announced in Miranda that the prosecution may not
use statements stemming from a custodial interrogation of the defendant unless it
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OHIO FIRST DISTRICT COURT OF APPEALS
demonstrates the use of procedural safeguards. Miranda at 444. The court
explained that its decision did not impact a suspect’s volunteered statements:
The fundamental import of the privilege while an individual is in
custody is not whether he is allowed to talk to the police without the
benefit of warnings and counsel, but whether he can be interrogated. *
* * Volunteered statements of any kind are not barred by the Fifth
Amendment and their admissibility is not affected by our holding
today.
Id. at 478.
{¶21} The Miranda safeguards “are not required where a suspect is simply
taken into custody, but rather where a suspect in custody is subjected to
interrogation.” Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 64 L.Ed.2d
297 (1980); State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶
119 (the requirement of Miranda warnings “applies only when a suspect is subjected
to both custody and interrogation”). In other words, interrogation “must reflect a
measure of compulsion above and beyond that inherent in custody itself.” Innis at
300.
{¶22} In Innis, the United States Supreme Court explained that the Miranda
safeguards apply when a person in custody is subject to either express questioning or
its functional equivalent. Id. at 300-301. “[T]he term ‘interrogation’ under Miranda
refers not only to express questioning, but also to any words or actions on the part of
the police (other than those normally attendant to arrest and custody) that the police
should know are reasonably likely to elicit an incriminating response from the
suspect.” Id. at 301. The court explained that the functional-equivalent portion of its
definition “focuses primarily upon the perceptions of the suspect,” as a reflection of
“the fact that the Miranda safeguards were designed to vest a suspect in custody with
an added measure of protection against coercive police practices[.]” Id. The court
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OHIO FIRST DISTRICT COURT OF APPEALS
emphasized that “the police surely cannot be held accountable for the unforeseeable
results of their words or actions[.]” Id. at 301-302. So the court set forth a test to
determine what constitutes interrogation: “the definition of interrogation can extend
only to words or actions on the part of police officers that they should have known
were reasonably likely to elicit an incriminating response.” (Emphasis sic.) Id. at
302.
{¶23} The test of whether an interrogation has occurred is an objective one.
United States v. Sanchez, 13 F.4th 1063, 1074 (10th Cir.2021); United States v.
Tapia-Rodriguez, 968 F.3d 891, 894 (8th Cir.2020); United States v. Knope, 655
F.3d 647, 652 (7th Cir.2011); United States v. Washington, 462 F.3d 1124, 1132 (9th
Cir.2006); Rosa v. McCray, 396 F.3d 210, 222 (2d Cir.2005). Although a police
officer’s intent may be relevant, the ultimate inquiry is whether the officer should
have known that the suspect “would suddenly be moved to make a self-incriminating
response.” Innis at 303; Sanchez at 1075, quoting United States v. Rambo, 365 F.3d
906, 910 (10th Cir.2004) (“it is the objectively measured tendency of an action to
elicit an incriminating response which is ultimately determinative”).
{¶24} In Innis, the Supreme Court applied its definition to the facts of the
case and concluded that the defendant was not “interrogated” within the meaning of
Miranda. Innis, 446 U.S. at 302, 100 S.Ct. 1682, 64 L.Ed.2d 297. In that case, the
defendant was arrested on suspicion of killing a man with a shotgun. Id. at 294.
After the defendant was advised of his Miranda rights, he said he wanted to talk to a
lawyer. Id. Then, as the defendant rode with officers in a police car, two of the
officers spoke to each other about the missing shotgun and said that they hoped none
of the children at the nearby school for handicapped children found the shotgun and
hurt themselves. Id. at 294-295. The defendant interrupted the officers and told
them that he could show them where the shotgun was located. Id. at 295. The
Supreme Court held that no interrogation occurred. Id. at 302. The conversation
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OHIO FIRST DISTRICT COURT OF APPEALS
between the officers included no express questioning of the defendant, nor its
functional equivalent because “[i]t cannot be said, in short, that [the officers] should
have known that their conversation was reasonably likely to elicit an incriminating
response” from the defendant. Id.{¶25} The Supreme Court rejected the Rhode Island Supreme Court’s
equating “subtle compulsion” with interrogation because “that is not the end of the
inquiry.” Id. at 303. The defendant’s incriminating response must have been “the
product of words or actions on the part of the police that they should have known
were reasonably likely to elicit an incriminating response.” Id.{¶26} In State v. Tucker, 81 Ohio St.3d 431, 438, 692 N.E.2d 171 (1998), the
Supreme Court of Ohio applied Innis’s functional-equivalent test in holding that a
prisoner was not subject to interrogation by corrections officers when he implicated
himself in a murder. The officers moved the prisoner, who had been watching a
newscast about his codefendant’s trial, away from other prisoners, because they
noticed that he was nervous and not himself. Id. at 434. Officers gave the prisoner a
cigarette and a soda, and asked him if he wanted them to have a mental-health
professional come to the jail, because they knew he had undergone some mental-
health counseling while he was in jail. Id. The prisoner declined and began talking
about his codefendant’s trial, saying he wished “this would just get over” so he could
“start [his] time.” Id. at 434-435. He said he would plead guilty unless his co-
defendant got the death penalty. Id. at 435. One of the officers remarked that “when
this is all said and done, I’d like to hear about what happened that day.” Id. The
prisoner said he would tell him “right now,” and an officer said that he did not have
to, but the prisoner continued to describe the crimes he had committed. Id.
{¶27} The Supreme Court held that the prisoner was not subjected to
interrogation because “the officers reasonably should not have anticipated that their
actions or words would be likely to evoke an incriminating response.” Id. at 437.
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OHIO FIRST DISTRICT COURT OF APPEALS
The court held that the prisoner voluntarily turned the conversation toward the
subject of the murder, and that any further interaction with the officers was a
continuation of the conversation and flowed from his initial volunteered
incriminating statement. Id.; see State v. Martin, 151 Ohio St.3d 470, 2017-Ohio-
7556, 90 N.E.3d 857, ¶ 89-92 (Miranda did not require suppression of statements
made by defendant in custody before he was advised of his rights, because he was not
subjected to interrogation and his statements were “unsolicited, spontaneous, and
‘not in response to any inquiries of law enforcement.’ ”).
{¶28} Here, it is undisputed that S.W. was in custody at the time he made the
statement. The question is whether the statement was made in response to an
interrogation. In determining that S.W. was subject to interrogation at the time he
made the statement to Officer Wermuth, the juvenile court made the following
factual findings: the statement was made within minutes of the original questioning
by Sergeant Roth; S.W. was in handcuffs; he was in the same physical location and
had not yet been placed in a cruiser; he had been subjected to an identification
procedure; and no intervening conversation or action had occurred between the
Miranda warning, the questioning by Sergeant Roth, and the statement. The court
concluded that S.W. was subject to interrogation when he made the statement to
Officer Wermuth because it was made “as part of the prior questioning by [Sergeant]
Roth,” and “[i]t was one continuous experience, especially for a child with limited
functioning and language skills.”
{¶29} However, like the officers in Innis who had no reason to know whether
the suspect was “peculiarly susceptible to an appeal to his conscience concerning the
safety of handicapped children,” Innis, 446 U.S. at 302, 100 S.Ct. 1682, 64 L.Ed.2d
297, nothing in the record before us suggests that the police were aware that the 13-
year-old S.W. had either limited reasoning skills or was low functioning. To the
contrary, when the prosecutor asked Sergeant Roth whether S.W.’s responses “were
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OHIO FIRST DISTRICT COURT OF APPEALS
appropriate for the questions you were asking,” the sergeant responded, “Yes. He
gave the same description of the gun that the victim had given.” In addition, nothing
in S.W.’s interaction with Officer Wermuth, which included S.W.’s question about
the items in his pocket and his response to the officer’s question about whether he
stayed at the apartment building, suggested that the officer should have known that
S.W. had any cognitive deficits.
{¶30} We hold that the facts of this case demonstrate that S.W. was not
interrogated by Officer Wermuth within the meaning of Miranda. There was a clear
break after Sergeant Roth’s questioning, where S.W. was walked by Officer Wermuth
to an identification procedure and then to his cruiser. Sergeant Roth was not
present, and Officer Wermuth did not ask S.W. any questions. More than two
minutes passed with no interrogation, before S.W. made his admission to Officer
Wermuth.
{¶31} It is clear that neither prong of the definition of “interrogation”
announced in Innis was satisfied, because S.W.’s statement to Officer Wermuth was
not triggered by an express question or by its functional equivalent. S.W. was not
subjected by Officer Wermuth to words or actions that the officer should have known
were reasonably likely to elicit an incriminating response from S.W. See Innis at
303. Nothing in the record suggests that Officer Wermuth should have known that
S.W. “would suddenly be moved to make a self-incriminating statement.” See id.Rather, S.W.’s statement was “unsolicited, spontaneous, and ‘not in response to any
inquiries of law enforcement.’ ” See Martin, 151 Ohio St.3d 470, 2017-Ohio-7556, 90
N.E.3d 857, at ¶ 89. When S.W. made the statement to Officer Wermuth, he was in
custody but he was not subjected to interrogation. “Therefore, ‘Miranda does not
apply.’ ” Id. at ¶ 92, quoting State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, 964
N.E.2d 1037, ¶ 24. Consequently, the juvenile court erred by suppressing the
statement.
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OHIO FIRST DISTRICT COURT OF APPEALS
Conclusion
{¶32} Therefore, we sustain the state’s assignment of error, reverse the
juvenile court’s judgment granting the motion to suppress S.W.’s statement to
Officer Wermuth, and remand the matter for further proceedings consistent with the
law and this opinion.
Judgment reversed and cause remanded.
WINKLER, J., concurs.
BERGERON, J., dissents.
BERGERON, J., dissenting.
{¶33} The majority essentially frames the inquiry in this case as a legal one
designed to ascertain “whether an interrogation has occurred.” Majority opinion at
¶ 23. Here, however, there is no question that a custodial interrogation occurred—
rather, the question presented is whether that interrogation was on-going at the
point of S.W.’s statement. On that point, I submit, this implicates a factual question,
which we must review with deference to the factfinder. See State v. Banks-Harvey,
152 Ohio St.3d 368, 2018-Ohio-201, 96 N.E.3d 262, ¶ 14 (“Appellate review of a
ruling on a motion to suppress presents a mixed question of law and fact. * * * An
appellate court must accept the trial court’s findings of fact if they are supported by
competent, credible evidence.”). As federal courts have recognized, “when it is
determined that officers engaged in interrogation, whether the suspect’s statement
was spontaneous (or instead made as a result of the interrogation) is a factual finding
that we review for clear error.” United States v. Yepa, 862 F.3d 1252, 1258 (10th
Cir.2017). The trial court here provided a thorough analysis as to why it believed that
S.W.’s statement was part and parcel of his custodial interrogation. In light of the
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OHIO FIRST DISTRICT COURT OF APPEALS
record support for this point, we should not quibble with the trial court’s factual
findings, and therefore I respectfully dissent.
{¶34} Before embarking on the analysis, I pause to consider Dr.
Rothenberg’s evaluation of S.W. so that the reader may fully appreciate S.W.’s
limitations. Dr. Rothenberg, the clinical psychologist who examined S.W., witnessed
deficiencies across the board in S.W.’s mental capacity. In his assessment, Dr.
Rothenberg utilized a set of four Miranda Rights Comprehensive Instruments to
evaluate S.W.’s understanding and appreciation of his Miranda rights. The first
instrument measured S.W.’s ability to paraphrase each Miranda right after
providing them to him orally and in writing. In paraphrasing his right to remain
silent, S.W. thought “right” referred to writing with his hand. When asked about his
understanding of the right to have a lawyer present, S.W. thought “present” meant a
gift. S.W. scored zero points on the first instrument. Dr. Rothenberg didn’t bother
administering the second instrument because S.W. could not even understand the
directions. On the third instrument, measuring S.W.’s appreciation of his Miranda
rights, S.W. scored 11 out of 30 points, placing him in the bottom 0.6th percentile of
the juvenile sample. The last instrument asked S.W. to define 16 Miranda-related
words. He scored 2 points out of a possible 32, defining “right” by saying “we write
in class but I don’t have a pen” and “present” by referring to Christmas. Overall, Dr.
Rothenberg found S.W. to be illiterate and in significant need of educational
intervention, with an extremely low average intellectual functioning that may meet
the criteria for an intellectual disability. Dr. Rothenberg further concluded that,
during his encounter with the officers, S.W. “does not appear to exhibit an
appreciation of the fact that he is not obligated to help the police in this situation as
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OHIO FIRST DISTRICT COURT OF APPEALS
it may be self-incriminating and detrimental to him and his legal defense.” No
evidence contradicted any of these conclusions.
{¶35} We thus have a juvenile with the intellectual functioning of a four-
year-old, according to Dr. Rothenberg. Apprehended by multiple officers at
gunpoint and immediately placed in handcuffs, S.W. relayed being “scared” by that
experience and equated it with a “kidnapping.” And when the officer administered
the Miranda warnings in that environment, he did so in such a mumbled, rushed
fashion that even the most astute juvenile probably had little chance of
understanding it. These facts form the underpinning for the Miranda violation
conclusion that the state does not challenge on appeal. The state, however,
endeavors to forge a distinction between the aspect of the interrogation tainted by
the Miranda violation with that surrounding the “I did it” statement, a premise that
the majority accepts.
{¶36} To understand the crux of my disagreement with the majority’s
opinion, it is helpful to consider the caselaw featured in their opinion. Innis involved
a defendant who invoked his Miranda right to an attorney before any custodial
interrogation occurred, and while the officers respected that invocation, as they were
discussing the crime amongst themselves, the defendant chimed in and confessed.
Rhode Island v. Innis, 446 U.S. 291, 294, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). In
other words, no interrogation occurred. Likewise, the defendant in Tucker was never
subject to any interrogation, and no Miranda warnings were given, rendering his
entire statement voluntary. State v. Tucker, 81 Ohio St.3d 431, 435, 692 N.E.2d 171(1998). The defendants in Knope, Washington, and Tapia-Rodriguez all objected to
routine biographical information given pre-Miranda warnings and before the
commencement of any custodial interrogation. United States v. Knope, 655 F.3d 64714
OHIO FIRST DISTRICT COURT OF APPEALS
(7th Cir.2011), United States v. Washington, 462 F.3d 1124 (9th Cir.2006), United
States v. Tapia-Rodriguez, 968 F.3d 891 (8th Cir.2020). The Rosa and Sanchez
defendants were never provided Miranda warnings because they were never subject
to custodial interrogation. Rosa v. McCray, 396 F.3d 210 (2d Cir.2005), United
States v. Sanchez, 13 F.4th 1063 (10th Cir.2021). The cases cited by the majority
generally contemplate voluntary statements made in the absence of interrogation or
before an interrogation. They do not evaluate a defendant already being interrogated
for purposes of Miranda in conjunction with whether, based on the totality of the
circumstances, the defendant would have understood that the interrogation was on-
going. See State v. Johnson, 2d Dist. Greene No. 86-CA-0084, 1987 Ohio App.
LEXIS 7677, *11 (June 25, 1987) (“The determination of whether interrogation is
‘custodial interrogation’ is a factual determination that depends upon the totality of
the circumstances.”). These cases certainly do not suggest that we should parse
S.W.’s brief walk to the car with Officer Wermuth into something entirely separate
from the custodial interrogation that Sgt. Roth commenced.
{¶37} And while the majority describes the test as an objective one, majority
opinion at ¶ 23, it must be evaluated from the suspect’s perspective: “The suspect’s
state of mind is the key.” State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849
N.E.2d 985, ¶ 35. That point is reinforced by the caselaw cited by the majority.
Sanchez at 1074 (“This inquiry is objective, focusing ‘on the perceptions of a
reasonable person in the suspect’s position rather than the intent of the investigating
officer.’ ”); Tapia-Rodriguez at 891 (“The ‘should have known’ standard is objective
and ‘focuses primarily upon the perceptions of the suspect, rather than the intent of
the police.’ ”), quoting Innis at 894; Rambo at 906 (“The focus is on the perceptions
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OHIO FIRST DISTRICT COURT OF APPEALS
of a reasonable person in the suspect’s position rather than the intent of the
investigating officer.”).
{¶38} Consistent with this caselaw, the question we should be asking is
whether a 13-year-old juvenile with the mental functioning of a four-year-old should
have understood that the interrogation had concluded when Sgt. Roth handed him
over to Officer Wermuth. “ ‘Because voluntariness is a matter of the suspect’s state
of mind, we focus our analysis on the way in which [S.W.] experience[d]
interrogation.’ ” See Farris at ¶ 34, quoting Missouri v. Seibert, 542 U.S. 600, 624,
124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) (O’Connor, J., dissenting). The juvenile
court, in my view, conducted the correct analysis and made factual findings
supported by the record. Id. at ¶ 21, quoting Seibert, at 612, fn. 4 (Where virtually
identical inculpatory statements are given before and after an officer’s recitation of
Miranda rights, “the postwarning statements are inadmissible because ‘the earlier
and later statements are realistically seen as parts of a single, unwarned sequence of
questioning.’ ”).
{¶39} The trial court found, as a factual matter, that the interrogation did not
end with Sgt. Roth’s handoff of S.W. to Officer Wermuth, and factual determinations
surrounding the circumstances of an interrogation are “entitled to a presumption of
correctness.” State v. Pudelski, 8th Dist. Cuyahoga No. 77172, 2001 Ohio App.
LEXIS 1150, *21 (Mar. 15, 2001). The state and majority opinion both suggest that a
clear break occurred between Sgt. Roth’s and Officer Wermuth’s interactions with
S.W., and reasonable minds could disagree on this interpretation of this evidence,
which is exactly why I would defer to the trial court. Consistent with the body-worn
camera footage and the trial court’s findings, the video documents a series of
questions by Sgt. Roth to S.W. about the gun, including an interrogation question
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OHIO FIRST DISTRICT COURT OF APPEALS
asked in the midst of Officer Wermuth tightening the handcuffs on S.W.—lending
further credence to the notion that S.W. would have no reason to believe his
interrogation was over. And Officer Wermuth kept questioning S.W. as they walked,
albeit not questions designed to elicit inculpatory responses. Most critically, the last
thing Sgt. Roth said to S.W. before Officer Wermuth walked him towards yet another
group of officers waiting in the street was, “All right, [S.W.], I’ll come back and talk
to you in a minute.” That statement on its own would lead any reasonable person to
conclude that the custodial interrogation was not over, particularly a 13-year-old
with limited reasoning skills. The line the majority attempts to draw “cannot be said
to be bright or sharply defined,” Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849
N.E.2d 985, at ¶ 22, all the more reason we should defer to the fact-finder.
{¶40} We also must consider S.W.’s statement—“I did it.” Although the state
charged S.W. with aggravated robbery, at no point in time did Sgt. Roth or any other
officer question S.W. about a robbery. All of Sgt. Roth’s questions, from start to
finish, revolved around whether S.W. had a gun and the whereabouts of the weapon.
These questions were designed to “evoke an incriminatory response,” Tucker, 81
Ohio St.3d at 437, 692 N.E.2d 171, and they succeeded—S.W. repeatedly made
inculpatory comments in response to the questioning, as the majority details. The
subsequent statement “I did it” thus only relates logically to what S.W. had already
confessed—he had a gun and tossed the weapon away. And after determining that
those inculpatory statements to Sgt. Roth must be suppressed according to Miranda
and its progeny, I have difficulty understanding how the subsequent statement
(coming moments after the earlier confession) merits a different fate. Even to the
extent that we consider S.W.’s interactions with Sgt. Roth and Officer Wermuth
separately, “[i]t would have been reasonable to regard the two sessions as parts of a
17
OHIO FIRST DISTRICT COURT OF APPEALS
continuum”—precisely as the trial court concluded. Seibert, 542 U.S. at 616-617, 124
S.Ct. 2601, 159 L.Ed.2d 643.
{¶41} On this record, the trier of fact determined S.W. to still be subject to
interrogation, and competent and credible evidence supports that conclusion. I
accordingly respectfully dissent and would affirm the trial court’s judgment.
Please note:
The court has recorded its own entry this date.
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