         [Cite as State v. Barker, 2014-Ohio-3245.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                        :   APPEAL NO. C-130214
                                                          TRIAL NO. B-1107595-C
        Plaintiff-Appellee,                           :
                                                              O P I N I O N.
  vs.                                                 :

TYSHAWN BARKER,                                       :

    Defendant-Appellant.                              :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: July 25, 2014


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee,


Sheryl A. Trzaska, Assistant State Public Defender, Office of the Ohio Public
Defender, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS




D E W INE , Judge.

       {¶1}    Fifteen-year-old Tyshawn Barker was convicted of two aggravated

murders and other related offenses. In this appeal, he contends that he should not have

been bound over to the common pleas court from the juvenile court, argues that

statements he made to police should have been suppressed and maintains that his

counsel was ineffective. We are not persuaded, and affirm the judgment below.

                      A Mistaken Identity and Two Murders

       {¶2}    On October 14, 2011, Tyshawn, Dequantez Nixson, Brendan Washington

and Carrielle Conn went to an apartment building intending to shoot Samuel Jeffries.

Mr. Jeffries was targeted because he had filed domestic-violence charges against

Dequantez’s mother. Dequantez and Tyshawn waited in the hallway while Brendan and

Carrielle knocked on the apartment door. But instead of Mr. Jeffries, Rudell Englemon

answered the door. Carrielle shot Mr. Englemon who later died from his wounds. After

the shooting, the group fled the apartment.

       {¶3}    It didn’t take the boys long to turn on their accomplice, Carrielle.

According to Tyshawn, Dequantez grew concerned because Carrielle had told Mr.

Jeffries about the youths’ involvement. Fearing that Carrielle would snitch to the police,

Dequantez lured her into the woods with the other two boys. They told Carrielle that

they were going to “hit a lick”—or, in other words, commit a robbery. But rather than

commit a robbery, the three boys shot Carrielle several times. She suffered multiple

gunshot wounds to her face and head and one to her back. Brendan fired the initial

shots at Carrielle, and Dequantez and Tyshawn each fired an additional shot. They left

her body on a set of abandoned railroad tracks. The body was discovered after a citizen

called 911 to report having heard shots and then seeing three teenage boys laughing and

walking along the tracks.




                                              2
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶4}     Dequantez’s mother, who was at the apartment where Mr. Englemon

was shot, identified Carrielle as one of the individuals involved in Mr. Englemon’s

shooting. Although his mother denied his involvement in the shooting, Dequantez was

brought in for questioning. At that time, police officers discovered that Dequantez had a

cellular phone that had belonged to Carrielle. Upon questioning, Dequantez admitted to

his involvement in both shootings, and told police officers that Tyshawn and Brendan

were also involved.

                              The Proceedings Below

       {¶5}     Tyshawn was arrested as a juvenile for charges of murder and

aggravated murder.     Following a hearing during which the juvenile court found that

there was probable cause to believe Tyshawn had committed the crimes, the court

conducted a bindover hearing to determine whether it would retain jurisdiction over the

case or transfer jurisdiction to the common pleas court. A report assessing Tyshawn’s

amenability to rehabilitation in the juvenile system was prepared by Dr. Paul Deardorff

and presented during the hearing. At the conclusion of the hearing, the juvenile court

ordered that Tyshawn be bound over to the common pleas court.

       {¶6}     The Hamilton County Grand Jury indicted Tyshawn for the aggravated

murder of both victims, with firearm and witness specifications, as well as conspiracy,

aggravated robbery and tampering with evidence.          Tyshawn moved to suppress

statements that he made during a police interview following Carrielle’s shooting. He

argued that he had not voluntarily, knowingly and intelligently waived his Miranda

rights. The trial court denied the motion to suppress. Tyshawn entered a no-contest

plea to the charges against him and was sentenced accordingly.

              Transfer of Jurisdiction to the Common Pleas Court

       {¶7}     Tyshawn contends that the juvenile court abused its discretion in

transferring jurisdiction over the case to adult court. Because Tyshawn was 15 years

old at the time of the offenses, transfer of the case to common pleas court was



                                           3
                      OHIO FIRST DISTRICT COURT OF APPEALS



discretionary.    R.C. 2152.12(B).    R.C. 2152.12(D) delineates factors in favor of

transfer for the court to consider, and R.C. 2152.12(E) lists factors that militate

against transfer for the court to consider.

       {¶8}      Here, the court stated that it considered the factors and articulated its

findings with respect to several, including the use of a firearm in both offenses, that

the second offense was done to silence a potential witness, and Tyshawn’s age and

mental capacity. The court concluded that the juvenile system was not equipped to

rehabilitate Tyshawn within the available time period and that the safety of the

community may require adult sanctions. The court’s decision was not an abuse of

discretion. The assignment of error is overruled.

                             Waiver of Miranda Rights

       {¶9}      In a supplemental assignment of error, Tyshawn asserts that the trial

court erred when it denied his motion to suppress statements made during his

interview with police officers.

       {¶10}     A day after Carrielle’s murder, Tyshawn was taken into custody and

questioned by Detectives Kurt Ballman and Terry McGuffey. Before asking about the

shootings, Detective Ballman read Tyshawn his Miranda rights and asked if he

understood his rights. Tyshawn stated that he understood the rights and signed the

form acknowledging that he had been informed of his rights. Tyshawn now argues

that he did not voluntarily, knowingly and intelligently waive his Miranda rights.

       {¶11}     In our review of the denial of Tyshawn’s motion to suppress, we defer to

the trial court’s factual findings, but review de novo the court’s application of the law to

those facts. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

       {¶12}     Whether a defendant has voluntarily, knowingly and intelligently waived

his Miranda rights may be inferred from the totality of the circumstances. State v.

Lather, 110 Ohio St.3d 270, 2006-Ohio-4477, 853 N.E.2d 279, ¶ 9, citing State v. Clark,

38 Ohio St.3d 252, 261, 527 N.E.2d 844 (1988), and State v. Gapen, 104 Ohio St.3d 358,



                                              4
                    OHIO FIRST DISTRICT COURT OF APPEALS



2004-Ohio-6548, 819 N.E.2d 1047. Where, as here, the interrogation of the defendant

is recorded electronically, the statements made are presumed to have been made

voluntarily. R.C. 2933.81. As Tyshawn asserts, he had no choice but to answer the

detectives’ questions because he was told by Detective Ballman that the officers were

“going to get some information from [him].” We conclude that this statement by

Detective Ballman, made before the detective asked for the spelling of Tyshawn’s

name, his birthdate, address and telephone number, did not act to coerce Tyshawn

into making a statement.      Nothing in the record refutes the presumption that

Tyshawn’s statements were made voluntarily.

       {¶13}   Tyshawn contends that the detectives should have ensured that he

substantively understood his rights, particularly because Tyshawn was a low-

functioning, 15-year-old child with a third-grade reading level and no prior

experience with police interrogation.    “[A]n individual’s low intellect does not

necessarily render him * * * incapable of waiving Miranda rights.” State v. Lynn, 7th

Dist. Belmont No. 11 BE 18, 2011-Ohio-6404, ¶ 14. “Rather, the suspect’s intelligence

must be considered in light of the interrogation’s other circumstances, including the

suspect’s own conduct and representations during the interrogation.” State v. Kirk,

3d Dist. Crawford No. 3-12-09, 2013-Ohio-1941, ¶ 30. A review of the recording of

the interview demonstrates that Tyshawn had a calm demeanor, understood the

questions posed to him and was able to answer coherently. Tyshawn’s conduct and

representations to the detectives during the interrogation indicate nothing other

than a knowing waiver of his Miranda rights. Based on our review of the recording,

we conclude that the trial court’s finding that Tyshawn had voluntarily, knowingly

and intelligently waived his Miranda rights was supported by the record. The court

properly denied the motion to suppress. The supplemental assignment of error is

overruled.




                                         5
                    OHIO FIRST DISTRICT COURT OF APPEALS



                          Counsel Was Not Ineffective

       {¶14}   Tyshawn asserts that he was deprived of the effective assistance of

counsel based upon his trial counsel’s performance during the bindover hearing and

during the hearing on the motion to suppress. To succeed on this claim, Tyshawn

must show that his counsel’s performance was deficient, and that, absent his

counsel’s errors, the result of the proceedings would have been different. See

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984); State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). Tyshawn

has not made such a showing.

       {¶15}   Tyshawn maintains that his trial counsel was ineffective during the

bindover hearing because he did not present case law and scientific studies that

addressed the developmental differences between adolescents and adults. But at

issue in the hearing was not whether there is a difference in the mental development

of adolescents and adults. The issue was whether, based on the factors listed in R.C.

2152.12(D) and (E), Tyshawn was amenable to rehabilitation in the juvenile system.

Tyshawn’s attorney tailored his argument to the specific case at hand, emphasizing

Tyshawn’s low intelligence, his limited participation in the offenses, and the lack of

services that he had received to date during earlier contacts with the juvenile court

system.

       {¶16}   Tyshawn also suggests that his attorney should have called Dr.

Deardorff as a witness to question him about his amenability evaluation, retained an

independent psychologist to evaluate Tyshawn, and educated the court about the

programs that were available to Tyshawn in the juvenile system. Missing from

Tyshawn’s suggestions is any indication that Dr. Deardorff’s testimony or an

independent evaluation would have led to a different result in the proceedings. Dr.

Deardorff’s report clearly laid out Tyshawn’s limited mental capacity and

intelligence. Further, there is no indication that the juvenile court was ignorant



                                          6
                    OHIO FIRST DISTRICT COURT OF APPEALS



about the services offered by the juvenile justice system. We will not second guess an

attorney’s strategic trial decisions. See State v. Treesh, 90 Ohio St.3d 460, 490,

2001-Ohio-4, 739 N.E.2d 749. We conclude that Tyshawn has not demonstrated that

his attorney’s performance was deficient with respect to the amenability hearing.

       {¶17}   Likewise, we conclude that Tyshawn’s counsel was not ineffective

during the motion-to-suppress hearing. Tyshawn contends that the result of the

hearing would have been different had counsel presented evidence of Tyshawn’s

limited intelligence and reading comprehension because the evidence would have

indicated that he could not have voluntarily, knowingly and intelligently waived his

Miranda rights.    Further, Tyshawn argues that counsel should have had him

evaluated regarding his understanding of the rights form. Having reviewed the

record, including the recording of the interview, we are unable to conclude that such

evidence would have changed the result of the motion-to-suppress hearing. The

court was able to review the recording that was made of the interview and determine

whether Tyshawn voluntarily, knowingly and intelligently waived his Miranda

rights. The assignment of error is overruled.

       {¶18}   We therefore affirm the judgment of the trial court.

                                                                  Judgment affirmed.


H ILDEBRANDT , P.J., and H ENDON , J., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




                                          7
