[Cite as State v. Hall, 2014-Ohio-1731.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100413




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                           ROBIN R. HALL
                                                      DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CR-13-574232

        BEFORE: Keough, J., Jones, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: April 24, 2014
ATTORNEY FOR APPELLANT

Britta M. Barthol
P.O. Box 218
Northfield, Ohio 44067

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Fallon Radigan
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} Defendant-appellant Robin R. Hall appeals from the trial court’s judgment

finding him guilty of having a weapon while under a disability. Finding no merit to the

appeal, we affirm.

                                      I. Background

       {¶2} In May 2013, Hall was charged in a three-count indictment. Count 1

charged him with improperly discharging a firearm at or into an occupied structure, in

violation of R.C. 2923.161(A)(1), with one- and three-year firearm specifications; Count

2 charged having weapons while under a disability, in violation of R.C. 2923.13(A)(2);

and Count 3 charged having weapons while under a disability, in violation of R.C.

2923.13(A)(3).

       {¶3} Hall pleaded not guilty and was referred to the court psychiatric clinic for

an evaluation of his competency and sanity. The parties subsequently stipulated to the

report that found Hall sane and competent to stand trial. Hall then moved to suppress

statements he had made to the arresting officer. After a hearing, the trial court denied the

motion, and the matter proceeded to a bench trial. The court found Hall not guilty of

Count 1 but guilty of Counts 2 and 3, which the parties agreed were allied offenses. The

state elected to proceed to sentencing on Count 2, and the trial court sentenced Hall to 18

months incarceration. This appeal followed.

                                        II. Analysis
       {¶4} In his sole assignment of error, Hall contends that the trial court erred in

denying his motion to suppress.

       {¶5} At the suppression hearing, the state called two witnesses and Hall testified

on his own behalf.      The arresting officer, Cleveland police officer Gregory Kwan,

testified that on May 7, 2013, he and his partner were dispatched to the Redwood

Apartments in Cleveland in response to a report that a male was detaining another male

who had been shooting into the apartment building. When Kwan arrived on the scene, he

saw a male holding Hall down; the male, who was the manager of the apartment building,

told Kwan that Hall had been shooting at the apartment building the night before.

       {¶6} Kwan handcuffed Hall and placed him in the back of the patrol car. He

and the apartment manager then viewed surveillance videotape taken on May 6, 2013, and

based on the videotape, Kwan decided to arrest Hall. Kwan testified that he went back to

the patrol car, told Hall that he was under arrest, and advised him of his Miranda rights.

According to Kwan, Hall stated that he understood his rights, and then asked Kwan why

he was being arrested. Kwan said that after he told Hall why he was being arrested, Hall

told him that “he did it” because the “drug boys” gave him a gun and told him to shoot

out the lights outside the apartment because they were being videotaped. Kwan said that

Hall told him that he gave the gun back to the “drug boys” when he was finished. Kwan

testified that he then took Hall to jail for booking.

       {¶7} Cleveland police detective William Gonzalez testified that on May 8, 2013,

he and detective David Santiago interviewed Hall while he was in jail.          Gonzalez
testified that he advised Hall of his Miranda rights, which Hall said he understood. Hall

then told the detectives that someone he did not know gave him a gun to test fire, and he

shot it off a few times in the back of the apartment building.

       {¶8} Hall testified that he suffers from manic depression and schizophrenia, and

takes several drugs to treat these conditions. He said that he gets confused when he does

not take his medication, and that he had not taken his drugs on May 6, 2013, because he

had run out of medication.     Hall testified that Kwan was “violent” with him during the

arrest, “slinging him around” and calling him a “crackhead” and an alcoholic.          He

admitted that detective Gonzalez advised him of his Miranda rights before questioning

him on May 8, 2013, but denied that Kwan ever advised him of his Miranda rights, or

that Kwan ever told him that “anything you say can and will be used against you in a

court of law.”

       {¶9} Hall contends that the trial court erred in denying his motion to suppress his

statements to officer Kwan because he did not knowingly, voluntarily, or intelligently

waive his Miranda rights. Specifically, Hall contends that Kwan never told him that

“anything you say can and will be used against you in a court of law.” As support for his

argument, Hall points out that Kwan testified that he never reads from a card when he

gives Miranda warnings, but when he was asked to recite the Miranda warnings at the

suppression hearing, he failed to include the warning that “anything you say can and will

be used against you in a court of law.” Hall contends that because he was not adequately

advised, he could not knowingly waive his rights. He also contends that because of his
documented low IQ and diminished mental capacity due to lack of medication on the day

of his arrest, he was unable to knowingly and intelligently waive his Miranda rights.

Hall’s argument is without merit.

       {¶10} Appellate review of a suppression ruling presents a mixed question of law

and fact.   State v. Ponce, 8th Dist. Cuyahoga No. 91329, 2010-Ohio-1741, ¶ 25.

Accepting the properly supported findings of the trier of fact as true, an appellate court

must determine as a matter of law, without deference to the trial court’s conclusion,

whether the trial court erred in applying the substantive law to the facts of the case. Id.

       {¶11} In Miranda v. Arizona, 384 U.S. 436, 478-479, 86 S.Ct. 1602, 16 L.Ed.2d

694 (1966), the Supreme Court held that a defendant who is subjected to custodial

interrogation must be advised of his or her constitutional rights and make a knowing and

intelligent waiver of those rights before statements obtained during the interrogation will

be admissible.

       {¶12} However, a suspect who volunteers information without being asked

questions is not subject to a custodial interrogation and is not entitled to Miranda

warnings. State v. McGuire, 80 Ohio St.3d 390, 401, 686 N.E.2d 1112 (1997). In other

words, “Miranda does not affect the admissibility of ‘volunteered statements of any

kind.’” Id., quoting Miranda at 478.

       {¶13} In this case, it is apparent that Hall’s statements to Kwan were not in

response to questioning and were unsolicited.            “‘Interrogation’ includes express

questioning as well as ‘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.’” State v. Strozier, 172 Ohio

App.3d 780, 2007-Ohio-4575, 876 N.E.2d 1304, ¶ 20 (2d Dist.), quoting Rhode Island v.

Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). It is apparent that

Kwan neither questioned Hall nor took any other actions that he should have known

would have elicited an incriminating response.      The undisputed evidence from the

suppression hearing demonstrates that Hall asked Kwan why he was being arrested, Kwan

told him, and in response, Hall voluntarily stated that he shot at the apartment lights

because the drug dealers asked him to. Hall’s incriminating statement was not the result

of police interrogation, but was rather a voluntary statement that was not subject to

suppression.   State v. Emrath, 5th Dist. Richland No. 12CA110, 2013-Ohio-4231; State

v. Priest, 8th Dist. Cuyahoga No. 89178, 2007-Ohio-5958; State v. Lesure, 6th Dist.

Lucas No. L-02-1157, 2004-Ohio-3454; State          v. Tucker, 1st Dist. Hamilton No.

C-020821, 2003-Ohio-6056, ¶ 10-14.

      {¶14} We are also unpersuaded by Hall’s argument that in light of his diminished

mental capacity, he could not knowingly and intelligently waive his Miranda rights.

“Evidence of police coercion or overreaching is necessary for a finding of

involuntariness, and not simply evidence of a low mental aptitude.” State v. Ely, 77 Ohio

St.3d 174, 178, 672 N.E.2d 640 (1996), clarified on other grounds, State v. Wesson, 137

Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 47.          There is no evidence of

overreaching or coercion in this case. Although Hall said that Kwan was allegedly
“violent” toward him during the arrest, there was no evidence whatsoever that Hall felt

compelled to talk.

       {¶15} The assignment of error is therefore overruled, and the judgment of the trial

court is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

LARRY A. JONES, SR., P.J., and
MELODY J. STEWART, J., CONCUR
