[Cite as State v. Boayue, 2020-Ohio-549.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                    :

                 Plaintiff-Appellant,             :
                                                                   No. 18AP-972
v.                                                :            (C.P.C. No. 17CR-5018)

Irnatine W. Boayue,                               :           (REGULAR CALENDAR)

                 Defendant-Appellee.              :



                                            D E C I S I O N

                                   Rendered on February 18, 2020


                 On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
                 Gilbert, for appellant. Argued: Seth L. Gilbert.

                 On brief: Robert E. Cesner, Jr., for appellee. Argued:
                 Robert E. Cesner, Jr.

                  APPEAL from the Franklin County Court of Common Pleas

BEATTY BLUNT, J.
        {¶ 1} Plaintiff-appellant, State of Ohio, appeals the order of the Franklin County
Court of Common Pleas granting defendant-appellee, Irnatine W. Boayue's, motion to
suppress the evidence obtained when she appeared before an investigator for the Franklin
County Prosecutor's Office on June 20, 2017, after having received a subpoena to provide a
handwriting exemplar to the Franklin County Grand Jury.
        {¶ 2} Boayue is a legal immigrant from Liberia who has lived in the United States
since 1985 and in Columbus since 2003. She is a lawful permanent resident, has an Ohio
driver's license, and has no past criminal record. In March 2017, Boayue was called by
Bureau of Criminal Investigations ("BCI") Agent Jennifer Comisford, who wanted to
discuss Boayue's Ohio voting history and her alleged signatures on a voter registration form
dated August 12, 2011 and in a voter poll book dated November 6, 2012. Agent Comisford
set up a meeting with Boayue, but a few days later Boayue called back and indicated she
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wanted to talk with an attorney before the meeting. Agent Comisford then began taping
that telephone call, but nothing of substance was recorded.
       {¶ 3} As a result of Boayue's desire to speak with an attorney, Agent Comisford did
not interview her in person. Instead, BCI referred the investigation to the Franklin County
Prosecutor's Office, who obtained a grand jury subpoena for Boayue, which directed her to
appear on June 29, 2017 to the Franklin County Grand Jury Office to provide a handwriting
exemplar. Prosecutor's Office Investigator Mike Scheerer intended to compare that
exemplar with Boayue's alleged signatures on the registration form in the voter poll book.
But instead of appearing on June 29, Boayue contacted Scheerer directly on June 20, 2017,
and she voluntarily appeared at the Franklin County Prosecutor's Office that same day to
provide an exemplar. Accordingly, Scheerer did not intend to interview Boayue at that
time, only to obtain a handwriting exemplar. When Boayue arrived at the prosecutor's
office, Scheerer "walked her into our meeting room up there and we sat down and I told her
she could take a seat wherever she wanted." (Nov. 14, 2018 Tr. at 20.) He shut the door
but did not lock it. Scheerer did not threaten to arrest Boayue and never indicated she could
be arrested.
       {¶ 4} At some point while she was there, Scheerer showed Boayue both the
registration application and the voter poll book register. She then admitted she had
checked the box indicating that she is a United States citizen, that "she made a mistake and
she loves America and is working for the government and does a lot of community work
with Black Americans teaching them about the history in America after the Civil War," and
that "she got kind of carried away at a function at [her] church." (State's Ex. SH-E; Nov. 14,
2018 Tr. at 34.)
       {¶ 5} Boayue was indicted on September 14, 2017 for one count of illegal voting, a
fourth-degree felony under R.C. 3599.12. The indictment alleged that she had voted in the
2012 general election, despite the fact she was not a qualified elector under Ohio law
because she was not a United States citizen. Boayue filed a motion to suppress her
statements to Scheerer, the handwriting exemplars, and "any statements, admissions, or
confessions obtained * * * at any other time from [Boayue] during the course of the
investigation in this case," arguing in part that the statements obtained on June 20, 2017
were both involuntary and obtained in violation of Miranda v. Arizona, 384 U.S. 436
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(1966). (Mot. to Suppress at 1.) Following a hearing and the testimony of several witnesses,
the trial court issued an oral ruling and granted the motion in part:

              The Court at this time with respect to the motion filed by the
              defense and the arguments of the Court heard find[s] that the
              Defendant in this case, in speaking with the initial agent,
              basically stated that she did not wish to talk to anyone pending
              speaking with an attorney. In other words, she wanted to have
              an attorney to represent her.

              After that, she received a subpoena from the Franklin County
              Prosecutor's Office, a grand jury subpoena, to appear, and the
              purpose of that subpoena was for her to complete a London
              Letter, and this was to be done in the jury room.

              ***

              Upon her appearance at the prosecutor's office, which was the
              standby appearance place based upon her conversation with
              the prosecutor's office, according to the testimony, she made
              statements voluntarily concerning the potential charges
              against her.

              While that may have occurred, the Court has some concerns
              and doubts. If it had been in the jury room with a jury, grand
              jury, certainly I don't believe that would have occurred without
              her being advised of--after she had exercised her right to an
              attorney whether--I don't believe that would have occurred.

              Based upon that, the Court feels that the proper course in this
              matter is to restrict her appearance at the prosecutor's office to
              the purpose stated in the subpoena, and that purpose was for
              her to complete the London Letter. And the Court will not allow
              any testimony concerning anything else that transpired at the
              prosecutor's office.

(Dec. 10, 2018 Tr. at 2-4.)
       {¶ 6} Based on this oral ruling, it seems the trial court had originally intended to
suppress Boayue's statements to Scheerer, but not the handwriting exemplar or any
statements she had made to BCI Agent Comisford in March 2017. But, the trial court's
December 12, 2018 journalized order instead simply states that Boayue's motion to
suppress "is hereby GRANTED," and the briefing in this court reveals that parties disagree
about whether either Boayue's statements to Agent Comisford or the handwriting exemplar
were in fact suppressed by the trial court. (Emphasis sic.)
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       {¶ 7} Rather than seek clarification of the court's decision, the State filed this
interlocutory appeal, pursuant to R.C. 2945.67(A) and Crim.R. 12(K), and specifically
certified that "the trial court's ruling on the motion to suppress has rendered the State's
proof with respect to the pending charges so weak in its entirety that any reasonable
possibility of effective prosecution has been destroyed." (Notice of Appeal at 1.) And on
appeal, the State asserts a single assignment of error: "The trial court committed reversible
error in granting the motion to suppress." Therefore, both because it seems likely that the
State could have proceeded to prosecute Boayue if the handwriting exemplars had not been
suppressed and because a trial court speaks solely through its entries, we conclude the
court's entry suppressed Boayue's statements to Agent Comisford and her statements to
Scheerer, as well as the exemplars, and our opinion will accordingly analyze the
admissibility of all this evidence. See, e.g., In re P.S., 10th Dist. No. 07AP-516, 2007-Ohio-
6644, ¶ 12.
       {¶ 8} Under the Fifth Amendment to the United States Constitution, no person
"shall be * * * compelled in any criminal case to be a witness against himself." To protect
this right, a criminal suspect in a custodial interrogation must be informed of her
constitutional rights to remain silent and to have defense counsel. Miranda v. Arizona,
384 U.S. 436, 478-79 (1966). A custodial interrogation is questioning initiated by law
enforcement after a suspect has been formally arrested or had her freedom restrained in
such a way that it is the equivalent of a formal arrest. California v. Beheler, 463 U.S. 1121,
1125 (1983). Courts must examine the totality of the circumstances to determine how a
reasonable person would have understood the interrogation, Stansbury v. California, 511
U.S. 318, 323 (1994). And examine the totality of the circumstances surrounding the
interrogation in making that judgment. See State v. Biros, 78 Ohio St.3d 426, 441 (1997).
       {¶ 9} Even in a non-custodial situation, the Due Process Clause of the Fourteenth
Amendment requires statements to law enforcement to be made voluntarily in order to be
admissible. See generally State v. Scholl, 10th Dist. No. 12AP-309, 2012-Ohio-6233, ¶ 7-8,
and State v. Volpe, 10th Dist. No. 06AP-1153, 2008-Ohio-1678, ¶ 12-13 (citing cases).
"Using an involuntary statement against a defendant in a criminal trial is a denial of due
process of law." State v. Carse, 10th Dist. No. 09AP-932, 2010-Ohio-4513, ¶ 23, citing
Mincey v. Arizona, 437 U.S. 385, 398 (1978). The basic test for voluntariness is whether
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No. 18AP-972
the confession is the product of a rational intellect and a free will, and whether a defendant's
statement is voluntary is determined from the totality of the circumstances. Carse; Scholl
at ¶ 7, citing State v. Douglas, 10th Dist. No. 09AP-111, 2009-Ohio-6659, ¶ 26. Moreover,
"coercive police activity is a necessary predicate to the finding that a confession is not
'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment."
Colorado v. Connelly, 479 U.S. 157, 167 (1986). "Absent police conduct causally related to
the confession, there is simply no basis for concluding that any state actor has deprived a
criminal defendant of due process of law." Id. at 164. The question of whether a statement
is voluntary is a question of law which we review de novo. Volpe at ¶ 13; see also Mincey
at 398, citing Davis v. North Carolina, 384 U.S. 737, 741-42 (1966).
       {¶ 10} Finally, this court set forth the analysis for appellate review of a ruling on a
motion to suppress in State v. J.W., 10th Dist. No. 12AP-345, 2013-Ohio-804, ¶ 25-29. In
ruling on such a motion, the trial court assumes the role of the trier of fact. State v. Mills,
62 Ohio St.3d 357, 366 (1992). On review, we accept the trial court's factual findings if they
are supported by competent, credible evidence. State v. Stokes, 10th Dist. No. 07AP-960,
2008-Ohio-5222, ¶ 7. But, as the Supreme Court of Ohio has observed, "[a]ppellate 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. But the appellate court must decide the legal questions independently,
without deference to the trial court's decision." (Internal citations omitted.) State v.
Banks-Harvey, 152 Ohio St.3d 368, 2018-Ohio-201, ¶ 14.
       {¶ 11} We will begin with the simplest question, the admissibility of the handwriting
exemplar. The law in Ohio is clear that "[a] handwriting exemplar, used solely for
identification purposes, is a mere identifying physical characteristic and, as such, is outside
the scope of the Fifth Amendment privilege against self-incrimination. * * * [T]here is no
requirement that Miranda warnings be given prior to the giving of such handwriting
exemplar." State v. Ostrowski, 30 Ohio St.2d 34 (1972), paragraph one of the syllabus. See
also United States v. Euge, 444 U.S. 707, 713 (1980) (observing that "handwriting is in the
nature of physical evidence which can be compelled by a grand jury in the exercise of its
subpoena power") and Hansen v. Owens, 619 P.2d 315, 319 (Utah 1980), fn. 2 (collecting
numerous state and federal cases that hold handwriting samples are beyond the scope of
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No. 18AP-972
the Fifth Amendment privilege), overruled on other grounds by American Fork City v.
Cosgrove, 701 P.2d 1069, 1075 (1985). Accordingly, we have little difficulty in concluding
that insofar as the trial court's ruling suppressed Boayue's handwriting samples, it is
erroneous.
       {¶ 12} Likewise, Boayue's telephone conversation with Agent Comisford does not
violate her Fifth or Fourteenth Amendment rights and should not have been suppressed.
First, "Ohio courts have generally held that a conversation by telephone does not constitute
a custodial interrogation that would require a Miranda warning, because there is no
restraint of freedom and the conversation can be terminated at any time by hanging up the
phone." See, e.g., In re D.B., 10th Dist. No. 17AP-83, 2018-Ohio-1247, ¶ 39 (collecting
cases). Moreover, the conversation was totally voluntary—it was initiated by Boayue herself
when she called Agent Comisford and ended as soon as Agent Comisford was able to
confirm that Boayue intended to speak with an attorney before any face-to-face meeting.
Crucially, Agent Comisford made no promises or threats to Boayue, put no pressure on her
during the call, and there were no other indicia of coercive police activity by Agent
Comisford that would indicate Boayue's participation was against her will. And, ultimately,
Boayue does not even admit to any wrongdoing during the call—her only statement of any
substance was that her identity had been stolen in the recent past and for that reason she
wanted to speak with counsel before answering any questions. Because there is no basis
for concluding that the call with Agent Comisford was improper, its contents should not
have been suppressed.
       {¶ 13} Finally, Boayue argues that her statements to Scheerer were correctly
suppressed by the trial court because they were obtained pursuant to a grand jury subpoena
without Miranda warnings. We disagree. While it is beyond doubt that the Fifth
Amendment privilege against self-incrimination extends to grand jury proceedings, the
United States Supreme Court has thus far not held that grand jury witnesses are entitled to
Miranda warnings prior to testifying. See, e.g., United States v. Washington, 431 U.S. 181,
186 (1977), citing Counselman v. Hitchcock, 142 U.S. 547 (1892). And even if a witness
subpoenaed to the grand jury is required to be given Miranda warnings, Boayue's
appearance at the prosecutor's office that day was not pursuant to a subpoena. Instead,
Boayue voluntarily met with Scheerer several days prior to the date she was subpoenaed to
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No. 18AP-972
appear, and she was not interviewed under oath or before the grand jury itself. Compare
with State v. Cook, 11 Ohio App.3d 237, 241 (6th Dist.1983) (putative defendant testifying
before grand jury was required to be warned of constitutional privilege to refuse to answer
any possibly incriminating question, that incriminating statements made can be used
against the putative defendant in a subsequent prosecution, and that he may consult with
an attorney outside the grand jury room). Boayue's meeting with Scheerer was brief and
informal, and she was absolutely free to leave at any time. In short, as Boayue herself
observes, this case "do[es] not involve the issue as to whether an accused was in custody at
the time the statements and admissions were elicited." (Appellee's Brief at 11.) Boayue was
not in custody, and the grand jury subpoena standing alone is not a basis for suppression
of her voluntary statements.
       {¶ 14} Based on the foregoing, we conclude the trial court erred in its analysis of
Boayue's motion to suppress and in its decision to grant that motion. For these reasons, the
State's sole assignment of error is sustained, the judgment suppressing evidence is
reversed, and this case is remanded to the Franklin County Court of Common Pleas for
further proceedings consistent with law and this decision.
                                                Judgment reversed and cause remanded.


                      KLATT and LUPER SCHUSTER, JJ., concur.
