         [Cite as State v. Barker, 2016-Ohio-7059.]
                 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: September 30, 2016


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

Brooke M. Burns, Chief Counsel, Juvenile Department, Office of the Ohio Public
Defender, and Charlyn Bohland, Assistant State Public Defender, for Defendant-
Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS




D E W INE , Judge.

         {¶1}   This is a case that returns to us on remand from the Ohio Supreme

Court. At issue is a murder confession made by a 15-year-old. In the earlier proceeding,

we found that the teenager had voluntarily, knowingly and intelligently waived his

Miranda rights and that his confession was voluntary. In doing so, we referenced an

Ohio statute, R.C. 2933.81(B), which creates a presumption that electronically recorded

statements by suspects of certain crimes are voluntary. The Supreme Court found the

statute unconstitutional as applied to juveniles and sent the case back to us to consider

the Miranda waiver and the voluntariness of the confession without the benefit of the

presumption.

         {¶2}   After reviewing the record, we conclude that the state met its burden to

demonstrate that Barker had knowingly, intelligently and voluntarily waived his

Miranda rights and that his statements were voluntary.          We therefore affirm the

judgment of the trial court.

                                    I. Background

         {¶3}   We set forth the details of the offenses in our earlier decision. See State

v. Barker, 1st Dist. Hamilton No. C-130214, 2014-Ohio-3245 (“Barker I”). Briefly, Mr.

Barker, Dequantez Nixson, Brendan Washington and Carrielle Conn went to an

apartment intending to kill one man but murdered a different man who had the bad luck

to answer the door. Ms. Conn was the shooter in the first murder. Worried that Conn

might snitch, her three companions lured her into the woods and killed her two days

later.

         {¶4}   The next day, around midnight, Detectives Kurt Ballman and Terry

McGuffey brought Barker into the police station for questioning. After being read his




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Miranda rights, Mr. Barker admitted to participating in both murders, including

shooting Conn in the back. In a second, briefer interview the next day, Mr. Barker

identified a photograph of Washington. Mr. Barker was charged with two counts of

aggravated murder as well as other related offenses.

       {¶5}    The juvenile court held a bindover hearing. Following the hearing, the

court ordered that Barker’s case be transferred to adult court. In the common pleas

court, Mr. Barker filed a motion to suppress his statements to the detectives, arguing

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

that he had not given his statements voluntarily.      Recordings of the interviews were

admitted into evidence at the hearing on the motion. In addition, Detective Ballman

testified that he had read Barker his Miranda rights before questioning him and that

Barker appeared to have understood his rights. The court denied Barker’s motion. Mr.

Barker subsequently pled no contest to two counts of aggravated murder for each victim,

two counts of aggravated robbery and three counts of tampering with evidence, all with

specifications. The court found him guilty and sentenced him accordingly.

                              II. Barker’s First Appeal

       {¶6}    In his first appeal, Mr. Barker challenged the juvenile court’s decision to

transfer jurisdiction to the adult court. In a supplemental assignment of error, he

asserted that the trial court also erred when it denied his motion to suppress. We

affirmed the court’s judgment.

       {¶7}    In deciding that the trial court properly denied Barker’s motion to

suppress, we referenced the presumption found in R.C. 2933.81(B). Under that statute,

statements made by a person suspected of aggravated murder “are presumed to be

voluntary if the statements * * * are electronically recorded.”        R.C. 2933.81(B).

Examining the totality of the circumstances, we concluded that “nothing in the record



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refutes the presumption that [Barker’s] statements were made voluntarily.” Barker I at

¶ 12. We also concluded that Barker had voluntarily, knowingly and intelligently waived

his Miranda rights.

       {¶8}       The Ohio Supreme Court reversed our judgment. State v. Barker, __

Ohio St.3d ___, 2016-Ohio-2708, __ N.E.3d __ (“Barker II”). It held that the statutory

presumption in R.C. 2933.81(B) was unconstitutional as applied to juveniles and that

the statute does not affect the analysis of whether a defendant voluntarily, knowingly

and intelligently has waived his Miranda rights. Id. at ¶ 44. Thus, the court remanded

the case so that we could consider Barker’s supplemental assignment of error “without

the R.C. 2933.81(B) presumption and with the understanding that the burden rested

squarely on the state to demonstrate both that Barker knowingly, intelligently and

voluntarily waived his Miranda rights and that his statements to the police were

voluntary.” Id.

    III. Barker Waived His Miranda Rights Voluntarily, Knowingly and
                              Intelligently

       {¶9}       In Miranda, the United States Supreme Court determined that, due to

the coercion inherent in custodial police interrogation, certain procedural safeguards

were necessary as prophylactic measures “to secure the privilege against self-

incrimination.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966). Thus, “[p]rior to any questioning, the person must be warned that he has a right

to remain silent, that any statement he does make may be used as evidence against him,

and that he has a right to the presence of an attorney, either retained or appointed.” Id.

After he is advised of his rights, “[t]he defendant may waive effectuation of these rights,

provided the waiver is made voluntarily, knowingly and intelligently.” Id.




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       {¶10}    Before it may use statements elicited during custodial questioning, the

state has the burden to prove that a defendant was informed of and waived his rights

voluntarily, knowingly and intelligently. Id. at 475. See State v. Edwards, 49 Ohio St.2d

31, 38, 358 N.E.2d 1051 (1976). The waiver of one’s Miranda rights need not be express.

Rather, “the law can presume that an individual who, with a full understanding of his or

her rights, acts in a manner inconsistent with their exercise has made a deliberate choice

to relinquish the protection those rights afford.” Berghuis v. Thompkins, 560 U.S. 370,

385, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010). Whether a defendant has waived his

Miranda rights voluntarily, knowingly and intelligently is to be evaluated under the

totality of the circumstances. Fare v. Michael C., 442 U.S. 707, 724-725, 99 S.Ct. 2560,

61 L.Ed.2d 197 (1979).

       {¶11}    Since Miranda, courts have been vexed by questions about the

application of its framework to juveniles. See, e.g., Little v. Arkansas, 435 U.S. 957, 98

S.Ct. 1590, 55 L.Ed.2d 80 (1978) (J. Marshall, dissenting from court’s denial of certiorari

and arguing that the court should review whether before a juvenile waives her Miranda

rights, she “is entitled to competent advice from an adult”); J.D.B. v. North Carolina,

564 U.S. 261, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011) (determining that a child’s age

informed the determination of whether he was in custody for purposes of a Miranda

review). Indeed, the Ohio Supreme Court’s decision below is indicative of the unease

courts have felt when confronted with custodial confessions obtained from juveniles.

       {¶12}    Despite concerns about juvenile confessions, the United States Supreme

Court has rejected the notion that special rules need be established for police

interrogation of juveniles:

       This totality-of-the-circumstances approach is adequate to determine

       whether there has been a waiver even where interrogation of juveniles is



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                       OHIO FIRST DISTRICT COURT OF APPEALS



       involved. We discern no persuasive reasons why any other approach is

       required where the question is whether a juvenile has waived his rights,

       as opposed to whether an adult has done so. The totality approach

       permits—indeed it mandates—inquiry into all the circumstances

       surrounding the interrogation. This included evaluation of the juvenile’s

       age, experience, education, background, and intelligence, and into

       whether he has the capacity to understand the warnings given him, the

       nature of his Fifth Amendment rights, and the consequences of waiving

       those rights.

Fare at 725 (concluding that a juvenile’s request to have his probation officer present

during questioning did not amount to an invocation of his Fifth Amendment rights).

       {¶13}    Similarly, the Ohio Supreme Court has declined to require that a

juvenile’s parent or guardian also be informed of and waive the child's rights. See In re

Watson, 47 Ohio St.3d 86, 89, 548 N.E.2d 210 (1989); State v. Bell, 48 Ohio St.2d 270,

358 N.E.2d 556 (1976), reversed on other grounds, Bell v. Ohio, 438 U.S. 637, 98 S.Ct.

2977, 57 L.Ed.2d 1010 (1978). “We perceive no requirement in Miranda that the

parents of a minor shall be read his constitutional rights along with their child, and that,

by extension, both parent and child are required to intelligently waive those rights before

the minor makes a statement.” Bell at 276-277.1

       {¶14}    Nonetheless, the United States Supreme Court “has emphasized that

admissions and confessions of juveniles require special caution.” In re Gault, 387 U.S. 1,

45, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).          “If counsel was not present for some

permissible reason when an admission was obtained, the greatest care must be taken to


1 Ohio has not joined the 14 states that invalidate a juvenile’s waiver made without additional
safeguards, such as the presence of a parent or guardian during questioning. See Note, Juvenile
Miranda Waiver and Parental Rights, 126 Harv.L.Rev. 2359, 2362 (2003).


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                       OHIO FIRST DISTRICT COURT OF APPEALS



assure that the admission was voluntary, in the sense not only that it was not coerced or

suggested, but also that it was not the product of ignorance of rights or of adolescent

fantasy, fright or despair.” Id. at 55.

        {¶15}    The Ohio Supreme Court has provided guidance for determining

whether a juvenile defendant voluntarily, knowingly and intelligently waived his

Miranda rights. The totality of the circumstances test to be considered includes “ ‘the

juvenile’s age, experience, education, background, and intelligence’ as well as his

‘capacity to understand the warnings given him, the nature of his Fifth Amendment

rights, and the consequences of waiving those rights.’ ” Barker II, __ Ohio St.3d ___,

2016-Ohio-2708, __ N.E.3d __, at ¶ 24, quoting Fare, 442 U.S. at 725, 99 S.Ct. 2560, 61

L.Ed2d 197. The court also instructs that “[a] juvenile’s access to advice from a parent,

guardian or custodian also plays a role in assuring that the juvenile’s waiver is knowing,

intelligent, and voluntary.” Barker II at ¶ 24.

        {¶16}    With these principles in mind, we turn to a review of the totality of the

circumstances in Barker’s case.

        {¶17}    Here, before reading to Barker the notification of his Miranda rights,

Detective Ballman told him, “All right. What I’m going to do is I’m going to read you a

notification.” He continued, “All right. When we are done I’m going to ask you if you

understand it.” He then read the notification form:

        You have the right to remain silent.

        Anything you say could be used against you in court.

        You have the right to talk to a lawyer for advice before we ask you any

        questions and have him with you during questioning.

        If you can’t afford a lawyer, one will be appointed for you before any

        questioning if you wish.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       If you decide to answer questions now without a lawyer present, you will

       still have the right to stop answering questions at any time.

       You also have the right to stop answering questions at any time until you

       talk to a lawyer.

       {¶18}   After reading the form to Barker, Detective Ballman asked him, “Do you

understand this?” Mr. Barker said he did and signed the form. Detective McGuffey

asked Barker if he was familiar with the form. Mr. Barker responded, “No, sir, my first

time.” Detective Ballman clarified, “First time you have read, but you have seen it on

t.v., right?” When Barker agreed, Detective McGuffey further inquired, “The whole

thing about you have the right to remain silent and all that stuff?” To which Mr. Barker

replied, “Yeah.” At the hearing on the motion to suppress, Detective Ballman testified

that Barker appeared to understand the notification.

       {¶19}   Looking at the totality of the circumstances, we conclude that Barker

waived his Miranda rights knowingly, intelligently and voluntarily. Although he had

just turned 15 years old, he clearly indicated that he understood the rights read to him.

The video recording shows Barker to be engaged in the interview process, even asking

questions. At one point, he asks for clarification from Detective McGuffey:

       Detective McGuffey: Whose idea was it to retaliate? It wasn’t the tall,

       dark-skinned * * *

       Barker: To retaliate what, sir?

       Detective McGuffey: To go over there and get Sam.

       {¶20}   Despite the indications that he understood his rights, and by speaking

with the detectives, waived those rights, Mr. Barker complains that the detectives did not

take further steps to determine whether he substantively understood the rights. He

likens his case to In re Harris, 5th Dist. Tuscarawas No. 1999AP030013, 2000 Ohio



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App. LEXIS 2390 (June 7, 2000), in which the Fifth Appellate District concluded that a

12-year-old defendant had not knowingly, intelligently and voluntarily waived his

Miranda rights where the police officer questioning him had provided only a minimal

explanation of the rights. Mr. Barker points out that, as in Harris, Detective Ballman

provided no explanation of his Miranda rights. But in Harris, the police officer also

gave the defendant contradictory information about his right to refuse to answer

questions. Further, in Harris, an expert had testified that the defendant was not

competent to appreciate his rights and waive them. Here, the form read by Detective

Ballman provided a straightforward explanation of Barker’s Miranda rights, and

Detective Ballman felt assured of Barker’s understanding.

       {¶21}    Mr. Barker claims that the detectives treated the reading of his rights as

a mere formality. He points to Detective Ballman’s comment that “You’re not admitting

to anything. I am just telling you it just says I read you this.” But the comment was a

true statement about the notification of rights form; Mr. Barker admitted nothing when

he signed it.

       {¶22}    Mr. Barker also complains that, given his intelligence level, he was

unable to understand the rights. He points to the amenability report prepared for his

bindover hearing that indicated he had borderline intelligence and read at the level of a

third-grader. But there is no indication that the report was presented to the trial court

as part of its consideration of the motion to suppress. Neither party referenced it during

the suppression hearing. Even if it was considered by the court, nothing in the report

indicated that Barker was incapable of understanding the Miranda rights as they were

read to him.

       {¶23}    In support of the contention that the waiver was not voluntary, counsel

argues that Barker's interview indicates that he did not understand what an attorney



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was. After Barker had confessed to the murders in the first interview, Detectives

Ballman and McGuffey met briefly with him again, seeking to have him identify a

photograph of Washington. Before the detectives read Barker his Miranda rights, the

following exchange took place:

       Barker: Could I say something?

       Detective Ballman: Go ahead, sir.

       Barker: I seen an attorney—an attorney, whatever that is.

       Detective Ballman: An attorney?

       Barker: Yeah.

       Detective Ballman: Okay. You—

       Barker: And she told me if you all to come up here just to ask for an

       attorney.

       Detective Ballman: Okay. Do you want to ask for an attorney now or do

       you want to talk to us? It’s your choice.

Mr. Barker then indicated that he wanted to continue the interview without an attorney

present and, after being read his Miranda rights, identified a photograph of

Washington. Mr. Barker’s comment about an attorney was must be balanced against his

articulateness, his questions during the interview and his record of prior juvenile

contacts, which resulted in two adjudications. Such factors indicate a savviness that

contradicts his expressed uncertainty about what an attorney was.

       {¶24}   Finally, the absence of a parent during questioning does not change our

determination that Barker knowingly, intelligently and voluntarily waived his rights. It

may have been better practice to have a parent present during the interview, but

considering the totality of the circumstances, we conclude that the record supports a

finding that Barker understood the rights read to him and waived them.



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                  IV. Barker Made His Statements Voluntarily

       {¶25}    Our determination that Barker knowingly, intelligently and voluntarily

waived his Miranda rights does not end our inquiry into whether the trial court properly

denied the motion to suppress. Even if a defendant waives his Miranda rights, his

statement to police officers can be found to have been made involuntarily.

       {¶26}    While our review of Barker’s waiver of his Miranda rights is grounded in

his Fifth Amendment right not to incriminate himself, the question of the voluntariness

of his statements is grounded in the Fourteenth Amendment. Colorado v. Connelly, 479

U.S. 157, 169-170, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). The amendment decrees that

“[n]o State * * * shall * * * deprive any person of life, liberty, or property, without due

process of law.” By its terms, the amendment is implicated only when the “state” acts to

deprive a citizen of his rights. Thus, the crux of a due-process inquiry into voluntariness

is whether state coercion compelled the statement. Connelly at 169-170. “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.

       {¶27}    Ordinarily, then, the first question in determining whether a suspect’s

statement was made voluntarily is whether there was police coercion. See State v. Osie,

140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588, ¶ 93. “[T]he use of an inherently

coercive tactic by police is a prerequisite to a finding of involuntariness. Hence, we need

not assess the totality of the circumstances unless we first find that the detectives used a

coercive tactic.” State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶

71. In this case, however, the court remanded for us specifically to look at the totality of

the circumstances. Whether this signals a break from the holding in Osie and Perez or

application of a different rule for juveniles is unclear.     Regardless, we proceed to

consider the voluntariness based on the Ohio Supreme Court’s instruction in its remand.



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       {¶28}    The Ohio Supreme Court explained what the totality of the

circumstances review for voluntariness entails in Barker’s case:

       The totality of the circumstances from which a court must determine the

       voluntariness of a juvenile’s statement includes not only the details of the

       interrogation but also the juvenile’s unique characteristics. That analysis

       here would necessarily include consideration of factors such as Barker’s

       age, the late-night time of the interrogation, the absence of a parent or

       guardian, Barker’s “borderline intelligence” and third-grade reading level,

       Barker’s statement that he was not familiar with Miranda rights other

       than having heard of them from television, and Barker’s apparent

       confusion about what an attorney was.

Barker II at ¶ 42.

       {¶29}    Much of Barker’s voluntariness argument focuses on his perceived

inability to understand his rights. Appellate counsel maintains that given Barker’s age,

low intelligence and the lack of an opportunity to consult with a parent, he did not

understand the rights that he was waiving. We rejected this argument in the previous

section in concluding that Barker knowingly, intelligently and voluntarily waived his

Miranda rights. We rejected too the suggestion that Barker’s apparent confusion about

what an attorney was demonstrated his lack of understanding.

       {¶30}    Questions of Barker’s ability to understand his rights and the absence of

a parent during questioning must be considered in the context of determining whether

the detectives’ conduct was coercive so as to render Barker’s statement involuntary.

“The determination ‘depends upon a weighing of the circumstances of pressure against

the power of resistance of the person confessing.’ ” Dickerson v. United States, 530 U.S.

428, 434, 120 S.Ct. 2326, 147 L.Ed2d 405 (2000), quoting Stein v. New York, 346 U.S.



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156, 186, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953). We note that there can be no suggestion

that any statement of Barker during the second interview was improperly coerced, even

if we were to believe Barker didn’t know what an attorney was. Mr. Barker had already

confessed to the murders. In the second interview, he merely identified a photograph.

We confine our search for coercion to the first interview.

         {¶31}   True, the interview of Barker occurred late at night. The recording of his

interview shows him sitting in the interrogation room beginning at 11:40 p.m. The

detectives entered the room and began questioning him at 11:57 p.m. It appears that

Barker had been provided a soda. And before starting the interview, Detective Ballman

can be heard asking if he needs food. After he was questioned for approximately 48

minutes, Mr. Barker requested a bathroom break, which the detectives allowed. After a

three-minute break, questioning resumed for another seven minutes. All told, the

length of time from when Barker was in the room to the end of questioning was just over

an hour and 15 minutes. We conclude that the length of the interview was not so long as

to become coercive. Further, the detectives did not threaten, deprive or mistreat Barker.

Nor is there any other evidence of impermissible coercion.

         {¶32}   After examining the totality of the circumstances, we cannot conclude

that Barker’s statement resulted from coercion on the part of the detectives. The record

supports a finding that Barker’s statement was voluntary.

                                     V. Conclusion

         {¶33}   The trial court did not err when it denied Barker’s motion to suppress.

We overrule the supplemental assignment of error and affirm the judgment of the trial

court.

                                                                      Judgment affirmed.




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H ENDON , P.J., and M OCK , J., concur.


Please note:

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




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