[Cite as State v. Kirk, 2013-Ohio-1941.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                              CRAWFORD COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLANT,                             CASE NO. 3-12-09

        v.

SEAN M. KIRK,                                            OPINION

        DEFENDANT-APPELLEE.




                Appeal from Crawford County Common Pleas Court
                           Trial Court No. 11-CR-0237

                       Judgment Reversed and Cause Remanded

                              Date of Decision: May 13, 2013




APPEARANCES:

        Stanley E. Flegm and Clifford J. Murphy for Appellant

        Brent L. English for Appellee
Case No. 3-12-09



ROGERS, J.

       {¶1} Plaintiff-Appellant, the State of Ohio, appeals the judgment of the

Court of Common Pleas of Crawford County suppressing the statements made by

Defendant-Appellee, Sean Kirk, during the course of a police interview.       On

appeal, the State argues that the trial court erred by finding that Kirk (1) was

subject to custodial interrogation during the police interview; and (2) did not

voluntarily, knowingly, and intelligently waive his Miranda rights.      For the

reasons that follow, we reverse the trial court’s judgment.

       {¶2} On December 12, 2011, the Crawford County Grand Jury indicted

Kirk on one count of rape in violation of R.C. 2907.02(A)(1)(b), a felony of the

first degree, and on one count of importuning in violation of R.C. 2907.07(A), a

felony of the third degree.    The indictment arose from Kirk’s alleged sexual

encounters with a 12-year old female, E.E.

       {¶3} On January 25, 2012, Kirk moved to suppress his statements from a

police interview that occurred on January 7, 2010. At the time of the interview,

Kirk was an 18-year old high school student at Pioneer Joint Vocational School

(“Pioneer”). The interview occurred in a small office located on Pioneer’s campus

and it was conducted by Officer Dan Clark of the Galion Police Department. The

trial court held a suppression hearing on May 1 and May 3, 2012 at which the

following relevant evidence was adduced.

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       {¶4} Officer Clark testified regarding his investigatory activities on January

7, 2010. Before interviewing Kirk, Officer Clark learned that Kirk had previously

been questioned by the police in an unrelated matter and that he had signed a

Miranda waiver as part of the questioning. Officer Clark also testified that he had

no difficulty talking to Kirk during the course of the interview. Further, Officer

Clark identified the video recording of the interview and the Miranda form that

Kirk signed.

       {¶5} The video recording of the interview reveals that Officer Clark read

each of the four Miranda rights separately and that after each right, he stopped and

asked whether Kirk understood. This reading of the Miranda warning occurred as

follows:

       Q: Okay. Well, what I’m going to do right now, I’m going to go
       ahead and read your Miranda rights to you, what I’m going to read
       to you is your statement of rights, okay. And each one of these I
       read to you I need a verbal response, yes, you understand or, no, you
       don’t understand.

       A:   All right.

       Q: Okay. You have to [sic] right to remain silent, you understand
       that?

       A:   Yes.

       Q: Okay. Anything you say can be used against you in court, you
       understand that?

       A:   Yes.

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      Q: You have the right to talk to a lawyer for advice before we ask
      you any questions and have him with you during questioning, do you
      understand that?

      A:    Yes.

      Q: You also have the right that if you cannot afford a lawyer there
      will be no questions until one is appointed for you. You understand
      your rights I’ve read to you?

      A:    Yes. Interview Tr., p. 2-3.

Officer Clark then continued by reading the waiver of rights:

      Q: Okay. Underneath that is your waiver of rights. It says, I have
      read this statement of my rights and understand what my rights are.
      I’m willing to make a statement and answer any questions. I do not
      want a lawyer at this time. I understand what I’m doing, no promise
      or threats have been made to me and no pressure or force of any kind
      has used [sic] against me. If you decide now to answer questions
      without a lawyer present you also have the right to stop at any time.
      You also have the right to stop answering questions until you talk to
      a lawyer.
      So do you want to talk to me today about this deal with this – this
      girl?

      A:    I – I have no clue what girl –

      Q:    Okay.

      A:    - you’re talking about.

      Q:    Okay.

      A:    I have like no clue.

      Q: Well, like I say, do you want to waive your rights and talk to
      me today?

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        A:     Wait. Oh, I think I know who you’re talking about.

        Q:     Okay.

        A:     Okay.

        Q:     All right.

        A:     Yeah.

        Q:     So you understand what I’m here for then?

        A:     Yeah.1 Interview Tr., p. 3-5.

        {¶6} Officer Clark then asked Kirk about his age, education level, and

ability to read and write. After Kirk responded, Officer Clark said, “If you want to

read [the waiver form] over again and you’re willing to talk to me, go ahead and

sign that down there as to your waiver of rights.” Interview Tr., p. 6. Kirk then

signed the waiver form, but he did not read it. After briefly describing E.E.’s

allegations, Officer Clark again asked whether Kirk understood his rights, to

which Kirk responded affirmatively.

        {¶7} Once the waiver form was signed, Officer Clark started to interrogate

Kirk regarding his alleged sexual activity with E.E. The video shows that at

various times during the interview, Kirk blinked his eyelids intensely, fidgeted,

and looked away from Officer Clark.                     Despite these actions, he generally


1
 Kirk’s confusion at this point in the interview stemmed from Officer Clark’s mispronunciation of E.E.’s
name.

                                                  -5-
Case No. 3-12-09



presented a calm demeanor and he responded to Officer Clark in a straightforward

manner. At two points, Kirk indicated that he did not understand Officer Clark’s

questions. The first related to Kirk’s lack of familiarity with the term “ejaculate”:

       Q:   Did you ejaculate?

       A:   No.

       Q:   You didn’t? You sure about that?

       A:   Wait. What? What does that mean?

       Q:   Did you cum?

       A:   Oh.

       Q:   Ejaculate in her mouth and stuff.

       A:   No. Interview Tr., p. 11-12.

The second related to Kirk’s lack of familiarity with the term “intercourse”:

       Q:   You guys had intercourse?

       A:   What – what does that mean?

       Q:   You had sex together?

       A:     No, no. Interview Tr., p. 12.

In total, the interview lasted approximately 25 minutes.




                                         -6-
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        {¶8} On cross-examination, Officer Clark stated that he had no knowledge

that Kirk had cognitive limitations before conducting the interview2 and that he

did not believe that Kirk had a difficult time understanding him. Officer Clark did

acknowledge that he read the Miranda warning quickly and that he knew Kirk did

not read the waiver form. He also admitted that he did not provide any additional

warnings to Kirk besides those listed above.

        {¶9} The suppression hearing featured dueling expert testimony from Dr.

Dale Rupple, the State’s witness, and Dr. John McGregor, Kirk’s witness,

regarding Kirk’s ability to understand and waive his Miranda rights. Dr. Rupple,

a non-board certified clinical psychologist, testified that Kirk voluntarily,

knowingly, and intelligently waived his Miranda rights.                              Conversely, Dr.

McGregor, a board-certified forensic psychologist, testified that Kirk was unable

to voluntarily, knowingly, and intelligent waive his rights.

        {¶10} The basis for Dr. Rupple’s opinion was his review of Kirk’s school

records, an interview with Kirk and his mother, and the report of Dr. McGregor.

Dr. Rupple testified that Kirk had a fifth grade reading level and that his

intelligence quotient (“IQ”) range between 71 and 73 was “within the average

2
  Both of Kirk’s parents indicated that they had told Officer Eric Bohach and other officers of the Galion
Police Department about Kirk’s cognitive limitations. However, Officer Bohach testified that he had no
knowledge of the cognitive limitations and that he did not note their existence in the police report he
prepared. Further, each of the Galion police officers who testified indicated that they were unaware of
Kirk’s cognitive limitations before the interview. Moreover, while several Galion High School and Pioneer
administration officials testified that they knew Kirk was enrolled in special education courses at Pioneer,
they also stated that they did not inform Officer Clark of this fact.

                                                    -7-
Case No. 3-12-09



spectrum on the low end,” which made him “borderline intellectual functioning on

the full scale.” Hearing Tr., p. 62. The interactional abilities of a person with

such an IQ were described in the following colloquy:

       Q: Okay. And how would a person with [Kirk’s] functioning IQ
       and abilities be able to interact?

       A:   In what regard, sir?

       Q: Well, in regards to a normal conversation with an individual
       that they didn’t meet before.

       A: On that factor alone, they should be able to interact relatively
       normally. Hearing Tr., p. 62-63.

Further, Dr. Rupple opined that none of the words that Officer Clark used in the

Miranda warning would have confused Kirk. He also indicated that he found that

Kirk was “malingering” during the course of his examination, meaning that Kirk

was purposefully answering questions in such a way as to suggest lower

intelligence. Hearing Tr., p. 98.

       {¶11} Moreover, Dr. Rupple testified to the deficiencies he saw in Dr.

McGregor’s report. He noted that Dr. McGregor’s examination of Kirk lasted five

hours, which Dr. Rupple said could cause test fatigue and adversely affect the

results’ accuracy. Dr. Rupple additionally stated that Dr. McGregor’s examination

suffered from a “contamination effect” in that Kirk’s post-interrogation




                                       -8-
Case No. 3-12-09



experiences could have caused him to respond to questions in unexpected ways.

Hearing Tr., p. 95.

       {¶12} On cross-examination, Dr. Rupple acknowledged that before

examining Kirk, he had only performed this type of assessment one other time.

He also acknowledged that he did not ask whether Kirk understood what the right

to remain silent or the right to a lawyer meant. Further, Dr. Rupple said that he

was “on the edge” regarding Kirk’s ability to understand and waive his rights.

Hearing Tr., p. 112.

       {¶13} Dr. McGregor, meanwhile, testified that his opinion regarding Kirk’s

ability to waive his rights was based on the results from an in-office examination,

Kirk’s educational records, and his mental health records.            During the

examination, Dr. McGregor administered a variety of personality and intelligence

tests, including the “Grisso tests,” which purport to gauge a person’s ability to

understand the vocabulary used in Miranda warnings. While administering these

tests, Dr. McGregor did not find that Kirk was malingering.

       {¶14} Dr. McGregor testified that Kirk’s IQ placed him in the third

percentile of the population, which “reflects significant cognitive defects.”

Hearing Tr., p. 386.     Dr. McGregor also indicated that Kirk had a verbal

comprehension score that placed him in the second percentile of the population

and that signaled “significant impairment of verbal reasoning.” Hearing Tr., p.

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Case No. 3-12-09



388. He also found that Kirk’s reading level was in the “upper level of the 5th

grade.” Hearing Tr., p. 394. Based on these results and those gleaned from the

Grisso tests, Dr. McGregor concluded that Kirk did not voluntarily, knowingly,

and intelligently waive his rights before Officer Clark questioned him.

       {¶15} On cross-examination, Dr. McGregor discussed Kirk’s responses

regarding his thought process during the police interview as follows:

       Q: I’m asking you, based on [your report], his reasoning, [Kirk’s]
       reasoning, he’s telling you, he said, I thought I was screwed; I didn’t
       want to lie then I would have been more screwed, correct?

       A:      Right.

       Q:      That implies a thought process by [Kirk], would it not?

       A:      Right. Right.

       Q: And interacting and deciding as to whether or not he wanted to
       answer any questions being asked by the officer; would that be fair?

       A: He did – he did answer the questions, yes. I would say that –
       that was – that was part of his reasoning that he – that he gave – that
       he gave, yes. Hearing Tr., p. 424-25.

Dr. McGregor maintained that while Kirk engaged in the above reasoning during

the police interview, the reasoning was flawed since it was “rooted in the

misconceptions that he had about what his rights in that situation were.” Hearing

Tr., p. 425.




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Case No. 3-12-09



      {¶16} Dr. McGregor also admitted that the terms he used when

administering the Grisso tests were not consistent with the terms used by Officer

Clark when reading the Miranda warning to Kirk:

      Q: Okay. I guess more importantly you say that it’s noteworthy
      that the wording of the Miranda warnings used in the [Grisso tests]
      as published is not exactly the same as the version used by the police
      in this case which used simplified language, correct?

      A:    Correct. Hearing Tr., p. 426.

Due to this inconsistency, Dr. McGregor asked Kirk both whether he understood

the vocabulary used in the Grisso test and whether he understood the vocabulary

used by Officer Clark. Dr. McGregor described Kirk’s responses to these two

questions as follows:

      Q:    What’d [Kirk] get correct?

      A: Okay, that’s what I’m telling you, okay. When I read the – the
      item from the – the sentence from the [Grisso] test, [Kirk] didn’t
      know. So I read the sentence from the warning he was given [by
      Officer Clark] and he did know. Hearing Tr., p. 430.

Dr. McGregor continued to describe Kirk’s performance on the Grisso test as

follows:

      A: And * * * he knew, if you cannot afford an attorney, one will
      be appointed for you. He did know – he did give – got full credit on
      that item.

      ***



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      Q: Okay. So be fair to say that he was understanding the word
      “attorney” and the word “lawyer,” correct?

      A:     Yes.

      ***

      Q: And, again, * * * he knew that interrogation meant – means
      questioning and that consult means talk?

      A:     Yes, that’s – that’s correct.

      Q: * * * [Y]ou have that * * * [Sean] seemed to appreciate the role
      of his attorney as an advocate and the source of information, but he
      also appeared to understand the importance of being honest and
      truthful with his attorney. You see that, sir?

      ***

      [A]:    Okay, yes. Hearing Tr., p. 430, 432-33.

Dr. McGregor also testified that Kirk understood the adversarial nature of the

police interview and that his statements could be used against him.

      {¶17} Kirk’s parents, Michelle Kirk (“Michelle”) and Gregory Kirk

(“Gregory”), both testified at the hearing. Michelle described Kirk’s previous

involvement with law enforcement. Kirk was questioned about an incident in

which he allegedly cracked a toilet seat at a local laundromat after throwing a

glass bottle at it. Michelle said that she was with Kirk during the questioning,

which was brief and occurred in the waiting room at the Galion Police

Department’s office. She also indicated that the family did not retain an attorney


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for Kirk at that time. Meanwhile, Gregory testified that Kirk had to go before a

magistrate of the juvenile court due to the incident.

       {¶18} As to the police interview, Michelle testified that Kirk misstated his

birthdate to Officer Clark and incorrectly identified his adopted siblings as foster

children. Michele also said that after the interview, Kirk sent her a text message

asking what an attorney was.           Michelle also opined that Kirk looked

“uncomfortable and frightened” as Officer Clark questioned him. Hearing Tr., p.

140. Gregory similarly agreed and said that Kirk appeared “nervous or afraid.”

Hearing Tr., p. 180.

       {¶19} After considering this evidence, the trial court granted Kirk’s motion

to suppress on July 20, 2012. It found that the January 7, 2010 police interview of

Kirk was a custodial interrogation requiring proper Miranda warnings.              In

assessing the propriety of the warnings in this matter, the trial court concluded that

Officer Clark did not “make any attempt to determine whether or not [Kirk]

understood the rights he was waiving by signing the [waiver] form.” (Docket No.

29, p. 3). It also found Dr. McGregor’s expert testimony to be “more compelling”

than Dr. Rupple’s expert testimony. (Id. at 4). As a result, the trial court decided

that Kirk’s waiver of his rights was not voluntary, knowing, and intelligent.

       {¶20} The State timely appealed this judgment, presenting the following

assignments of error for our review.

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                            Assignment of Error No. I

       THE TRIAL COURT ERRED IN DETERMINING THAT THE
       APPELLEE WAS IN CUSTODY FOR THE PURPOSES OF
       MIRANDA.

                            Assignment of Error No. II

       THE TRIAL COURT ERRED IN DETERMINING THAT THE
       APPELLEE DID NOT WAIVE HIS MIRANDA RIGHTS IN A
       KNOWING, INTELLIGENT, AND VOLUNTARY MANNER.

       {¶21} Since we find that the second assignment of error is dispositive to

this appeal, we elect to address the assignments of error out of order.

                             Assignment of Error No. II

       {¶22} In its second assignment of error, the State argues that the trial court

erred in granting Kirk’s motion to suppress. Specifically, it contends that the

police interrogation of Kirk did not violate Miranda v. Arizona, 384 U.S. 436, 86

S.Ct. 1602 (1966), since Kirk voluntarily, knowingly, and intelligently waived his

rights. We agree.

                    Standard of Review for Motions to Suppress

       {¶23} “Appellate review of a decision on a motion to suppress presents a

mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-

Ohio-5372, ¶ 8. The trial court serves as the trier of fact and is the primary judge

of the credibility of the witnesses and the weight to be given to the evidence

presented.   State v. Johnson, 137 Ohio App.3d 847, 850 (12th Dist. 2000).

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Case No. 3-12-09



Therefore, when an appellate court reviews a trial court’s ruling on a motion to

suppress, it must accept the trial court’s findings of facts so long as they are

supported by competent, credible evidence. State v. Roberts, 110 Ohio St.3d 71,

2006-Ohio-3665, ¶ 100. The appellate court must then review the application of

the law to the facts de novo. Burnside at ¶ 8.

                                 Miranda Standard

       {¶24} A suspect in police custody “must be warned prior to any questioning

that he has the right to remain silent, that anything he says can be used against him

in a court of law, that he has the right to the presence of an attorney, and that if he

cannot afford an attorney, one will be appointed for him prior to any questioning if

he so desires.” Miranda at 479. Absent such a warning, a suspect’s statements

during a custodial interrogation are subject to suppression. In re J.C., 173 Ohio

App.3d 405, 2007-Ohio-5763, ¶ 14 (2d Dist.).              However, if the suspect

voluntarily, knowingly, and intelligently waived his Miranda rights before the

interrogation, then suppression is inappropriate. State v. Wheatley, 3d Dist. No. 1-

10-75, 2011-Ohio-1997, ¶ 11, citing Miranda at 444.

       {¶25} The United States Supreme Court has stated that consideration of

Miranda waivers must focus on two separate factors: (1) the voluntary nature of

the defendant’s confession; and (2) the defendant’s ability to comprehend and

waive his rights. Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135 (1986); see

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Case No. 3-12-09



also State v. Dailey, 53 Ohio St.3d 88, 91 (1990) (adopting Moran’s two-prong

test). In considering these factors, we assess the totality of the circumstances

surrounding the interrogation. State v. Gumm, 73 Ohio St.3d 413, 429 (1995).

Relevant circumstances in our inquiry include “age, experience, education,

background, and intelligence” of the suspect, as well as “whether he has the

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

rights, and the consequences of waiving those rights.” Fare v. Michael C., 442

U.S. 707, 725, 99 S.Ct. 2560 (1979); see also State v. Whisenant, 127 Ohio

App.3d 75, 87 (11th Dist. 1998) (stating that suspect’s previous criminal

experience is also a relevant circumstance). The burden to prove the existence of

a valid waiver rests on the State and requires proof by a preponderance of the

evidence. State v. Broom, 40 Ohio St.3d 277, 285 (1988).

      {¶26} Miranda is an embodiment of the long-standing principle that police

officers in the United States are precluded from improperly coercing criminal

suspects into giving up confessions. See Spano v. New York, 360 U.S. 315, 320-

21, 79 S.Ct. 1202 (1959) (“The abhorrence of society to the use of involuntary

confessions does not turn alone on their inherent untrustworthiness. It also turns

on the deep-rooted feeling that the police must obey the law while enforcing the

law; that in the end life and liberty can be as much endangered from illegal

methods used to convict those thought to be criminals as from the actual criminal

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Case No. 3-12-09



themselves.”); Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183 (1897)

(“[For a] confession * * * to be admissible, * * * [it] must not be extracted by any

sorts of threats or violence, nor obtained by any direct or implied promises,

however slight, nor by exertion of any improper influence.”). Accordingly, the

rationale for Miranda’s protections is that they are necessary to “reduce the

likelihood that suspects would fall victim to constitutionally impermissible

practices of police interrogation.” New York v. Quarles, 467 U.S. 649, 656, 104

S.Ct. 2626 (1984); see also Colorado v. Connelly, 479 U.S. 157, 170, 107 S.Ct.

515 (1986) (“The sole concern of the Fifth Amendment * * * is governmental

coercion.”); Miranda, 384 U.S. at 456 (stating that “we concern ourselves

primarily with [incommunicado police-dominated atmospheres] and the evils it

can bring”); Rice v. Cooper, 148 F.3d 747, 750 (7th Cir. 1998) (“The relevant

constitutional principles are aimed not at protecting people from themselves but at

curbing abusive practices by public officers.”).       Based on this underlying

principle, when courts have assessed the validity of a suspect’s Miranda waiver,

they have generally focused on the interrogation’s circumstances “from the

perspective of the police.” Garner v. Mitchell, 557 F.3d 257, 263 (6th Cir. 2009)

(en banc); see also United States v. Robinson, 404 F.3d 850, 861 (4th Cir. 2005)

(“In cases involving defendants with low intellectual ability, the knowingness of

the waiver often turns on whether the defendant expressed an inability to

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Case No. 3-12-09



understand the rights as they were recited.”); Rice at 751 (“[T]he question is not

whether if [the defendant] were more intelligent, informed, balanced, and so forth

he would not have his waived his Miranda rights, but whether the police believed

he understood their explanation of those rights * * *.”); State v. Roberts, 32 Ohio

St.3d 225, 232 (1987) (describing totality of the circumstances for assessing

validity of Miranda warning as including “‘the apparent intellectual and

emotional state of the suspect’”), quoting State v. McZorn, 288 N.C. 417, 434, 219

S.E.2d 201 (1975); State v. Jenkins, 15 Ohio St.3d 164, 233 (1984) (finding valid

waiver where “based on [the officers’] observations and conversations with the

[suspect], they believed he did comprehend the effect of his waiver and the rights

involved”); State v. Hall, 48 Ohio St.2d 325, 333 (1976) (finding valid waiver

where the suspect “appeared to be calm and intelligent” and did not “manifest any

conduct which could be construed as a misapprehension of his rights”), vacated in

part on other grounds, 438 U.S. 910, 98 S.Ct. 3134 (1978); State v. Parker, 44

Ohio St.2d 172, 176 (1975) (“[S]ubmission to interrogation after a refusal to sign a

waiver may not, itself, constitute sufficiently contradictory conduct by an accused

to alert the interrogating officer that the accused misapprehended the explanation

of his rights * * *.”). Such a focus is especially appropriate in the context of Fifth

Amendment protections since Fifth Amendment jurisprudence often revolves

around objective determinations, as opposed to the subjective beliefs of the

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Case No. 3-12-09



suspect. E.g., State v. Knuckles, 65 Ohio St.3d 494, 495 (1992) (“Any statement,

question or remark which is ‘reasonably likely to elicit an incriminating response’

is an interrogation.”), quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct.

1682 (1980); State v. Graham, 12th Dist. Nos. CA2010-10-016, CA2010-10-017,

CA2010-10-018, CA2010-10-019, CA2010-10-020, 2012-Ohio-138, ¶ 48 (stating

that in determining whether a custodial interrogation occurred, “there must be an

objectively reasonable belief by the defendant that he is in custody”).

       {¶27} With these principles in mind, we now turn to Kirk’s purported

waiver of his Miranda rights.

                          Voluntariness of Kirk’s Waiver

       {¶28} Coercive police activity during the course of an interrogation is a

necessary predicate for finding that a suspect’s Miranda waiver was involuntary.

See Connelly at 170 (“The voluntariness of a waiver * * * has always depended on

the absence of police overreaching * * *.”); State v. Getsy, 84 Ohio St.3d 180, 189

(1998) (“Evidence of use of an inherently coercive tactic (e.g., physical abuse,

threats, deprivation of food, medical treatment, or sleep) triggers the totality-of-

the-circumstances analysis.”). Here, the record contains no evidence that Officer




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Case No. 3-12-09



Clark used coercive tactics while interrogating Kirk.3 Dr. McGregor explicitly

testified that no such tactics were used in the interrogation. The video recording

of the interrogation confirms Dr. McGregor’s testimony. Due to the lack of

evidence showing police coercion, the trial court erred in finding that Kirk’s

waiver of his Miranda rights was involuntary.4

                   The Knowing and Intelligent Nature of Kirk’s Waiver

         {¶29} Since Kirk’s waiver was voluntary, we must consider whether it was

also knowing and intelligent.5 When assessing the knowing and intelligent nature

of a Miranda waiver, a suspect’s signed waiver form is “strong proof” of its

validity. State v. Moore, 81 Ohio St.3d 22, 32 (1998), citing North Carolina v.

Butler, 441 U.S. 369, 374-75, 98 S.Ct. 1755 (1979). Further, “an individual’s low

intellect does not necessarily render him or her incapable of waiving Miranda

3
  Kirk claims in his appellate brief that he has never challenged the voluntary nature of his waiver. He also
asserts that Dr. McGregor opined that the waiver was voluntary. However, the record contradicts both of
these claims. In his motion to suppress, Kirk argued that his waiver was involuntary. Further, Dr.
McGregor testified that Kirk’s waiver was involuntary because his cognitive defects precluded a voluntary
waiver. While Kirk does not question the voluntariness of his waiver on appeal, we are compelled to
address the issue based on this evidence in the record and the trial court’s finding that the waiver was
involuntary.
4
  The trial court relied on Dr. McGregor’s opinion in finding that Kirk’s waiver was involuntary. Such
reliance was misplaced since Dr. McGregor’s opinion was not based on the legal standard for
voluntariness. Rather, it was based on Dr. McGregor’s erroneous belief that voluntariness, for Miranda
purposes, is necessarily absent where a suspect is unable to knowingly and intelligently waive his rights.
This belief is plainly contrary to Moran’s separation of issues relating to voluntariness from issues relating
to the suspect’s ability to comprehend and waive his rights. As a result, its presence in Dr. McGregor’s
analysis renders his opinion regarding the voluntary nature of Kirk’s waiver unpersuasive.
5
  Although the State challenges the trial court’s finding that Kirk’s waiver was not voluntary, knowing, and
intelligent, it focuses almost exclusively on the voluntariness aspect of the waiver. Such exclusive focus is
inappropriate in light of Moran’s requirement that trial courts consider voluntariness separately from the
knowing and intelligent nature of the waiver. See State v. Clemens, 7th Dist. No. 99-JE-18 (Mar. 23, 2001)
(affirming suppression of the suspect’s police statement where the State “inordinately focused its argument
on the voluntariness of [the suspect’s] waiver of rights”).

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Case No. 3-12-09



rights.” State v. Lynn, 7th Dist. No. 11 BE 18, 2011-Ohio-6404, ¶ 14. In fact,

courts have previously found valid Miranda waivers where the suspects had

comparable IQs to Kirk’s and even lower reading levels.            E.g., Correll v.

Thompson, 63 F.3d 1279, 1288 (4th Cir. 1995) (finding that suspect with IQ of 78

gave valid waiver since he received warnings both while in custody and for prior

crimes); Jenkins, 15 Ohio St.3d at 233 (finding valid waiver where the suspect had

a low IQ); State v. Edwards, 49 Ohio St.2d 31, 39 (1976) (finding that the

suspect’s waiver was intelligent even though the suspect had a low IQ and second-

grade reading level), vacated in part on other grounds, 438 U.S. 911, 98 S.Ct.

3147 (1978); State v. Lail, 2d Dist. No. 24118, 2011-Ohio-2312, ¶ 23 (finding that

suspect with IQ in the mild retardation range knowingly and intelligently waived

Miranda rights); In re N.J.M., 12th Dist. No. CA 2010-03-026, 2010-Ohio-5526, ¶

30 (finding no Miranda violation where the suspect with an IQ of 67 gave

confession); State v. Howell, 4th Dist. No. 97 CA 636 (Dec. 16, 1997) (finding

that the suspect’s waiver was intelligent even though the suspect had a third-grade

reading level); State v. Collins, 11th Dist. No. 95-A-0044 (Dec. 20, 1996) (finding

that the suspect’s waiver was knowing and intelligent where the suspect had an IQ

of 76 and a fourth-grade reading level).

       {¶30} Such findings are appropriate because the suspect’s intelligence level

is not, by itself, dispositive. Rather, the suspect’s intelligence must be considered

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Case No. 3-12-09



in light of the interrogation’s other circumstances, including the suspect’s own

conduct and representations during the interrogation. See Garner, 557 F.3d at 264

(“It is well-established * * * that mental capacity is one of many factors to be

considered in the totality of the circumstances analysis regarding whether a

Miranda waiver was knowing and intelligent. Thus, diminished mental capacity

alone does not prevent a defendant from validly waiving his or her Miranda

rights.”); Jenkins at 233 (stating that the suspect’s intelligence is merely “one

factor” in the assessment of a Miranda waiver’s validity). After considering all of

the interrogation’s circumstances, we decide not whether the “suspect [knew] and

[understood] every possible consequence of [his] waiver” but whether the “suspect

[knew] that he [could] choose not to talk to law enforcement officers, to talk only

with counsel present, or to discontinue talking at any time.” Colorado v. Spring,

479 U.S. 564, 574, 107 S.Ct. 851 (1987).

      {¶31} The decision of the United States Court of Appeals for the Sixth

Circuit in Garner provides significant guidance to this matter.        There, the

defendant “appeared perfectly normal and very coherent” when he signed a waiver

of his Miranda rights. Garner at 261. The court further described the giving of

the Miranda warnings as follows:

      [T]he police officers took care to ensure that [the suspect]
      understood the warnings and waiver before he signed the form. * *
      * [A]fter reading each provision of the Miranda warnings to [the

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Case No. 3-12-09



       suspect], [the interrogating officer] asked [the suspect] if he
       understood the meaning of that provision. Each time that he was
       asked, [the suspect] responded that he understood his rights,
       including the waiver provision. Further, nothing in the record
       indicates that [the suspect] verbally expressed a misunderstanding to
       police officers or otherwise engaged in conduct indicative of a
       misunderstanding. Id.

Based on these circumstances, as well as the suspect’s ability to comprehend the

criminality of his actions, the court found that the suspect knowingly and

intelligently waived his Miranda rights. Id. at 262.

       {¶32} In reaching this conclusion, the Sixth Circuit discounted the expert

testimony offered by the suspect indicating that he was of “borderline

intelligence,” and had an “abusive and socially depraved background” that

included “a long history of hyperactivity and impulsivity.” Id. at 263. It also

rejected expert testimony that relied on results gleaned from the administration of

Grisso tests. Id. at 264. According to the court, the suspect’s “conduct, speech,

and appearance at the time of interrogation” had primacy over “his diminished

mental capacity,” especially since “at no time did [the suspect] exhibit any

outwardly observable indications that he did not understand the warnings or the

circumstances surrounding his interrogation.” Id. at 265-66.

       {¶33} The facts of this matter are markedly similar to those addressed in

Garner. Like the interrogating officer in Garner, Officer Clark read each Miranda

right and the waiver provision separately to Kirk. After each separate provision

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Case No. 3-12-09



was read, Officer Clark asked Kirk whether he understood the right. Upon hearing

the Miranda rights and indicating that he understood them, Kirk signed the waiver

form. See United States v. Male Juvenile, 121 F.3d 34, 40 (2d Cir. 1997) (finding

that suspect knowingly and intelligently waived his rights even though he had

learning disabilities since he told the interrogating officers that he understood his

rights). Officer Clark even took additional steps to ensure that Kirk was capable

of understanding the rights that he waived by asking Kirk about his age, level of

education, and ability to read and write.6

        {¶34} During the subsequent interrogation, Kirk, like the suspect in

Garner, displayed no outward signs that he was of diminished mental capacity.

Rather, as indicated by Officer Clark’s testimony at the suppression hearing,

Kirk’s conduct was reflective of a normal 18-year old man as opposed to a feeble-

minded person with limited cognitive skills. See United States v. Rosario-Diaz,

202 F.3d 54, 69 (1st Cir. 2000) (finding that suspect with low IQ knowingly and

intelligently waived rights where the interrogating officers testified that the

suspect understood the questions and her rights). He admitted that his alleged

sexual activity with E.E. was wrong and “messed up [his] life pretty much.”


6
 The manner in which Officer Clark read the Miranda warnings and his additional questioning regarding
Kirk’s age, education level, and literacy suggests that Officer Clark made at least a minimal attempt to
determine whether Kirk understood his rights. As a result, the trial court’s finding that Officer Clark made
no attempt to determine Kirk’s ability to understand his rights is not supported by some credible, competent
evidence and is clearly erroneous.

                                                   -24-
Case No. 3-12-09



Interview Tr., p. 31. Kirk also told Dr. McGregor that during the interrogation he

thought that he was “screwed.” Hearing Tr., p. 424. This evidence shows that

Kirk had the “capacity to understand the criminal nature of his actions,” which

suggests that he “also had the capacity to understand and appreciate the

consequences of speaking to police about his criminal conduct.” Garner, 557 F.3d

at 261; see also United States v. Shields, 480 Fed.Appx. 381, 389 (6th Cir. 2012)

(finding that mentally retarded suspect validly waived Miranda rights since his

“cooperativeness and coherency * * * demonstrate that he grasped both the nature

of the charges against him and the consequences that could flow from his

interactions with police”).

       {¶35} The State also introduced evidence that Kirk has previous experience

with the criminal justice system, indicating that he understood police interrogation,

the courts, and his rights. See United States v. Cristobal, 293 F.3d 134, 142 (4th

Cir. 2002) (finding that the suspect knowingly and intelligently waived his rights

where evidence showed that he had been Mirandized on at least one previous

occasion). A police officer questioned Kirk regarding the laundromat incident and

had him sign a Miranda waiver form that had the exact same format as the one

Kirk signed here. After admitting to his role in damaging the property, Kirk went

through the juvenile system, which included an appearance before a magistrate

with the juvenile court.

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Case No. 3-12-09



      {¶36} In light of the above circumstances and Garner’s guidance, we find

that Kirk knowingly and intelligently waived his Miranda rights. See also Smith

v. Mullin, 379 F.3d 919, 932-34 (10th Cir. 2004) (finding that mentally retarded

suspect knowingly and intelligently waived his rights where he stated that he

understood the Miranda advisement and had previous experience in the criminal

justice system); United States v. Turner, 157 F.3d 552, 555 (8th Cir. 1998)

(finding that suspect with borderline IQ gave a valid Miranda waiver since he

“was cooperative, reviewed and initialed each admonition of the waiver form,

agreed to answer questions, and gave accurate information”).

                                Kirk’s Arguments

      {¶37} To support suppression, Kirk relies on the following: (1) Officer

Clark’s rapid reading of the Miranda rights; (2) Kirk’s conduct during the

interrogation purportedly suggesting that he had cognitive limitations and could

not understand his rights; (3) Dr. McGregor’s expert testimony and other lay

testimony regarding Kirk’s cognitive limitations. We find that none of these items

militate towards suppression.

      {¶38} The video recording of the police interrogation does reveal that

Officer Clark read Kirk’s Miranda rights quickly. However, it does not reveal that

Officer Clark read the rights so quickly that Kirk was unable to understand him.

In fact, Kirk twice said, in no uncertain terms, that he understood his rights.

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Case No. 3-12-09



Compare In re T.F., 9th Dist. No. 08CA009449, 2009-Ohio-3141, ¶ 24 (finding

that waiver was not knowing and intelligent where the police officer read Miranda

warning rapidly and failed to repeat them after the suspect indicated he did not

understand his rights). Further, since Officer Clark stopped after each right to ask

Kirk whether he understood, Kirk had ample opportunities to ask Officer Clark to

repeat himself if he was unable to follow Officer Clark’s pace.7 As such, the

import of Officer Clark’s rapid reading of the Miranda rights is limited.

         {¶39} Moreover, the video recording does not indicate that Kirk’s conduct

during the interrogation alerted Officer Clark that he suffered from cognitive

limitations. While at various intervals during the interrogation, Kirk intensely

blinked, fidgeted in his seat, and looked off into the distance, none of his actions

would suggest that he had a low IQ or a reduced ability to understand the

seriousness of the situation.                    Indeed, Kirk’s overall calm demeanor,

straightforward discussion of his alleged sexual activity with E.E., and

acknowledgment that it was wrong suggested that he was of normal intelligence.8


7
  Kirk elicited testimony at the suppression hearing that he has a tendency to feign that he understands
words so that he is not exposed as a person with limited cognitive abilities. However, during the course of
the interrogation, he was perfectly willing on two occasions to tell Officer Clark that he did not understand
the formal terms Officer Clark was using regarding his alleged sexual activities with E.E. Kirk’s
willingness to express his lack of understanding during the interrogation tends to discredit the above
testimony. It also suggests that had Kirk truly not understood Officer Clark’s rapid reading of the Miranda
rights and waiver, he would have stopped Officer Clark as he did at other times during the interrogation.
8
  Kirk also suggests that his lack of familiarity with the terms “ejaculation” and “intercourse” supports his
position that his cognitive limitations were demonstrated during the interrogation. While Kirk did express
lack of familiarity with these terms, Officer Clark then rephrased his questions by using more commonly
known synonyms. After asking the rephrased questions, Kirk indicated that he understood and answered.

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Case No. 3-12-09



Based on this, we do not find that Kirk’s conduct during the interrogation

suggested to Officer Clark that he was unable to understand and waive his rights.

         {¶40} Finally, the testimony offered at the hearing regarding Kirk’s

cognitive limitations does not mandate suppression. While Kirk does have a

history of cognitive limitations, he did not manifest them, or an inability to

understand his rights, during the course of the interrogation. As noted above, this

fact is critical, not the mere existence of the limitations.9

         {¶41} Further, Dr. McGregor’s expert testimony suffers from several

glaring flaws that render it unpersuasive. The Grisso tests that Dr. McGregor

administered used more complex language than the language contained in the

Miranda warning given by Officer Clark. Once Dr. McGregor read the warning

given by Officer Clark, Kirk indicated that he understood what a lawyer was and

that one would be appointed for him if he could not afford a lawyer. Additionally,

Kirk indicated that he understood the adversarial nature of the interrogation and

that the police could use his statements against him in court. Dr. McGregor also

admitted that the Grisso tests contain a subjective element.



9
  The trial court heavily relied on the expert and lay testimony regarding Kirk’s cognitive limitations to find
that he was unable to voluntarily, knowingly, and intelligently waive his rights. However, in light of the
objective nature of our inquiry, such heavy reliance, without close scrutiny of Kirk’s and Officer Clark’s
conduct during the interrogation, is misplaced. Further, as the trial court noted, police officers “are not
required to know the actual mental ability or mindset of a suspect.” (Docket No. 29, p. 7). Suppressing
Kirk’s statements from a police interrogation in which he gave no outward sign of his cognitive limitations
would derogate this well-settled law.

                                                    -28-
Case No. 3-12-09



       {¶42} The most evident flaw of Dr. McGregor’s testimony came on redirect

examination. He stated that the Grisso tests “are not a legal determination by any

stretch of the imagination of capacity to waive [Miranda rights].” Hearing Tr., p.

443. Dr. McGregor’s discrediting of the very tests on which he relied in reaching

his conclusions significantly reduces the weight of his testimony.

       {¶43} In sum, Dr. McGregor acknowledged that Kirk understands three of

the four Miranda rights. He also discredited the Grisso tests, which were the

central bases for his conclusions, as subjective and not producing a legal

determination of an individual’s ability to waive his Miranda rights. Based on

these flaws, we are unable to find that Dr. McGregor’s testimony requires

suppression of Kirk’s statements. See Garner, 557 F.3d at 269-70 (rejecting

expert testimony relying on Grisso test results and outlining common deficiencies

in the administration of Grisso tests); Murphy v. Ohio, 551 F.3d 485, 515 (6th Cir.

2009) (stating that the reliability of Grisso tests have yet to be established); People

v. Hernandez, 46 A.D.3d 574, 576, 846 N.Y.S.2d 371 (App. Div. 2007) (noting

that Grisso tests “have not been generally accepted”).

       {¶44} It is apparent from Officer Clark’s conduct that this matter does not

present a situation where the police engaged in the type of abuses with which

Miranda is concerned. Compare Cooper v. Griffin, 455 F.2d 1142, 1143 (5th Cir.

1972) (finding that the suspect’s waiver was invalid under Miranda where the

                                         -29-
Case No. 3-12-09



police questioned him while he was suffering from gunshot wound and the police

did not offer medical assistance). Nor does this matter present a scenario in which

the suspect manifested clear signals that he was unable to comprehend his rights

during the interrogation. Compare Rice, 148 F.3d at 750 (“It is different, if

perhaps only be a shade, if the police question [a suspect] knowing that he does

not understand his rights.”); United States v. Garibay, 143 F.3d 534, 539 (9th Cir.

1998) (finding that statement was not knowingly and intelligently made where the

suspect “did not appear to understand” the questions).            Rather, all the

circumstances of the interrogation in this matter, taken together, demonstrate that

Kirk was properly advised of his rights and that he was capable of both

understanding and waiving them. As such, the trial court’s finding that Kirk did

not knowingly and intelligently waive his right was erroneous.

      {¶45} Since Kirk voluntarily, knowingly, and intelligently waived his

Miranda rights, we find that the trial court erred in granting Kirk’s motion to

suppress.

      {¶46} Accordingly, we sustain the State’s second assignment of error.

                            Assignment of Error No. I

      {¶47} In its first assignment of error, the State argues that the trial court

erred in granting Kirk’s motion to suppress since Kirk was not subject to custodial

interrogation during the police interview. Our resolution of the State’s second

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Case No. 3-12-09



assignment of error renders this assignment of error moot and we decline to

address it. See App.R. 12(A)(1)(c).

       {¶48} Having found error prejudicial to the State in the second assignment

of error, we reverse the trial court’s judgment and remand this matter for further

proceedings consistent with this opinion.

                                                         Judgment Reversed and
                                                              Cause Remanded

PRESTON, P.J. and SHAW, J., concur.

/jlr




                                       -31-
