         [Cite as State v. Wagner, 2013-Ohio-383.]




                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                       :   APPEAL NO. C-120402
                                                         TRIAL NO. B-1101992
        Plaintiff-Appellee,                          :
                                                            O P I N I O N.
  vs.                                                :

MONTEZ WAGNER,                                       :

    Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: February 8, 2013



Joseph T. Deters, Hamilton County Prosecuting Attorney, and James Michael
Keeling, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Derek W. Gustafson, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS



SYLVIA S. HENDON, Presiding Judge.

       {¶1}    Defendant-appellant Montez Wagner appeals from the trial court’s

entry denying his motion to suppress.       Because the trial court properly denied

Wagner’s motion to suppress, we affirm the judgment.

                                        Facts


       {¶2}   Wagner and his cousin, Craig Hummons, were arrested for their role

in the shooting of a taxicab driver after they failed to pay for their cab fare. Wagner

was initially arrested and taken into custody by the Mount Healthy Police

Department. But it was quickly determined that, due to the severity of the crime, the

Hamilton County Sheriff’s Department would handle the investigation. So Mount

Healthy Police Sergeant Nick Michael transported Wagner from the Mount Healthy

Police Department to sheriff’s headquarters. During transport, Wagner stated that

he wanted to tell Sergeant Michael what had happened.           After being read his

Miranda rights, Wagner discussed the shooting.

       {¶3}   After Wagner arrived at the sheriff’s headquarters, Detective Brian

Stapleton again read Wagner his Miranda rights before conducting an interview.

And Wagner again gave a statement concerning the shooting to Detective Stapleton.

       {¶4}   Wagner was indicted for two counts of aggravated robbery with

weapons specifications, robbery, attempted murder with a weapon specification, two

counts of felonious assault with weapons specifications, and having a weapon while

under a disability. Wagner filed a motion to suppress all statements that he had

given to Sergeant Michael and Detective Stapleton on the ground that his Miranda

rights had been violated. He additionally sought to suppress all evidence obtained as

a result of his statements.



                                                2
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶5}   The trial court denied Wagner’s motion to suppress. Wagner pled no

contest to, and was found guilty of, the first six counts of his indictment. The charge

for having a weapon while under a disability was dismissed. Following merger of

several offenses, Wagner received an aggregate sentence of ten years’ imprisonment.

       {¶6}   Wagner has appealed the trial court’s denial of his motion to suppress.

Our review of a trial court’s ruling on a suppression motion presents a mixed

question of law and fact. We must accept the trial court’s findings of fact if they are

supported by competent and credible evidence. But we review de novo the trial

court’s application of the law to the relevant facts. State v. Burnside, 100 Ohio St.3d

152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

                               First Miranda Warning


       {¶7}   In his first assignment of error, Wagner argues that the trial court

erred in failing to suppress the statement that he had given to Sergeant Michael.

       {¶8}   Sergeant Michael transported Wagner to sheriff’s headquarters

following his arrest. During transport, Wagner stated that he wanted to tell Sergeant

Michael about the shooting. Sergeant Michael advised Wagner that he preferred

Wagner wait and discuss the matter with a sheriff’s investigator, but Wagner stated

that he only wanted to speak with Sergeant Michael. Sergeant Michael then read

Wagner the required Miranda rights. He asked if Wagner wanted to answer any

questions, and Wagner responded negatively. So Sergeant Michael stated, “Okay,

but just so you know, you will have to tell me whatever you want to tell me, but I

can’t ask you any questions.” Wagner proceeded to discuss the shooting and said

that it had been an accident. He additionally told Sergeant Michael where the gun

had been hidden.



                                              3
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶9}   Wagner argues that this statement should have been suppressed

because he had invoked his right to remain silent by stating that he did not want to

answer any questions.       We must determine whether Wagner’s statement was

sufficient to invoke his right to remain silent pursuant to Miranda v. Arizona, 384

U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

       {¶10} In Berghuis v. Thompkins, 130 S.Ct. 2250, 2260, 176 L.Ed.2d 1098

(2010), the United States Supreme Court held that a suspect’s invocation of the right

to remain silent must be unambiguous and unequivocal. Such a requirement “results

in an objective inquiry that ‘avoid[s] difficulties of proof and . . . provide[s] guidance

to officers’ on how to proceed in the face of ambiguity.” Id., quoting Davis v. United

States, 512 U.S. 452, 458-459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). If a suspect

makes a statement that is ambiguous or equivocal, or if the suspect provides no

response, police are not required to end questioning. Id.

       {¶11} Here, Wagner’s statement that he did not want to answer any

questions was not an unambiguous assertion of his right to remain silent. Wagner’s

statement must not be viewed in isolation, but rather in the context in which it arose.

Wagner initiated the exchange with Sergeant Michael by stating that he wanted to

discuss the shooting.    Despite the officer’s attempts to discourage him, Wagner

maintained that he wanted to speak. But in an attempt to control the conversation,

he told the officer that he did not want to answer any questions. So after being read

his Miranda rights, Wagner explained his role in the shooting to Sergeant Michael

but was not asked any follow up questions by the officer.

       {¶12} We hold that Wagner’s statement was not an unambiguous or

unequivocal assertion of his right to remain silent.        Rather, Wagner voluntarily




                                                4
                      OHIO FIRST DISTRICT COURT OF APPEALS



waived that right. The trial court properly denied Wagner’s motion to suppress the

statement given to Sergeant Michael. The first assignment of error is overruled.

                              Second Miranda Warning


         {¶13} In his second assignment of error, Wagner argues that the trial court

erred in failing to suppress the statement that he had given to Detective Stapleton.

         {¶14} After Wagner was transported to sheriff’s headquarters, Sergeant

Michael told Detective Stapleton that he had read Wagner his Miranda rights, and

that Wagner had been cooperative. Detective Stapleton then again read Wagner the

Miranda warning. Wagner signed the Miranda waiver and gave a statement to

Detective Stapleton. Stapleton testified at the suppression hearing that Wagner had

never indicated that he did not want to answer questions or that he did not want to

speak.

         {¶15} Wagner argues that his statement to Detective Stapleton should have

been suppressed because he had previously asserted his right to remain silent after

being read his Miranda rights by Sergeant Michael. Wagner cites Maryland v.

Shatzer, 559 U.S. 98, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010), arguing that he could

not be re-interviewed immediately after he had asserted his fifth amendment right to

remain silent. Shatzer concerned the renewed interrogation of a suspect after the

Fifth Amendment right to have counsel present had been invoked. In Shatzer, the

court imposed a 14 day break-in-custody rule. The court held that once a suspect

had invoked his right to end questioning and to have counsel present, law

enforcement officials could not initiate a re-interrogation of that suspect until the

suspect had experienced a two week break in custody. Id. at 1222-1223.




                                              5
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶16} We find Shatzer to be inapplicable to the facts of this case. Shatzer

concerned the renewed interrogation of a suspect after invocation of Miranda rights.

Here, there was no initial invocation of the right to remain silent that would trigger

the break-in-custody rule. Wagner waived his Miranda rights after being read those

rights by Sergeant Michael. In an abundance of caution, Detective Stapleton re-read

the rights to Wagner. This is not a situation in which a suspect was repeatedly

questioned and read Miranda warnings in an effort to coerce the suspect into

waiving previously asserted rights.

       {¶17} Wagner had voluntarily waived his right to remain silent to Sergeant

Michael.     And he again voluntarily waived that same right when questioned by

Detective Stapleton. The trial court did not err in failing to suppress the statement

given by Wagner to Detective Stapleton.           The second assignment of error is

overruled.

                         Suppression of Physical Evidence


       {¶18} In his third assignment of error, Wagner argues that the trial court

erred in failing to suppress any physical evidence recovered as a result of his

statements. He cites State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849

N.E.2d 985, in support.        In Farris, the Ohio Supreme Court held that

“constitution[al] protections against self-incrimination extend to physical evidence

seized as a result of pre-Miranda statements.” Id. at ¶ 49.

       {¶19} Farris is inapplicable to this case. All statements given by Wagner

were made after Wagner had been read, and had voluntarily waived, his Miranda

rights. Thus all evidence obtained as a result of Wagner’s statements was lawfully




                                              6
                       OHIO FIRST DISTRICT COURT OF APPEALS



obtained. The trial court did not err in failing to suppress the physical evidence

recovered following Wagner’s statements.

       {¶20} The third assignment of error is overruled, and the judgment of the

trial court is affirmed.

                                                                      Judgment affirmed.



HILDEBRANDT and CUNNINGHAM, JJ., concur.



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




                                                 7
