[Cite as State v. Taylor, 2017-Ohio-4059.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Craig R. Baldwin, J.
                          Plaintiff-Appellee   :       Hon. Earle E. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 16CA66
DARRYL J. TAYLOR                               :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Richland County
                                                   Court of Common Pleas, Case No.
                                                   2014CR0468R


JUDGMENT:                                          Affirmed


DATE OF JUDGMENT ENTRY:                            May 30, 2017


APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

DANIEL ROGERS                                      R. JOSHUA BROWN
Assistant Prosecuting Attorney                     32 Lutz Avenue
Richland County Prosecutor’s Office                Lexington, OH 44904
38 S. Park Street
Mansfield, OH 44902
Richland County, Case No. 16CA66                                                          2

Gwin, P.J.

       {¶1}   Appellant, Darryl J. Taylor [“Taylor”] appeals the November 19, 2014

Judgment Entry of the Richland County Court of Common Pleas that overruled his motion

to suppress all statements made from his interrogation on July 7, 2014.

                                  Facts and Procedural History

       {¶2}   On August 12, 2014, an indictment was filed in the Common Pleas Court of

Richland County, Ohio. Count One of the Indictment charged Taylor (aka) "Wheezy" with

one count of Having Weapons While Under Disability in violation of R.C. 2923.13(A)(2),

a felony of the third degree. Count Two of the Indictment charged Taylor with Receiving

Stolen Property in violation of R.C. 2913.51(A), a felony of the fourth degree; the property

involved being a firearm as defined in R.C. 2923.11. These crimes were alleged to have

occurred between or on about May 9, 2014 and on or about July 7, 2014. The indictment

was assigned Case Number 2014-CR-468.

       {¶3}   On October 23, 2014, a Motion to Suppress and/or Limine to Bar the

Introduction of Evidence was filed on behalf of Taylor. This motion asked for an order

excluding and/or suppressing all statements gained from the custodial interrogation of

appellant “on or about July 9, 2014.” (Sic) The interview actually occurred on July 7,

2014. The essence of the motion was that Taylor was not given Miranda warnings prior

to his custodial interrogation in violation of the Fifth and Fourteenth Amendments to the

U.S. Constitution and Section 10, Article 1 of the Ohio Constitution. A hearing was held

November 12, 2014. A Judgment Entry overruling Taylor’s Motion to Suppress was

filed November 19, 2014. On December 5, 2014, Taylor entered a no contest plea to

both counts in Case Number 2014-CR-468.
Richland County, Case No. 16CA66                                                       3


        {¶4}   On December 8, 2014, an indictment was filed in Case No. 2014-CR-788,

charging Taylor with murder. The murder was alleged to have occurred on or about July

7, 2014.

        {¶5}   Taylor filed a motion to withdraw his no contest plea in Case No. 2014-CR-

468 on January 2, 2015. The trial court granted Taylor’s request by Judgment Entry filed

January 22, 2015. The state filed a motion for joinder requesting Case Numbers 2014-

CR-468 and 2014-CR-788 (Murder indictment) be tried together. The trial court granted

the motion to join the two cases.

        {¶6}   Case numbers 2014-CR-468 and 2014-CR-788 were eventually scheduled

for trial on September 8, 2016. On August 29, 2016, Taylor again entered a no contest

plea to both counts in Case No. 2014-CR-468, Having Weapons While Under Disability

and Receiving Stolen Property. The Court held sentencing in abeyance and Taylor

proceeded to trial in Case No. 2014-CR-788 for the Murder charge.

        {¶7}   On July 15, 2016, Taylor was indicted for Tampering with Evidence. The

indictment was assigned Case Number 2016-CR-478. The date alleged was July 7,

2014.

        {¶8}   The Tampering with Evidence case and Murder case were joined. Taylor

was found guilty by a jury of both counts.

        {¶9}   In Case Number 2014-CR-468 the court imposed a 24 month prison

sentence on Count I for Having a Weapon While Under Disability and merged Count II

with Count I. The 24 months imposed in 2014-CR-468 was to run consecutive to the

sentence imposed in 2014-CR-788 [Murder] and 2016-CR-478 [Tampering with

Evidence].
Richland County, Case No. 16CA66                                                     4


                                      Motion to Suppress.

      {¶10} The following evidence was adduced during the November 12, 2014

hearing on Taylor’s motion to suppress.

      {¶11} During the Suppression Hearing on November 12, 2014, the state

presented testimony from Sergeant Will Gordon and introduced a video recording of

Taylor’s interview with Sergeant Gordon and Detective Pat Smith from July 7, 2014.

(State’s Exhibit 1). Taylor introduced a transcript of his interview from July 7, 2014.

(Defendant’s Exhibit A).

      {¶12} On July 7, 2014, Sergeant Gordon of the Richland County Sheriff's Office

[“RCSO”] was dispatched to 1273 Kings Corners East Road in Richland County, Ohio in

response to a report that there was a deceased person at that location. Upon Sergeant

Gordon's arrival, he noticed several people in the area that were distraught/upset.

Sergeant Gordon discovered a deceased D. H. lying on a bed covered by a sheet, with a

gunshot wound in her chin, and a .44 Magnum Red Hawk handgun in her right hand.

      {¶13} After discovering the body, Deputies made contact with three individuals

who were inside 1273 Kings Corner East Road at the time of the shooting: Shane

Lambert, Bonnie Tittle, and Taylor.

      {¶14} Mr. Lambert, Ms. Tittle, and Taylor, were not handcuffed, arrested, or

considered suspects at that point.      Each agreed to provide the police statements

regarding what happened to D.H. Mr. Lambert, Ms. Tittle, and Taylor were each

transported to RCSO in RCSO vehicles, as the interviews could not be conducted at 1273

Kings Corner East Road due to the coroner's investigation of the scene.
Richland County, Case No. 16CA66                                                         5


       {¶15} Deputy Kiener brought Taylor to the detective bureau in a Sheriff's cruiser.

Taylor was placed in the back seat of the cruiser. Sergeant Gordon testified there is no

way for a person to get out of the back seat if the doors are locked, as they should be.

Taylor was not afforded the opportunity to obtain a shirt before being transported. Taylor

appears shirtless throughout the interview.       Taylor was not permitted to enter the

residence to retrieve a shirt due to the ongoing onsite investigation.

       {¶16} Upon arriving at RCSO, Deputies took Taylor to an unlocked interview

room. The interview room resembled the living room of a home, with two leather sofas

and a coffee table. Sergeant Gordon and Detective Pat Smith were dressed in plain

clothes during the interview with Taylor. When Taylor first enters the interview room the

date and time reflected on the video is July 7, 2014 Monday 11:45. Sergeant Gordon's

first contact with Taylor is at 12:25.

       {¶17} During his interview with Sergeant Gordon and Detective Smith, Taylor was

neither handcuffed nor restrained in any way. Taylor, who had multiple prior felony

convictions, admitted that he and D.H. had purchased the .44 Magnum Red Hawk "off

the street.” Taylor advised the officers that he would cooperate with the investigation and

provide a DNA swab, but did not want to sign anything. The officers did not require Taylor

to sign anything during or after the interview.

       {¶18} Taylor was permitted to use the restroom. Taylor’s hands were “bagged”

and he was advised not to wipe or wash anything. An officer accompanied Taylor and

observed Taylor while Taylor was in the restroom.

       {¶19} At the conclusion of the interview, Sergeant Gordon asked Taylor if he had

voluntarily spoken with him and Detective Smith, to which Taylor responded "yes.”
Richland County, Case No. 16CA66                                                        6


Sergeant Gordon also asked if Taylor had been threatened in any way or by anyone

regarding his statement to which Taylor responded "no." Detective Smith then asked

Taylor if his statement was made of his own free will, to which Taylor responded "yes."

Detective Smith asked if anyone had forced Taylor to provide a statement, to which Taylor

responded "no." Detective Smith lastly advised Taylor that he was not under arrest and

that his statement was made as a witness. Taylor advised Detective Smith that he knew

he was not under arrest at the time of his statement.

       {¶20} Following the interviews at RCSO, Taylor was arrested for having a weapon

while under disability. See, Investigative Narrative, Sgt. Michael T. Vicars at 1 [Docket

Entry #2]; Investigative Follow-up, Det. Stacey Dittrich, at 2 [Docket Entry #2].

                                       Assignment of Error

       {¶21} “I. THE TRIAL COURT COMMITTED ERROR BY FAILING TO SUPPRESS

APPELLANT'S STATEMENT GIVEN TO SGT. WILL GORDON AND DETECTIVE PAT

SMITH ON JULY 7, 2014.           THE STATEMENT WAS TAKEN IN VIOLATION OF

MIRANDA V. ARIZONA (1966) 384 U.S. 436, VIOLATING APPELLANT'S RIGHTS AS

GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES     CONSTITUTION        AND     SECTION      10,   ARTICLE     I   OF   THE   OHIO

CONSTITUTION.”

                                        Law and Analysis

       {¶22} In his sole Assignment of Error, Taylor argues that Sergeant Gordon and

Detective Smith subjected him to improper custodial interrogation without advising him of

his Miranda rights.
Richland County, Case No. 16CA66                                                           7


                                      Standard of Review.

       {¶23} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d

71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of

fact and is in the best position to resolve questions of fact and to evaluate witness

credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d 988;

State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing

court must defer to the trial court's factual findings if competent, credible evidence exists

to support those findings. See Burnside, supra; Dunlap, supra; State v. Long, 127 Ohio

App.3d 328, 332, 713 N.E.2d 1(4th Dist. 1998); State v. Medcalf, 111 Ohio App.3d 142,

675 N.E.2d 1268 (4th Dist. 1996). However, once this Court has accepted those facts as

true, it must independently determine as a matter of law whether the trial court met the

applicable legal standard. See Burnside, supra, citing State v. McNamara, 124 Ohio

App.3d 706, 707 N.E.2d 539(4th Dist. 1997); See, generally, United States v. Arvizu, 534

U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002); Ornelas v. United States, 517 U.S. 690,

116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That is, the application of the law to the trial

court's findings of fact is subject to a de novo standard of review Ornelas, supra.

Moreover, due weight should be given “to inferences drawn from those facts by resident

judges and local law enforcement officers.” Ornelas, supra at 698, 116 S.Ct. at 1663.

                                       Miranda v. Arizona.

       {¶24} The Fifth Amendment to the United States Constitution guarantees that

“‘[n]o person * * * shall be compelled in any criminal case to be a witness against himself,’

and that ‘the accused shall * * * have the Assistance of Counsel.’” (Ellipses sic.) Miranda
Richland County, Case No. 16CA66                                                          8

v. Arizona, 384 U.S. 436, 442, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Accord, State v.

Barker, ___ Ohio St.3d ___, 2016-Ohio-2708, ___N.E.2d ___ (Apr. 28, 2016), ¶21. The

inherently coercive nature of custodial interrogation heightens the risk that a suspect will

be denied the Fifth Amendment privilege not to be compelled to incriminate himself

because custodial interrogation can “ ‘undermine the individual’s will to resist and * * *

compel him to speak where he would not otherwise do so freely.’” (Ellipsis sic.) J.D.B.

v. North Carolina, 564 U.S. 261, 131 S.Ct. 2394, 2401, 180 L.Ed.2d 310 (2011), quoting

Miranda at 467, 86 S.Ct. 1602; Dickerson v. United States, 530 U.S. 428, 435, 120 S.Ct.

2326, 147 L.Ed.2d 405 (2000).

       {¶25} In light of the inherent coercion involved in custodial interrogation, Miranda

established “a set of prophylactic measures” to safeguard the constitutional privilege

against self-incrimination. Id. In broad terms, Miranda held that the state may not use a

defendant’s statements from custodial interrogation “unless it demonstrates the use of

procedural safeguards effective to secure the privilege against self-incrimination.”

Miranda at 444, 86 S.Ct. 1602. Prior to questioning, the police must warn the suspect

“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. The Supreme Court recognized the importance of a suspect’s

“real understanding” of his rights and his intelligent decision whether to exercise them.

Id. at 469, 86 S.Ct. 1602; State v. Barker, ___ Ohio St.3d ___, 2016-Ohio-2708,

___N.E.2d ___, ¶22.

       {¶26} Miranda conditioned the admissibility at trial of any custodial confession on

warning a suspect of his rights: failure to give the prescribed warnings and obtain a waiver
Richland County, Case No. 16CA66                                                        9


of rights before custodial questioning generally requires exclusion of any statements

obtained. Missouri v. Seibert, 542 U.S. 600, 608, 124 S.Ct. 2601, 159 L.Ed.2d 643(2004).

                         Interrogation requiring Miranda Warnings.

       {¶27} In Rhode Island v. Innis, the United States Supreme Court defined

“interrogation,”

              We conclude that the Miranda safeguards come into play whenever

       a person in custody is subjected to either express questioning or its

       functional equivalent. That is to say, the term “interrogation” under Miranda

       refers not only to express questioning, but also to any words or actions on

       the part of the police (other than those normally attendant to arrest and

       custody) that the police should know are reasonably likely to elicit an

       incriminating response from the suspect. The latter portion of this definition

       focuses primarily upon the perceptions of the suspect, rather than the intent

       of the police. This focus reflects the fact that the Miranda safeguards were

       designed to vest a suspect in custody with an added measure of protection

       against coercive police practices, without regard to objective proof of the

       underlying intent of the police. A practice that the police should know is

       reasonably likely to evoke an incriminating response from a suspect thus

       amounts to interrogation.    But, since the police surely cannot be held

       accountable for the unforeseeable results of their words or actions, the

       definition of interrogation can extend only to words or actions on the part of

       police officers that they should have known were reasonably likely to elicit

       an incriminating response.
Richland County, Case No. 16CA66                                                          10


446 U.S. 291, 300-302, 100 S.Ct. 1682, 64 L.Ed.2d 297(1980 (footnotes omitted). The

Court further noted, “[a]ny knowledge the police may have had concerning the unusual

susceptibility of a defendant to a particular form of persuasion might be an important factor

in determining whether the police should have known that their words or actions were

reasonably likely to elicit an incriminating response from the suspect.” 446 U.S. 302, 100

S.Ct. 1682, 64 L.Ed.2d 297, n.8.

                                    Custody under Miranda.

       {¶28} The United States Supreme Court has explained,

              As used in our Miranda case law, “custody” is a term of art that

       specifies circumstances that are thought generally to present a serious

       danger of coercion. In determining whether a person is in custody in this

       sense, the initial step is to ascertain whether, in light of “the objective

       circumstances of the interrogation,” Stansbury v. California, 511 U.S. 318,

       322–323, 325, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam), a

       “reasonable person [would] have felt he or she was not at liberty to

       terminate the interrogation and leave.” Thompson v. Keohane, 516 U.S.

       99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). And in order to determine

       how a suspect would have “gauge[d]” his “freedom of movement,” courts

       must examine “all of the circumstances surrounding the interrogation.”

       Stansbury, supra, at 322, 325, 114 S.Ct. 1526 (internal quotation marks

       omitted). Relevant factors include the location of the questioning, see

       Shatzer, supra, at –––– – ––––, 130 S.Ct., at 1223–1226, its duration, see

       Berkemer v. McCarty, 468 U.S. 420, 437–438, 104 S.Ct. 3138, 82 L.Ed.2d
Richland County, Case No. 16CA66                                                        11

      317 G2 (1984), statements made during the interview, see Mathiason,

      supra, at 495, 97 S.Ct. 711; Yarborough v. Alvarado, 541 U.S. 652, 665,

      124 S.Ct. 2140, 158 L.Ed.2d 938 (2004); Stansbury, supra, at 325, 114

      S.Ct. 1526, the presence or absence of physical restraints during the

      questioning, see New York v. Quarles, 467 U.S. 649, 655, 104 S.Ct. 2626,

      81 L.Ed.2d 550 (1984), and the release of the interviewee at the end of the

      questioning, see California v. Beheler, 463 U.S. 1121, 1122–1123, 103

      S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam).

              Determining whether an individual's freedom of movement was

      curtailed, however, is simply the first step in the analysis, not the last. Not

      all restraints on freedom of movement amount to custody for purposes of

      Miranda. We have “decline[d] to accord talismanic power” to the freedom-

      of-movement inquiry, Berkemer, supra, at 437, 104 S.Ct. 3138, and have

      instead asked the additional question whether the relevant environment

      presents the same inherently coercive pressures as the type of station

      house questioning at issue in Miranda. “Our cases make clear ... that the

      freedom-of-movement test identifies only a necessary and not a sufficient

      condition for Miranda custody.” Shatzer, 559 U.S., at ––––, 130 S.Ct. at

      1224.

Howes v. Fields, 565 U.S. 499, 508–09, 132 S.Ct. 1181, 1189, 182 L.Ed.2d 17 (2012).

However, the test involves no consideration of the particular suspect's “actual mindset.”

Yarborough v. California, 541 U.S. 652, 667, 124 S.Ct. 2140, 158 L.Ed.2d 938(1994).
Richland County, Case No. 16CA66                                                     12

Accord, State v. Mason, 82 Ohio St.3d 144, 153, 1998-Ohio-370, 694 N.E.2d 932(1998);

State v. Gumm , 73 Ohio St.3d 413, 429, 1995 Ohio 24, 653 N.E.2d 253 (1995).

      {¶29} In determining that the prisoner in Howes was not in custody for purposes

of Miranda, the United States Supreme Court examined the totality of the circumstances

surrounding his interrogation:

             The record in this case reveals that respondent was not taken into

      custody for purposes of Miranda. To be sure, respondent did not invite the

      interview or consent to it in advance, and he was not advised that he was

      free to decline to speak with the deputies. The following facts also lend

      some support to respondent's argument that Miranda's custody requirement

      was met: The interview lasted for between five and seven hours in the

      evening and continued well past the hour when respondent generally went

      to bed; the deputies who questioned respondent were armed; and one of

      the deputies, according to respondent, “[u]sed a very sharp tone,” App. to

      Pet. for Cert. 76a, and, on one occasion, profanity, see id., at 77a.

             These circumstances, however, were offset by others.             Most

      important, respondent was told at the outset of the interrogation, and was

      reminded again thereafter, that he could leave and go back to his cell

      whenever he wanted. See id., at 89a–90a (“I was told I could get up and

      leave whenever I wanted”); id., at 70a–71a. Moreover, respondent was not

      physically restrained or threatened and was interviewed in a well-lit,

      average-sized conference room, where he was “not uncomfortable.” Id., at

      90a; see id., at 71a, 88a–89a. He was offered food and water, and the door
Richland County, Case No. 16CA66                                                          13


      to the conference room was sometimes left open. See id., at 70a, 74a. “All

      of these objective facts are consistent with an interrogation environment in

      which a reasonable person would have felt free to terminate the interview

      and leave.” Yarborough, supra, at 664–665, 124 S.Ct. 2140.

565 U.S. at 514–515, 132 S.Ct. 1181, 182 L.Ed.2d 17.

                   Taylor was not “in custody” for purposes of Miranda.

      {¶30} In the case at bar, Taylor was taken from the scene to the sheriff’s office in

a sheriff’s vehicle. In State v. Durham, the Court observed,

             It is well-established that “[c]onfining an individual to the police

      cruiser is not a custodial placement if it is part of the investigation, even if

      the suspect in the police cruiser is not free to leave.” State v. Popp, 12th

      Dist. Butler No. CA2010–05–128, 2011-Ohio-791, 2011 WL 646662, ¶ 20,

      quoting In re M.D., 12th Dist. Madison No. CA2003–12–038, 2004-Ohio-

      5904, 2004 WL 2505161, ¶ 18. Moreover, “[g]eneral on-the-scene

      questioning as to facts surrounding a crime or other general questioning of

      citizens in the fact-finding process ordinarily does not fall within the ambit of

      custodial interrogation.”   State v. Rivera–Carrillo, 12th Dist. Butler No.

      CA2001–03–054, 2002 WL 371950, *3 (Mar. 11, 2002).

12th Dist. Warren No. 2013-03-023, 2013-Ohio-4764, ¶23.

      {¶31} At the time of the questioning, the police were investigating a possible

suicide. Everyone who was known to be present at the home at the time of the incident

was brought to the station for questioning and testing. Taylor was left alone inside the

room for a significant period before the officers came to speak with him.
Richland County, Case No. 16CA66                                                             14


       {¶32} The interview room’s two doors were closed. However, the two officers

were in plain clothes and spoke in a calm, non–threatening manner. Taylor was not

restrained in any manner.

       {¶33} Taylor was clearly informed at the beginning of the interview that he had a

right to refuse the request for a DNA sample and a gunshot residue test. When asked if

he was okay with submitting to the tests, Taylor responded, “Yes, sir.” Taylor clearly

informed the officers of his desire to voluntarily assist in their investigation. Taylor further

stated,

              Y’all Y’all gotts do y’all can test all my DNA all that I just don’t wanna

       sign nothin’ including you know (inaudible). I don’t wanna sign this paper.

                                             ***

              Man y’ all can take whatever y’all wanna take from me man but I don’t

       wanna sign this paper man I don’t wanna sign anything.

                                             ***

              Q. And you can understand that it would be normal course for us to

       interview everybody that was there right?           Yes.    And you also can

       understand that it would be normal for us to check the clothing of that [sic.]

       everybody that was there right? And you shook your head at both times.

       You also understand while I then [sic.] we would need to check the buccal

       swabs and take DNA from everybody.

              A. Yeah I don’t have I don’t have no problem with any of those things.

       I just don’t you know what I’m saying don’t want to get caught up in no
Richland County, Case No. 16CA66                                                       15


       nonsense you know what I’m talking about I’m going through enough right

       now. (Inaudible) I’m gonna [sic.] through enough man and it’s too much.

                                            ***

              Well you most definitely do my residue on my hands I don’t have no

       problem with it.

              Q. Okay. And so you agree to let us do the residue on your hands

       and do the buccal swabs and everything?

              A. Yes, sir.

       {¶34} In the case at bar, the interview video demonstrates that Taylor, although

distraught was, for the most part, calm and responsive to questions; the law enforcement

officers were not coercive, threatening, or dominating; and the law enforcement officers

did not trick or overpower Taylor into making involuntary statements. Taylor was provided

water by the officers when requested and he was free to move about unhindered.

       {¶35} Based upon a review of the complete record, we find that the objective facts

are consistent with an interrogation environment in which a reasonable person would

have felt free to terminate the interview and leave.

             Taylor volunteered incriminating statements concerning the gun.

       {¶36} The officers asked Taylor, “Darryl where did the gun come from?” We find

the officers’ questioning was merely a part of the investigation into the allegations that

D.H. had committed suicide.      The answer to the question could have been either

innocuous or incriminating. Miranda does not affect the admissibility of “[v]olunteered

statements of any kind.” 384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed.2d at 726. In Tolliver

v. Sheets, the Court provided the following guidelines,
Richland County, Case No. 16CA66                                                         16


             The line between impermissible interrogation and permissible follow-

      up questions to volunteered statements is a fine one. Police may listen to

      volunteered statements, and need not interrupt a suspect who is

      volunteering information in order to deliver a Miranda warning.            See

      Miranda, 384 U.S. at 478, 86 S.Ct. 1602. Police may even interrupt a

      volunteered statement to ask clarifying or follow-up questions. See, e.g.,

      U.S. v. Rommy, 506 F.3d 108, 132–33 (2d Cir. 2007) (collecting cases);

      Andersen v. Thieret, 903 F.2d 526, 532 (7th Cir. 1990) (rejecting custodial

      interrogation challenge when, in response to suspect’s volunteered

      statement, “I stabbed her,” police asked, “Who?”). That said, when asking

      a suspect about volunteered information, police may at times cross the line

      from asking clarifying or follow-up questions into the “express questioning

      or its functional equivalent,” Innis, 446 U.S. at 300–01, 100 S.Ct. 1682,

      barred by Miranda. See, e.g., United States v. Crowder, 62 F.3d 782, 785–

      86 (6th Cir. 1995) (holding that police officer interrogated suspect when,

      after suspect stated that shotgun was “in the wood,” officer asked clarifying

      question about location). The Supreme Court, while not explicitly clarifying

      the distinction between permissible follow-up questions and impermissible

      interrogation, has stated in a different context that, even at meetings with

      the police initiated by a suspect, “[i]f, as frequently would occur ... the

      conversation is not wholly one-sided, it is likely that the officers will say or

      do something that clearly would be ‘interrogation.’ ” Edwards v. Arizona,

      451 U.S. 477, 486, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (addressing
Richland County, Case No. 16CA66                                                        17


      whether police questioning of a suspect constitutes interrogation where the

      suspect first invoked his Fifth Amendment right to counsel but then arranged

      a meeting with investigators and volunteered information). Again, as the

      Supreme Court has made clear repeatedly, “[w]ithout obtaining a waiver of

      the suspect’s Miranda rights, the police may not ask questions ... that are

      designed to elicit incriminatory admissions.” Muniz, 496 U.S. at 602 n. 14,

      110 S.Ct. 2638. The difference between permissible follow-up questions

      and impermissible interrogation clearly turns on whether the police are

      seeking clarification of something that the suspect has just said, or whether

      instead the police are seeking to expand the interview. See, e.g., WAYNE

      R. LAFAVE ET AL., 2 CRIMINAL PROCEDURE § 6.7(a), at 567 (2d ed.

      1999) (“the part of defendant’s statement given after the follow-up questions

      is volunteered only if the questions are neutral efforts to clarify what has

      already been said rather than apparent attempts to expand the scope of the

      statement previously made.”).

594 F.3d 900, 921 (6th Cir. 2010).

      {¶37} Applying Tolliver’s guidelines, we do not find that it was reasonably likely

that a responsive answer to the question could only have been incriminating. The officers’

question concerning the gun in the case at bar was a legitimate part of their investigation

into the circumstances surrounding the apparent suicide of D.H. In other words, the

question “where did the gun come from” was not “express questioning or its functional

equivalent,” i.e. not words or actions on the part of police officers that they should have

known were reasonably likely to elicit an incriminating response, such that no Miranda
Richland County, Case No. 16CA66                                                   18

violation occurred when Sargent Gordon asked the question without first Mirandizing

Taylor.

      {¶38} Accordingly, because Taylor was neither “in custody” nor subject to

“interrogation,” the officers’ were not required to administer Miranda warnings.

      {¶39} Taylor’s sole assignment of error is overruled.

      {¶40} The judgment of the Richland County Court of Common Pleas is affirmed.



By Gwin, P.J.,

Baldwin, J., and

Wise, Earle, J., concur
