[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.
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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.
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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
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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.
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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
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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.
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