Court of Appeals of Ohio, First District, Hamilton
Appeal From Hamilton County Court of Common Pleas Trial No.
T. Deters, Hamilton County Prosecuting Attorney, and Paula E.
Adams, Assistant Prosecuting Attorney, for
Raymond T. Faller, Hamilton County Public Defender, and
Joshua A. Thompson, Assistant Public Defender, for
Defendant-appellant Damon Walker was indicted for two counts
of gross sexual imposition in violation of R.C.
2907.05(A)(4). Walker filed a motion to suppress the
statement he made to police while held in the Hamilton County
Justice Center, claiming that his statements were
"involuntary because he did not have the capacity to
waive his Miranda rights." After two separate
evaluations from the Court Clinic Forensic Services and a
hearing on the matter, the trial court denied the motion.
Walker pleaded no contest to the charges, and the trial court
found him guilty. He was sentenced to five years in prison
and provided notice of his duty to register as a Tier III sex
offender. In three assignments of error, Walker now appeals.
Hearing on the Motion to Suppress
During the hearing on the motion to suppress his statement,
Cincinnati Police Detective Kimberly Kelley testified that
she and Detective Iris Kelly had interviewed Walker on
January 22, 2015. Walker had recently been assaulted by a
person who accused him of molesting a relative. The
detectives were already familiar with Walker from previous
investigations in 2013 involving two different child victims.
Kelley also testified that Walker had previously been treated
for competency restoration in the juvenile court before he
was adjudicated for gross sexual imposition.
Walker's interview was conducted at the Hamilton County
Justice Center while he was awaiting trial in an unrelated
matter. Detective Iris Kelly reviewed the notification of
rights form with Walker, knowing that Walker had a
"limited intellect." She began by reading the
rights form to Walker. When she asked what that meant to him,
he responded that he didn't know. She said, "That
means that you can talk to us without a lawyer. Okay? That
means that if you want - - if you want to stop talking to us,
you can stop at any time. Okay? Do you understand that?"
Walker said that he did. When she asked if he was sure,
Walker confirmed that he understood.
During the interview, Kelly used simple language to
communicate with him, and he appeared to have no problem
understanding the questions and providing logical responses.
Walker was interviewed for less than two hours. During the
course of the interview, Walker admitted taking the
five-year-old nephew of his godmother into the bathroom of
her apartment, removing his clothing, fondling his penis, and
forcing him to fondle Walker's penis.
The trial court also heard testimony from Dr. Carla Dreyer
and Dr. Gail Hellmann of the Court Clinic Forensic Services.
Both submitted reports opining that Walker was not competent
to waive his Miranda rights. Dreyer had had previous
contact with Walker during the course of Walker's
juvenile proceedings. Four weeks before the detectives
interviewed Walker at the Justice Center, Dreyer had
concluded that Walker had been competent to stand trial in
Prior to conducting the interview with Walker in preparation
for the hearing in this case, Dreyer reviewed the
"Receipt Confirmation of Forensic Participant's
Rights Policy and Privacy Practices of Court Clinic and
Informed Participation Statement" with Walker. Even
though Walker had had a guardian ad litem appointed who was
not present at the time, Dreyer concluded that Walker
appeared to adequately understand the information such that
Walker was capable of waiving his privacy rights. After being
convinced that Walker understood his rights and the
consequences of cooperating with the interview, Dreyer
commenced her evaluation and administered the "Miranda
Rights Comprehension Instruments" test.
Dreyer interviewed Walker for about 30 minutes at the Justice
Center. Dreyer indicated that Walker "has consistently
minimized his history of contacts with the court system and
the sexually-inappropriate behaviors." He had also been
diagnosed with disruptive-behavior disorder,
attention-deficit/hyperactivity disorder, a psychotic
disorder not otherwise specified, impulse-control disorder,
and oppositional-defiant disorder, and had been sexually
abused as a child. Nonetheless, Walker had been denied
assistance from the Hamilton County Developmental
Disabilities Services because of Walker's "previous
formal measurements of his adaptive functioning." After
the evaluation was concluded, Dr. Dreyer concluded that
Walker had not been competent to waive his Miranda
rights at the time he was questioned, rendering his waiver
unknowing and involuntary.
Dr. Hellmann evaluated Walker five months after Dr. Dreyer.
Hellmann interviewed Walker for less than an hour. She also
reviewed the interview between Walker and the detectives.
Hellmann concluded that Walker "had a tendency to
acquiesce or provide statements [which] he perceived to be
socially acceptable or desired by the questioner."
Hellmann, like Dreyer, concluded that Walker had not been
competent to waive his Miranda rights.
In denying the motion to suppress, the trial court chose to
reject the conclusions of Drs. Dreyer and Hellmann. The trial
court said that
With our case at hand, we have a situation where the
defendant, while being interviewed was cunning enough to
minimize his criminal record and has consistently done that.
He was not medicated. He was only using sleep medication. He
[has], in fact, been determined - - or deemed uneligible
[sic] for DDS services.
He talks about - - to the doctors about the cops coming to
see him. He remembers that and why they came to see him about
touching his nephew. He remembers that the police told him he
did not have to sign the Miranda waiver and that he
could have an attorney with him. He indicates that he forgot
to tell the police that he wanted a lawyer.
Despite all of that, and the fact that he has repeatedly been
found competent after restoration to stand trial, the doctors
had deemed him incompetent on a date that was about five
months prior to their examination for Miranda.
He is able to understand all of the courtroom activities[, ]
all of the involvement of the parties, what his job is in the
courtroom, what his lawyer's job is, the prosecutor, the
judge, the various pleas that he could enter.
Throughout his interview, which was not lengthy. [sic] There
is was [sic] one interview. The police officer spoke with him
very softly, handled him very generally [sic]. He, throughout
the interview, corrected the officer or denied things that
they suggested. He was not simply endorsing what the police
officers had said.
He denied touching his nephew's behind. He explained who
Day-Day was. He knew the location of the apartment. He
explained his conviction with a victim named [M.S.]. He
denied having pulled the child into the bathroom.
He has prior criminal experience which is extensive. And the
Miranda waiver is only a factor in the totality of
the circumstances of him understanding everything that was
going on, the signature of the waiver.
Again, this was not a long interview. It was not intense. He
was not deprived of anything. He was not mistreated. No
inducements were made.
He knew he was talking to the police. He knew he did not have
to talk. He knew he was in the Justice Center. He had been
through the system multiple times.
There is nothing, frankly, that indicates that he did not
understand the ramifications of signing the Miranda
waiver. So I respectfully disagree with the doctors. And the
motion to suppress is denied. Overruled.
Motion to Suppress Was Properly Denied
In his first assignment of error, Walker claims that the
trial court improperly denied his motion to suppress his
statement. Appellate review of a motion to suppress presents
a mixed question of law and fact. State v. Burnside,
100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
An appellate court must accept the trial court's findings
of fact if they are supported by competent, credible
evidence. Id. Accepting those facts as true, the
appellate court must then independently determine, without
deference to the trial court's conclusion, whether the
facts satisfy the applicable legal standard. Id.
In Miranda, the United States Supreme Court
determined that, due to the coercion inherent in custodial
police interrogation, certain procedural safeguards were
necessary as prophylactic measures "to secure the
privilege against self-incrimination." Miranda v.
Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966). Thus, "[p]rior to any questioning, the
person must be warned that he has a right to remain silent,
that any statement he does make may be used as evidence
against him, and that he has a right to the presence of an
attorney, either retained or appointed." Id.
After he is advised of his rights, "[t]he defendant may
waive effectuation of these rights, provided the waiver is
made voluntarily, knowingly and intelligently."
In this case, Walker argued below that his statement had been
involuntary because he did not have the capacity to waive his
Miranda rights. The basis for that argument was that
Walker lacked the mental capacity, including the intellect,
to knowingly, voluntarily, and intelligently waive his
rights-an argument supported by the expert opinions of Drs.
Dreyer and Hellmann.
And so, there are two questions for this court to answer.
First, we must determine if it was permissible for the trial
court to reject the conclusions of the two experts who
testified in this case. Second, if such a rejection was
permissible, we must decide if there was competent, credible
evidence to support the conclusion that Walker's
intellect did not prevent him from knowingly, intelligently,
and voluntarily waiving his Miranda rights.
While a trial court cannot "arbitrarily" ignore an
expert opinion, it may reach a contrary conclusion if there
are "some reasons * * * objectively present" in the
record to do so. State v. Brown, 5 Ohio St.3d 133,
135, 449 N.E.2d 449 (1983). Thus, an expert's opinion is
not conclusive, even if uncontradicted by another expert.
Id.; see State v. White, 118 Ohio St.3d 12,
2008-Ohio-1623, 885 N.E.2d 905, ¶ 71 (holding that the
trial court is not required to accept an expert's opinion
when there is some objectively present reason for ignoring
In this case, the trial court had reasons objectively present
upon which it could rely to reject the expert opinions below.
Just weeks before he was evaluated by Dr. Dreyer as to his
"Competence to Waive Miranda Rights, " Dreyer had
filed a report in another matter that Walker was competent to
stand trial. In other words, just 36 days before, Dr. Dreyer
had found that Walker understood the nature and objective of
the proceedings against him and could participate in his own
defense. See Dusky v. United States, 362 U.S. 402,
80 S.Ct. 788, 4 L.Ed.2d 824 (1960). While the experts
indicated that competence to stand trial and competence to
understand the Miranda rights are not the same
thing, Walker's ability to understand the trial process
and assist in his defense is some evidence that he understood
what was happening to him, the role of law enforcement, and
that he could understand information about that process that
was explained to him.
Particularly noteworthy was the fact that Dreyer, prior to
interviewing Walker, had engaged him in a discussion in order
to determine whether he could knowingly agree to the
"Confirmation of Forensic Participant's Rights
Policy and Privacy Practices of Court Clinic and Informed
Participation Statement." Dreyer concluded that Walker,
in order to participate in the evaluation, was competent
enough to waive his fundamental right to privacy. And, even
though Walker had a guardian to protect his interests, Dreyer
went through the interview without either having the guardian
review the form or having Walker sign it. Dreyer had
concluded that Walker was able to participate in that
process, saying that she was comfortable interviewing
Walker-even without his guardian present-because of his
numerous prior contacts with the Court Clinic.
Similarly, the trial court could reasonably look at this
determination, very similar to the determination of whether
the Miranda waiver was knowing, intelligent, and
voluntary, when reaching its conclusion that Walker had
validly waived his rights. The trial court also noted that
Walker had had extensive experience with the criminal-justice
system prior to the interview. The trial court mentioned that
Walker was insightful enough to "minimize his criminal
record and has consistently done so." And while Dr.
Dreyer had indicated that she disagreed with its conclusion,
the fact remained that the Hamilton County Developmental
Disabilities Services agency had found Walker ineligible for
their services due to "previous formal measurements of
his adaptive functioning."
On this record, we conclude that the trial court could reject
the conclusions of the expert witnesses and make its own
determination as to whether Walker's intellect precluded
him from knowingly, intelligently, and voluntarily waiving
his Miranda rights.
Decision Was Supported by Competent, Credible
We must now determine, absent the conclusions of the expert
witnesses, whether there was competent, credible evidence
upon which the trial court could rely when determining that
Walker's waiver of his Miranda rights was
knowing, voluntary, and intelligent. "[A] court may
infer from the totality of the circumstances that a defendant
voluntarily, knowingly, and intelligently waived his
rights." State v. Lather, 110 Ohio St.3d 270,
2006-Ohio-4477, 853 N.E.2d 279, ¶ 9, citing State v.
Clark, 38 Ohio St.3d 252, 261, 527 N.E.2d 844 (1988).
The totality of the circumstances includes "the age,
mentality, and prior criminal experience of the accused; the
length, intensity, and frequency of interrogation; the
existence of physical deprivation or mistreatment; and the
existence of threat or inducement." State v.
Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d
1042, ¶ 25, quoting State v. Eley, 77 Ohio
St.3d 174, 178, 672 N.E.2d 640 (1996). By this definition of
"totality, " a court is to look to all of the
evidence to determine a suspect's understanding, which
can be implied by his conduct and the situation.
Lather at ¶ 9.
An individual's low intellect does not necessarily render
him or her incapable of waiving Miranda rights.
State v. Jenkins, 15 Ohio St.3d 164, 233, 473 N.E.2d
264 (1984). Rather, a person's low intellect is but one
of many factors under the totality of circumstances that a
court must consider in assessing the voluntariness of a
Miranda waiver or confession. State v.
Frazier, 115 Ohio St.3d 139, 154, 873 N.E.2d 1263
As the trial court noted, the detectives spoke plainly with
Walker when explaining his rights. Both detectives had had
previous contact with Walker while investigating two separate
offenses involving other victims. Detective Kelly had
previously explained Walker's Miranda rights to
him. After the rights form was read to Walker, he was asked
if he knew what it meant, and he said that he didn't
know. Detective Kelly then summarized the rights for Walker,
stating that they meant that "you can talk to us without
a lawyer, or you can talk to us with a lawyer. Okay? That
means that if you want to stop talking to us, you can stop at
any time." Walker was then asked if he understood, and
he said that he did. Kelly pressed him further, asking,
"Are you sure?" Walker responded, "Yes,
ma'am." After repeatedly telling the detectives that
he understood his rights, he then agreed to speak with them.
The interview itself was not long, lasting less than two
hours. He was not denied anything during the course of the
interview, and he was not mistreated. While he was in the
Hamilton County Justice Center at the time of questioning, he
was being held there on a separate matter. He was 20 years
old at the time, and had had numerous contacts with the
justice system before that.
It is worth noting that the trial court was able to not only
read the cold transcript of the interview, but was also able
to listen to the audio recording. The audio recording gives a
different sense of the exchange than can be had from reading
the words on the page. It is in situations like this when
this court should give deference to the trial court's
interpretation of such evidence. The trial court listened to
the recording of Kelly reading the rights to Walker,
Walker's response claiming he did not understand, and
Kelly's explanation of the rights. On this record, the
trial court's determination was supported by competent,
The trial court concluded that there was "nothing,
frankly, that indicates that he did not understand the
ramifications of signing the Miranda waiver."
In the context of this case, and having determined that the
trial court permissibly rejected the opinions of the expert
witnesses, this statement was accurate. While the experts
reached a different conclusion, the trial court was not
required to accept their opinions as long as other evidence
in the record supported departing from their conclusions.
Compare State v. White, 118 Ohio St.3d 12,
2008-Ohio-1623, 885 N.E.2d 905, ¶ 70 (the trial court
failed to set forth any rational basis grounded in the
evidence for rejecting the uncontradicted testimony of two
qualified expert witnesses in the field of psychology). In
this case, the trial court gave an extensive recitation of
the evidence in the record to explain why it did not agree
with the expert witnesses. Because the trial court's
finding was supported by some competent, credible evidence,
the trial court did not err when it denied his motion to
suppress. We overrule Walker's first assignment of error.
of Miranda Warning and Subsequent
While the dissent has raised the issue of Detective
Kelly's inadequate explanation of the Miranda
rights during Walker's interview, Walker neither raised
that issue in the trial court, nor argued that issue to this
court on appeal. During the course of the proceedings on the
motion to suppress, Walker's counsel clearly limited the
scope of his challenge to his "capacity to waive his
Miranda rights, " not their adequacy. After
having presented the expert testimony, counsel argued only
that the "State has the burden * * * of proving, by a
preponderance of the evidence, that Mr. Walker's
statement was voluntary. You have two experts who have both
agreed independently that [it] was not." Counsel
concluded by stating that "we ask that you accept and
follow the opinions offered to you by the scientific experts
in this regard."
"It is well-settled law that issues not raised in the
trial court may not be raised for the first time on appeal
because such issues are deemed waived." Columbus v.
Ridley, 2015-Ohio-4968, 50 N.E.3d 934, ¶ 28 (10th
Dist.), quoting State v. Barrett, 10th Dist.
Franklin No. 11AP-375, 2011-Ohio-4, ¶ 13; see State
v. Comen, 50 Ohio St.3d 206, 211, 553 N.E.2d 640 (1990).
This "well-settled law" applies to arguments not
asserted either in a written motion to suppress or at the
suppression hearing. Id., citing State v.
Johnson, 10th Dist. Franklin No. 13AP-637,
2014-Ohio-671, ¶ 14; State v. Vaughn, 12th
Dist. Fayette No. CA2014-05-012, 2015-Ohio-828, ¶ 9;
State v. Perkins, 9th Dist. Summit No. 21322,
2003-Ohio-3156, ¶ 13; State v. Molk, 11th Dist.
Lake No. 2001-L-146, 2002-Ohio-6926, ¶ 11.
Walker would not have been able to raise on appeal the issue
of whether the warnings he received from Detective Kelly were
adequate. And the appellate record demonstrates that he has
not. Throughout his brief to this court, Walker continued to
rely solely on Walker's mental capacity to understand his
rights, as demonstrated by the expert testimony. Even in his
third assignment of error, wherein Walker argues the
ineffectiveness of trial counsel, ...