Submitted December 5, 2017
from the Court of Common Pleas of Warren County, No.
P. Fornshell, Warren County Prosecuting Attorney, and Kirsten
A. Brandt, Assistant Prosecuting Attorney, for appellee.
Timothy J. McKenna and Roger W. Kirk, for appellant.
1} This is a direct appeal in a capital case. Austin
Myers was convicted of aggravated murder with a death
specification for killing his childhood friend Justin Back.
We affirm his convictions and the imposition of the death
Planning and Preparation
2} The case was tried to a jury. Much of the account
of what happened came from Myers's friend and codefendant
Timothy Mosley. According to Mosley, he and Myers began to
concoct their scheme on January 27, 2014. That morning,
Myers, who had just slept through the start of a new job,
woke up Mosley and asked him if he "wanted to make some
money." When Mosley said he did, Myers suggested that
they either rob a drug dealer he knew or "Justin
Back's step dad, Mark [Cates]." Myers had once lived
near Back's family. He and Back had attended seventh and
eighth grades together and briefly had been friends until
Back's mother told him he could no longer be around
Myers. Myers had been in Back's home and told Mosley that
Cates had a safe containing a gun and money that was
"usually cracked open."
3} Later that day, with Myers giving directions,
Mosley drove them to the Waynesville area. As they approached
Waynesville, Mosley realized that Myers had decided to rob
Cates rather than the drug dealer.
4} The two men arrived at the Cates house around
noon. But when they got there, Back was at home, so they
decided not to commit the robbery. Instead, they visited with
Back for 15 to 20 minutes and then left. After leaving the
house, Myers and Mosley went to the Waynesville library to
discuss how to "get the money." According to
Mosley, it was during this discussion that Myers "came
up with the idea of killing Justin Back."
5} Their first plan was to give Back a fatal
injection. Mosley suggested using cold medicine, so they went
to a Waynesville store to buy some. Mosley picked up four
boxes of nighttime cold medicine, and Myers added a bottle of
poisonous "bug wash." Myers carried these items to
the checkout counter but could not complete the purchase
because his credit card was declined. Then Myers tried to
withdraw money from the store's ATM, but that did not
6} Empty-handed, the two left the store, and Myers
directed Mosley to a nearby pharmacy, where Myers asked a
clerk for syringes. When Myers explained that he wanted the
kind with needles, the clerk referred him to the pharmacist.
They stood in line briefly at the pharmacy counter but walked
out without syringes.
7} Myers and Mosley returned to the Cates house
later in the day and watched a movie with Back. When Cates
came home from work, he joined them in watching the movie for
a short time until he and Back had to leave for an
appointment with a Navy recruiter. At that point, Mosley and
Myers left the house and drove to a McDonald's in
8} In the McDonald's parking lot, the pair
plotted "what to do * * * to further the plans." As
Mosley tells it, he proposed returning immediately to the
Cates house and breaking in while Cates and Back were away.
But Myers rejected that idea, reasoning that they did not
know how long Cates and Back would be gone. Instead, they
went to their friend Logan Zennie's house, driving past
the Cates house "to scout it out." Later, Myers,
Mosley, Zennie, and a fourth man, named Cole, went to
9} At Mosley's house, while Zennie and Cole
watched television downstairs, Mosley and Myers went to
Mosley's room to "[come] up with another plan on how
to get the safe." As they talked, Mosley wrote down
their ideas in a small notebook.
10} They hatched a scheme to strangle Back with a
wire and then take the safe. The idea was to make it look as
though Back had stolen the safe and run away from home. They
planned to "take whatever [they] thought Justin would
take"-specifically his "clothes, money, phone and
charger"-and dump his body in a remote wooded area.
11} According to Mosley, Myers then suggested that
they kill Cates as well. Myers proposed that they
"mak[e] it look like [Cates] killed [Back] and * * * ran
off." Mosley testified that he opposed this idea because
it would involve more work and greater risk.
12} Their planning session complete, Mosley and
Myers headed to a Lowe's store in Trotwood. Myers bought
a three-foot length of galvanized steel cable and two metal
rope cleats. Their intent was to fashion a garrote-or
"choke wire" as Mosley called it-from these items
by securing a cleat to each end of the cable.
13} They returned to Mosley's room to put
together their garrote, where Zennie walked in on them before
they could hide the materials. At trial, Mosley could not
recall precisely what they had told Zennie but said that they
did not tell him what they planned to do with the garrote. In
any event, Zennie put the garrote together for them.
14} The next morning, Myers and Mosley bought more
supplies. Mosley suggested buying ammonia, because he
believed from watching crime shows that "it would
destroy any DNA." Myers had the idea of purchasing
"septic enzymes." He explained to Mosley that the
cold weather would slow the body's decomposition; he
thought they could speed up the process by pouring the
enzymes on it. They drove to a store northwest of Dayton,
where Myers bought ammonia, septic-tank cleaner, and rubber
15} The pair returned to Waynesville. Myers intended
to commit the crime around 1:00 p.m. Needing to burn some
time, they browsed an antiques store for a while. At 12:48
p.m., they bought gas for the car. After driving past the
Cates house several times, they pulled in the driveway around
1:00. The plan, according to Mosley, was for Myers to
distract Back while Mosley came up behind him. Myers would
hold Back down while Mosley choked him to death with the
garrote. Mosley stuffed the garrote into one of his pockets.
He also was carrying a five- or six-inch pocketknife.
16} Myers knocked on the door. Back answered and let
the pair in. The three men talked for a while. At some point,
Back asked Myers if he wanted a drink. Myers said he did, so
Back went with him to the kitchen. Mosley "saw the
opportunity" and followed them.
17} Back opened the refrigerator and bent down to
get the drink. As Back was straightening up, Mosley looped
the garrote cable over Back's head from behind and
crossed his arms to pull it tight. At the same time, Myers
grabbed Back to restrain him. Mosley kicked Back's feet
from under him, and all three fell to the floor, entangled.
18} Mosley, however, had not been able to get the
cable around Back's neck; instead, it was looped around
his chin. As Back struggled for his life-which took "a
good couple of minutes"-he repeatedly asked
"[W]hy[?]" and pleaded with his assailants to stop.
Myers tried to "calm him down" by saying something
"[along] the lines of it's all right, it's
almost over * * *."
19} After Myers told Mosley that Mosley "had
missed his throat and that [the wire] was wrapped around his
chin, " Mosley panicked, pulled out his knife, and
stabbed Justin in the back. After that, Myers took hold of
the garrote and managed to get it around Back's neck.
Sitting on the on the kitchen floor with his back to the
wall, Myers pulled on the garrote with Back lying in his lap.
Mosley then began stabbing Back in the chest. When he was
done, there was "blood everywhere."
20} After Back died, Mosley and Myers hunted for the
safe, which they found in a closet in the master bedroom. But
contrary to their expectations, it was locked. (Cates
testified that although he had previously left the safe
unlocked because he had lost the combination, someone had
inadvertently locked it, and he had not opened it for some
time.) Myers also found a handgun belonging to Cates, which
21} The pair returned to the kitchen where they
cleaned up the crime scene using ammonia, small rugs from the
kitchen floor, and assorted rags and towels. They wrapped
Back's body in a blanket and shoved it in the trunk of
Mosley's car. Then they ransacked the house, taking the
safe as well as some jewelry and credit cards. Myers filled
some bags with Back's clothing. They also filled a
laundry basket with more clothes and other items, including
Back's headphones, glasses, laptop computer, phone
charger, and laptop charger. They stuffed the bloody towels,
rags, and rugs into a garbage bag. They loaded everything
into Mosley's car and left the house by about 2:00 p.m.
22} Andrew Raymond, a next-door neighbor of the
Cates family, saw Mosley's car in the Cateses'
carport early that afternoon. A silver Chevrolet Cavalier,
the car had a distinctive appearance, its entire rear window
having been replaced by a sheet of plastic held in place with
red duct tape. A side window of the car sported a "Tap
Out" sticker. Raymond had seen someone coming out of the
back door of the Cateses' house. He did not recognize the
person but knew it was not Back.
23} While driving, Mosley developed
"paranoia" about being followed, so he took side
roads to a remote area, where he parked and checked the
outside of the car for blood. Then he and Myers searched for
Back's wallet, which they located in one of the bags. The
wallet contained more than $100, which Myers took. The two
continued on to Mosley's house.
Disposing of the Evidence
24} Myers went into Mosley's house and rinsed
the blood from his hands and arms. Meanwhile, Mosley unloaded
stuff from the car to his bedroom. Together, they dragged the
safe up the stairs and then changed their clothes. Mosley
proposed dumping the body near West Alexandria, an area he
knew well. That was fine with Myers, so they headed that way.
25} They decided to hide the body behind a log in a
field near "Cry Baby Bridge" near the village of
Gratis in Preble County. Mosley drove into the field,
stopping about 20 feet from the log. The pair carried the
body to the log and laid it on the ground. They found
Back's iPod on his body and took it. Myers then poured
ammonia and septic enzymes onto the corpse, which was still
clothed and partly wrapped in the blanket.
26} According to Mosley, Myers "wanted to shoot
the body, " so Mosley got the stolen gun from the car
and handed it to Myers, who fired two shots into Back's
body. The gun jammed on the third shot. Myers cleared the
jam, ejecting the bullet to the ground, where it was later
found by the police.
27} After they hid the body, Myers suggested again
that they kill Cates to make it look as if he had killed Back
and disappeared. Mosley vetoed this idea. Instead, the men
drove to a park in Brookville, where Mosley tossed Back's
laptop into a dumpster. They then pulled into a nearby tavern
parking lot to get rid of the iPod. Myers hid it in the gap
between the windshield and the hood of a parked car.
28} They bought a crowbar in Englewood and went back
to Mosley's house to crack open the safe. Instead of the
$20, 000 that Myers had promised, the safe contained
"[paperwork, loose change, bullets, gun accessories, and
random items." Myers and Mosley separated out items that
they thought they could sell. Afterward, they burned the
papers, several trash bags containing evidence of the crime,
and their bloody clothes in a fire pit in the back yard.
29} Myers and Mosley put everything from the house
and safe that looked valuable (including the gun, headphones,
sunglasses, a coin collection, and a necklace) into a bag and
took it to Zennie's house. Zennie let them store the bag
in his safe in his bedroom. Myers, Mosley, and Zennie next
drove to Tipp City, where they threw Cates's safe into a
30} Cates came home from work around 3:30 p.m. that
day. He realized that a table had been moved and that some
rugs were missing. Later, he and his wife found that
Cates's safe and handgun were missing. They called 9-1-1
and tried to contact Back. They discovered his cell phone in
the house and also found the shoes that he always wore when
he went out.
31} During the ensuing investigation, officers
obtained a description of the car Raymond had seen in the
Cateses' carport and were informed by Cates that Myers
had visited the Cates house the day before in the same car.
Warren County sheriffs detectives sent out a "be on the
lookout" alert for Myers and the car to nearby police
departments and county sheriffs. The car was located by the
Clayton police, who detained Myers at Mosley's house and
notified the Warren County detectives.
32} The detectives interviewed Myers at the Clayton
police station early the next morning, January 29. He denied
knowing anything about Back's disappearance or the
burglary at the Cates residence. After the interview, Myers
was taken back to Mosley's house, and Mosley was taken to
the station for questioning. When the detectives finished
talking with Mosley, he was returned to his house, and Zennie
was taken to the station. Based on what they learned from
Zennie, the detectives had Clayton police officers arrest
Mosley and Myers and return them to the station. The
detectives again interviewed Mosley and then Myers. The story
of the murder started coming out.
33} Myers admitted that he had been present when
Mosley stabbed Back. He said that when he had gone to hang
out with Back on January 28, he did not know that Mosley was
going to kill Back. Nor did he know why Mosley had killed
Back. Myers denied shooting Back's body, claiming instead
that Mosley had done that.
34} When the detectives interviewed Mosley again, he
confessed, telling essentially the same story he later told
at trial. Following Mosley's confession, the detectives
interviewed Myers, who again changed his story. This time, he
admitted shooting the body. He also acknowledged buying the
materials to make the garrote, which he described as a
"self-defense weapon" that was to be used only
"to knock [Back] out, " not to kill him. He
continued to deny that he had restrained Back during the
35} That day, Preble County sheriffs deputies found
Back's body near Cry Baby Bridge. The body was covered in
white powder-later determined to be septic enzymes. A
Montgomery County coroner autopsy determined that Back had
died of multiple stab wounds.
Indictment, Trial, and Sentence
36} Myers was indicted on nine counts:
aggravated murder with prior calculation and design
(R.C. 2903.01(A)) with three death-penalty
specifications: kidnapping, aggravated burglary, and
aggravated robbery (R.C. 2929.04(A)(7))
aggravated murder-felony-murder (R.C. 2903.01(B))
with three death-penalty specifications: kidnapping,
aggravated burglary, and aggravated robbery (R.C.
kidnapping (R.C. 2905.01(A)(2))
aggravated robbery (R.C. 2911.01(A)(3) with a firearm
aggravated burglary (R.C. 2911.11(A)(1)) with a
grand theft of a firearm (R.C. 2913.02(A)(1)) with a
tampering with evidence (R.C. 2921.12(A)(1))
safecracking (R.C. 2911.31(A))
abuse of a corpse (R.C. 2927.01(B)) with a firearm
37} The jury found Myers guilty on all counts and
specifications. The two aggravated-murder counts were merged
for purposes of sentencing, and the state elected to proceed
on Count 1-aggravated murder with prior calculation and
design-with the aggravated-robbery specification for the
penalty phase. The jury recommended a death sentence, and the
trial judge sentenced Myers to death. The judge imposed
prison sentences on the noncapital counts.
38} Myers now appeals to this court, presenting 18
propositions of law. We have examined each of Myers's
claims and find that none has merit. Accordingly, we affirm
Myers's convictions and sentence of death.
39} We begin with Myers's ninth proposition of
law, in which he contends that the trial court violated his
due-process rights and denied him a fair trial by requiring
that he wear leg shackles during the trial.
40} Before trial, Myers filed a motion to be tried
without restraints. The trial court held a hearing on the
motion. Major Barry Riley, the jail administrator, testified
that the sheriffs office initially classified Myers as a
"maximum security" inmate because he was charged
with a "brutal, premeditated murder." Myers's
security classification was later increased due to
"jailhouse infractions, " including destroying jail
property and fashioning a rope from a cloth. (Myers claimed
that he intended to use the rope as a belt, but Riley
testified that such a rope could also be used as a weapon or
to tie a door shut.) Based on Myers's classification and
the security concerns involved, Riley recommended that Myers
be kept in "maximum restraints, " including
"leg shackles, belly chains and handcuffs." The
"least restrictive restraint" that Riley felt he
could recommend was leg shackles.
41} On cross-examination, Riley conceded that there
had not been a specific incident involving Myers in the
courtroom or during transport. He also agreed that the
shackles would probably make noise when Myers moved his legs.
42} After Riley testified, a defense attorney stated
that the defense did not "strenuously object" to
leg shackles if the shackles could be concealed. The attorney
explained that the defense was principally concerned about
the use of handcuffs and belly chains.
43} After the hearing, the trial court issued an
order establishing security protocols. The court found:
"Based on the evidence and arguments of counsel, * * *
the nature of the proceedings and the specific security risks
posed by this Defendant require a heightened level of
security." Thus, the court ordered that Myers be
transported to and from the courtroom in restraints to be
determined by the sheriffs department. But the courtroom was
to be cleared of the public before Myers entered, all
restraints other than leg restraints were to be removed
before the public was readmitted, and the courtroom was to be
cleared at the close of the hearings prior to Myers's
departure. The court further directed that a "modesty
panel" be placed under both counsel tables to
"obscure the leg restraints from the view of the
jury." Finally, the court found that the protocols
established by its order were the "least restrictive
means of security and restraint available."
44} "No one should be tried while shackled,
absent unusual circumstances." State v.
Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d
1112, ¶ 82. "The decision to impose such a
restraint is left to the sound discretion of the trial court,
which is in a position to consider the prisoner's actions
both inside and outside the courtroom, as well as his
demeanor while court is in session." (Citation omitted.)
State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304,
776 N.E.2d 26, ¶ 79. "The trial court must exercise
its own discretion and not leave the issue up to security
personnel." State v. Adams, 103 Ohio St.3d 508,
2004-Ohio-5845, 817 N.E.2d 29, ¶ 104. Myers contends
that leg shackles were not necessary to protect courtroom
security and that the trial court improperly deferred to the
sheriffs office in making its decision. But here, the court
merely heard the concerns presented by Riley. Notably, the
court did not accede to Riley's request to have Myers in
handcuffs and belly chains. And the court ordered a modesty
panel so that the leg shackles would not be visible. We
conclude that there was no abuse of discretion.
45} Nor has Myers shown that his due-process rights
were violated. Due process "prohibits] the use of
physical restraints visible to the jury absent a trial court
determination, in the exercise of its discretion, that they
are justified by a state interest specific to a particular
trial." Deck v. Missouri, 544 U.S. 622, 629,
125 S.Ct. 2007, 161 L.Ed.2d 953 (2005). "[A] claim based
on Deck 'rises or falls on the question of
whether the [restraining device] was visible to the
jury.' " Leonard v. Warden, Ohio State
Penitentiary, 846 F.3d 832, 842 (6th Cir.2017), quoting
Earhart v. Konteh, 589 F.3d 337, 349 (6th Cir.2009).
The procedures put in place for Myers to enter and leave the
courtroom out of the view of the public, along with the
modesty panel ordered by the trial court, shielded the
shackles from view. There is nothing in the record to
indicate that the jury saw the shackles.
46} Indeed, Myers does not claim that his shackles
were visible. Rather, he argues that the jury was aware of
the shackles because they made noise. Significantly, at no
time during the trial did anyone mention noise coming from
the shackles. Having raised the subject during the hearing,
trial counsel were well aware of the possibility that the
shackles might make noise. We would expect, then, that trial
counsel would have called any such noise to the court's
attention. On the state of this record, Myers's claim
that the jury was aware of the shackles is mere speculation.
47} Myers further argues that he was prejudiced
because the shackles prevented him from rising when
prospective jurors entered the courtroom during voir dire.
Before voir dire began, the court ordered that everyone
already in the courtroom would remain seated when the
prospective jurors were brought in so that Myers's
shackles would not be seen. Nonetheless, Myers claims error
based upon the following discussion that occurred outside the
presence of the venire on the third day of voir dire:
[Defense counsel]: * * * Sorry, Judge, we're used to
standing up when the Court comes in, especially when somebody
says all rise. We stand up, they stand up, I know the court
has indicated it's not necessary, there's a concern
because Mr. Myers is shackled * * *, do you want us to just
stay down? Because what I don't want to have happen is we
all stand up and he doesn't stand up and then some juror
goes he's being disrespectful.
THE COURT: What has been happening, is I've been coming
in before the jury has been here and I know that you guys
stand up and when we just entered the courtroom before, I
mean the jury wasn't here yet. The all rise was not
supposed to happen. My plan is to be seated here and have
everybody else seated here and when the jury comes in,
everybody remains seated. If you stand up when the jury comes
in, I will tell you to sit down.
[Defense counsel]: Fair enough, I just wanted some
clarification on that Judge, thank you.
48} From this, Myers asks us to infer that
"during the majority of voir dire, every time
the [venire] came in and the bailiff said 'All rise,
' all the attorneys stood up, but Myers could not due to
the shackles." But, actually, the above passage provides
no indication that this had happened more than the one time
alluded to by the trial court. In any event, Myers claims
prejudice, arguing that his failure to stand up for the
venire's entrance when the attorneys were doing so made
"a bad impression" on the prospective jurors. But
nothing in the record suggests that the problem-assuming
there was one-recurred after the trial judge clarified that
counsel were not to rise for the venire's entrance.
During trial, the jurors would have observed that nobody rose
when they entered the courtroom, and any impression they may
have formed as a result of Myers's failure to do so
during voir dire likely had faded. Consequently, we see no
likelihood that any error that may have occurred during voir
dire affected the verdict or sentence.
49} Myers's ninth proposition of law is
50} In his third proposition of law, Myers contends
that the trial court should have suppressed the statements he
made to Detectives Michael Wyatt and Paul Barger on January
29. His principal claim is that he was subjected to custodial
interrogation without being advised of his Miranda
rights. See generally Miranda v. Arizona, 384 U.S.
436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He also maintains
that he never validly waived his right to remain silent, that
he was denied his constitutional right to counsel, and that
his statements were involuntary.
Lack of Miranda Warnings for the First
51} After midnight on January 29, Sergeant Jeff
Garrison of the Clayton police department and another Clayton
police officer went to Mosley's house to locate Myers.
Garrison cuffed Myers's hands behind his back, walked him
outside, searched him for weapons, and placed him in the back
seat of a cruiser. Garrison told Myers that "he was
being detained for Warren County."
52} Warren County Detective Wyatt arrived at
Mosley's house around 2:50 a.m. He opened the cruiser
door and found Myers asleep. Wyatt woke Myers, identified
himself, explained that the police were looking for Back, and
asked Myers if he was willing to come to the nearby Clayton
police station to talk. Myers agreed.
53} Myers emphasizes that the Clayton police
detained him in handcuffs at Mosley's residence. Indeed,
the trial court determined that Myers was in the custody of
those officers during that time. But Myers was not
interrogated and made no statements during that period.
"[I]n conducting the Miranda analysis, we focus on the
time that the relevant statements were made." United
States v. Swan, 842 F.3d 28, 31 (1st Cir.2016). Thus,
our analysis is not controlled by the fact that Myers was in
custody before the first interview. Instead, we turn our
attention to whether Myers was in custody during the first
54} A Clayton officer drove Myers to the Clayton
police station, with Wyatt and Barger following. At the
station, Myers was removed from the cruiser. When Wyatt
noticed that Myers was handcuffed, he asked the Clayton
officer to take off the cuffs, and they were removed before
Myers entered the building. Wyatt and Barger took Myers into
a conference room, where the three of them sat at a table
with Wyatt farthest from the door. Myers sat on Wyatt's
right, closer to the door; Barger sat across the table from
Myers. The door was initially closed but at some point during
the interview it was opened and was left open for the rest of
55} This first interview, which was audio recorded,
began at 3:07 a.m. Wyatt did not give Myers Miranda
warnings at this time. Rather, at the start of the interview,
Wyatt said: "Like I told you * * * we appreciate you * *
* coming down here and * * * like I told
you, you're free to go at any time. You're
not under arrest or anything else." (Emphasis
added.) When Myers said that he had been confused, because
the Clayton officers had told him he was being
"detained, " Wyatt repeated: "You understand,
though, you're not under arrest * * *."
56} During the interview, Myers claimed to know
nothing about Back's disappearance or the robbery of the
Cates residence. The interview ended at 3:54 a.m., and Myers
was driven back to Mosley's house.
The fundamental import of the privilege [against
self-incrimination] while an individual is in custody is not
whether he is allowed to talk to the police without the
benefit of warnings and counsel, but whether he can be
interrogated. * * * Volunteered statements of any kind
are not barred by the Fifth Amendment and their admissibility
is not affected by our holding today.
(Emphasis added.) Miranda, 384 U.S. at 478, 86 S.Ct.
1602, 16 L.Ed.2d 694. Thus, Miranda warnings are
required "only when a suspect is subjected to both
custody and interrogation." Neyland, 139 Ohio
St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, at ¶ 119.
57} "What are now commonly known as
Miranda warnings are intended to protect a suspect
from the coercive pressure present during a custodial
interrogation." Cleveland v. Oles, 152 Ohio
St.3d 1, 2017-Ohio-5834, 92 N.E.3d 810, ¶ 9, citing
Miranda at 469. Determining whether questioning is
"a custodial interrogation requiring Miranda
warnings demands a fact-specific inquiry that asks whether a
reasonable person in the suspect's position would have
understood himself or herself to be in custody while being
questioned." Oles at ¶ 21.
58} The trial court found that Myers was not in
custody during the first interview, and we agree. When Wyatt
noticed that Myers was handcuffed, he immediately had the
cuffs removed, remarking that Myers was "here
voluntarily." Myers was questioned in a conference room
instead of an interrogation room, see United States v.
Littledale, 652 F.3d 698, 702 (7th Cir.2011), and was
seated at a conference table with Wyatt and Barger. The door
was open during part of the interview, and it does not appear
that either detective was situated between Myers and the
door. See United States v. Mshihiri, 816 F.3d 997,
1004 (8th Cir.2016); United States v. Berres, 777
F.3d 1083, 1092 (10th Cir.2015).
59} Moreover, Myers was expressly informed at the
beginning of the interview that he was not under arrest and
was free to leave at any time. See Swan, 842 F.3d at
31-33; United States v. Muhlenbruch, 634 F.3d 987,
996-997 (8th Cir.2011); Commonwealth v. Sanchez, 476
Mass. 725, 736, 73 N.E.3d 246 (2017).
60} A reasonable person, having just been released
from handcuffs and expressly told that he was there
voluntarily and was free to leave, would not have understood
himself to be in custody. Miranda warnings were not
Validity of Miranda Waiver
61} Myers had four more contacts with Wyatt and
Barger on January 29.
62} After the first interview with Myers, Wyatt and
Barger interviewed Mosley and then Zennie. During
Zennie's interview, Wyatt learned that Mosley had told
Zennie that Myers had shot Back and Mosley had stabbed him.
Wyatt instructed the Clayton officers at Mosley's house
to detain both men. Myers was taken back to the Clayton
police station around 7:40 a.m., placed in a holding cell,
and handcuffed to a bench.
63} At 7:42 a.m., Wyatt administered
Miranda warnings to Myers. He asked Myers if he
understood the warnings, and Myers nodded his head. Myers
almost immediately invoked his right to counsel; Wyatt ended
the interview at 7:45 a.m., and he and Barger left the room.
64} At 9:27 a.m., Myers tapped on the window in the
holding cell, summoning Wyatt. Myers expressed a desire to
help Wyatt, but Wyatt told him he could not talk to him or
question him. Myers then asked Wyatt how he would go about
getting an attorney. Wyatt told him that he could hire his
own but that if he could not afford to do so, the court would
appoint counsel when he was charged. Myers asked if he was
going to be charged, and Wyatt said that he would be.
65} Myers tapped on the window again at 10:02 a.m.
When Wyatt responded, Myers told him he wanted to do what he
could to help him. Wyatt asked whether that meant Myers
wanted to talk to him. Myers nodded his head. Wyatt read
Myers the Miranda warnings again and asked him if he
understood them. Myers said: "I think so." Wyatt
asked: "Do you think so or do you understand?"
Wyatt continued: "Basically what it amounts to is you
can exercise those rights at any time. If you want to start
talking and then stop you can do that. * * * Do you have any
questions about it because I want to make sure you fully
understand your rights?" Myers said: "Yeah. I
do." Wyatt asked: "You do?" Myers said:
"Yeah." Wyatt clarified this discussion at the
hearing on Myers's motion to suppress: "The question
was do you understand your rights and he said yes, I
do." Myers then proceeded to answer Wyatt's
questions, giving an account of how Mosley had killed Back.
66} At about 1:30 p.m., Wyatt and Barger spoke with
Myers for a fifth time. Wyatt read the Miranda
warnings for the third time; Myers indicated that he
understood them and answered Wyatt's questions.
67} The 10:02 a.m. and 1:30 p.m. interviews of Myers
were preceded by Miranda warnings. Myers
nevertheless claims that the statements he made in those
interviews should have been suppressed. He argues that he
never validly waived his rights because (1) he was not given
the Miranda warnings in written form (Wyatt read
them from a card he carried), (2) Wyatt did not expressly ask
him whether he wished to waive his rights, and (3) he never
signed a written waiver.
68} None of these objections are well taken. A
Miranda waiver need not be in writing to be valid.
North Carolina v. Butler, 441 U.S. 369, 373, 99
S.Ct. 1755, 60 L.Ed.2d 286 (1979). Nor must the accused
specifically state that he waives his rights. Id. at
375-376; Treesh v. Bagley, 612 F.3d 424, 434 (6th
Cir.2010). "Where the prosecution shows that a
Miranda warning was given and that it was understood by
the accused, an accused's uncoerced statement establishes
an implied waiver of the right to remain silent."
Berghuis v. Thompkins, 560 U.S. 370, 384, 130 S.Ct.
2250, 176 L.Ed.2d 1098 (2010); see also State v.
Martin, 151 Ohio St.3d 470, 2017-Ohio-7556, 90 N.E.3d
857, ¶ 100-101.
69} The state made that showing here. At the outset
of the 7:42 a.m. interview, Wyatt read the Miranda
warnings to Myers, and Myers acknowledged that he understood
his rights. Myers's invocation of his right to counsel
further demonstrates his understanding.
70} The 10:02 a.m. interview took place after Myers
summoned Wyatt and said he wanted to talk to him. Wyatt then
read the Miranda warnings again. After stating that
he fully understood the warnings, Myers proceeded to answer
Wyatt's questions. Because Myers was informed of his
Miranda rights and indicated that he understood
them, his uncoerced statements to Wyatt validly established
an implied waiver. Butler at 373.
71} At the beginning of the 1:30 p.m. interview,
Wyatt read the Miranda warnings again, and Myers
again said that he understood his rights and voluntarily
spoke to Wyatt. Again, his uncoerced statements under these
circumstances were enough to establish a waiver.
Denial of Counsel
72} Myers also contends that his later statements
should have been suppressed because after he invoked his
right to counsel, he was interrogated without counsel being
73} Myers notes that he was never "given"
an attorney on that day. "Miranda does not
require that attorneys be producible on call, but only that
the suspect be informed, as here, that he has the right to an
attorney before and during questioning, and that an attorney
would be appointed for him if he could not afford one."
Duckworth v. Eagan, 492 U.S. 195, 204, 109 S.Ct.
2875, 106 L.Ed.2d 166 (1989). Once Myers invoked his right to
counsel, his waiver of that right could not "be
established by showing only that he responded to further
police-initiated custodial interrogation" after he was
advised of his rights. Edwards v. Arizona, 451 U.S.
477, 484, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Rather,
having expressed his desire to have counsel present, Myers
could not be subjected to further interrogation until counsel
was made available "unless [he] himself initiate[d]
further communication, exchanges, or conversations with the
police." Id. at 485.
74} That is precisely what happened here. Wyatt
terminated the 7:42 a.m. interview when Myers invoked his
right to counsel shortly after the interview began. Less than
two hours later, Myers summoned Wyatt and asked how he would
go about getting an attorney. Wyatt told him he could hire
one or one would be appointed for him after charges were
filed. No questioning took place at this point.
75} Half an hour later, Myers tapped on the glass
again and told Wyatt he wanted to "help" the
officers. Wyatt again administered Miranda warnings,
and Myers gave an account of how Mosley had killed Back.
Thus, Myers, after invoking his right to counsel,
"initiate[d] further communication, exchanges, or
conversations with the police, " Edwards at
485. There was no violation of Myers's right to counsel.