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State v. Myers

Supreme Court of Ohio

May 17, 2018

The State of Ohio, Appellee,
v.
Myers, Appellant.

          Submitted December 5, 2017

          Appeal from the Court of Common Pleas of Warren County, No. 14CR29826.

          David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant Prosecuting Attorney, for appellee.

          Timothy J. McKenna and Roger W. Kirk, for appellant.

          DEWINE, J.

         {¶ 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 penalty.

         I. BACKGROUND

         A. 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 work either.

         {¶ 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 Waynesville.

         {¶ 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 Mosley's house.

         {¶ 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 gloves.

         {¶ 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.

         B. The Murder

         {¶ 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 he loaded.

         {¶ 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.

         C. 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 river.

         D. The Investigation

         {¶ 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 murder.

         {¶ 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.

         E. Indictment, Trial, and Sentence

         {¶ 36} Myers was indicted on nine counts:

Count 1

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))

Count 2

aggravated murder-felony-murder (R.C. 2903.01(B)) with three death-penalty specifications: kidnapping, aggravated burglary, and aggravated robbery (R.C. 2929.04(A)(7))

Count 3

kidnapping (R.C. 2905.01(A)(2))

Count 4

aggravated robbery (R.C. 2911.01(A)(3) with a firearm specification

Count 5

aggravated burglary (R.C. 2911.11(A)(1)) with a firearm specification

Count 6

grand theft of a firearm (R.C. 2913.02(A)(1)) with a firearm specification

Count 7

tampering with evidence (R.C. 2921.12(A)(1))

Count 8

safecracking (R.C. 2911.31(A))

Count 9

abuse of a corpse (R.C. 2927.01(B)) with a firearm specification

         {¶ 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.

         II. SHACKLING ISSUES

         {¶ 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.

(Capitalization sic.)

         {¶ 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 overruled.

         III. SUPPRESSION ISSUES

         {¶ 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.

         A. Lack of Miranda Warnings for the First Interview

         {¶ 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 interview.

         {¶ 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 the interview.

         {¶ 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 * * *." (Emphasis added.)

         {¶ 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 required.

         B. 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.

         C. 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 appointed.

         {¶ 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.

         D. ...


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