Merit Decision: Court Finds R.C. 2933.81(B) Unconstitutional As Applied to Juveniles and Inapplicable to Analysis of Validity of Miranda Waiver. State v. Barker.

By Marianna Brown Bettman
University of Cincinnati College of Law
May 2, 2016

On April 26, 2016, the Supreme Court of Ohio handed down a merit decision in State v. Barker,Slip Opinion No. 2016-Ohio-2708. In a 5-2 opinion written by Justice French, joined by Chief Justice O’Connor and Justices Lanzinger, Pfeifer, and O’Neill, the court held that R.C. 2933.81(B) is unconstitutional as applied to juveniles, and that the presumption in that statute that electronically recorded statements made during custodial interrogation are voluntary does not affect the analysis of whether a suspect validly waived his Miranda rights, which means the state retains the burden of proving a valid waiver of those rights. Justice O’Donnell dissented, joined by Justice Kennedy. The case was argued November 17, 2015.

Case Background

Then 15 year old Tyshawn Barker was taken into custody by police near midnight for questioning in regard to the fatal shootings of Ruddell Englemon and Carrie Conn. Another suspect had implicated Barker in those crimes during questioning earlier in the evening.

The police detectives electronically recorded Barker’s interrogation. After some preliminary questions, the detectives told Barker they were going to read something to him, then read him his Miranda rights. Barker said he understood what the detective had read, and he signed the notification-of-rights form below a preprinted statement which said “I understand my rights.”

The detectives then specifically asked Barker if he had heard of Miranda rights before, and his answer was, “no sir, my first time.” In response to another police question, Barker agreed that he had “seen it on t.v.” The detectives continued their questioning without asking whether Barker wanted to continue or to speak with a lawyer. Barker implicated himself in both shootings.

The next evening the detectives questioned Barker again, and when one of them told Barker he was going to re-read Barker his rights, Barker said, “I seen an attorney-an attorney, whatever that is…And she told me if you all to come up here just to ask for an attorney.” But when asked if he wanted an attorney, Barker told the detectives just to go on. They did, and Barker identified a co-defendant from a photograph.

Barker was charged as a juvenile with aggravated murder and murder in relation to the deaths of Englemon and Conn. The juvenile judge ordered an amenability evaluation. The evaluating psychologist found Barker to be mildly mentally retarded and of borderline intelligence. He placed his academic ability between third and fifth grade. The juvenile judge ordered the case transferred to adult court. Barker was indicted for aggravated murder with firearm and witness specifications, conspiracy with firearm and witness specifications, aggravated robbery, and tampering with evidence, both with firearm specifications.

Suppression Hearing

The procedural posture of this case is very messy-a point hammered on by Justice O’Donnell in his dissent.

Barker moved to suppress the statements made during the custodial interrogation, arguing that he did not knowingly, intelligently and voluntarily waive his Miranda rights, and that his statements were not voluntary.

At the suppression hearing, the state argued that the statutory presumption of voluntariness under R.C. 2933.81(B) applied to this case, but when the trial court overruled the motion to suppress, it did not rely on the statute in doing so. The trial court did not expressly find that Barker had knowingly, intelligently and voluntarily waived his Miranda rights. But the trial court did find that Barker had voluntarily made statements to police after being properly advised of his rights, and that he understood those rights. After a no contest plea, the trial court sentenced Barker to an aggregate prison term of 25 years to life.

The Appeal

On appeal, Barker initially challenged only his transfer to adult court and the effective assistance of counsel, but filed a supplemental brief challenging the ruling on the suppression motion. As part of that supplemental filing, Barker argued that R.C. 2933.81(B) has no bearing on the requirement that any waiver of rights must be knowing, intelligent and voluntary.

On appeal, the First District Court of Appeals, in a unanimous decision, upheld Barker’s conviction. While the appeals court acknowledged the totality of the circumstances test for determining the validity of a waiver of Miranda rights, the appeals court also applied the statutory presumption of voluntariness in R.C. 2933.81(B) as a basis for its decision that Barker’s statements were voluntary.

Read the oral argument preview of this case here, and an analysis of the argument here.

Key Statute and Precedent

Fifth Amendment to the U.S. Constitution (Guarantees that no person shall be compelled in a criminal case to be a witness against himself, as well as a right to due process of law, including a right to counsel.)

R.C. 2933.81(B) (All statements made by a person [suspected of enumerated crimes] during a custodial interrogation in a place of detention are presumed to be voluntary if the statements made by the person are electronically recorded. The person making the statements during the electronic recording of the custodial interrogation has the burden of proving that the statements were not voluntary.)

Miranda v. Arizona, 384 U.S. 436 (1966) (Prior to questioning, the police must warn the suspect that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has the right to the presences of an attorney, either retained or appointed. The state may not use a defendant’s statement from custodial interrogation unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. If custodial interrogation continues in the absence of an attorney after a police officer advises a suspect of his rights, the government bears a heavy burden to demonstrate by a preponderance of the evidence that the suspect knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel before speaking to the police. A court may not presume a valid waiver either from the suspect’s silence after warnings are given or from the fact that the suspect eventually confessed, rather, the record must show that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not a waiver. If the state does not satisfy its burden, no evidence obtained as a result of the interrogation can be used.)

Lego v. Twomey, 404 U.S. 477 (1972) (Constitutional principles of due process preclude the use of coerced confessions as fundamentally unfair, regardless of whether the confession is true or false. When a defendant challenges his confession as involuntary, dues process requires that the state prove by a preponderance of the evidence that the confession was voluntary.)

State v. Edwards, 49 Ohio St.2d 31 (1976) (In determining whether a confession was voluntary, the reviewing court must consider the totality of the circumstances, including the defendant’s age; mentality; prior criminal experience; the length, intensity, and frequency of the interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement.)

Fare v. Michael C., 442 U.S. 707 (1979) (When the suspect is a juvenile, the totality of the circumstances includes the juvenile’s age, experience, education, background, and intelligence as well as his capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.)

Colorado v. Connelly, 479 U.S. 157 (1986) (The voluntariness of a custodial statement does not answer whether the suspect knowingly, voluntarily, and intelligently waived his Miranda rights before making a statement, as those are distinct inquiries. Coercive police activity is a necessary predicate to the finding that a confession is not “voluntary” within the meaning of the Due Process Clause.)

State v. Clark, 38 Ohio St.3d 252 (1988) (To determine whether a suspect knowingly, intelligently, and voluntarily waived his Miranda rights, courts examine the totality of the circumstances.)

In re M.D., 38 Ohio St.3d 149 (1988) (The Supreme Court of Ohio will consider constitutional challenges to the application of statutes despite clear waiver in specific cases of plain error or where the rights and interests involved my warrant it.)

Dickerson v. United States, 530 U.S. 428 (2000) (Absent compliance with Miranda and a suspect’s valid waiver of Fifth Amendment rights, even voluntary statements are inadmissible. A legislature may not supersede the constitutional rules announced in Miranda. The due process test for voluntariness takes into consideration the totality of the circumstances.)

In re C.S., 2007-Ohio-4919 (Courts should take special care in scrutinizing the purported confession or waiver by a child. A juvenile’s access to advice from a parent, guardian, or custodian plays a role in assuring that the juvenile’s waiver is knowing, intelligent, and voluntary.)

Merit Decision

Executive Summary

After threading a very fine procedural needle about whether the constitutionality of R.C. 2933.81 (B) was even properly before the court (yes, said the majority, no said the dissent) the majority sees two separate and distinct issues here, which it uncoupled because they arise from separate constitutional rights. They are whether Barker knowingly, intelligently, and voluntarily waived his Miranda rights, (Fifth Amendment) and whether Barker voluntarily decided to speak with the detectives (due process). Ultimately, the court remanded the case for the state to prove both, but without the presumption in R.C. 2933.81(B), which it found unconstitutional as applied to juveniles, and inapplicable to the issue of the validity of the Miranda waiver.

The dissent didn’t think any of this was even properly before the court, and would have dismissed the case as improvidently allowed.

Analysis of Merit Decision

Some Fundamentals, Reviewed

Miranda rights implicate the Fifth Amendment, while the requirement that a suspect’s statements to police be voluntary implicates due process.

Miranda Rights

Because custodial interrogations are inherently coercive, the Miranda warnings were established to safeguard the privilege against self-incrimination. It is well established that to determine whether a suspect has knowingly, intelligently and voluntarily waived his Miranda rights, the court examines the totality of the circumstances, and when the suspect is a juvenile, the totality of the circumstances include age, experience, education, background, intelligence, and capacity to understand the warnings and the consequences of waiver.

R.C. 2933.81(B) Inapplicable to Waiver of Fifth Amendment Rights

R.C. 2933.81(B) creates a presumption that an electronically recorded custodial statement is voluntary. The court agreed with Barker in his second proposition of law that this statute has nothing to do with the analysis of whether a defendant has waived his Miranda rights, and the court of appeals, apparently in this case, and more clearly in other cases, was wrong to find that it did. The analysis of whether there has been a valid waiver of Miranda rights must be determined from the totality of the circumstances, and the state has the burden of proving a knowing, intelligent, and voluntary waiver by a preponderance of the evidence.

So, bottom line-the state cannot use R.C. 2933.81(B) to determine if Barker validly waived his Miranda rights. The prosecution gets no presumptions to prove a valid waiver.

R.C. 2933.81(B) and Due Process

Barker argued that R.C. 2933.81(B) violates due process as applied to a juvenile because juveniles require greater protections than adults during interrogation, and impermissibly shifts the burden of proving voluntariness from the state to the accused.

Did Barker Waive Any Due Process Challenge?

The state argued that Barker waived any due process challenge to R.C. 2933.81(B) because he never raised it in the trial court or the appeals court, nor did the trial court rely on it in denying the motion to suppress.

The majority “rejects the state’s invitation to side-step the due-process issue in this case.” The court made several complex points in this regard. The state introduced the statute into the case in the first place, albeit in the incorrect context of the validity of the Miranda waiver. Since the trial court did not rely on the statute (the due process challenge was “not apparent in the trial court”), Barker had no reason to raise an as-applied due process challenge there or in the appeals court. Once the appeals court applied the statute in a manner that Barker believed violated due process, Barker did raise this issue the first time it was appropriate, in his memorandum in support of jurisdiction. And if that reason isn’t palatable enough (it wasn’t, to the dissenters,) the Supreme Court can and has considered constitutional challenges despite clear waiver “in specific cases of plain error or where the rights and interests involve may warrant it,” citing to In Re M.D. Honestly, I think the court might well have just used this last reason to deal with the waiver issue.

Short version—the court was determined to rule on this due process challenge. And it held that as applied to juveniles, the presumption in R.C. 2933.81(B) violates due process, accepting Barker’s first proposed proposition of law. The burden of proving the voluntariness of a juvenile’s custodial statement falls on the state, and the legislature cannot remove that burden based on the existence of an electronic recording. To make that determination, the court must look at the totality of the circumstances, which in this case should include the late-night time of the interrogation, the absence of a parent or guardian, Barker’s borderline intelligence and third grade reading level, his lack of familiarity with Miranda warnings, and apparent confusion over what an attorney is.

Case Resolution

The case was sent back to determine both whether Barker knowingly, intelligently, and voluntarily waived his Miranda rights, and whether his statements to the police were voluntary. The state has the burden of proving both, and without the statute.

Justice O’Donnell’s Dissent

Here it is, in a nutshell:

“The majority opinion is another example of the court’s haste to change the law regarding juveniles in Ohio. This rush to judgment tramples our law regarding the forfeiture of matters not raised in the trial court or otherwise presented for appeal or properly considered by an appellate court and what should be considered in a plain error analysis.”

O’Donnell would find that Barker failed to challenge the constitutionality of R.C. 2933.81(B) below, and conceded that the trial court never applied the statutory presumption set forth in R.C. 2933.81(B) when it overruled his motion to suppress. O’Donnell would dismiss the appeal as improvidently accepted.

Additionally, O’Donnell repeated a lot of what he wrote in State v. Quarterman, 2014-Ohio-4034 about waiver and plain error review. (You can read about that here.) To him, Barker forfeited all but plain error review, and to meet that burden, Barker must demonstrate a reasonable probability that but for an error in applying R.C. 2933.81(B) his statement would have been suppressed. O’Donnell would find that Barker could not meet that burden. Since Barker conceded that the trial court did not apply R.C. 2933.81(B) when it denied his motion to suppress, Barker could not possibly demonstrate that the trial committed any error, let alone plain error, and nothing in the record shows the statutory presumption materially affected the appellate court’s analysis. Justice Kennedy joined this dissent.

Case Syllabus

None. I’ve noticed that the court’s decisions have fewer and fewer syllabi.

Concluding Observations

Here’s what I wrote after argument:

“I have no doubt that all the justices who spoke except Justice O’Donnell clearly feel this defendant did not knowingly, voluntarily and intelligently waive his Miranda rights. His age, IQ, the time of night of the questioning, absence of a parent, and his lack of understanding of what a lawyer even is militate against that. But the problem is what exactly was raised below and what is now before the court.

“The court seemingly accepted the case on whether the statutory presumption of voluntariness under R.C. 2933.81(B) violates due process as applied to a child, but both counsel agreed the trial court never applied that statute in making its ruling in the suppression hearing, nor, apparently, did the defendant raise this issue on appeal. The court of appeals, however, made it a part of its decision finding Barker’s statements were voluntarily made, which is the fly in this ointment. How that shakes out in the Supreme Court is going to be interesting. Personally, I don’t see how that statute can pass constitutional muster, especially as applied to a minor, but the court may well duck that issue completely as not being properly raised and preserved for appeal. If the court does decide to consider the statute, I think Justice French nailed it when she commented that although a recording can show lack of coercion, what is about a recording that shows voluntariness?

“If the statute is set to one side, the court could still find, consistent with In Re CS, there was no voluntary, knowing, intelligent waiver in this case under the totality of the circumstances, IF all of those circumstances are properly before the court.”

I also correctly predicted that Justice O’Donnell would likely find that Barker failed to raise any of this below.

Good for the court, and for Justice French for taking this muscular approach to due process. While Justice French is more conservative than many of her colleagues, I’ve noticed that due process issues speak to her more than some other issues do. See her dissent in State v. Broom,Slip Opinion No. 2016-Ohio-1028, for example.

Also, this decision bodes well for the appellant in State v. Aalim, recently argued. More on that here.