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State v. Hamilton4/12/2002
as performed on his hands. Appellant was then asked where he wanted to go, and he was driven to a nearby apartment complex.
Based on the preceding evidence, the state was able to demonstrate that appellant voluntarily waived his Miranda rights. There is no basis to suppress his second statement.
On May 18th, after learning that appellant's fingerprint was found on the gun, Sgt. Lutha obtained an arrest warrant for appellant. He then called Mr. Hamilton, Sr. and asked him to bring appellant down to the police station. Appellant was given his second statement from the initial interview, and was asked if it was correct. This statement contained the Miranda warnings in the first paragraph. Appellant stated that the statement was correct. Appellant was then Mirandized, and he signed a Miranda waiver card.
Appellant should have been read his Miranda rights at the onset of the meeting. This was a custodial interrogation, because Sgt. Lutha testified that appellant was not free to leave, and appellant was arrested shortly after the statement. However, the Miranda warnings were in the previous statement that appellant re-read. Appellant signed a Miranda rights card immediately after he acknowledged the statement was true, but before he was further questioned. Taken together, these exposures cured any violation of his Miranda rights, because appellant was certainly made aware of his rights.
Sgt. Lutha also testified that after he was Mirandized, appellant was told his fingerprint was found on the gun. After he was told this, appellant remained silent for a few moments, then responded "you might as well take me over." This statement occurred after appellant had voluntarily waived his rights under Miranda. Appellant was then arrested and taken to jail. Since there was a valid waiver of appellant's Miranda rights, the trial court did not err by not suppressing this statement.
Finally, Sgt. Lutha testified at the suppression hearing that appellant was questioned while he was in jail on May 19, 1999. Appellant was not given Miranda warnings before this questioning. There is no question that appellant was in custody, as he had been arrested and was in jail. Appellant should have been read his Miranda rights before being questioned in jail. These statements should have been suppressed. However, neither this brief interview, nor the statements given therein, was mentioned in front of the jury at trial. Therefore, appellant was not prejudiced. Since there was no prejudice, there was no error.
Appellant also challenges the court's decision not to suppress the final two statements on Sixth Amendment grounds. Appellant claims that he should not have been questioned without an attorney present per Massiah v. United States (1964), 377 U.S. 201. The Sixth Amendment right to counsel attaches once adversarial judicial proceedings have commenced against the accused. Kirby v. Illinois (1971), 406 U.S. 682, 688. The Kirby court went on to state that the initiation of adversarial judicial proceedings includes "formal charge, preliminary hearing, indictment, information, or arraignment." Id. at 689.
Appellant claims the adversarial judicial proceedings began when the warrant was issued for his arrest. However, "since the Kirby court found no right-to-counsel violation when the defendant was actually under arrest, the mere issuance of an unexecuted arrest warrant could not invoke the right to counsel." State v. Holmes (1987), 36 Ohio App.3d 44, 49, citing United States v. Reynolds (C.A.6, 1985), 762 F.2d 489, 493. Thus, appellant's Sixth Amendment right to counsel had not attached when he gave his third statement to police.
Both state and federa
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