State v. Jackson (Slip Opinion) , 154 Ohio St. 3d 542 ( 2018 )


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  • [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
    v. Jackson, Slip Opinion No. 2018-Ohio-2169.]
    NOTICE
    This slip opinion is subject to formal revision before it is published in an
    advance sheet of the Ohio Official Reports. Readers are requested to
    promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
    South Front Street, Columbus, Ohio 43215, of any typographical or other
    formal errors in the opinion, in order that corrections may be made before
    the opinion is published.
    SLIP OPINION NO. 2018-OHIO-2169
    THE STATE OF OHIO, APPELLANT, v. JACKSON, APPELLEE.
    [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as State v. Jackson, Slip Opinion No. 2018-Ohio-2169.]
    Criminal law—Fifth and Sixth Amendments—A social worker’s statutory duty to
    cooperate and share information with law enforcement with respect to
    child-abuse investigations does not render social worker an agent of law
    enforcement for purposes of Fifth and Sixth Amendments to United States
    Constitution when social worker interviews an alleged perpetrator unless
    other evidence demonstrates that social worker acted at direction or under
    control of law enforcement—Record does not support court of appeals’
    conclusion that social worker was acting as law-enforcement agent when
    she interviewed child-abuse suspect—Court of appeals’ judgment reversing
    suspect’s convictions reversed and cause remanded.
    (No. 2017-0145—Submitted February 13, 2018—Decided June 7, 2018.)
    APPEAL from the Court of Appeals for Cuyahoga County,
    No. 103957, 2016-Ohio-8144.
    SUPREME COURT OF OHIO
    ____________________
    SYLLABUS OF THE COURT
    A social worker’s statutory duty to cooperate and share information with law
    enforcement with respect to a child abuse investigation does not render the
    social worker an agent of law enforcement for purposes of the Fifth and
    Sixth Amendments to the United States Constitution when the social worker
    interviews an alleged perpetrator unless other evidence demonstrates that
    the social worker acted at the direction or under the control of law
    enforcement.
    ____________________
    O’DONNELL, J.
    {¶ 1} The state of Ohio appeals from a judgment of the Eighth District Court
    of Appeals reversing the convictions of Demetrius Jackson for kidnapping, gross
    sexual imposition, and two counts of rape. The issue presented on this appeal is
    whether a social worker’s statutory duty to cooperate and share information with
    law enforcement regarding a child abuse investigation renders the social worker an
    agent of law enforcement for purposes of the Fifth and Sixth Amendments to the
    United States Constitution if the social worker interviews an alleged perpetrator.
    Facts and Procedural History
    {¶ 2} On August 5, 2015, C.H., who at the time was 14 years of age, went
    to the home of N.J. and joined her sister, S.H., and her sister’s friend, Demetrius
    Jackson, who also were there. C.H. went to sleep in an upstairs bedroom, and when
    Jackson woke her up and tried to lay down with her, she pushed him out of the bed
    and he left the room. However, he later returned and offered C.H. $200 a week if
    she would allow him to perform oral sex on her and would keep it secret. She
    refused, and Jackson then ripped her underwear off, performed oral sex on her, and
    choked her when she resisted. He also digitally penetrated her and had vaginal sex
    with her. She escaped and ran to a family member’s nearby home. The police were
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    January Term, 2018
    called, and she was taken to a hospital where she was examined and treated. Police
    arrested Jackson and attempted to interrogate him but he refused to speak after
    being advised of his Miranda rights.
    {¶ 3} The incident was reported to the Cuyahoga County Division of
    Children and Family Services via a hotline phone call on the day of the incident,
    and the case was assigned to Tina Funfgeld, a sex abuse intake social worker
    assigned to the agency’s sex abuse unit. Funfgeld contacted the police to conduct
    a joint interview with C.H., but police had already interviewed her, so Funfgeld
    conducted a separate interview. Separately, CCDCFS social worker and child
    advocate Holly Mack, who was “assigned to the county jail,” interviewed Jackson
    on August 11, 2015, at the request of Funfgeld. Mack works “directly with
    incarcerated parents as well as alleged perpetrators that are in the jail,” and one of
    her “primary job duties” is to interview alleged perpetrators when the agency
    receives referrals for abuse and neglect. Mack stated that when she meets with
    suspects, she identifies herself and advises them of the allegations, that anything
    they say “can be subpoenaed by the [c]ourts,” and that it is up to them whether to
    continue the interview. During his interview, Jackson told Mack that he had
    consensual oral sex with C.H., whom he believed was at least 21 years of age, and
    that afterwards she requested money, which he refused to give her. He denied
    having vaginal sex with her.
    {¶ 4} A grand jury indicted him on three counts of rape and additional
    counts of gross sexual imposition, importuning, felonious assault, and kidnapping
    with a sexual motivation specification. Jackson waived the right to a jury trial, and
    at a bench trial, his counsel objected to Mack’s testimony about the statements
    Jackson had made to her because she questioned him “as an agent of the State and
    law enforcement” and failed to notify him of his Miranda rights. The court
    overruled the objection and allowed Mack to testify. As a result of that ruling,
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    SUPREME COURT OF OHIO
    Jackson testified on his own behalf and claimed he only had consensual oral sex
    with C.H.
    {¶ 5} The court dismissed the importuning and felonious assault charges,
    found Jackson not guilty of one of the counts of rape, but found him guilty of the
    remaining two counts of rape, the gross sexual imposition charge, and the
    kidnapping charge with a sexual motivation specification.          For purposes of
    sentencing, the court merged the gross sexual imposition offense with the
    kidnapping offense and therefore sentenced Jackson on two counts of rape and one
    count of kidnapping with the specification. The court imposed an aggregate 11
    year prison term.
    {¶ 6} Jackson appealed, claiming that the trial court violated his
    constitutional rights by allowing Mack to testify about his statements to her, that
    the court violated his Sixth Amendment rights by admitting hearsay statements
    made by C.H. to a police officer, and that his convictions were against the manifest
    weight of the evidence. In a split decision authored by Judge Eileen A. Gallagher,
    the appellate court reversed his convictions. The majority explained that pursuant
    to Miranda v. Arizona, 
    384 U.S. 436
    , 
    86 S. Ct. 1602
    , 
    16 L. Ed. 2d 694
    (1966),
    “statements stemming from custodial interrogation of the defendant must be
    suppressed unless the defendant has been informed of his Fifth and Sixth
    Amendment rights before being questioned.” 2016-Ohio-8144, 
    75 N.E.3d 922
    ,
    ¶ 15. The majority further explained that Miranda only applies to admissions made
    to officers of the law or their agents, that a person must act “under the direction or
    control of a law enforcement agency” to qualify as an agent of law enforcement,
    and that based on the facts before it, Mack acted as an agent of law enforcement
    when she interrogated Jackson. 
    Id. at ¶
    17-18. The majority concluded the
    direction or control element was
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    January Term, 2018
    satisfied in this instance due to the formal procedure established by
    CCDCFS and local law enforcement for routinely conducting
    interrogations of defendants without providing Miranda warnings.
    These interrogations are proceeding under the direction, and for the
    benefit, of law enforcement pursuant to a “memorandum of
    understanding” required by Ohio law.
    
    Id. at ¶
    18, citing former R.C. 2151.421(F) and (J) (now R.C. 2151.421(G) and (K)).
    The majority further explained that former R.C. 2151.421(F) required a child
    advocate “not only to conduct an investigation in cooperation with law enforcement
    but also to submit a report of the advocate’s investigation, in writing, to law
    enforcement.” 
    Id. at ¶
    20.
    {¶ 7} The majority also noted that Mack was assigned to the jail and that
    one of her primary duties was to interview alleged perpetrators in abuse cases. 
    Id. at ¶
    19. It could find “no legitimate purpose” for Mack’s interview “other than to
    directly assist the investigation of law enforcement pursuant to [former] R.C.
    2151.421(F).” 
    Id. at ¶
    21. The majority acknowledged Mack “may have been
    performing her customary duties as an investigator for CCDCFS” but stated that it
    was “problematic” that her “customary duties are designed to routinely violate the
    constitutional rights of defendants.” 
    Id. at ¶
    22.
    {¶ 8} The majority held Mack violated Jackson’s Fifth Amendment rights
    by subjecting him to custodial interrogation without Miranda warnings and violated
    his Sixth Amendment right to counsel by conducting the interrogation outside the
    presence of his attorney. 
    Id. at ¶
    28-29.
    {¶ 9} Judge Sean C. Gallagher dissented. He opined that Mack was not an
    agent of law enforcement because the record did not demonstrate she acted at the
    direction, control, or behest of law enforcement and that the statutory duty “to
    cooperate with and submit a report to law enforcement does not, in itself,
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    SUPREME COURT OF OHIO
    demonstrate that the child advocate acted as an agent of law enforcement.” Id.,
    2016-Ohio-8144, 
    75 N.E.3d 922
    , at ¶ 40, 43 (Gallagher, J., dissenting).
    {¶ 10} The state appealed and presented one proposition of law:
    A social worker’s duty to cooperate and share information
    with law enforcement does not render the social worker an agent of
    law enforcement, under the Fifth and Sixth Amendments of the U.S.
    Constitution, where the social worker does not act at the direction,
    control, or behest of law enforcement.
    Positions of the Parties
    {¶ 11} The state contends that Miranda applies only to law enforcement
    officers or their agents, that it is undisputed that a social worker is not a law
    enforcement officer, and that a social worker’s statutory duty to cooperate and share
    information with law enforcement with respect to a child abuse investigation does
    not transform the social worker into an agent of law enforcement for purposes of
    the Fifth and Sixth Amendments to the United States Constitution. It argues that
    interviews of alleged perpetrators by social workers are “inherently less coercive
    than those addressed by Miranda” and “serve important interests related to the
    health and safety of children.” It asserts that the proper inquiry for determining
    whether a social worker is an agent of law enforcement is whether the totality of
    the facts demonstrate the social worker acted at the direction, control, or behest of
    law enforcement, and here, there is no evidence that Mack acted in such a manner
    when she interviewed Jackson.
    {¶ 12} Jackson maintains that the state’s “entire argument rests on the faulty
    premise” that the requirements of Miranda apply only to law enforcement officers
    or their agents, and he relies on Estelle v. Smith, 
    451 U.S. 454
    , 
    101 S. Ct. 1866
    , 
    68 L. Ed. 2d 359
    (1981), and State v. Roberts, 
    32 Ohio St. 3d 225
    , 
    513 N.E.2d 720
    (1987),
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    January Term, 2018
    for the proposition that Miranda applies when a state actor subjects a defendant to
    custodial interrogation and “the totality of the circumstances warran[t] use of the
    procedural safeguards required by Miranda.” Jackson points out that courts in
    several jurisdictions have held Miranda applies to social workers employed by
    children services agencies, and he argues that social workers should be treated no
    differently from Internal Revenue Service agents, who must comply with Miranda
    pursuant to Mathis v. United States, 
    391 U.S. 1
    , 
    88 S. Ct. 1503
    , 
    20 L. Ed. 2d 381
    (1968). He claims it is “important to recognize” that Mack was a “member of a
    special unit” at CCDCFS that “collaborated with law enforcement,” that she was
    “assigned to the county jail,” and that her “only job-related duty was to interview
    ‘alleged perpetrators’ in the county jail,” and that it is reasonable to assume that she
    possesses interrogation skills comparable to or exceeding those of most law
    enforcement officers. He also maintains that “there was both a formal and informal
    relationship between the agency and law enforcement which involved a significant
    level of coordination, cooperation, and sharing of information,” and “the agency
    and law enforcement very much worked as a team in the investigation and
    prosecution of crimes against children.” (Emphasis sic.)
    Issue
    {¶ 13} The issue presented on this appeal is whether Mack’s statutory duty
    to cooperate and share information with law enforcement resulting from her
    interview with Jackson rendered her an agent of law enforcement for purposes of
    the Fifth and Sixth Amendments to the United States Constitution.
    Law and Analysis
    {¶ 14} “The Fifth Amendment to the United States Constitution, made
    applicable to the states by the Fourteenth Amendment, states that “[n]o person
    * * * shall be compelled in any criminal case to be a witness against himself.”
    (Ellipsis sic and citation omitted.) State v. Graham, 
    136 Ohio St. 3d 125
    , 2013-
    Ohio-2114, 
    991 N.E.2d 1116
    , ¶ 19. Pursuant to Miranda, “the prosecution may not
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    SUPREME COURT OF OHIO
    use statements, whether exculpatory or inculpatory, stemming from custodial
    interrogation of the defendant unless it demonstrates the use of procedural
    safeguards effective to secure the privilege against 
    self-incrimination.” 384 U.S. at 444
    , 
    86 S. Ct. 1602
    , 
    16 L. Ed. 2d 694
    .
    {¶ 15} In State v. Watson, 
    28 Ohio St. 2d 15
    , 
    275 N.E.2d 153
    (1971), this
    court stated, “Inasmuch as custodial interrogation, as defined in Miranda * * *
    means ‘questioning initiated by law enforcement officers after a person has been
    taken into custody,’ the Miranda requirements do not apply to admissions made to
    persons who are not officers of the law or their agents * * *.” 
    Id. at paragraph
    five
    of the syllabus, quoting Miranda at 444; see also State v. Bernard, 
    31 So. 3d 1025
    ,
    1029 (La.2010) (Miranda applies only if “the interrogation is conducted by a ‘law
    enforcement officer’ or someone acting as their agent”). And we have observed
    that other courts have recognized
    that the duty of giving “Miranda warnings” is limited to employees
    of governmental agencies whose function is to enforce law, or to
    those acting for such law enforcement agencies by direction of the
    agencies; * * * it does not include private citizens not directed or
    controlled by a law enforcement agency, even though their efforts
    might aid in law enforcement.
    (Emphasis added.) State v. Bolan, 
    27 Ohio St. 2d 15
    , 18, 
    271 N.E.2d 839
    (1971).
    {¶ 16} “The Sixth Amendment, applied to the States through the Fourteenth
    Amendment, guarantees that ‘[i]n all criminal prosecutions, the accused shall * * *
    have the Assistance of Counsel for his defence.’ ” (Ellipsis sic.) Kansas v. Ventris,
    
    556 U.S. 586
    , 590, 
    129 S. Ct. 1841
    , 
    173 L. Ed. 2d 801
    (2009). In Ventris, the United
    States Supreme Court explained:
    8
    January Term, 2018
    The core of this right has historically been, and remains today, “the
    opportunity for a defendant to consult with an attorney and to have
    him investigate the case and prepare a defense for trial.” Michigan
    v. Harvey, 
    494 U.S. 344
    , 348, 
    110 S. Ct. 1176
    , 
    108 L. Ed. 2d 293
           (1990). We have held, however, that the right extends to having
    counsel present at various pretrial “critical” interactions between the
    defendant and the State, * * * including the deliberate elicitation by
    law enforcement officers (and their agents) of statements pertaining
    to the charge.
    (Emphasis added.) 
    Id. {¶ 17}
    “[W]hether someone is acting as an agent of law enforcement is
    dependent upon the unique circumstances of each case.” Bernard at 1033.
    Child Services Agency
    {¶ 18} R.C. 2151.421(G)(1)—formerly R.C. 2151.421(F)(1)—provides
    that generally, a public children services agency
    shall investigate, within twenty-four hours, each report of child
    abuse or child neglect that is known or reasonably suspected or
    believed to have occurred * * * that is referred to it under this section
    to determine the circumstances surrounding the injuries, abuse, or
    neglect * * *, the cause of the injuries, abuse, neglect, or threat, and
    the person or persons responsible. The investigation shall be made
    in cooperation with the law enforcement agency and in accordance
    with the memorandum of understanding prepared under division (K)
    of this section. A representative of the public children services
    agency shall, at the time of initial contact with the person subject to
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    SUPREME COURT OF OHIO
    the investigation, inform the person of the specific complaints or
    allegations made against the person. * * *
    * * * The public children services agency shall submit a
    report of its investigation, in writing, to the law enforcement agency.
    {¶ 19} R.C.     2151.421(K)—formerly         R.C.    2151.421(J)—addresses
    memoranda of understanding. R.C. 2151.421(K)(1) directs that a public children
    services agency “shall prepare a memorandum of understanding that is signed by”
    certain officials and organizations, such as the county juvenile court judge, law
    enforcement officers handling child abuse and neglect cases in the county, the
    county prosecutor, and the county humane society. The memorandum
    shall set forth the normal operating procedure to be employed by all
    concerned officials in       the execution of their respective
    responsibilities under this section * * * and shall have as two of its
    primary goals the elimination of all unnecessary interviews of
    children who are the subject of reports made pursuant to division
    (A) or (B) of this section and, when feasible, providing for only one
    interview of a child who is the subject of any report.
    R.C. 2151.421(K)(2).
    {¶ 20} In addition, the memorandum “shall include all of the following”:
    (a) The roles and responsibilities for handling emergency
    and nonemergency cases of abuse and neglect;
    (b) Standards and procedures to be used in handling and
    coordinating investigations of reported cases of child abuse and
    reported cases of child neglect, methods to be used in interviewing
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    January Term, 2018
    the child who is the subject of the report and who allegedly was
    abused or neglected, and standards and procedures addressing the
    categories of persons who may interview the child who is the subject
    of the report and who allegedly was abused or neglected.
    R.C. 2151.421(K)(3).
    {¶ 21} Although CCDCFS’s memorandum of understanding is not part of
    the record in this case, nothing in R.C. 2151.421 or the record supports the
    conclusion that pursuant to it, Mack acted as an agent of law enforcement when she
    interviewed Jackson. Although R.C. 2151.421(G)(1) imposes a duty on a children
    services agency to cooperate with and provide information to law enforcement
    regarding child abuse investigations, it does not mandate that agency employees
    interview alleged perpetrators of child abuse at the direction or under the control of
    law enforcement. See also Ohio v. Clark, ___ U.S. ___, 
    135 S. Ct. 2173
    , 2183, 
    192 L. Ed. 2d 306
    (2015) (mandatory child abuse reporting statutes “alone cannot convert
    a conversation between a concerned teacher and her student into a law enforcement
    mission aimed primarily at gathering evidence for a prosecution” for purposes of
    the Confrontation Clause).
    {¶ 22} Thus, a social worker’s statutory duty to cooperate and share
    information with law enforcement with respect to a child abuse investigation does
    not render the social worker an agent of law enforcement for purposes of the Fifth
    and Sixth Amendments to the United States Constitution when the social worker
    interviews an alleged perpetrator unless other evidence demonstrates that the social
    worker acted at the direction or under the control of law enforcement.
    {¶ 23} And here, the record contains no evidence that Mack acted as an
    agent of law enforcement when she interviewed Jackson. The only evidence of
    contact between CCDCFS and law enforcement about the investigation in this
    matter before Mack interviewed Jackson is Funfgeld’s testimony that she contacted
    11
    SUPREME COURT OF OHIO
    law enforcement to coordinate a joint interview of C.H., which is consistent with
    the statutory goal of a memorandum of understanding of eliminating unnecessary
    interviews of child victims. See R.C. 2151.421(K)(2). There is no evidence that
    law enforcement asked Mack to interview Jackson before or after the detective’s
    failed attempt to interview him or that law enforcement influenced Mack’s
    interview of Jackson in any way.
    {¶ 24} Accordingly, the appellate court erred when it concluded that Mack
    acted as an agent of law enforcement in conducting an interview of Jackson.
    Inapposite Authority
    {¶ 25} Jackson’s reliance on Mathis, Estelle, and Roberts is misplaced. In
    Mathis, the United States Supreme Court considered whether an IRS agent who
    questioned an individual in connection with a tax investigation while he was
    serving a state prison sentence had to give the individual Miranda 
    warnings. 391 U.S. at 3-4
    , 
    88 S. Ct. 1503
    , 
    20 L. Ed. 2d 381
    , fn. 2. Mathis rejected the government’s
    attempt “to escape application of” Miranda on the grounds that the interview
    occurred “as part of a routine tax investigation where no criminal proceedings
    might even be brought” and that the defendant was not “put in jail by the officers
    questioning him, but was there for an entirely separate offense.” Mathis at 4. As
    the Supreme Court of Louisiana has noted, in Mathis, the court “was not called
    upon to decide whether the IRS employee was a ‘law enforcement agent,’ as the
    government apparently ceded that point.” (Emphasis sic.) 
    Bernard, 31 So. 3d at 1030
    .
    {¶ 26} In Estelle, the United States Supreme Court held that a state court
    violated the Fifth and Sixth Amendment rights of a defendant in a capital case when
    it ordered a psychiatric examination to determine his competency to stand trial, the
    psychiatrist interviewed the defendant in jail without advising him of his Miranda
    rights, and during sentencing, the court allowed the state to question the psychiatrist
    about statements the defendant made during the interview in order to establish his
    12
    January Term, 2018
    future dangerousness even though defense counsel was not notified in advance that
    the psychiatric examination would encompass that 
    issue. 451 U.S. at 456-458
    , 461,
    467-468, 470-471, 
    101 S. Ct. 1866
    , 
    68 L. Ed. 2d 359
    . The Supreme Court concluded
    the fact that the defendant “was questioned by a psychiatrist designated by the trial
    court to conduct a neutral competency examination, rather than by a police officer,
    government informant, or prosecuting attorney, is immaterial” because when the
    psychiatrist testified at sentencing, “his role changed and became essentially like
    that of an agent of the State recounting unwarned statements made in a postarrest
    custodial setting.” 
    Id. at 467.
    This case is distinguishable because it does not
    involve a court ordered examination, and the Supreme Court has observed that the
    “opinion in Estelle suggested that [its] holding was limited to the ‘distinct
    circumstances’ presented there,” Penry v. Johnson, 
    532 U.S. 782
    , 795, 
    121 S. Ct. 1910
    , 
    150 L. Ed. 2d 9
    (2001), quoting Estelle at 466.
    {¶ 27} In Roberts, this court considered whether statements a probationer
    made to his probation officer while in custody without prior Miranda warnings
    were admissible in a subsequent criminal 
    trial. 32 Ohio St. 3d at 227
    , 
    513 N.E.2d 720
    . Although we observed that decisions in other jurisdictions were in conflict on
    the issue, noted that “[m]ost of these cases turn on whether a probation officer is a
    ‘law enforcement officer’ under Miranda,” 
    id., and concluded
    that the “better rule
    is followed in those jurisdictions which require a probation officer to give Miranda
    warnings prior to questioning” a probationer who is in custody, Roberts at 231, we
    did not specifically determine whether a probation officer is a law enforcement
    officer or agent. However, we noted that R.C. 2901.01(A)(11)—formerly R.C.
    2901.01(K)—defines “law enforcement officer” to include an officer of the state
    with a statutory duty to enforce laws and authority to arrest violators and that R.C.
    2951.08 gives probation officers the authority to arrest a defendant during a period
    of probation, 
    id. at 228,
    fn. 7, and we emphasized that a probationer has an
    obligation “to ‘ “report to” ’ and ‘ “answer questions posed by a probation officer”
    13
    SUPREME COURT OF OHIO
    ’ ” and is under “ ‘heav[y] psychological pressure to answer questions put by his
    probation officer, a figure of both authority and trust,’ ” 
    id. at 230,
    quoting Marrs
    v. State, 53 Md.App. 230, 233, 
    452 A.2d 992
    (1982), quoting United States v. Rea,
    
    678 F.2d 382
    , 390 (2d Cir.1982). Here, there is no assertion that Mack possessed
    authority to make arrests, and the record does not demonstrate that Jackson and
    Mack had a relationship comparable to that of a probationer and probation officer.
    {¶ 28} Accordingly, none of those cases support the position that Mack had
    an obligation to provide Jackson with Miranda warnings even though she was not
    an agent of law enforcement.
    {¶ 29} And because Mack is not an agent of law enforcement, the appellate
    court also erred when it concluded the trial court violated the Fifth and Sixth
    Amendments, as applied to the states through the Fourteenth Amendment, in
    admitting her testimony.
    Conclusion
    {¶ 30} A social worker’s statutory duty to cooperate and share information
    with law enforcement with respect to a child abuse investigation does not render
    the social worker an agent of law enforcement for purposes of the Fifth and Sixth
    Amendments to the United States Constitution when the social worker interviews
    an alleged perpetrator unless other evidence demonstrates that the social worker
    acted at the direction or under the control of law enforcement. In this case, no
    evidence indicates that Mack acted at the direction or under the control of law
    enforcement when she interviewed Jackson.
    {¶ 31} Accordingly, we reverse the judgment of the appellate court, and we
    remand this case to that court to consider the assignments of error it did not address.
    Judgment reversed
    and cause remanded.
    O’CONNOR, C.J., and FRENCH, FISCHER, and DEWINE, JJ., concur.
    KENNEDY, J., concurs in judgment only.
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    January Term, 2018
    DEGENARO, J., dissents, with an opinion.
    _________________
    DEGENARO, J., dissenting.
    {¶ 32} I agree with the majority that a state-employed social worker’s
    statutory duty to share with law enforcement information concerning a child-abuse
    investigation does not render the social worker an agent of law enforcement in all
    cases—I would stop short of creating a bright-line rule. Although the statutory
    scheme and the way it operates clearly establish a cooperative relationship between
    children’s services agencies and law enforcement, whether a social worker acted as
    an agent of law enforcement when interviewing an alleged perpetrator must
    ultimately be determined on a case-by-case basis. The proper analysis requires
    determining which of two distinct statutory duties the social worker was performing
    during the interview: the reporting duty under R.C. 2151.421(A)(1)(a) or the
    investigative duty under R.C. 2151.421(G)(1).
    {¶ 33} Here, the effect of R.C. 2151.421, coupled with the evidence—that
    one of the primary job duties of Cuyahoga County Division of Children and Family
    Services (“CCDCFS”) social worker and child advocate Holly Mack was to
    interview alleged perpetrators in jail—never child victims; her 17 years of
    experience; that she interrogated appellee, Demetrius Jackson, in jail after he had
    been arraigned on the charges she was investigating and after he had already
    invoked his Miranda rights when questioned by police—leads to the conclusion
    that when she interviewed Jackson, Mack was functioning as an agent of law
    enforcement for purposes of the Fifth and Sixth Amendments to the United States
    Constitution. Accordingly, I dissent from the court’s judgment and would affirm
    the judgment of the court of appeals.
    {¶ 34} Mack’s interview of Jackson was undertaken pursuant to a statutory
    scheme that directs children’s services agencies, law enforcement, and prosecutors
    to work collaboratively to investigate and prosecute crimes against children. R.C.
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    SUPREME COURT OF OHIO
    2151.421(G)(1) mandates that social workers employed by public children’s
    services agencies do more than merely report instances of child abuse or neglect to
    law enforcement as required by R.C. 2151.421(A). Rather, they must “investigate
    * * * to determine the circumstances surrounding the injuries, abuse or neglect,
    * * * the cause of the injuries, abuse, neglect, or threat, and the person or persons
    responsible.” (Emphasis added.) R.C. 2151.421(G)(1). That “investigation shall
    be made in cooperation with the law enforcement agency.” (Emphasis added.) 
    Id. {¶ 35}
    In furtherance of this duty, a children’s services agency is also
    required to “submit a report of its investigation, in writing, to the law enforcement
    agency” and to “make any recommendations to the county prosecuting attorney or
    city director of law that it considers necessary to protect any children that are
    brought to its attention.” R.C. 2151.421(G)(1) and (2). As a corollary, R.C.
    5101.13 provides for the establishment of a uniform statewide automated child-
    welfare information system (“SACWIS”), which, among other things, “shall
    contain records regarding * * * [i]nvestigations of children and families * * * in
    accordance with [R.C.] 2151.421.” R.C. 5101.13(A)(1). Mack testified that she
    uploaded the results of her interview with Jackson into this database.
    {¶ 36} Information contained in SACWIS may be accessed by, among
    others, a prosecuting attorney when the “access * * * is directly connected with
    assessment, investigation, or services regarding a child or family.”            R.C.
    5101.132(A)(1)(a); see also Ohio Adm.Code 5101:2-33-21(F)(2) and (3)
    (providing that public children’s service agencies “shall release” child-welfare
    information in SACWIS to “[l]aw enforcement officials who are investigating a
    report of child abuse or neglect” and the “county prosecutor who is investigating a
    report of child abuse or neglect”).
    {¶ 37} The statutory scheme formalizes cooperative investigations among
    children’s services agencies, law enforcement, and prosecutors. Therefore, I agree,
    to a point, with Jackson’s argument that it would be disingenuous for us to require
    16
    January Term, 2018
    that police specifically request that a social worker question an alleged perpetrator
    before the social worker may be considered an agent of law enforcement for
    purposes of the Fifth Amendment—indeed, the institutional arrangement provided
    by law obviates the need for such a request, in many cases. That said, the facts of
    each case must be examined to determine whether the social worker was acting as
    an agent of the police.
    {¶ 38} I question the majority’s reliance on Ohio v. Clark, ___ U.S. ___,
    
    135 S. Ct. 2173
    , 2183, 
    192 L. Ed. 2d 306
    (2015), as support for its conclusion that
    Mack was not acting as an agent of law enforcement when she interviewed Jackson.
    Ohio v. Clark involved a preschool teacher’s statutory duty to report suspected
    abuse to law enforcement. At issue here is a state-employed social worker’s
    statutory duty to cooperatively investigate suspected abuse with law enforcement.
    Compare R.C. 2151.421(A)(1)(a) and (b) with R.C. 2151.421(G)(1). See Ohio v.
    Clark at 2182-2183.
    {¶ 39} As Chief Justice O’Connor explained in her dissent in State v. Clark,
    
    137 Ohio St. 3d 346
    , 2013-Ohio-4731, 
    999 N.E.2d 592
    , rev’d and remanded, __
    U.S. __, 
    135 S. Ct. 2173
    , 
    192 L. Ed. 2d 306
    :
    What the [reporting] statute requires is actually quite
    minimal: when teachers, or others who are required to report,
    encounter suspected abuse or neglect in their official capacity,
    they must report it. In turn, the children’s services agency or the
    police—not the mandatory reporters—are responsible for
    investigating the injury or condition “to determine the
    circumstances surrounding the injuries, abuse, or neglect or the
    threat of injury, abuse, or neglect, the cause of the injuries, abuse,
    neglect, or threat, and the person or persons responsible.”
    17
    SUPREME COURT OF OHIO
    (Emphasis added.) 
    Id. at ¶
    85 (O’Connor, C.J, dissenting), quoting former R.C.
    2151.421(F)(1) (now R.C. 2151.421(G)(1)). Ohio v. Clark is therefore factually
    distinguishable from this case.
    {¶ 40} Moreover, Ohio v. Clark involved a distinct constitutional issue:
    whether statements made by a minor victim of abuse to his teacher were testimonial
    and therefore barred under the Sixth Amendment’s Confrontation Clause from
    admission at trial. For these reasons, Ohio v. Clark does not control the outcome
    of this case.
    {¶ 41} That said, I agree with the majority that R.C. 2151.421(G) and
    related statutory provisions do not categorically transform a children’s services
    investigator into a law-enforcement agent. However, the specific facts here lead to
    the conclusion that Mack was acting as the functional equivalent of law
    enforcement when she had Jackson removed from his housing unit in the jail so she
    could question him.
    {¶ 42} The lead CCDCFS sex-abuse intake social worker Tina Funfgeld
    explained in her testimony that Mack was “assigned to the county jail,” and indeed,
    Mack testified that one of her primary job duties was to interview alleged
    perpetrators in jail and that she interviewed no one else. Mack had 17 years of
    experience with CCDCFS. Jackson, on the other hand, though he had a prior
    criminal record, did not display a high level of insight regarding the criminal
    investigative process. For example, according to his testimony, after the rape
    allegations were levied against him, he waited for the police to arrive, believing
    that a rape kit would be performed on site and would immediately exonerate him.
    {¶ 43} Moreover, Jackson’s statement to Mack occurred after he had
    declined to speak to police. He did not talk to any of the officers at the hospital
    where he was taken upon his arrest. And when a Cleveland Police detective visited
    him at the jail and advised him of his Miranda rights, Jackson refused to speak,
    explaining at trial that he “just wasn’t saying nothing after that.”
    18
    January Term, 2018
    {¶ 44} Thereafter, Mack came to the county jail to question Jackson.
    Importantly, for purposes of this appeal, the only issue is whether Mack acted as an
    agent of law enforcement. The state concedes that Jackson was in custody during
    Mack’s interview and that Mack did not Mirandize Jackson; further, the state does
    not dispute that Mack’s interview constitutes an interrogation.
    {¶ 45} Mack testified to her protocol when interviewing an alleged
    perpetrator: “I identify myself, I let them know that they have been named as the
    alleged perpetrator, I let them know what the allegations are against them, and then
    I also let them know that anything they tell me can be subpoenaed by the Courts.
    It is then up to them whether or not they want to continue with the interview or
    not.” Mack further testified that when informed of the allegations against him,
    Jackson proceeded to tell her “his side of the story.”
    {¶ 46} The manner in which Mack conducted her interview resulted in one
    of the primary concerns of Miranda v. Arizona, 
    384 U.S. 436
    , 
    86 S. Ct. 1602
    , 
    16 L. Ed. 2d 694
    (1966): the use of deceptive tactics to obtain incriminating statements.
    See State v. Roberts, 
    32 Ohio St. 3d 225
    , 230-231, 
    513 N.E.2d 720
    (1987). She
    never testified whether—or if so—how she followed her protocol with Jackson or
    whether she explained the ramifications for him. Specifically, there is no indication
    that Jackson understood that his statements to Mack could be used against him at
    trial or—what ultimately happened here—that the admission of her testimony
    would put him in the position of taking the stand at trial when he otherwise would
    not have. Based on these facts, it is highly questionable whether Jackson would
    have spoken to Mack had she first advised him of his Miranda rights.
    {¶ 47} Contrary to the majority’s conclusion, Mathis v. United States, 
    391 U.S. 1
    , 
    88 S. Ct. 1503
    , 
    20 L. Ed. 2d 381
    (1968), and Estelle v. Smith, 
    451 U.S. 454
    ,
    
    101 S. Ct. 1866
    , 
    68 L. Ed. 2d 359
    (1981), are instructive. Mathis involved an Internal
    Revenue Service (“IRS”) agent who questioned an inmate in prison where the
    inmate was serving a state sentence. The inmate was ultimately charged with and
    19
    SUPREME COURT OF OHIO
    convicted of violations of the federal false-claims statute. On appeal, the Supreme
    Court concluded that statements and information gathered by the agent should not
    have been admitted at the defendant’s trial because the agent had failed to provide
    him Miranda warnings. Implicit in the court’s decision was a determination that
    the IRS agent was the functional equivalent of law enforcement.
    {¶ 48} Estelle is even more on point. In that case, the Supreme Court held
    that Miranda applied to a psychiatric examination conducted by a court-appointed
    psychiatrist, concluding that the fact that the defendant “was questioned by a
    psychiatrist designated by the trial court to conduct a neutral competency
    examination, rather than by a police officer, government informant, or prosecuting
    attorney, is immaterial.” 
    Id. at 467.
    The Supreme Court observed that under these
    circumstances, the psychiatrist “went beyond simply reporting to the court on the
    issue of competence and testified for the prosecution.” 
    Id. At that
    point, “his role
    changed and became essentially like that of an agent of the State recounting
    unwarned statements made in a postarrest custodial setting.” 
    Id. {¶ 49}
    Similarly, Mack’s interrogation of Jackson exceeded the customary
    function of a child advocate: to protect the safety and welfare of children. Rather,
    she was acting as an extension of law enforcement.            Mack went beyond
    investigating and reporting—whether, for example, the victim was at risk of
    exposure to a sexually transmitted disease. Instead, she elicited and ultimately
    recounted Jackson’s “side of the story,” which put Jackson in the position of taking
    the stand in order to counter Mack’s testimony.
    {¶ 50} Further, the decision of the United States Court of Appeals for the
    Second Circuit in Jackson v. Conway—affirming the grant of federal habeas corpus
    relief in a case with facts strikingly similar to those here—is persuasive. 
    763 F.3d 115
    (2d Cir.2014). In that case, the defendant was arrested before dawn after he
    was accused of committing multiple rapes during the night. Later in the morning,
    after police had read him his Miranda rights, he invoked his right to remain silent
    20
    January Term, 2018
    and refused to speak to them. He remained in a holding cell until the afternoon. At
    some point during the day, after interviewing the victims, a child-protective-
    services (“CPS”) caseworker from the county department of social services
    interviewed the defendant in the hallway outside of his holding cell after the
    defendant was escorted there by an officer. The caseworker “introduced herself as
    a CPS caseworker, explained her role, and asked [the defendant] if she could speak
    with him about the victims’ allegations. She did not, however, inform him of his
    right to an attorney or give him any other warnings.” 
    Id. at 122.
    The defendant
    agreed to speak with her and, in essence, told her his side of the story. At trial, the
    caseworker testified about what the defendant had related to her. Applying Mathis,
    the Second Circuit held that the admission of the caseworker’s testimony about the
    interview violated the defendant’s Fifth Amendment right against compelled self-
    incrimination. Jackson v. Conway at 135-140.
    {¶ 51} As the majority opinion in the court of appeals here emphasized: it
    “is absolutely undisputed” that if law-enforcement officers conducted interviews in
    the manner in which Mack did, the practice would violate the Fifth Amendment.
    2016-Ohio-8144, 
    75 N.E.3d 922
    , ¶ 20. Given the facts of this case, Mack was the
    functional equivalent of a law-enforcement agent and absent Miranda warnings,
    her interrogation of Jackson violated his right against self-incrimination. “Any
    other conclusion would allow the State to ignore a defendant’s constitutional rights
    merely by having the interrogation conducted by someone who lacks the title ‘law
    enforcement officer’ but who is otherwise performing the interrogation of such an
    officer.” State v. Deases, 
    518 N.W.2d 784
    , 790 (Iowa 1994) (concluding that
    “when a state official conducts a custodial interrogation that would require a
    Miranda warning if undertaken by a police officer, then the official is similarly
    required to give a Miranda warning”).
    21
    SUPREME COURT OF OHIO
    {¶ 52} Based on all of the above, the admission of Mack’s testimony
    violated Jackson’s Fifth Amendment right to be free from compelled self-
    incrimination.
    {¶ 53} I would also affirm the court of appeals’ conclusion that the
    admission of Mack’s testimony violated Jackson’s Sixth Amendment right to
    counsel. “The Sixth Amendment protects the right of the accused not to be
    confronted by an agent of the State regarding matters as to which the right to
    counsel has attached without counsel being present.” (Emphasis added.) Maine v.
    Moulton, 
    474 U.S. 159
    , 177, 
    106 S. Ct. 477
    , 
    88 L. Ed. 2d 481
    (1985), fn. 14. “[O]nce
    the adversary judicial process has been initiated, the Sixth Amendment guarantees
    a defendant the right to have counsel present at all ‘critical’ stages of the criminal
    proceedings. Interrogation by the State is such a stage.” (Citations omitted.)
    Montejo v. Louisiana, 
    556 U.S. 778
    , 786, 
    129 S. Ct. 2079
    , 
    173 L. Ed. 2d 955
    (2009).
    {¶ 54} The state does not dispute that Jackson was subjected to a custodial
    interrogation.   Mack’s interview with Jackson took place after he had been
    arraigned and after he had invoked his Miranda rights when a detective attempted
    to interrogate him at the jail. Significantly (in light of Jackson’s prior invocation
    of Miranda), the record fails to demonstrate that Mack Mirandized him or asked
    him whether he wanted an attorney present. Based on all of the above, the
    admission of Mack’s testimony violated Jackson’s Sixth Amendment right to
    counsel.
    {¶ 55} In sum, based on the totality of the circumstances in this case, I
    would conclude that Mack was functioning as an agent of law enforcement for
    purposes of the Fifth and Sixth Amendments to the United States Constitution when
    she questioned Jackson. Therefore, I would affirm the judgment of the court of
    appeals.
    {¶ 56} Respectfully, I dissent.
    _________________
    22
    January Term, 2018
    Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and
    Anthony T. Miranda, Assistant Prosecuting Attorney, for appellant.
    Jonathan N. Garver, for appellee.
    _________________
    23