[Cite as State v. Harris,
2019-Ohio-2939.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28145
:
v. : Trial Court Case No. 2017-CR-2987
:
JEREMY R. HARRIS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 19th day of July, 2019.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
KIRSTEN KNIGHT, Atty. Reg. No. 0080433, P.O. Box 137, Germantown, Ohio 45327
Attorney for Defendant-Appellant
.............
WELBAUM, P.J.
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{¶ 1} In this case, Defendant-Appellant, Jeremy Harris, appeals from his conviction
and sentence, which followed his no-contest plea to a 12-count indictment. After
merging some of the offenses, the trial court sentenced Harris to a total of 38 years to life
in prison for convictions of murder (proximate result), with a firearm specification;
aggravated robbery (deadly weapon); two counts of tampering with evidence
(alter/destroy); and having weapons under disability.
{¶ 2} In a single assignment of error, Harris contends that the trial court erred in
overruling his motion to suppress evidence. For the reasons stated below, we find no
error and affirm the trial court’s judgment.
I. Facts and Course of Proceedings
{¶ 3} Harris’s conviction and sentence arose from the shooting death of Antonio
Perkins on or around September 21, 2017. On that date, Perkins’s body was found
outdoors in an alley located at 33 Five Oaks Avenue in Dayton, Ohio. Dayton Police
Officer Gregory Mills was dispatched to the scene at around 10:37 a.m. When Mills
arrived, he found that Perkins was dead, with a gunshot wound to the head.
{¶ 4} After learning that Perkins owned a cell phone that was not on his person,
the police were able to identify Harris as a suspect by using “ping” technology. On the
same day, Harris had also been identified as the suspect in an assault complaint, and the
Dayton Police had initiated a broadcast to arrest Harris for that complaint. The police
then arrested Harris at his workplace on September 21, 2017, and brought him in for
questioning.
{¶ 5} Dayton Police Officer Jordan Alexander transported Harris to the Safety
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Building. Harris did not make any statements while being transported. However, when
the holding room was being searched to make sure it was safe, Alexander stood next to
Harris. At that time, Harris was talking to himself. Harris looked down and “said he
knew why he was there[,] that he was going to be charged with murder.” Transcript
(“Tr.”), p. 47.
{¶ 6} At around 4:30 p.m. on September 21, 2017, David House, a Dayton Police
Department (“DPD”) homicide detective, questioned Harris. Detective Kevin Phillips was
also present. Initially, House administered Miranda warnings to Harris, and Harris
signed a written waiver of his rights. During questioning, Harris claimed that he lived
with his mother, and said that certain items (a varsity-style jacket and a BB gun) would
be located at his mother’s house. According to Harris, he only possessed a BB gun and
did not have a semi-automatic weapon like the one witnesses had seen him carrying the
night of the murder.1
{¶ 7} During the interview, Harris gave conflicting accounts of what he had done
the previous evening, but eventually did admit that he had taken a cell phone from
Perkins’s pocket. Harris claimed that he saw Perkins’s body while walking through the
alley, and saw the cell phone in Perkins’s pocket. Again, Harris denied having a gun,
other than the BB gun. He also denied any involvement with the murder.
{¶ 8} The police went to the house where Harris’s mother lived, and she consented
to a search of her home. However, the police did not find either the jacket or a BB gun.
1The record does not indicate the precise time of the murder. However, the pinged calls
associated with Harris occurred at a few minutes after midnight. Thus, the murder could
have occurred close to midnight on September 20, 2017, or shortly thereafter, on
September 21, 2017. When Harris was arrested and searched, the victim’s cell phone
was in his possession.
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In talking with Harris’s mother, the police learned that Harris had an apartment located on
Catalpa Drive, in Dayton, Ohio. After obtaining a search warrant for the Catalpa
apartment, the police found the varsity jacket (which Harris was wearing the night of the
incident), a broken cell phone, and Harris’s wallet (with his identification), inside a
camouflage backpack. They also found a 9mm semi-automatic pistol with ammunition
under the mattress in Harris’s bedroom.
{¶ 9} On September 23, 2017, the police interviewed Harris a second time. Det.
House again administered Miranda warnings and obtained a written waiver from Harris.
During this interview, House informed Harris of what the police had found during their
search. Harris made incriminating statements during this interview. He admitted
shooting Perkins in the alley where the body was found. His story, essentially, was that
he and an acquaintance approached Perkins and asked for a cigarette. However,
Perkins sprayed them with mace, and during an altercation, a gun fell out of Perkins’s
pocket. Harris stated that he then shot Perkins while Perkins was running away.
{¶ 10} After the second interview, the police obtained another search warrant for
Harris’s apartment and conducted a search on September 26, 2017. At that time, they
found and seized a small can of mace that was adjacent to where the jacket and weapon
had been found. They also seized a pair of black tennis shoes (Harris had told police
that he was wearing a pair of black tennis shoes the night of the murder).
{¶ 11} Subsequently, in early October 2017, the State filed a 12-count indictment
charging Harris with five counts of murder, all with three-year firearm specifications; two
counts of felonious assault, with three-year firearm specifications; two counts of
aggravated robbery, with three-year firearm specifications; two counts of tampering with
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evidence; and one count of having weapons under disability. Harris first pled not guilty;
he later also pled not guilty by reason of insanity and requested a competency evaluation.
After considering the content of a psychiatric report submitted by the Forensic Psychiatry
Center for Western Ohio, the trial court filed an order in March 2018, finding Harris
competent to stand trial.
{¶ 12} In April 2018, Harris filed a motion to suppress statements he made to the
police, based on alleged denial of his right to speak with counsel or have counsel present.
Harris also asked the court to suppress evidence found in the search of his apartment.
On April 28, 2018, the trial court held a suppression hearing, during which the State
presented evidence from DPD Detectives Geiger, Cope, and House, and from Officer
Alexander, a DPD patrol officer. After considering the evidence, the trial court overruled
the motion to suppress.
{¶ 13} Just before his jury trial was set to proceed, Harris pled no contest to all the
charges as indicted, for purposes of appealing the court’s prior suppression ruling. Tr.
at p. 114. Following the plea, the court found Harris guilty as charged and sentenced
him as noted above. Harris now appeals from his conviction and sentence.
II. Suppression of Evidence
{¶ 14} Harris’s sole assignment of error states that:
The Trial Court Erred When It Denied Defendant’s Motion to
Suppress Evidence.
{¶ 15} According to Harris, the trial court erred in failing to suppress his statements
to police, because he made multiple requests for counsel during his interviews. In ruling
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on the motion to suppress, the trial court found the testimony of the detectives and police
officers credible. It further stated:
On two occasions, Detective David House interviewed defendant at
the Safety Building. On each occasion, Det. House provided a Miranda
advisement to defendant using a written pre-interview rights advisement
form. The interviews were recorded and the court has fully viewed each
taped interview. Defendant waived his rights and answered questions.
Defendant appeared coherent, understanding his rights and his
environment.
On multiple occasions, defendant asks questions or makes oblique
references about his right to counsel. However, defendant’s assertion of
his right to counsel, sufficient to require termination of the interrogation,
must be clear, unambiguous, and unequivocal. … The court agrees with
the State’s analysis (State’s Memo. in Opp. To defendant’s Motion to
Suppress (filed 5/1/18), pp. 11-18) that the defendant’s various mentions of
an attorney, in the context of those particular points in the interview
(excepting defendant’s one unequivocal and direct invocation of the right to
counsel which the detectives honored), were unclear and ambiguous.
Detective House answered defendant’s many questions without misleading
defendant or providing inaccurate information to him.
Doc. #59, Decision, Order and Entry Denying Defendant’s Motion to Suppress Evidence,
pp. 1-2.
{¶ 16} When a trial court rules on a motion to suppress, it “assumes the role of the
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trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate
the credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592,
639
N.E.2d 498 (2d Dist.1994). As a result, when we review suppression decisions, we must
“accept the trial court's findings of fact if they are supported by competent, credible
evidence.”
Id. “Accepting those facts as true, we must independently determine as a
matter of law, without deference to the trial court's conclusion, whether they meet the
applicable legal standard.”
Id.
{¶ 17} After reviewing the record, including the transcript of the suppression
hearing and both videos of the interviews, we conclude that the trial court’s factual
conclusions are supported by competent, credible evidence and meet applicable legal
standards.
{¶ 18} To “protect the Fifth Amendment privilege against self-incrimination,”
Miranda requires police to use certain procedures in dealing with accused persons.
Moran v. Burbine, 475 U.S. 412, 420,
106 S.Ct. 1135,
89 L.Ed.2d 410 (1986), citing
Miranda v. Arizona,
384 U.S. 436,
86 S.Ct. 1602,
16 L.Ed.2d 694 (1966). Among other
things, before initiating questioning, the police must inform suspects of their right to
remain silent and to have counsel present, if the suspect wishes.
Id., citing
Miranda at
468-470.
{¶ 19} The police must “scrupulously honor the defendant's exercise of his right to
cut off questioning.” State v. Murphy, 91 Ohio St.3d 516, 519,
747 N.E.2d 765 (2001),
citing Michigan v. Mosley,
423 U.S. 96, 104,
96 S.Ct. 321,
46 L.Ed.2d 313 (1975), and
Miranda at 479. However, “police must honor an invocation of the right to cut off
questioning only if it is unambiguous.” (Emphasis sic.)
Id., citing Davis v. United States,
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512 U.S. 452,
114 S.Ct. 2350,
129 L.Ed.2d 362 (1994).
{¶ 20} Whether an accused has “actually invoked his right to counsel” involves “an
objective inquiry.” (Emphasis sic.) Davis at 458-459. The United States Supreme
Court has stressed that its precedent does not require cessation “if a suspect makes a
reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light
of the circumstances would have understood only that the suspect might be invoking the
right to counsel.” (Emphasis sic.)
Id. at 459. In addition, the police need not “ask
questions to clarify whether the accused wants to invoke his or her Miranda rights.”
Berghuis v. Thompkins,
560 U.S. 370, 381,
130 S.Ct. 2250,
176 L.Ed.2d 1098 (2010),
citing
Davis at 461-462. A defendant’s words must also be examined “not in isolation
but in context.”
Murphy at 520-521.
{¶ 21} As noted, Harris mentioned attorneys multiple times during his interviews.
We will discuss each instance.
A. The First Interview
i. Comments Prior to the Reading of Miranda Rights
{¶ 22} During the suppression hearing, Det. House explained in detail the
procedures he used to inform Harris of his Fifth Amendment rights. Initially, House
asked Harris for general information such as his name and address, and also asked if
Harris’s Miranda rights had been read to him previously. Harris said that these rights
had not previously been read to him. This, in fact, was false, as another officer had
specifically noted in a report that he read Harris his rights in 2009 using Dayton Police
Department Form 300. This is the same form House was using. House also specifically
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told Harris that he was going to question him about the crime of homicide, and Harris
stated that he understood what homicide meant, i.e., that someone had been killed.
{¶ 23} While House was getting ready to read the Miranda rights to Harris, Harris
asked, “Why can’t I have a lawyer talking to me while I’m here? State’s Ex. 3 (Sept. 21,
2017 Video), 16:61:55; Tr. at p. 70. At that point, House responded, “Well, we’re going
to go over that with you. That’s what we’re going to discuss.” Id. Harris then
commented that House could have told him that before beginning to question him; in
response, House stressed that he was not yet questioning Harris.
Id.
{¶ 24} House’s statement was literally true. At that point, he was simply preparing
to read the Miranda rights to Harris. We agree with the trial court that Harris’s statement
was ambiguous, and that an objective officer would not have understood it as a clear
invocation of the right to counsel. E.g., State v. Knight, 2d Dist. Clark No. 04-CA-35,
2008-Ohio-4926, ¶ 9, 112 (statements that “ ‘Well, can I talk to my lawyer then if there is
something wrong like that? Do I need one or something?’ ” were at best “two equivocal
requests for counsel”); State v. Hammett-Marette, 2d Dist. Montgomery No. 28157, 2019-
Ohio-394, ¶ 6 (comments that “ ‘Why shouldn't I have a lawyer at this time? … I want
some advice; I want to get up out of here, sir’ ” did not clearly and unambiguously request
counsel).
ii. Comments during Administration of Rights
{¶ 25} The discussion during the administration of rights was quite lengthy, with
Harris digressing at points about his dissatisfaction with the fact that his statements could
and would be used against him, and his dislike for the Public Defender’s Office, which
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had represented him in prior cases. Beginning at 16:40 of the video, House read the
third Miranda warning to Harris, i.e., that Harris had a right to have an attorney present
during questioning. State’s Ex. 3; Tr. at p. 78. At that time, Harris stated that “I always
ask them for a lawyer, because like I said before, I’m not really in the best mindset. I
have caseworkers. All I do is go to sleep, work, play my video game, and do it all over.”
State’s Ex. 3 at 16:40:30.
{¶ 26} In response, Det. House asked Harris if he understood that right, that he
had a right to an attorney. At that point, Harris said, “I really do need somebody here
talking for me.” Id. at 16:40:47. House then told Harris to place his initials on the pre-
interview form next to the line disclosing the right to an attorney and said, “And we’ll go
through all that. Right now, we’re just going through your rights.”
Id. at 16:40:54. At
the suppression hearing, House stated that he did not interpret Harris’s statements as a
request for an attorney, and that Harris did not specifically say that he wanted an attorney
with him at that point. Tr. at p. 78. Shortly thereafter, House stated that Harris had the
right to have an attorney appointed if he did not have one. State’s Ex. 3 at 16:41:00.
{¶ 27} In Hammett-Marette, we rejected the trial court’s conclusion that similar
statements were “ ‘tantamount to a request for an attorney.’ ” Hammett-Marette, 2d Dist.
Montgomery No. 28157, 2019-Ohio-394, at ¶ 5-7 and 25-26. We observed that the
defendant’s comments that she wanted some advice could not be considered in isolation,
but had to be evaluated in light of her preceding statements, which showed some
confusion over the part of the form stating that she did not want a lawyer. Id. at ¶ 24-25.
{¶ 28} In a similar situation, the Tenth District Court of Appeals made the following
observations:
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In the case at bar, defendant did not unambiguously, unequivocally
request an attorney. Defendant's question, “[c]an I have a public
defender?” can be interpreted in two different ways: either defendant was
asking whether his rights, as he had just read them, included the right to a
public defender or he was asking for access to a public defender.
Detective Carney's response - that defendant would be entitled to a public
defender if he could not afford to hire an attorney - indicates that he believed
defendant wanted a clarification of his rights, not that he sought to invoke
his right to counsel. Given the ambiguity inherent in defendant's question,
we find that a reasonable police officer would come to the same conclusion,
and thus, Detective Carney's decision to question defendant without
counsel present did not violate defendant's right to counsel.
State v. Curtis, 10th Dist. Franklin No. 05AP-795, 2006-Ohio-4230, ¶ 14.
{¶ 29} The same reasoning applies here. After House’s statement indicating that
Harris had the right to have an attorney appointed, Harris said, “Well, if that’s the case,
they should have gave me one when I come in.” State’s Ex. 3 at 16:42:10. In
responding to that statement, Det. House commented that: “You don’t get an attorney yet.
I mean, you haven’t been charged with anything yet. You’re just being interviewed.” Id.
at 16:42:23.
{¶ 30} According to Harris, this was an incorrect statement of law, because Harris
did, in fact, have a right to counsel and to have an attorney present. However, House’s
comments cannot be viewed in isolation. Throughout the interview, which lasted more
than an hour, House repeatedly told Harris that he had a right to have counsel present
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and did not have to speak to officers. At the suppression hearing, House also explained
the context of his comment as follows:
…
A. And again, that was a simple response to his statement that he
should’ve had one [a lawyer] already.
Q. [Prosecutor] Okay.
A. And again, I was just simply stating that basically, you know, just
because you’re brought down there’s not an attorney standing by waiting
for you when you get here.
Q. Did he appear to understand that explanation?
A. Yeah, I don’t – as I recall, I don’t think he brings it up any further
at that point in time and we move forward.
Q. All right. Because taken by itself, obviously, it doesn’t sound,
you know, factually correct. But you’re referring to his statement that he
thought, in his impression he thought that an attorney would’ve been
appointed –
A. Yes, that –
Q. – when he walked in to the department?
A. Correct. An attorney should’ve already been there, given to him.
Tr. at p. 80.
{¶ 31} The United States Supreme Court has stressed that “[i]n Miranda itself, we
expressly rejected the suggestion ‘that each police station must have a “station house
lawyer” present at all times to advise prisoners,’ … and held instead that a suspect must
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be told of his right to have an attorney present and that he may not be questioned after
invoking his right to counsel. We also noted that if a suspect is ‘indecisive in his request
for counsel,’ the officers need not always cease questioning.” Davis, 512 U.S. at 460,
114 S.Ct. 2350,
129 L.Ed.2d 362, quoting Miranda,
384 U.S. at 474 and 485,
86 S.Ct.
1602,
16 L.Ed.2d 694.
{¶ 32} The ambiguity here is underscored by the fact that, in response to Harris’s
comment, Det. House said, “Are you saying you want a lawyer?” State’s Ex. 3 at
16:42:47. In response, Harris commented, “That’s only if y’all feel like [I] need a lawyer,
because I’m getting interviewed about some crazy shit here.” Id. at 16:43:00.
{¶ 33} House responded to that remark by saying: “I don’t know if you need a
lawyer or not. It all depends on what you tell me. It’s not a matter of what I feel, it’s a
matter of what you feel. I want to talk to you about what happened … and see what
you know. That’s up to you whether you think you need a lawyer or not.” Id. at 16:43:04.
Again, placed in context, Harris did not ambiguously and unequivocally ask for counsel.
iii. Post-Miranda Comments
{¶ 34} After his Miranda rights and the waiver form were read, Harris signed a
waiver and agreed to talk to the police. Harris did not thereafter mention an attorney for
about 45 minutes. At that time, Harris said, “If I ask for a lawyer right now, are y’all going
to stop and what, put me in a cell?” State’s Ex. 3 at 17:32:22. Det. House replied,
saying “Do you want a lawyer right now, are you asking for a lawyer?” In response,
Harris said “That’s what I’m asking, that’s what I’m asking. I’m asking you.” Id. at
17:32:28. At that time, House stated that “I already told you that you’re going to jail
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tonight for the misdemeanor assault. . . . We’re going to continue to investigate this.
We’re going to do a search warrant at the house.” Id. at 17:32:30. House also
mentioned other testing the police intended to conduct.
{¶ 35} After these comments occurred, the discussion continued for about six more
minutes. At that point, Det. House told Harris that he did not believe his story of finding
the cell phone on a dead body, and that he believed Harris had robbed and killed the
victim. Harris then said, “Can I get an attorney? Can I get an attorney to come in here
and talk to me on my behalf?” Id. at 17:39:19. In response, House stated, “If that’s what
you want, we’ll be done right now.”
Id. at 17:39:23. When House stood up and ended
the interview, Harris said, “No, we’re not done.”
Id. at 17:39:33. Harris continued to
protest that he was not finished and that he did not need an attorney.
Id. at 17:39:41.
However, House ended the interview and Harris was taken out to the hallway and
handcuffed.
{¶ 36} During this process, Harris told the detectives that he wanted to talk to them,
so he was brought back into the interrogation room. At that time, House confirmed that
continuing to talk was at Harris’s request and choice. Id. at 17:41.05. The interview
then continued for a few more minutes, during which Harris told the same story, i.e., that
he simply happened upon the victim’s dead body and took the victim’s cell phone. House
then ended the interview.
{¶ 37} As noted, a defendant’s words are viewed in context, not in isolation.
Murphy, 91 Ohio St.3d at 520-521,
747 N.E.2d 765. The police also do not have to cease
questioning “if a suspect makes a reference to an attorney that is ambiguous or equivocal
in that a reasonable officer in light of the circumstances would have understood only that
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the suspect might be invoking the right to counsel.” (Emphasis sic.) Davis, 512 U.S. at
459,
114 S.Ct. 2350,
129 L.Ed.2d 362.
{¶ 38} Viewing the discussion in context, Harris’s first comment about an attorney
was not unequivocal, but was an inquiry about whether he would be allowed to go home
if he had an attorney. House’s response about the fact that Harris was going to go back
to jail for the assault makes the context clear. See Murphy, 91 Ohio St.3d at 521,
747
N.E.2d 765 (defendant’s full statement that “ ‘I'm ready to quit talking and I'm ready to go
home, too.’ ” was ambiguous. (Emphasis sic.)). In this regard, the court in Murphy
commented that “What appellant appears to have wanted was to be released. Talking
to the police was a means to that end; he was trying to persuade them that he was
innocent. Thus, his words did not necessarily mean that he wanted to stop talking, no
matter what. If the police were not ready to let him go, he may well have wanted to keep
trying to persuade them of his innocence.”
Id.
{¶ 39} Harris’s later comment about having an attorney present was a specific
request for counsel, and House honored that request, even over Harris’s protests that he
did not want or need an attorney. However, Harris then affirmatively asked the police to
continue to talk with him.
{¶ 40} The United States Supreme Court has said that “before a suspect in custody
can be subjected to further interrogation after he requests an attorney there must be a
showing that the ‘suspect himself initiates dialogue with the authorities.’ ” Oregon v.
Bradshaw, 462 U.S. 1039, 1045,
103 S.Ct. 2830,
77 L.Ed.2d 405 (1983), quoting Wyrick
v. Fields,
459 U.S. 42, 45,
103 S.Ct. 394,
74 L.Ed.2d 214 (1982). In the case before us,
the video clearly demonstrates that Harris initiated the dialogue and asked to continue
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the discussion.
{¶ 41} However, “even if a conversation taking place after the accused has
‘expressed his desire to deal with the police only through counsel,’ is initiated by the
accused, where reinterrogation follows, the burden remains upon the prosecution to show
that subsequent events indicated a waiver of the Fifth Amendment right to have counsel
present during the interrogation.” Bradshaw at 1044, quoting Edwards v. Arizona,
451
U.S. 477, 484,
101 S.Ct. 1880,
68 L.Ed.2d 378 (1981). “Such a waiver must be knowing
and intelligent and found to be so under the ‘totality of the circumstances, including the
necessary fact that the accused, not the police, reopened the dialogue with the
authorities.’ ” State v. Gapen,
104 Ohio St.3d 358,
2004-Ohio-6548,
819 N.E.2d 1047,
¶ 52, quoting
Edwards at 486. “As a general proposition, the law can presume that an
individual who, with a full understanding of his or her rights, acts in a manner inconsistent
with their exercise has made a deliberate choice to relinquish the protection those rights
afford.” Berghuis,
560 U.S. at 385,
130 S.Ct. 2250,
176 L.Ed.2d 1098.
{¶ 42} Here, there was no evidence of coercion or threats. In fact, Harris was
insistent that the police continue to talk with him, and his statements after the interrogation
was resumed clearly indicated that he was attempting to persuade the officers that he
was innocent. During the entire interview, House repeatedly told Harris that he did not
have to talk to the officers. In addition, Harris appeared mentally alert, did not appear to
be under the influence of alcohol or drugs, and was able to read. Harris spoke freely
with the police after they returned to the interrogation room. The State, therefore, met
its burden of showing that Harris’s waiver was knowing and intelligent under the totality
of the circumstances.
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{¶ 43} Accordingly, the police did not violate Harris’s Fifth Amendment rights
during the first interview.
B. The Second Interview
{¶ 44} As noted, the police did not find a BB gun or varsity-style jacket when they
searched the home where Harris’s mother lived. Shortly after Harris’s first interview
ended, the police obtained a search warrant for Harris’s apartment on Catalpa Drive.
See State’s Ex. 1, p. 2 (indicating that a judge signed the search warrant around 6:55
p.m. on September 21, 2017). During this search, the police found a semi-automatic
weapon and ammunition under Harris’s mattress, and also located the varsity-style jacket.
At that point, the police had substantial evidence connecting Harris to the crime, including
statements of witnesses who saw Harris brandishing a gun (and not a BB gun) the
evening of the crime; the victim’s cell phone, which was found in Harris’s pocket when he
was arrested; a semi-automatic gun and ammunition; and the varsity-style jacket that
people saw Harris wearing that night.
{¶ 45} On September 23, 2017 (a Saturday), the police again brought Harris to the
Safety Building for another interview. By that time, the police had interviewed additional
individuals and had also conducted a search of the Catalpa apartment. As a result, the
police wanted to discuss the additional information with Harris. Tr. at p. 88.
{¶ 46} This interview began around 3:00 p.m., and was also captured on video.
See State’s Ex. 5. At the beginning of the interview, Det. House told Harris why they
brought him over from the jail and went over the pre-interview form with him. Tr. at p.
89; Ex. 5 at 14:04:45. When House explained that Harris had a right to an attorney,
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Harris indicated that he thought he was coming there that day to talk with an attorney.
Id. at 15:05:46. During this discussion, House indicated that some type of
miscommunication must have occurred, because he had asked the jail to have Harris
brought over for a police interview, not for a visit with an attorney.
Id. at 15:06:01; Tr. at
pp. 90-91.
{¶ 47} After House asked Harris if he wanted to talk with the police, Harris said
that he did. House then again read the part of the Miranda warnings involving Harris’s
right to have an attorney. At that point, Harris said, “Can I have a lawyer?” Id. at
15:07:28. After House told Harris that he could have a lawyer, Harris asked if the police
could call the Public Defender.
Id. at 15:07:33.
{¶ 48} In response, House said, “If you want a lawyer before you talk to us, we can
do that, but it’s not going to happen today. The Public Defender’s Office isn’t working
right now. . . . I just want you to understand, it’s your right. You can have a lawyer with
you before you answer any questions. The only thing that would happen is we would
just stop for today. We wouldn’t ask you . . . we wouldn’t go any further. We would take
you back over [to the jail].” Id. at 15:07:38; Tr. at p. 89.
{¶ 49} Det. House explained at that point that Harris would have an arraignment
on Monday, and he would be given an attorney at that time. Tr. at 89. House then said:
But I just want you to understand that we can’t talk to you right now
without your permission and without a lawyer present. . . you have to give
us permission to do that. Alright? And it’s your right . . . . If you want to
wait until you get a lawyer appointed to you or hire an attorney, that’s your
right. I’m not here to try and pressure you to make you talk to us. But I’m
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just telling you, there are . . . right now, I do want to talk to you. But that’s
your right. . . . You can wait, and it’s completely up to you.
State’s Ex. 5 at 15:08:30; Tr. at 89.
{¶ 50} At that point, Harris said that he wanted to continue, and then began reading
from the rights form. State’s Ex. 5 at 15:09:01. Det. House then finished reading the
Miranda rights to Harris, and Harris initialed them. During the reading of the wavier form,
the following exchange occurred:
Det. House: If you could, read that paragraph out loud.
Harris: The above statement of rights has been read to me, and I
comprehend what my rights are. I’m willing to make a statement. I’m
willing to answer questions. I do not want a lawyer. Well, now, I can’t say
that. I can’t say that . . . .
Det. House: Well, if you read a little bit further, it says at this time.
Id. at 15:13:37-15:14:04.
{¶ 51} Thereafter, Harris did not make any further comments about counsel.
Instead, he continued to read the waiver form out loud. When he finished, Det. House
also read the form out loud. Harris then signed the waiver form and indicated that he
wanted to talk to the police. Id. at 15:15:59; Tr. at 93.
{¶ 52} During the subsequent interview, Harris admitted that he shot Perkins, but
claimed it occurred after Perkins sprayed Harris and another man with mace. Harris
further claimed that he did not have a gun, but had picked up and used Perkins’s own
gun, which Perkins had dropped during a fight that occurred after Perkins used the mace.
According to Harris, the shooting was done in self-defense.
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{¶ 53} After applying the criteria discussed above, we agree with the trial court that
Harris did not clearly and unambiguously invoke his right to counsel. The police,
therefore, were not required to stop questioning him. See State v. Stover, 9th Dist.
Lorain No. 96CA006461, 1997 WL 193333, *2 (Apr. 16, 1997) (defendant’s statement
that he wanted to talk to detectives, but would like to have his lawyer there, was not an
unambiguous, unequivocal request for counsel); State v. Henness,
79 Ohio St.3d 53, 62,
679 N.E.2d 686 (1997) (statement that “ ‘I think I need a lawyer’ ” was ambiguous); State
v. Winton, 2d Dist. Montgomery No. 27043,
2017-Ohio-6908, ¶ 52 (defendant’s
statements that “ ‘maybe’ a lawyer should be present, and that he ‘probably’ needed an
attorney” were not unambiguous requests for counsel, and were also qualified by “his
statements that he wanted to cooperate and that he was willing to be interviewed without
an attorney”).
{¶ 54} Accordingly, the trial court did not err in refusing to suppress Harris’s
statements to the police during the second interview. Harris’s sole assignment of error,
therefore, is overruled.
III. Conclusion
{¶ 55} Harris’s assignment of error having been overruled, the judgment of the trial
court is affirmed.
HALL, J., concurs.
DONOVAN, J., dissents:
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{¶ 56} I disagree. Harris invoked his right to counsel during custodial interrogation
multiple times. The majority denigrates the “settled approach to questions of waiver
[that] requires us to give a broad, rather than a narrow, interpretation to a defendant's
request for counsel ….” Michigan v. Jackson, 475 U.S. 625, 633,
106 S.Ct. 1404,
89
L.Ed.2d 631 (1986), overruled on other grounds, Montejo v. Louisiana,
556 U.S. 778,
129
S.Ct. 2079,
173 L.Ed.2d 955 (2009). Harris’s initial statements regarding his right to
counsel were not qualified. They were not ambiguous. They were not equivocal. Det.
House engaged in a pattern of diversion, interruption and responses designed to
persuade Harris to rescind his invocation of his right to counsel. Det. House sought to
create ambiguity by his comments in the face of Harris’s clear desire to speak through a
lawyer.
{¶ 57} Harris’s statements should not be viewed in isolation; context matters. “A
proper inquiry into the words of a suspect under custodial interrogation requires
examining not only the words presented but their context.” Hebert, Context is King:
Lawyer Dogs, Pure Applesauce, and Your Miranda Right to Counsel, 92 Tul.L.Rev.
Online 1 (2018).
{¶ 58} “When an accused has invoked his right to have counsel present during
custodial interrogation, a valid waiver of that right cannot be established by showing only
that he responded to further police-initiated custodial interrogation even if he has been
advised of his rights…[He] is not subject to further interrogation by the authorities until
counsel has been made available to him, unless the accused himself initiates further
communication, exchanges or conversations with the police.” Edwards, 451 U.S. at 484-
485,
101 S.Ct. 1880,
68 L.Ed.2d 378. It is evident from the record that Harris did not
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initiate the second interview.
{¶ 59} Examining this case in light of the totality of circumstances as we must,
State v. Barker, 53 Ohio St.2d 135,
372 N.E.2d 1324 (1978), I conclude there was never
an effective waiver of Miranda rights and that Harris made clear his desire for counsel.
Quite simply, Det. House sought to deter Harris from the beginning of exercising a right
which Harris himself knew he possessed. Case law is clear that police may not “badge[r]
a defendant into waiving his previously asserted” right to counsel. McNeil v. Wisconsin,
501 U.S. 171, 177,
111 S.Ct. 2204,
115 L.Ed.2d 158 (1991).
{¶ 60} Harris’s initial decisive questions and declarations were sufficiently clear
that a reasonable police officer under the circumstances would have understood Harris’s
statements to be a request for an attorney. This analysis should not be based on the
subjective belief of Det. House, but rather is an “objective inquiry.” State v. Hatten, 186
Ohio App.3d 286,
2010-Ohio-499 ¶ 57 (2d Dist.); Sessom v. Grounds,
776 F. 3d 615, 629
(9th Cir. 2015).
{¶ 61} Significantly, the sequence of Harris’s declarations, demands and questions
are critical to the analysis. The majority has parsed out Harris’s statements regarding an
attorney in a manner that in my view, does not provide a clear and complete picture of
what transpired. Harris tried very hard and repeatedly to consult with an attorney prior
to questioning. Critically, I shall lay out sequentially the exchanges between Harris and
the detective(s):
(First Interview, September 21, 2017)
(16:31:50)
Officer: What is your date of birth?
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Harris: Why can’t I have a lawyer talk to me while I’m here?
Officer: We’re going to go over that with you.
Harris: You could have told me that before you started questioning me.
Officer: I’m not questioning you.
…
(16:36:45)
Officer: Do you want to go through the rights?
Harris: I have the right to talk to a lawyer.
Officer: Ok. We’re going to go through each one.
16:37:50 –
Officer: Yes, you are being interviewed in regard to the crime of homicide.
Harris: I can still get a good lawyer.
Officer: That all depends on what comes out, I don’t know what you
want to tell us.
…
(16:40:30)
Officer: … You have the right to talk to a lawyer for advice before we ask
you any questions, and to have a lawyer with you during questioning. Do
you understand that?
Harris: … I always ask for a lawyer. … I’m not really in the best mindset.
I have caseworkers. …
Officer: So, you understand that one. That you have the right to an
attorney.
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Harris: Yea, I need somebody. I really do need somebody here talking
for me.
Officer: Well put your initials next to number three, and we’ll go through all
that, right not we’re just going over your rights.
…
(16:42:20)
Officer: … You understand that if you don’t have money, they’re going
to give you an attorney? Can you put your initials next to there saying
you understand it?
Harris: If that’s the case they should have gave me one when I came in
here.
Officer: You don’t get an attorney yet. I mean, you’re not charged with
anything. You’re just being interviewed.
…
(16:42:45)
Officer: … You also have the right to stop answering anytime until you
talk to a lawyer. Do you understand that?
Harris: I do want (inaudible) … I’m trying to tell you (inaudible) … . I
don’t want anyone to say or try to mind f**k me.
Officer: You saying you want a lawyer?
Harris: That’s only if y’all feel like y’all need a lawyer. …
Officer: I don’t know if you need a lawyer or not, it all depends on what you
tell me. It’s not a matter of what I feel, it’s a matter of what you feel. I want
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to talk to you about what happened. …
…
(16:45:50)
Officer: I’m going to read this to you. Alright, it’s called the waiver of
rights.
Harris: I’m not, I’m not about to sign that part until, you know what I’m
saying, like till what’s his name … (interruption).
Officer: Well, let me read it and you tell me if you understand it, and then
you tell me what you want to do. Ok? …
Harris: Yes, sir.
…
(16:46:30)
Officer: Do you know what coercion means?
Harris: Yea, I feel pressured. I really do.
Officer: And what type of pressure do you feel? What’s anyone done to you,
to make you feel pressured?
Harris: Honestly, coming up to my job with a whole lot of police officers.
…
(16:47:25)
Officer: … I want to talk to you about, not someone named Robby getting
slapped. I want to talk to you about a guy getting killed. Alright? That’s what
I want to you about. Now if you are willing to talk to us about it, you can sign
the form, we’ll discuss it. If you don’t want to talk to us, if you want to wait
-26-
until you have an attorney, or whatever that’s up to you. Let me know. Do
you want to discuss it with us, or not?
(Harris remains silent.)
(Conversation is redirected by the Detective and
brought back to the issue of signing the form.)
(16:49:40)
Officer: If you are willing to talk to us. If you want to talk to us about this, just
sign your name right there, and then I’ll sign it and detective Phillips will sign
it.
…
(16:49:50)
(Harris sighs and signs waiver form.)
…
(17:32:20)
Officer: We can stop at any point. You let us know.
Harris: If I ask for a lawyer right now, are you going to stop and what put me
in a cell?
Officer: Do you want a lawyer, are you asking for a lawyer?
Harris: That’s what I’m asking. …
Officer: I already told you that you’re going to jail tonight for the
misdemeanor assault.
…
(17:39:20)
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Officer: … Absolutely, I’m going to use those lies against you, … but
what we’re trying to do is give you the opportunity to be honest and tell the
truth.
Harris: Can I get an attorney? Can I get somebody in here to talk to me
on my behalf.
Officer: If that’s what you want we’ll be done right now.
(17:39:45)
Officer: You asked for an attorney, we’re done.
Harris: … I need an attorney, because of everything you were saying.
…
Officer: If you feel you need an attorney (interruption).
Harris: No, I don’t need an attorney, that’s what I’m trying to tell you.
(Second Interview, September 23, 2017)
(15:05:45)
Officer: Number three, you have the right to talk to a lawyer for advice
before we ask you any questions, to have a lawyer with you during
questioning. Do you understand that?
Harris: I know, and I really want, I wanted … I thought I had a lawyer
today.
Officer: I know you said when, when they contacted you that they told you
there was a lawyer visit.
Harris: They said it was a lawyer, I had to go talk to an attorney today.
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I thought I was going to talk to my attorney today.
Officer: Umm, I don’t know what miscommunication came over there.
(15:07:25)
Officer: We’ll go over number three again, because we read it and we had
this discussion. It says you have the right to talk to a lawyer for advice before
we can ask you any questions, and have a lawyer with you during
questioning. You said you understand that, correct? Put your initials next to
number three saying you understand it.
Harris: Can I have a lawyer?
Officer: Can you have a lawyer, yes.
Harris: Call the public defender, nothing?
Officer: If you want a lawyer before you talk to us we can do that, but it’s not
going to happen today. Umm, the public defender office isn’t working right
now. … I want you to understand it’s your right to have a lawyer with you
before you answer any questions. The only thing that would happen, we
would stop for today. We couldn’t ask you, we wouldn’t go any further, we
would take you back over, and if we decide that we want to talk to you again.
Uhh. You’ll probably be arraigned on … (Detective questions another
officer.) Do they arraign on Sunday? You’ll be arraigned on Monday. Where
you go before the Judge for the first, and you enter a plea. …
(15:13:40)
Officer: If you could, read that paragraph out loud.
Harris: Statement of rights has been read to me. I comprehend what
-29-
my rights are. … I’m willing to answer questions. I do not want a
lawyer. Well no, I can’t say that, I can’t say that.
Officer: Well if you look further, it says at this time.
Harris: I understand and know what I’m doing. No promises, no threats
. . . well yea a threat has been made to me.
Officer: What’s the threat?
Harris: I can’t tell y’all about this man.
Officer: Well who threatened you? You’re not talking law enforcement right?
Like I haven’t threatened you right, detective Philips . . . we haven’t
threatened you? Are you taking about someone over at the jail or
something?
Harris: Yes, sir.
Officer: Are you talking about another inmate, or a corrections officer?
Harris: Both.
Officer: Ok. Did the correction officer threaten you to try to get you to
talk to us, or is something going on with the jail.
Harris: It’s going on with the jail. They’re over there talking about
they’re not going to feed me. Where they put me at, they put me in a place
so I can try and wild out. They had people over there trying to force me to
fight.
Officer: Ok. Whether it was intentional or not you changed some of the
words up, so I’m going to read it to you.
…
-30-
(15:15:50)
Officer: Do you want to talk to us about what’s going on?
(No audible response.)
Officer: Just sign it right there.
(Harris signs the waiver form.)
(Questioning proceeds.)
{¶ 62} “Where nothing about the request for counsel or the circumstances leading
up to the request would render it ambiguous, all questioning must cease. In these
circumstances, an accused's subsequent statements are relevant only to the question
whether the accused waived the right he had invoked.” Smith v. Illinois, 469 U.S. 91, 98,
105 S.Ct. 490,
83 L.Ed.2d 488 (1984). Furthermore, an accused’s post-request
responses to further interrogation may not be used to case retrospective doubt on the
clarity of the initial request for counsel itself.
Id. “Such subsequent statements are relevant
only to the distinct question of waiver.”
Id.
{¶ 63} The U.S. Supreme Court emphasized in Smith that once an accused
requests counsel, as Harris undisputedly did here, “[n]o authority, and no logic, permits
the interrogator to proceed ... on his own terms and as if the defendant had requested
nothing, in the hope that the defendant might be induced to say something casting
retrospective doubt on his initial statement that he wished to speak through an attorney
or not at all.” Id. at 99. This prohibition is not limited to further interrogation. As
previously stated, case law is clear that police may not “badger[ ] a defendant into waiving
his previously asserted” right to counsel. McNeil,
501 U.S. 171, 177,
111 S.Ct. 2204,
115
L.Ed.2d 158. “Once a suspect asserts the right, not only must the current interrogation
-31-
cease, but he may not be approached for further interrogation ‘until counsel has been
made available to him[.]’ ” Id. at 176-77. “If the police do subsequently initiate an
encounter in the absence of counsel … the suspect's statements are presumed
involuntary and therefore inadmissible[.]”
Id. at 177.
{¶ 64} Additionally, the U.S. Supreme Court has recognized that requests for
counsel are to be “understood as ordinary people would understand them.” (Emphasis
added.) Connecticut v. Barrett, 479 U.S. 523, 529,
107 S.Ct. 828,
93 L.Ed.2d 920
(1987). “[A] suspect need not speak with the discrimination of an Oxford don,” however,
“he must articulate his desire to have counsel present sufficiently clearly that a reasonable
police officer in the circumstances would understand the statement to be a request for an
attorney.” Davis,
512 U.S. 452, 459,
114 S.Ct. 2350,
129 L.Ed.2d 362. As abundantly
clear from the above interview, there was no ambiguity regarding what Harris wanted: an
attorney.
{¶ 65} Under Davis and Smith, we are required to analyze whether a reasonable
officer viewing the situation in light of all of the circumstances leading up to the statements
would have understood Harris’s statements to constitute requests for counsel. The
conduct of Det. House during the interrogation only sought to divert, undermine, confuse,
cajole, and delay Harris’s invocation of his right to counsel, which he requested in plain
and unambiguous language more than once.
{¶ 66} Arguably, any of Harris’s statements standing alone would be grounds for
reversal. Nevertheless, taken together, Harris’s statements and requests for counsel were
not honored. No particular form of words have ever been required to trigger an individual’s
Fifth Amendment protections, nor have requests for counsel been narrowly construed.
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Nothing in federal or state law allows the authorities to ignore the tenor or sense of
Harris’s requests and responses to his Miranda warnings. It is settled that any plain
reference, however glancing, to a need or desire for representation must result in the
cessation of questioning. See Miranda, 384 U.S. at 444-445,
86 S.Ct. 1602,
16 L.Ed.2d
694. There is certainly nothing glancing or ambiguous about Harris’s final invocation, “I
can’t say that, I can’t say that,” as he read aloud, “I do not want a lawyer,” from the Miranda
form. Harris’s protestation was decisive and unequivocal, as were multiple statements
and requests throughout the two days of interviews. Questioning must cease when the
accused “indicates in any manner and at any state of the process that he wishes to consult
with an attorney before speaking.” Smith,
469 U.S. at 95,
105 S.Ct. 490,
83 L.Ed.2d 488,
citing
Miranda at 444-445.
{¶ 67} Furthermore, the audio-visual record, without question, illustrates that
Harris was misled about the timing of his right to speak with counsel and what, if any,
statements could be used against him. State’s Exs. 4 and 6 establish, consistent with
the recording, that Harris refused to initial that he understood the following right –
“Anything you say, can and will be used against you in a court of law.” Significantly, Det.
House indicated it “depends on what you say.” He even provided a narrative of innocent
conduct such as distributing food to the homeless. “Injections by the government of
interpretive – and potentially misleading – commentary into Miranda baseline warnings
undermines the prophylactic effects of Miranda’s procedural mandate.” See United
States v. Wysinger, 683 F.3d 784, 800 (7th Cir.2012); Hart v. Attorney General State of
Florida,
323 F.3d 884, 893 (11th Cir.2003).
{¶ 68} Accordingly, I would reverse. Because Harris invoked his right to counsel,
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I would find there was no knowing, intelligent and voluntary waiver of his Miranda rights.
.............
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Kirsten Knight
Hon. Mary Lynn Wiseman
