Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court Trial Court Case No.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No.
0069384, Assistant Prosecuting Attorney, Montgomery County
Prosecutor's Office, Attorney for Plaintiff-Appellee
KIRSTEN KNIGHT, Atty. Reg. No. 0080433, Attorney for
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
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.
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 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. 
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. 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
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
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 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.
Suppression of Evidence
14} Harris's sole assignment of error states
Trial Court Erred When It Denied Defendant's Motion to
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 on the motion to suppress, the trial court found the
testimony of the detectives and police officers credible. It
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
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 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, 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
21} As noted, Harris mentioned attorneys multiple
times during his interviews. We will discuss each instance.
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 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
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).
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 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:
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 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
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
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 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
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 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
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 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