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State v. Harris

Court of Appeals of Ohio, Second District, Montgomery

July 19, 2019

STATE OF OHIO Plaintiff-Appellee
JEREMY R. HARRIS Defendant-Appellant

          Criminal Appeal from Common Pleas Court Trial Court Case No. 2017-CR-2987

          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 Defendant-Appellant


          WELBAUM, P.J.

         {¶ 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 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. 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 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 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 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 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 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 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 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 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 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 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 ...

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