State v. Hammett-Marette, Appellate Case No. 28157

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtWELBAUM, P.J.
Citation2019 Ohio 394
PartiesSTATE OF OHIO Plaintiff-Appellant v. KHADIJA HAMMETT-MARETTE Defendant-Appellee
Docket NumberAppellate Case No. 28157
Decision Date08 February 2019

2019 Ohio 394

STATE OF OHIO Plaintiff-Appellant

Appellate Case No. 28157


February 8, 2019

Trial Court Case No. 2018-CR-2197/1

(Criminal Appeal from Common Pleas Court)


MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellant

KYLE J. LENNEN, Atty. Reg. No. 0085726, 120 West Second Street, Suite 612, Dayton, Ohio 45402 Attorney for Defendant-Appellee


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{¶ 1} Pursuant to R.C. 2945.67(A) and Crim.R. 12(K), plaintiff-appellant, the State of Ohio, appeals from an order of the Montgomery County Court of Common Pleas granting defendant-appellee Khadija Hammett-Marzette's motion to suppress.1 For the reasons outlined below, the judgment of the trial court will be reversed and the matter will be remanded for further proceedings.

Facts and Course of Proceedings

{¶ 2} On July 3, 2018, the Montgomery County Grand Jury indicted Hammett-Marzette for one count of having weapons while under disability, one count of carrying a concealed weapon, one count of assault, and one count of resisting arrest. Following her indictment, Hammett-Marzette pled not guilty to the charges and filed a motion to suppress statements she made during a police interview. In the motion to suppress, Hammett-Marzette argued for the suppression of her statements on grounds that the interviewing detective continued to interrogate her after she had clearly and unambiguously invoked her right to counsel.

{¶ 3} On September 7, 2018, the trial court held a hearing on the motion to suppress. At the hearing, the parties agreed that the trial court would base its ruling on its review of two exhibits: an audio recording of the detective's interview of Hammett-

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Marzette and a waiver of rights form. Those exhibits established the following facts.

{¶ 4} At 11:44 a.m. on June 6, 2018, Detective Shiverdecker of the Montgomery County Sheriff's Office2 spoke with Hammett-Marzette in an interview room. The detective began by completing the header area of a pre-interview waiver of rights form. He filled in the date, time, and location of the interview, and he asked Hammett-Marzette for her name, birthdate, and Social Security number, which she provided. The detective told her that she was being interviewed regarding the offenses of carrying a concealed weapon and having weapons while under disability. The detective then read to Hammett-Marzette five enumerated paragraphs detailing her Miranda rights, and he instructed her to initial next to each sentence if she understood them. Hammett-Marzette initialed each paragraph.

{¶ 5} Detective Shiverdecker asked Hammett-Marzette how many years of schooling she had, to which she responded 11 years. He then asked her to read aloud the "waiver of rights" paragraph that followed. The paragraph read:

The above statement of rights has been read to me. I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.

State's Exhibit 1.

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{¶ 6} When Hammett-Marzette reached the sentence regarding her not wanting a lawyer, the following exchange occurred:

Hammett-Marzette: I do not want a lawyer, what?

Det. Shiverdecker: Right, at this time.

Hammett-Marzette: Why shouldn't I have a lawyer at this time?

Det. Shiverdecker: Well, cause --

Hammett-Marzette: I want some advice; I want to get up out of here, sir. I swear, I --

Det. Shiverdecker: Alright, well, are you saying you want to talk to a lawyer first?

Hammett-Marzette: I don't -- what is the best thing I should do?

Det. Shiverdecker: I can't advise you on that either way. I can't sit here and tell you it's going to be best to talk to me. I can't sit here and tell you it's going to be worse if you talk to me.

Hammett-Marzette: Right.

Det. Shiverdecker: Alright. I cannot give you that advice. All I can do is I can advise you of what your rights are. And then it's up to you on whether you want to talk to me without a lawyer present.

Hammett-Marzette: Okay.

Det. Shiverdecker: Whether you talk to me now or don't talk to me...

Hammett-Marzette: I want to talk to you.

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Det. Shiverdecker: It holds -- Well, then you have to get through this.

Hammett-Marzette: Okay. So, should I sign it?

Det. Shiverdecker: Well, you have to read it.

Hammett-Marzette: Okay.

State's Exhibit 2.

{¶ 7} After the foregoing discussion, Hammett-Marzette finished reading the "waiver of rights" paragraph aloud. Detective Shiverdecker then reread the last sentence and made sure that Hammett-Marzette understood the meaning of "coercion." Hammett-Marzette subsequently signed the form and proceeded to make statements to Shiverdecker.

{¶ 8} After reviewing the evidence submitted by the parties, the trial court granted Hammett-Marzette's motion to suppress. In granting the motion, the trial court stated the following:

On June 6, 2018 the Defendant, with an 11th grade education, met in an interview room with a Detective for the purpose of an interrogation. The Detective went over State's Exhibit 1 with the Defendant, a Pre-Interview Form. Towards the bottom of Exhibit One there is a section entitled: "Waiver of Rights". Within that section contains the sentence "I do not want a lawyer at this time." When the Defendant read this statement aloud as instructed by the De[t]ective, [s]he stopped reading and stated: "Why shouldn't I have a lawyer at this time? I want some advice...." While the first sentence/question could be construed to not be a clear and unambiguous request for an attorney, the statement immediately following

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clarifies: "I want some advice...." This Court is aware of the pressures attendant to interrogations and notes holdings requiring a request for an attorney to be "scrupulously honored[.]" Michigan v. Mosley, 423 U.S. 96, 326.

This Court finds and holds that the Defendant's request for advice immediately after questioning why [s]he shouldn't have a lawyer "now" is tantamount to a request for an attorney and thus [s]he invoked [her] right to counsel. State v. Myers, [2d Dist. Darke No. 1643,] 2006-Ohio-1604. Accordingly, all statements made thereafter are Suppressed. Motion Sustained.

Decision, Entry and Order Sustaining Defendant's Motion to Suppress (Oct. 1, 2018), Montgomery County Court of Common Pleas Case No. 2018-CR-2197/1, Docket No. 30, p. 1-2.

{¶ 9} The State now appeals from the trial court's order granting Hammett-Marzette's motion to suppress, raising a single assignment of error for review.

Assignment of Error

{¶ 10} Under its sole assignment of error, the State challenges the trial court's order sustaining Hammett-Marzette's motion to suppress. Specifically, the State claims the trial court erroneously determined that Hammett-Marzette clearly and unambiguously invoked her right to counsel during the interview with Detective Shiverdecker. We agree.

{¶ 11} As a preliminary matter, we note that in ruling on a motion to suppress, the trial court "assumes the role of the trier of fact, and, as such, is in the best position to

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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); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-116, ¶ 30. Accordingly, when we review suppression decisions, we must accept the trial court's findings of fact if they are supported by competent, credible evidence. Retherford at 592. "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.

{¶ 12} Under the Fifth Amendment to the United States...

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