[Cite as State v. Hammett-Marette, 2019-Ohio-394.]

 

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellant 

v. 

KHADIJA HAMMETT-MARETTE 

Defendant-Appellee 

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Appellate Case No. 28157 

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

(Criminal Appeal from 

 Common Pleas Court) 

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O P I N I O N 

Rendered on the 8th day of February, 2019. 

. . . . . . . . . . . 

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 

. . . . . . . . . . . . . 

 

WELBAUM, P.J. 
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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 HammettMarzette 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-

 

1 This matter was captioned in the trial court as State v. Hammett-Marette; however, the 

record reflects that the defendant-appellee’s name is properly spelled Hammett-Marzette. 

We will use the correct spelling in our Opinion, but retain the trial court’s spelling in the 

caption of the case. See App.R. 3(D) (requiring that, in the notice of appeal, “[t]he title 

of the case shall be the same as in the trial court”). 
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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 Office 2 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. 

 

2 The detective did not identify himself on the audio recording, however he signed the 

waiver of rights form with his name and officer number. The Vandalia Municipal Court 

record, which is part of the trial court’s record, reflects that the investigating officer was 

Detective Shiverdecker. 
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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.” HammettMarzette 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 PreInterview 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 HammettMarzette’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 Constitution, no person 

shall be compelled to be a witness against himself or herself. To counteract the coercive 

pressure of custodial interrogations, police officers must warn a suspect, prior to 

questioning, that he or she has a right to remain silent and a right to the presence of an 

attorney. Maryland v. Shatzer, 559 U.S. 98, 103-104, 130 S.Ct. 1213, 175 L.Ed.2d 1045 

(2010), citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 

(1966). 

{¶ 13} “The opportunity to exercise these rights exists throughout the interrogation, 

and thus, the interrogation must cease when the defendant exercises his ‘right to cut off 

questioning,’ which must be scrupulously honored.” State v. Miller, 7th Dist. Mahoning 

No. 13 MA 12, 2014-Ohio-2936, ¶ 41, quoting Miranda at 473-474; Michigan v. Mosley, 

423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) (recognizing that a defendant’s 

right to “cut off questioning” must be “scrupulously honored”). See also Shatzer at 104 

(“After the warnings are given, if the suspect indicates that he wishes to remain silent, the 

interrogation must cease. * * * Similarly, if the suspect states that he wants an attorney, 

the interrogation must cease until an attorney is present.”). 
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{¶ 14} In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 

(1981), the United States Supreme Court explained that: 

[W]hen 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. * * * [A]n accused, 

* * * having expressed his desire to deal with the police only through 

counsel, 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. 

(Footnote omitted.) Id. at 484-485. Accord State v. Tench, Ohio Sup. Ct. Slip Opinion 

No. 2018-Ohio-5205, ___ N.E.3d ___, ¶ 75. 

{¶ 15} “Whether a suspect has invoked his right to counsel is an objective inquiry.” 

State v. Myers, 2d Dist. Darke No. 1643, 2006-Ohio-1604, ¶ 66, citing Edwards at 484-

485; Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). 

The request for counsel must be clear and unambiguous, such that “a reasonable police 

officer in the circumstances would understand the statement to be a request for an 

attorney.” Davis at 459; Tench at ¶ 76. It is well established that a suspect does not 

clearly and unambiguously invoke the right to counsel if, in light of the circumstances, a 

reasonable officer would have understood only that the suspect might be invoking that 

right. Davis at 459. 

{¶ 16} “In determining whether a reasonable officer conducting the interview would 

have understood that [the suspect] was asking for an attorney, we may consider what 
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came before the request, but may not look to [the suspect’s] subsequent statements to 

determine whether the initial request was ambiguous.” (Emphasis deleted.) Tolliver v. 

Sheets, 594 F.3d 900, 922 (6th Cir.2010), citing Smith v. Illinois, 469 U.S. 91, 97-98, 105 

S.Ct. 490, 83 L.Ed.2d 488 (1984). But, even then, a suspect’s alleged invocation must 

be examined “ ‘not in isolation but in context.’ ” State v. Cepec, 149 Ohio St.3d 438, 

2016-Ohio-8076, 75 N.E.3d 1185, ¶ 37, quoting State v. Murphy, 91 Ohio St.3d 516, 520-

521, 747 N.E.2d 765 (2001). 

{¶ 17} “If a suspect’s statement is not an unambiguous or unequivocal request for 

counsel, the officers have no obligation to stop questioning him.” Davis at 461-62; State

v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶ 18. The officers also 

have no obligation to ask clarifying questions to ascertain if the suspect is attempting to 

invoke his right to counsel. Davis at 461-462.

{¶ 18} The Supreme Court of Ohio has held that neither “I think I need a lawyer” 

nor “Don’t I supposed to have a lawyer present” were unequivocal assertions of the right 

to counsel. State v. Henness, 79 Ohio St.3d 53, 63, 679 N.E.2d 686 (1997); Brown at 

¶ 19. The Supreme Court also held that “Well, before you use [a Luminol test], can I 

have a lawyer here?” was an unambiguous request for counsel to be present for the 

Luminol test, but not an unambiguous invocation of the right to counsel for purposes of 

defendant’s interview with law enforcement. Cepec at ¶ 46. 

{¶ 19} Similarly, this court has held that the statements “Do I need an attorney?” 

and “Well, can I talk to my lawyer then if there is something wrong like that? Do I need 

one or something?” did not constitute a clear, unambiguous invocation of the right to 

counsel. State v. Taylor, 144 Ohio App.3d 255, 260, 759 N.E.2d 1281 (2d Dist.2001); 
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State v. Knight, 2d Dist. Clark No. 04-CA-35, 2008-Ohio-4926, ¶ 9 and 112. See also In 

re C.M.R., 2018-Ohio-110, 107 N.E.3d 34, ¶ 27 (2d Dist.) (finding no clear, unambiguous 

invocation of the right to counsel where a mother expressed uncertainty about whether 

she should retain an attorney). 

{¶ 20} As additional examples, the following statements have been found to be 

ambiguous by other Ohio appellate courts and, thus, insufficient to constitute a clear and 

unambiguous invocation of the right to counsel: 

 “How do I go about getting an attorney when I can’t afford one?” and “Should I wait 

to have counseling before I answer any more?” State v. McCune, 5th Dist. 

Delaware No. 16 CAC 12 0058, 2017-Ohio-4426, ¶ 17. 

 “[I]f you want to ask me questions I’ll do my best to answer them, but if it gets too 

close I have to shut down. I have to get an attorney.” State v. O’Leary, 12th Dist. 

Butler No. CA2013-01-009, 2013-Ohio-5670, ¶ 15-16. 

 “I would prefer a lawyer but I want to talk to you now.” State v. Carr, 1st Dist. 

Hamilton No. C-090109, 2010-Ohio-2764, ¶ 18-20. 

 “Can I have a public defender?” State v. Curtis, 10th Dist. Franklin No. 05AP-795, 

2006-Ohio-4230, ¶ 14. 

 “Can I have an attorney?” State v. Raber, 189 Ohio App.3d 396, 2010-Ohio-4066, 

938 N.E.2d 1060, ¶ 20-21 (9th Dist.). 

 “Well, can I have a lawyer present?” State v. Foster, 11th Dist. Trumbull No. 

2000-T-0033, 2001 WL 1647177, *9 (Dec. 21, 2001). 

{¶ 21} The parties in the instant case focus on this court’s holding in Myers, 2d 

Dist. Darke No. 1643, 2006-Ohio-1604, which the trial court cited in support of its decision 
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granting Hammett-Marzette’s motion to suppress. In Myers, the defendant was twice 

interviewed by the police, on two separate dates, following the murder of his father and 

stepmother. We described the second interview as follows: 

Much of the interview involved questions concerning Myers’s immediate 

family; his father’s wives; his father’s sources of income; Myers’s activities 

on March 26 and 27, 2003; his relationship with his father; and Myers’s 

financial situation. As the interview focused on Myer’s financial situation 

and his father’s will, the questioning became more accusatory and 

[Detective] Burns and [Sergeant] Trissel began to question Myers together, 

rather than one officer being the primary interrogator. In response to the 

officers’ accusations, Myers stated that he wanted “legal advice.” Myers 

repeated this phrase numerous times when confronted with accusations 

and when offered a plea agreement in exchange for an admission of 

criminal conduct. In response to Myers’s statements that he wanted legal 

advice, [Detective Sergeant] Whittaker joined the interrogation in an attempt 

to clarify whether Myers was asking for an attorney. Whittaker also 

expressed that the prosecutor was willing not to seek the death penalty if 

Myers provided a “truthful statement.” Whittaker indicated that the offer 

might not be available after the interview had concluded. When Myers did 

not expressly state that he wanted an attorney, the prosecuting attorney 

also joined in the interview to clarify whether Myers wanted counsel. 

Although Myers did not respond that he wanted an attorney, he repeatedly 

stated that he wanted “legal advice” but also did not want the death penalty. 
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The interview concluded at 10:17 p.m., when Myers expressly stated that 

he wanted an attorney. 

Id. at ¶ 62. 

{¶ 22} In ruling on Myers’s motion to suppress, the trial court agreed with Myers 

that his request for “legal advice” was the functional equivalent of a request for an attorney 

and that he had invoked his right to counsel. Id. at ¶ 69. The trial court thus suppressed 

the statements Myers had made after the initial point at which he had requested legal 

advice. The trial court also suppressed portions of Myers’s statements that were made 

after the officers’ use of the death penalty in an attempt to obtain a prompt confession. 

{¶ 23} On appeal, Myers claimed, among other things, that the trial court should 

have suppressed all his statements to the officers due to the interrogation techniques that 

were employed. In addressing Myers’s claim, we focused solely on the officers’ conduct 

in relation to the statements that were not suppressed. We were not asked to review the 

portions of the trial court’s ruling that suppressed certain statements. Accordingly, we 

did not express whether we agreed with the trial court’s ruling on whether Myers invoked 

his right to counsel. Myers, therefore, has limited relevance. 

{¶ 24} In this case, the audio recording of Detective Shiverdecker’s interview with 

Hammett-Marzette establishes that, while reading the waiver of rights form, HammettMarzette became confused by the portion of the form that stated she did not want a 

lawyer. Specifically, she stated: “I don’t want a lawyer? What?” Thereafter, 

Shiverdecker explained to Hammett-Marzette that the waiver form indicated that she did 

not want a lawyer “at this time.” Still confused, Hammett-Marzette asked Shiverdecker: 

“Why shouldn’t I have a lawyer at this time?” Immediately thereafter, she interrupted 
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Shiverdecker’s attempted response to her question and said “I want some advice; I want 

to get up out of here, sir.” 

{¶ 25} When reviewing Hammett-Marzette’s request for advice in the context of 

her preceding statements to Detective Shiverdecker, we do not find that her request 

amounted to a clear, unambiguous invocation of her right to counsel. The phrase “I want 

some advice; I want to get up out of here, sir” did not unambiguously convey that 

Hammett-Marzette wanted to confer with legal counsel before speaking with 

Shiverdecker. Considered in light of Hammett-Marzette’s preceding question, “Why 

shouldn’t I have a lawyer at this time?” a reasonable officer in Shiverdecker’s position 

could have understood Hammett-Marzette’s request as one asking for advice on whether 

she should seek counsel—not as an unambiguous invocation of her right to counsel. At 

best, a reasonable officer in Shiverdecker’s position would have thought that HammettMarzette might be asking to speak with counsel. This does not satisfy the clear and 

unambiguous standard set forth in Davis, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362. 

Because Hammett-Marzette’s request for advice was not a clear, unambiguous request 

for legal counsel, the trial court erred in granting Hammett-Marzette’s motion to suppress 

on that basis. 

{¶ 26} The State’s sole assignment of error is sustained. 

Conclusion 

{¶ 27} Having sustained the State’s sole assignment of error, the judgment of the 

trial court is reversed and the matter is remanded to the trial court for further proceedings. 

. . . . . . . . . . . . . 
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TUCKER, J., concurs. 

FROELICH, J., dissents: 

{¶ 28} I agree with the statements of law articulated in the majority opinion, but I 

would affirm the trial court’s conclusion that Hammett-Marzette clearly and 

unambiguously invoked her constitutional right to counsel. 

{¶ 29} Hammett-Marzette raised the issue of counsel while reading the waiver-ofrights paragraph of the pre-interview form. When she read that she was waiving her right 

to an attorney at that time, she balked, questioned why she “shouldn’t * * * have a lawyer 

at [that] time” (a question the detective apparently started to answer), and indicated that 

she “want[ed] some advice” and “to get up out of here.” Hammett-Marzette did not ask 

the detective if she should get advice; she stated that she wanted advice while discussing 

her right to an attorney. In context, Hammett-Marzette was clearly indicating that she 

wanted the legal advice of an attorney at that time. 

{¶ 30} Hammett-Marzette did not repeat her request when the detective asked, 

“[A]re you saying you want to talk to a lawyer first?” Instead, she asked the detective 

what he thought was best for her to do. In some circumstances, the follow-up discussion 

may help to clarify a defendant’s intentions. However, a defendant’s subsequent failure 

to repeat a request for counsel cannot defeat a prior clear invocation of the right to 

counsel. Given that Hammett-Marzette previously stated, unambiguously, that she did 

not want to waive her right to counsel at that time and that she wanted legal advice, the 

interview should have ceased following those statements. 
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Copies sent to: 

Mathias H. Heck 

Heather N. Jans 

Kyle J. Lennen 

Hon. Richard Skelton