[Cite as State v. Miller , 2014-Ohio-5649.] 

### IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, Plaintiff-Appellant,

vs. COURTNEY MILLER, Defendant-Appellee. :

:

:

:

: APPEAL NO. C-140068 TRIAL NO. B-1303122
O P I N I O N.

Criminal Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is: Affirmed Date of Judgment Entry on Appeal: December 24, 2014

Joseph T. Deters , Hamilton County Prosecuting Attorney, and Philip R. Cummings , Assistant Prosecuting Attorney, for Plaintiff-Appellant, Arenstein & Gallagher and Hal R. Arenstein , for Defendant-Appellee.

Please note: this case has been removed from the accelerated calendar.OHIO FIRST DISTRICT COURT OF APPEALS

2 H ILDEBRANDT , Presiding Judge. 

### {¶1} The state of Ohio appeals the trial court’s judgment granting a motion to suppress a statement made by defe ndant-appellant Courtney Miller in a prosecution for voluntary manslaughter, carrying a concealed weapon, illegal possession of a firearm in a liquor-permit premises and tampering with evidence. Because the record demonstrates that the po lice officers continued the interrogation after Miller invoked his Fifth Amendment righ t to counsel, we affirm the trial court’s judgment. 

### {¶2} In a single assignment of error, the state argues that the trial court erred in granting Miller’s motion to suppress his statement. We disagree. 

### {¶3} Appellate review of a motion to suppress presents a mixed question of law and fact. We must accept the trial court’s findings of fact as true if competent, credible evidence supports them. But we must independently determine whether the facts satisfy the applicable legal standard. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. 

### {¶4} At the suppression hearing, Detective Bill Hilbert testified that Miller had been brought in for ques tioning regarding a shooting that had occurred at a local bar. The video of Miller’s police interroga tion was admitted into evidence. The video
demonstrates that Miller was read the Miranda warnings and that he waived his rights when he signed the notification-of-ri ghts form. Within the first seven minutes of the interrogation, Miller made two equivo cal requests for an attorney. After the second reference, the detectives told Miller, “We can only go by what we’re being told and what we see * * * And we don’t have your side of the story, okay? * * * So ourOHIO FIRST DISTRICT COURT OF APPEALS

3 hand’s going to be played by now by you not telling us what happened and why it happened, okay?” 

### {¶5} Shortly after these statements, Miller unequivocally invoked his right to have counsel present befo re answering further questi ons. At that time, the
detectives ceased the interro gation, left the room, and re turned 20 minutes later to photograph Miller in an effort to document any injuries that Miller may have sustained from his alleged involvement in the shooting incident at the bar. The police officers then left the room again. 

### {¶6} The detective returned to the room an hour late r, informing Miller that he was going to be charged with murder. Detective Hilbert stated, “So you’re going to be charged, you’ll be taken over to the Justice Center. You know, I don’t have your side so that’s what I have to do, okay?” Miller responded, “So you want my side, would it help any?” Detect ive Hilbert told Miller that the police could not ask him any questions because “you invoked – you want a lawyer, okay * * *.” Miller then offered to tell his side of the story. Before recording Miller’s statement, the detectives had Miller resign the notificati on-of-rights form indicating that he was waiving his right to an attorney. 

### {¶7} When a suspect in police custody invokes his Fifth Amendment right to counsel, police interviewers must ce ase the interrogation and may not further
initiate the interview until the suspect’s la wyer is present. Edwards v. Arizona , 451 U.S. 477, 484-485, 101 S.Ct. 1880, 68 L.Ed.2 d 378 (1981). Any statement, question or remark (other than those normally attendant to arrest and custody) that the police should know are reasonably “likely to el icit an incriminatin g response” is an interrogation. Rhode Island v. Innis , 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2dOHIO FIRST DISTRICT COURT OF APPEALS

4 297 (1980). “The latter portion of this de finition [of interrogati on] focuses primarily upon the perceptions of the suspect, rather than the intent of the police.” Id. 

### {¶8} Upon a review of the record, we hold that the detective’s statement to Miller that he was going to be charged with murder because the police did not have his side of the story was a statement that the police knew was reasonably likely to elicit an incriminating response. In fact, the detectives tried this tactic earlier in the interrogation between the second and third time that Miller had requested an attorney to be present, hoping to get a response from Miller. Further, focusing on Miller’s perception, rather than the intent of the police, as we are required to do
under Innis , it is evident from his response to the detective’s statement that Miller believed that if the detectives had his side of the story there was a possibility he would not be charged with murder or any crime. Based on these circumstances, the detective’s statement that Miller was going to be charged with murder because the police did not have his side of the story was an interrogation. Because Miller had previously invoked his right to counsel, any further in terrogation was improper. Accordingly, the trial court properly suppressed Miller’s statement. 

### {¶9} The single assignment of error is overruled, and the judgment of the
trial court is affirmed. Judgment affirmed.

H ENDON , J. , concurs separately. D INKELACKER , J. , dissents.
H ENDON , J. , concurring separately, 

### {¶10} In my opinion, this difficult decision hinges upon Miller’s clear and unambiguous request for an attorney. As Judge Dinkelacker writes in his dissent,OHIO FIRST DISTRICT COURT OF APPEALS

5 “After a short time, Miller asked for an atto rney.” There was no equivocation on the part of Miller, and questioning should have ceased at that point. The discourse that occurred later—and which creates the comp elling argument made by the dissent— quite simply should never have occurred. I am compelled, somewhat reluctantly, to concur in the majority opinion.

D INKELACKER , J., dissenting. 

### {¶11} Miller was taken into custody to be questioned regarding the shooting of another person. Detective Hilbert advised Miller of his rights pursuant to
Miranda v. Arizona , 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L. Ed. 2d 694 (1966). In so doing, Detective Hilb ert followed the law. 

### {¶12} After a short time, Miller asked fo r an attorney. Once a suspect unequivocally invokes his Fifth Amendment right, all questions must cease.
Edwards v. Arizona , 451 U.S. 477, 484-485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). And, accordingly, Detective Hilbert halted the interrogation of Miller. When he did so, Detective Hilbert ag ain followed the law. 

### {¶13} After time was taken to photograph Miller's possible injuries and to
discuss the matter with the Chief Assistant Prosecuting Attorney Mark Piepmeier, Detective Hilbert returned to speak with Miller. The following exchange took place:
Detective Hilbert: Hey Courtney. I talked to the prosecutor. And, uh, here's what's gonna happen. * * * Um, we're gonna charge you with murder. Alright? Um, between now and the time you get an attorney, if you want to make a stat ement, then that's between you and him. And you contact me. I'm not gonna reach out to you. I can't, okay?OHIO FIRST DISTRICT COURT OF APPEALS

6 So, you're gonna be charged, you'll be taken over to the Justice Center. Um, you know, I don't have your side so that's what I have to do, okay?
Miller: What will it take to get your [sic] side?
Detective Hilbert: Wait... what...
Miller: What you want? So you want my side, will that help me?
Detective Hilbert: I can't, I can't...
Miller: ... or anything?
Detective Hilbert: I can't ask you nothing. You invoked ... you want a lawyer. Okay? The only thing you can do is if you want to tell me, that's up to you. But you have to wa ive your right to an attorney. And I can't advise you to do that or not. That's up to you. I want to make that very clear. If you want to give me a statement, that's gonna be on you, not me. I'm not gonna ask for one, but if you want to. Alright? So, we've got some paperwork to write up, and then we're gonna take you over to the
Justice Center. You understand?
Miller: I'll tell you a story.
Detective Hilbert: Okay, now you remember I read you your rights to you. Okay? Is there anything you have a question about right
now?
Miller: So, when I tell you this, what is this all up to you? You and the prosecutor?
Detective Hilbert: No, still it's the prosecutor. I'll talk to him when we get done with your statem ent. I'm not looking to jam anybody up, but I need to get to the truth.OHIO FIRST DISTRICT COURT OF APPEALS

7 Miller: I understand what you saying. 

### {¶14} The information provided to Miller was all truthful. At no time were any threats or illicit promises made. There was no deprivation or overt coercion.
Detective Hilbert followed the law. 

### {¶15} Prior to Miller speaking to Detective Hilbert, Miller waived his Miranda rights for a second time by signing the waiver of rights form. The record shows that Miller expressly waived his Miranda rights knowingly, intelligently, and voluntarily. Under the totality of the circumstances, Miller made a clear waiver. He wanted to tell his side of the story and, despite several wa rnings by Detective Hilbert, eventually he did. Again, Detective Hilbert followed the law. 

### {¶16} My colleagues have interpreted Detective Hilbert’s statement “you know, I don’t have your side of this, so that’s what I have to do” as a subtle compulsion, concluding that Miller was tricked or forced into making a statement after invoking his right to remain silent. But this conclusion ignores the overall context of the statement and does not properly apply the United States Supreme Court ruling in Innis . Detective Hilbert's statement should be interpreted for what it was—a truthful, isolated, innocuous statement made to a suspect who was about to enter into the criminal justice process. 

### {¶17} Further, the record, at least in my review, is devoid of anything more than conjecture that Detective Hilbert was attempting to elicit an incriminating response. It is clear watching the video, from both his de meanor and what he says, that, in Detective Hilbert’s mind, the interrogation was over when he told Miller what would happen next. So, even in this area, Detective Hilbert followed the law.OHIO FIRST DISTRICT COURT OF APPEALS

8 

### {¶18} Further, I believe that since Miller made a knowing, voluntary, and intelligent waiver Miranda rights, he cannot now claim that his statement was the result of any “compulsion" on the part of the detectives. 

### {¶19} In summary, a review of the testimony presented at the motion to suppress and the recording of the interview reveals that, Detective Hilbert meticulously followed the law at every stage of this process. After Miller invoked his right to counsel, the detectives stopped the inte rrogation and left the room. Detective Hilbert then spoke with the Chief Assistant Prosecuting Attorney Piepmeier about the status of the case. The prosecutor advised Detective Hilbert to charge Miller with murder and take him to
the Justice Center. The detectives returned to the room and inform Miller of this fact. 

### {¶20} There is no evidence in the record that the conduct of the detectives was a
ruse to convince Miller to in criminate himself. Everything that Detective Hilbert told him was true. Hilbert repeatedly warned Miller that the detectives would not talk to him further, that he should wait until after he talk ed with his attorney, and that if he chose to say anything else it was “on him.” 

### {¶21} I cannot conclude that having a police officer give an accused accurate information about what is going to happe n to them next in the process is an interrogation or it’s functional equivalent. I also cannot conclude that a confession should be suppressed when the police followed every procedural rule and did everything right, even if one isolated comment could be seen as improper. Given the totality of his custodial experience, Miller's statement was not the subject of unlawful coercion. While it would certainly be startling to learn that one is being charged with murder, that is what was happening to Miller. He wanted to give his side and tell his story. Detective Hilbert followed the law, and I am compelled to dissent.OHIO FIRST DISTRICT COURT OF APPEALS

9 Please note: The court has recorded its own entry on the date of the release of this opinion.