State v. Morris

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

v. Morris, Slip Opinion No. 2026-Ohio-1519.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2026-OHIO-1519

THE STATE OF OHIO, APPELLANT , v. MORRIS, APPELLEE.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State v. Morris, Slip Opinion No. 2026-Ohio-1519.]

Criminal law—Constitutional law—Right to counsel—Right to counsel guaranteed

under Article I, Section 10 of Ohio Constitution did not extend to

defendant’s preindictment investigatory interview—Defendant’s right to

counsel under Sixth Amendment to United States Constitution attached

when he made his initial appearance and court informed him of the charges

against him, appointed him counsel, and set bail—Defendant did not

unambiguously and unequivocally invoke Sixth Amendment right to counsel

during interview—Court of appeals’ judgment reversed and cause

remanded to trial court.

(No. 2023-1614—Submitted February 12, 2025—Decided April 30, 2026.)

APPEAL from the Court of Appeals for Hamilton County,

No. C-230108, 2023-Ohio-4105.

__________________

SUPREME COURT OF OHIO

DEWINE, J., authored the opinion of the court, which DETERS, HAWKINS,

and SHANAHAN, JJ., joined. KENNEDY, C.J., dissented, with an opinion joined by

LANZINGER, J., and by BRUNNER, J., except for Part II. JILL FLAGG LANZINGER, J.,

of the Ninth District Court of Appeals, sat for FISCHER, J.

DEWINE, J.

{¶ 1} During a police interrogation, Isaiah Morris confessed to multiple

crimes. His court-appointed attorney was not present, but Morris waived his right

to counsel at the beginning of the interview by voluntarily answering questions after

having been informed of his right to have an attorney present.

{¶ 2} Morris later moved to suppress his confession. The trial court granted

his motion. It concluded that the entire interrogation violated Morris’s right to

counsel under the Ohio Constitution. It also concluded that Morris clearly invoked

his right to counsel 45 minutes into the interrogation, requiring the suppression of

all statements after that point under the Sixth Amendment to the United States

Constitution. The First District Court of Appeals affirmed that decision. It did so

by relying exclusively on the Ohio Constitution, reasoning that it guaranteed a

broader right to counsel than the Sixth Amendment to the United States

Constitution. Specifically, the First District concluded that Article I, Section 10 of

the Ohio Constitution—which says that “[i]n any trial, in any court, the party

accused shall be allowed to appear and defend in person and with counsel”—

prohibited a police interrogation of someone who was represented by counsel

without that counsel’s presence, even if the accused had waived the right to have

counsel present. 2023-Ohio-4105, ¶ 54-55 (1st Dist.).

{¶ 3} The State appealed to this court, presenting propositions of law that

asked us to consider two issues: (1) the scope of the right to counsel under the Ohio

Constitution and (2) whether after initially waiving his right to counsel, Morris

invoked that right under the federal Constitution by unambiguously and

2

January Term, 2026

unequivocally requesting an attorney partway through the interrogation. We

accepted each of the State’s propositions of law, agreeing to review both the Ohio

Constitution issue and the federal Sixth Amendment issue.

{¶ 4} We conclude that there was no violation of the Ohio Constitution: its

guarantee of a right to counsel “[i]n any trial, in any court,” Ohio Const., art. I,

§ 10, was not implicated by the preindictment investigatory interview of Morris.

As for the second issue, we hold that Morris did not invoke his right to counsel.

We reverse the First District and remand the case to the trial court.

I. BACKGROUND

A. Morris Is Arrested and Questioned

{¶ 5} Morris was arrested for his involvement in several shootings. He was

charged with carrying a concealed weapon, having a weapon while under a

disability, and several counts of felonious assault with weapons specifications.

After his arrest, he made his initial appearance before the municipal court. The

court informed Morris of the charges against him, appointed a lawyer, and set bail.

{¶ 6} Later that same day, Morris joined Cincinnati Police Detectives

Gleckler and Bender in an interview room in the Hamilton County Justice Center—

a facility that houses the Hamilton County jail—to discuss the charges against him.

At the time of the interview, Morris had not yet been indicted or arraigned. The

interrogation was captured by Detective Gleckler’s body camera.

{¶ 7} Detective Gleckler began the interview by making sure that Morris

understood his Miranda rights and that he was competent to waive those rights. In

response to Detective Gleckler’s questions, Morris recounted that his Miranda

rights had been read to him before, that he had made it through tenth or eleventh

grade, that he could read and write, and that there were no drugs or alcohol in his

system. Detective Gleckler then read Morris the following Cincinnati Police

Department Notification of Rights form:

3

SUPREME COURT OF OHIO

YOUR RIGHTS

Before we ask you any questions, you must understand your

rights.

You have the right to remain silent.

Anything you say can be used against you in court.

You have the right to talk to a lawyer for advice before we

ask you any questions and to have him with you during questioning.

If you cannot afford a lawyer, one will be appointed for you

before any questioning, if you wish.

If you decide to answer questions now without a lawyer

present, you will still have the right to stop answering at any time.

You also have the right to stop answering at any time until you talk

to a lawyer.

* * ** * ** * ** * ** * ** * ***

I understand my rights.

Signed _____________

Witness ___________

Witness ___________

(Boldface in original.) Morris confirmed that he understood his rights and signed

the form.

{¶ 8} The interrogation proceeded uninterrupted for nearly two hours. The

first 40 minutes or so consisted of the detectives asking Morris questions related to

a shooting that occurred in April 2022. The detectives slowly laid out what they

knew about that shooting. They showed him security-camera photos of him fleeing

the scene and a picture of a gun recovered from the scene that they said had his

DNA on it. Morris calmly confessed to that shooting. He confirmed that the gun

was his and said that he “took it from somebody.”

4

January Term, 2026

{¶ 9} After gathering more details about the April shooting, the detectives

began asking Morris about other crimes involving his gun. The detectives told

Morris that his gun had “been busy” and was involved in multiple shootings “all

over the place.” Morris responded that he had just “got [the] gun in April.”

{¶ 10} About 40 minutes into the interview, the detectives began to focus

on a February 2022 incident at a pizza shop, where a woman had been shot in the

foot. Detective Gleckler told Morris he did not think the shooting was intentional—

because the bullet had bounced off the ground before striking the woman’s foot—

but “[his] gun was used for sure.” Taken aback, Morris responded, “Who’s—me?

Nah, I didn’t shoot no lady.” He vehemently denied any involvement, again

asserting that he had just obtained the gun in April. He insisted, “[W]hatever

happened with that gun before that, it’s not me—that don’t got nothing to do with

me.” The detectives continued to press Morris, telling him that his DNA was on

the gun and that a video showed a shooter that walked like Morris and wore similar

clothes. “It sounds like y’all are trying to put something else on me that I don’t got

nothing to do with,” insisted Morris.

{¶ 11} That brings us to a ten-second exchange that is at issue in this appeal.

Frustrated, Morris asked: “Like, I can’t talk to a lawyer?” Detective Gleckler

responded, “Anybody can talk to a lawyer.” He then paused and repeated:

“Anybody can talk to a lawyer.” Morris shook his head, and according to the trial

court said, “[Y]eah cause that’s—we goin’ to do that because I don’t know what

you’re talking about.”

{¶ 12} The interrogation went on for another hour and 14 minutes. Morris

never again mentioned a lawyer. He continued to insist that he wasn’t involved in

the February shooting. But he did confess to stealing a man’s phone after trying to

sell him marijuana.

{¶ 13} After his confession was secured during the interrogation, Morris

was indicted on 14 counts—including 3 counts related to the marijuana deal that

5

SUPREME COURT OF OHIO

turned into a phone theft and 9 counts related to the April shooting. None related

to the February shooting.

B. The Trial Court Suppresses the Entire Interrogation,

and the First District Affirms

{¶ 14} Morris moved to suppress all statements that he made during the

interrogation, including his confessions to the April shooting and the drug deal gone

wrong. He argued that the interrogation violated his rights to counsel under both

the United States and Ohio Constitutions.

{¶ 15} The trial court granted Morris’s motion and ordered all statements

that he made during the interrogation suppressed, making his confessions

inadmissible at his trial. In doing so, the trial court made two constitutional

determinations. First, it determined that the right to counsel in Article I, Section 10

of the Ohio Constitution is broader than the right to counsel in the Sixth

Amendment and second, that Morris’s Article I, Section 10 right was violated when

police interrogated him without his lawyer.

{¶ 16} Although it ostensibly based its decision on the Ohio Constitution,

the trial court focused much of its analysis on federal case law. It cited with

approval a subsequently reversed line of federal precedent that held that if police

initiate interrogation after a defendant asserts his right to counsel at an arraignment

or similar proceeding, any waiver of that right at the police interrogation is invalid.

See Michigan v. Jackson, 475 U.S. 625 (1986). The trial court acknowledged that

the United States Supreme Court had overruled this line of precedent in Montejo v.

Louisiana, 556 U.S. 778 (2009), when it held that a waiver of Miranda rights at a

police interrogation is sufficient to waive the Sixth Amendment right to counsel.

See Montejo at 794-795. The trial court, however, deemed Montejo “contrary not

only to decades of precedential case law, but to the Ohio Constitution.” Citing the

“plain language” of Article I, Section 10, as well as several out-of-state decisions

and the Ohio Rules of Professional Conduct, the court concluded that under the

6

January Term, 2026

Ohio Constitution “any statements [Morris] made without his counsel during an

interrogation by the State after counsel was appointed cannot be entered into

evidence at his trial.”

{¶ 17} As an additional basis for its decision, the trial court determined that

Morris invoked his right to counsel under the Sixth Amendment to the federal

Constitution partway through the interrogation. It found that the brief back-and-

forth between Morris and Detective Gleckler that began when Morris asked, “Like,

I can’t talk to a lawyer?” constituted a clear and unequivocal invocation of his

federal right to counsel. Thus, it held, the Sixth Amendment required the

suppression of all statements Morris made after that interaction—about an hour and

15 minutes of the interview.

{¶ 18} The State appealed, and the First District affirmed. The appellate

court confined its holding to the Ohio Constitution, largely tracking the trial court’s

analysis of the Ohio provision. It framed the issue as “whether Montejo is

consistent with the right to counsel under Article I, Section 10 of the Ohio

Constitution.” 2023-Ohio-4105 at ¶ 31 (1st Dist.). Looking at the text of the

constitutional provision, it reasoned that “when read as a whole, Article I, Section

10 . . . safeguards the integrity and fairness of a criminal trial.” Id. at ¶ 37. It also

found that Ohio had long protected the attorney-client relationship and that under

the Rules of Professional Conduct, attorneys take on obligations that “reflect the

crucial role that attorneys play in presenting a defense and ensuring a fair trial.” Id.

at ¶ 42-43. Like the trial court, the First District looked to several out-of-state

opinions and directed various criticisms at the United States Supreme Court’s

decision to overturn Jackson in Montejo. Id. at ¶ 44-53.

{¶ 19} The court ultimately concluded that even though the Supreme Court

had overruled Jackson, it would follow the Jackson rule in its interpretation of

Article I, Section 10 of the Ohio Constitution. It opined that the Jackson rule would

more effectively deter police misconduct and protect the attorney-client

7

SUPREME COURT OF OHIO

relationship. Id. at ¶ 44-49. Thus, it held that “when an accused’s right to counsel

has attached and an attorney has been secured, any uncounseled waiver of the

defendant’s right to counsel in a state-initiated interrogation is deemed invalid.” Id.

at ¶ 55. On this basis, it affirmed the trial court’s suppression of all statements

Morris made during the interrogation. Id. at ¶ 56-57.

{¶ 20} Judge Winkler dissented. He found the majority’s conclusion that

the Ohio Constitution provided a broader right than the federal Constitution

difficult to reconcile “with the actual text of the two provisions.” Id. at ¶ 69

(Winkler, J., dissenting). He explained that while the Ohio Constitution guarantees

a right to counsel “[i]n any trial in any court,” the federal Constitution’s guarantee

extends to “all criminal prosecutions,” U.S. Const., amend. VI. In his view, this

difference was “particularly notable” because the original Ohio Constitution of

1802 had used the “in all criminal prosecutions” language found in the federal

Constitution and the change to “narrower language cuts against the view that

Article [I], Section 10 is supposedly broader.” Id. at ¶ 69.

II. ANALYSIS

A. The Trial Court Erred in Granting the Motion to Suppress

{¶ 21} We accepted the State’s appeal on three propositions of law. 2024-

Ohio-763. First, the State asks us to ascertain the proper scope of the Article I,

Section 10 right to counsel. Second, it asks us to say whether Morris’s Sixth

Amendment right to counsel attached before his interrogation and, if so, whether

he waived that right before the interrogation started. And third, it asks us to

determine whether Morris invoked his federal right to counsel partway through the

interrogation.

{¶ 22} We conclude that the State did not violate Morris’s rights under the

Ohio or federal Constitutions by interrogating him outside the presence of counsel

after he had waived his Miranda rights. And we conclude that Morris did not

invoke his right to counsel during the interrogation.

8

January Term, 2026

1. Article I, Section 10 provides a trial right and is therefore narrower than the

Sixth Amendment

{¶ 23} Both the trial court and the First District determined that Article I,

Section 10 of the Ohio Constitution provides a broader right to counsel than the

Sixth Amendment. Morris echoes their reasoning, arguing that “Ohio’s history,

precedent, policy, and culture” indicate that the right to counsel is of great

importance in this State. According to Morris, because the overruled rule from

Jackson “more appropriately reflects the right to counsel as safeguarded by Article

I, Section 10,” this court should hold that it applies in the application of the Ohio

constitutional provision.

{¶ 24} As we have explained, the interpretation of our state Constitution

“should not be driven simply by disagreement with the result reached by the federal

courts’ interpretation” of the federal Constitution. State v. Gardner, 2008-Ohio-

2787, ¶ 76 (lead opinion). Rather, “in construing our state Constitution, we look

first to the text of the document as understood in light of our history and traditions.”

State v. Smith, 2020-Ohio-4441, ¶ 29. So, rather than jump as the lower courts did

to a debate about the relevant merits of the United States Supreme Court’s decisions

in Jackson and Montejo, we begin with a more basic threshold question: Does

Article I, Section 10 apply to the preindictment police interrogation at issue in this

case?

{¶ 25} Article I, Section 10 was part of the original version of Ohio’s

current Constitution, adopted by the citizens of Ohio in 1851. It guarantees that

“[i]n any trial, in any court, the party accused shall be allowed to appear and defend

in person and with counsel,” while the Sixth Amendment guarantees that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance

of Counsel for his defence.” Although both these provisions provide an accused

the right to counsel, there are clear textual differences. So, rather than “ignor[ing]

the plain language of our state Constitution and its unique history and tradition and

9

SUPREME COURT OF OHIO

hook[ing] our wagon to the United States Supreme Court,” State ex rel. Cincinnati

Enquirer v. Bloom, 2024-Ohio-5029, ¶ 20-22, we must independently determine its

meaning.

{¶ 26} It’s helpful to first understand the textual differences. The Sixth

Amendment guarantees a criminal defendant the right to “the Assistance of Counsel

for his defence.” And that right is guaranteed “[i]n all criminal prosecutions.” The

content of the substantive right to counsel comes from the “Assistance of Counsel”

part of that provision, and the timing of its attachment comes from the “[i]n all

criminal prosecutions” part. See Rothgery v. Gillespie Cty., 554 U.S. 191, 214-217

(2008) (Alito, J., concurring). The United States Supreme Court has interpreted the

substantive right to counsel to include the defendant’s right to his lawyer’s presence

at all “‘critical’ stages” of a prosecution. Montejo, 556 U.S. at 786. A critical stage

is, generally, any confrontation with the government where “potential substantial

prejudice to [a] defendant’s rights inheres in the particular confrontation” and the

assistance of counsel would “help avoid that prejudice.” United States v. Wade,

388 U.S. 218, 227 (1967); see generally United States v. Ash, 413 U.S. 300, 306-

313 (1973). And the Supreme Court has determined that because the Sixth

Amendment right to counsel applies “[i]n all criminal prosecutions,” it attaches

“once the adversary judicial process has been initiated,” Montejo at 786. In other

words, it attaches “at the first appearance before a judicial officer at which a

defendant is told of the formal accusation against him and restrictions are imposed

on his liberty.” Rothgery at 194.

{¶ 27} Article I, Section 10 has a similar structure: it has both a substantive-

right-to-counsel part (“the party accused shall be allowed to appear and defend in

person and with counsel”) and a timing-of-attachment part (“[i]n any trial, in any

court”). In this case, our focus is on the timing of the attachment of the right to

counsel. And there are clear textual differences between the attachment parts of

the federal and Ohio constitutional provisions.

10

January Term, 2026

{¶ 28} “In interpreting the Ohio Constitution, we apply the original public

meaning of a provision.” State ex rel. GateHouse Media Ohio Holdings II, Inc. v.

Columbus Police Dept., 2025-Ohio-5243, ¶ 17. A provision’s original public

meaning is “the meaning that would have been ascribed to it by a competent speaker

of the English language at the time of its adoption.” Id. Because “[i]t is ‘our duty

. . . to determine and give effect to the meaning expressed in [the Constitution’s]

plain language’” (ellipsis in original), id., quoting Newburgh Hts. v. State, 2022-

Ohio-1642, ¶ 17, “[t]he first consideration is always a provision’s text,” id. So, we

start with the text.

{¶ 29} And here, the text cuts decisively against Morris’s argument. By its

terms, Article I, Section 10 guarantees a right to appear and defend with counsel

“[i]n any trial, in any court.” We don’t ordinarily understand a preindictment police

interrogation—conducted in a police interview room—to be part of a trial in any

court. Nor is there any reason to think that a competent speaker of the English

language at the time that Article I, Section 10 was adopted would have understood

“trial” to include the kind of police interrogation at issue in this case.

{¶ 30} “Trial” has had the same ordinary meaning since at least the 18th

century. In his Commentaries on the Laws of England—an important and

influential treatise well known in Ohio by 1851—William Blackstone described a

trial as a procedure where “the truth of the matters alleged must be solemnly

examined and established by proper evidence in the channel prescribed by law.” 3

William Blackstone, Commentaries on the Laws of England, 324 (Chitty Ed. 1827).

And his thorough descriptions of the various methods of trial in England show that

it was generally understood that all trials required the presentation of evidence for

examination by a neutral decisionmaker. See id. at 324-385; 4 William Blackstone,

Commentaries on the Laws of England, 342-364 (Chitty Ed. 1827). Those are the

defining features of a trial as ordinarily understood today, too. See Black’s Law

Dictionary (12th Ed. 2024) (defining “trial” as “[a] formal judicial examination of

11

SUPREME COURT OF OHIO

evidence and determination of legal claims in an adversary proceeding”); see also

Webster’s Third New International Dictionary (2002) (defining “trial” as “the

formal examination of the matter in issue in a cause before a competent tribunal for

the purpose of determining such issue: the mode of determining a question of fact

in a court of law”). Nineteenth-century dictionaries from before, after, and around

the time of the 1851 adoption of Article I, Section 10 are all in agreement. See,

e.g., Tomlin’s Law Dictionary (1820) (defining “trial” as “[t]he examination of a

cause civil or criminal before a judge who has jurisdiction over it, according to the

laws of the land”); Burrill’s Law Dictionary (1859) (defining “trial” as “the

examination before a competent tribunal, according to the laws of the land, of the

facts put in issue in a cause, for the purpose of determining such issue”); Abbott’s

Law Dictionary (1879) (defining “trial” as “the examination of a cause, civil or

criminal, before a judge who has jurisdiction over it, according to the laws of the

land”). There is no evidence that the ordinary meaning of “trial” has changed since

the 18th century. From Blackstone to Black’s, a trial requires the presentation of

evidence to a neutral decisionmaker.

{¶ 31} Morris’s interrogation by Detectives Gleckler and Bender was not a

trial under this longstanding ordinary meaning. Rather than presenting evidence,

the detectives were acquiring evidence from Morris. And there was no neutral

decisionmaker in the room, let alone one that was examining the facts of the case.

Thus, a voter who approved the 1851 Constitution would not have understood the

Article I, Section 10 right to counsel to apply to the police interrogation at issue in

this case.

{¶ 32} Indeed, it is unlikely that an 1851 Ohio voter would have even

understood the broader Sixth Amendment right to apply to the preindictment

interrogation in this case. There is “strong evidence” from the time the Sixth

Amendment was ratified through the end of the 19th century “that the term

‘criminal prosecutio[n]’ in the Sixth Amendment refers to the commencement of a

12

January Term, 2026

criminal suit by filing formal charges in a court with jurisdiction to try and punish

the defendant.” (First bracketed text in original.) Rothgery, 554 U.S. at 223

(Thomas, J., dissenting). That is, a prosecution didn’t commence until “a formal

charging document—an indictment, presentment, or information”—was filed in

court. Id. at 221 (Thomas, J., dissenting). So, Ohio voters in 1851 would not have

understood either the federal or Ohio rights to counsel to have attached before or

during a police interrogation—such as the one in this case—that occurred before

any formal document like an indictment had been filed in court.

{¶ 33} Our conclusion about the meaning of the Ohio provision is in accord

with how we have previously interpreted the “[i]n any trial, in any court” language

in Article I, Section 10. Nearly 100 years ago, in Thomas v. Mills, 117 Ohio St.

114, 117-120 (1927), this court considered whether a prison warden violated a

prisoner’s Article I, Section 10 right to counsel by denying him a private interview

with his lawyer during his direct appeal. In deciding that case, we first

acknowledged that the prisoner’s right to counsel under Article I, Section 10,

extended only to “trial.” Id. at 119. We held that the prisoner’s Article I, Section

10 right to counsel had not been violated because “the word ‘trial’ in criminal

procedure means the proceedings in open court after the pleadings are finished and

the prosecution is otherwise ready, down to and including the rendition of the

verdict; and the term ‘trial’ does not extend to such preliminary steps as the

arraignment and giving of the pleas, nor does it comprehend a hearing in error.” Id.

In other words, the right to counsel attaches only at trial, under the longstanding,

ordinary meaning of the word. Though the Mills court ultimately held that the

prisoner was entitled to a private interview with his attorney under another

constitutional provision, id. at paragraph one of the syllabus, its holding about the

meaning of Article I, Section 10 is what is relevant to the issue before us.

{¶ 34} This is not to say that the protections afforded by Article I, Section

10 stop at the courtroom door. The provision guarantees the right to “appear and

13

SUPREME COURT OF OHIO

defend” with counsel at trial. We think it obvious that the content of the right to

defend with counsel at trial includes what is reasonably necessary to allow counsel

to prepare a defense for trial, including a right to consult privately with a defendant

in preparation for trial. See, e.g., Ford v. State, 121 Ohio St. 292, 297 (1929)

(noting that a “defendant has a right to a reasonable opportunity to consult privately

with his counsel” but not explicitly stating the basis of the right). But whatever the

outer limits of the right “to appear and defend . . . with counsel” afforded by Article

I, Section 10, that provision guarantees a trial right. The preindictment police

interview conducted here occurred well before the attachment of that guarantee.

{¶ 35} When Ohioans adopted Article I, Section 10 in the 1851

Constitution, a competent speaker of the English language would not have

understood “trial” to include a preindictment police interrogation. We therefore

hold that the right to counsel in that provision did not attach before or during the

investigatory interview in this case. Detectives Gleckler and Bender therefore

could not have violated Morris’s right to counsel guaranteed by Article I, Section

10, and that provision cannot require the suppression of statements Morris made

during his interview.

{¶ 36} One final note. Both lower courts correctly noted that Ohio courts

are not bound by the United States Supreme Court’s interpretation of the federal

Constitution when interpreting the Ohio Constitution, see 2023-Ohio-4105 at ¶ 10-

11, 33-34 (1st Dist.). But that does not mean that Ohio courts can engage in

freewheeling interpretations of our Constitution. We remain constrained by its text.

Sometimes that text expresses broader rights than those that exist under the federal

Constitution. See, e.g., Bloom, 2024-Ohio-5029, at ¶ 40-42 (holding that the open-

courts right under Article I, Section 16 of the Ohio Constitution is broader than its

federal counterpart under the First Amendment). But sometimes it expresses

narrower ones. This is one of those cases. Regardless of what we think the

Constitution should say, we are bound by what it does say.

14

January Term, 2026

2. There was no Sixth Amendment violation

{¶ 37} In addition to finding a violation of the Ohio Constitution, the trial

court also found a violation of the United States Constitution. The trial court

determined that Morris unambiguously invoked his right to counsel under the Sixth

Amendment during the exchange in which he said, “Like, I can’t talk to a lawyer?”

The court of appeals did not reach the federal constitutional issue and instead

premised its holding solely on Article I, Section 10 of the Ohio Constitution. We

accepted two propositions of law challenging the trial court’s conclusion on the

federal Constitution.

{¶ 38} We often decline to accept and decide issues that have not been

passed on by the courts of appeals. But whether we pass on an issue that is properly

in front of us but not addressed below, or choose to remand, is within our discretion.

See R.C. 2503.44 (“The supreme court may remand . . . to the inferior courts for

further proceedings.” [Emphasis added.]). Though there are often prudential

reasons to remand, those prudential reasons are absent in this case. Because this

court voted to accept jurisdiction over the issues, because the trial court ruled on

the Sixth Amendment issue, and because we have the benefit of adversarial briefing

and a complete record, we will proceed to consider the issues.

{¶ 39} While the dissent criticizes our decision to address the federal

constitutional issue, the dissent’s author was among the four members of this court

who voted to accept all three propositions of law in this case, see 2024-Ohio-763.

We often choose to accept fewer than all of the propositions of law that have been

submitted for consideration. See, e.g., 2025-Ohio-2537 (accepting 2025-0656,

Badra-Muniz v. Vinyl Carpet Serv., Inc., on only one of three propositions of law).

But in this case, all four justices voting to accept jurisdiction voted to accept all

three propositions of law, and the parties prepared their briefs accordingly.

{¶ 40} Despite having voted to accept jurisdiction over the propositions of

law dealing with the federal constitutional issue, the dissent now argues that the

15

SUPREME COURT OF OHIO

Ohio Constitution precludes us from exercising this jurisdiction. According to the

dissent, “we lack jurisdiction to consider an assignment of error or any portion of

an assignment of error challenging a judgment of the court of common pleas that

the court of appeals has not addressed in the first instance.” Dissenting opinion,

¶ 83. This is a novel theory—so novel, in fact, that it was not proposed by any

party in this litigation. Indeed, to the best that we have been able to ascertain, it is

a constitutional theory so unorthodox that it has never before been advanced in our

case law. And for good reason. The jurisdictional provisions relied on by the

dissent refer to jurisdiction over orders and judgments (that is, cases), not individual

issues. Ohio Const., art. IV, § 2(B)(2)(e); Ohio Const., art. IV, § 3(B)(2); R.C.

2501.02(C). Because the First District exercised appellate jurisdiction over the trial

court’s order, our review of the federal constitutional issue that was assigned as

error below in no way interferes with the appellate court’s jurisdiction.

{¶ 41} And while the dissent cites some cases where we have chosen to

remand cases with unresolved issues to the court of appeals, it neglects to cite any

of the legions of cases where we have exercised our discretion to resolve such issues

in this court,1 including opinions authored or joined by the dissenting justice, see,

e.g., State v. Roberts, 2025-Ohio-5120, ¶ 9 (resolving a manifest-weight

proposition that the court of appeals determined was moot, instead of remanding

the case); State v. Carter, 2024-Ohio-1247, ¶ 45-53 (conducting harmless-error

review without remanding to the court of appeals); State v. Bembry, 2017-Ohio-

1. The United States Supreme Court also may choose to resolve issues that were not passed on by

the intermediate court. See, e.g., Trump v. Slaughter, __ U.S. __, 146 S.Ct. 18 (Sept. 22, 2025)

(granting certiorari before judgment on the merits by the United States Court of Appeals for the

District of Columbia Circuit, thereby causing the case to be heard in the Supreme Court without

consideration by the intermediate appellate court); Lewis v. Clarke, 581 U.S. 155, 164, fn. 3 (2017)

(considering issue that was not passed on by the Supreme Court of Connecticut but that was “fairly

included in the question presented” and was “both raised to and passed on by the trial court”);

Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund, 575 U.S. 175, 182, fn. 1

(2015) (deciding issue raised in a party’s complaint but not reached by the lower courts when both

parties had fully briefed the issue and the issue “played a starring role at oral argument”).

16

January Term, 2026

8114, ¶ 10-11 (considering question under the Ohio Constitution even though it

wasn’t considered by the court of appeals when the appellants had raised the issue

at the trial level and fully briefed the issue in the court of appeals); see also State

ex rel. Yost v. FirstEnergy Corp., 2024-Ohio-101, ¶ 28 (“Generally, a party may

defend a judgment based on any ground that was properly preserved below.”);

Univ. Hosps. of Cleveland, Inc. v. Lynch, 2002-Ohio-3748, ¶ 52 (reviewing the

merits of issues the court of appeals held to be moot).

{¶ 42} Having rejected the dissent’s novel constitutional theory, we turn

now to the State’s two arguments about the Sixth Amendment issue. First, it argues

that Morris’s Sixth Amendment right never attached at all because he had not been

indicted. Second, it argues that the trial court erred in concluding that he

unambiguously invoked his right to counsel midway through the interrogation.

a. Morris’s federal right to counsel attached before the interrogation, but he

waived it

{¶ 43} In its second proposition of law, the State argues that Morris’ Sixth

Amendment right to counsel did not attach at the time of the police interview

because he had not been formally charged. We can quickly dispense with this

argument for two different reasons. First, under the United State Supreme Court’s

decision in Rothgery, “a criminal defendant’s initial appearance before a judicial

officer, where he learns the charge against him and his liberty is subject to

restriction, marks the start of adversary judicial proceedings that trigger attachment

of the Sixth Amendment right to counsel.” 554 U.S. at 213. There is no question,

then, that Morris’s Sixth Amendment right to counsel attached the morning of his

interrogation when he made his initial appearance and the court informed him of

the charges against him, appointed him a lawyer, and set bail. And because police

interrogation is a critical stage of a criminal prosecution, Montejo, 556 U.S. at 786,

Morris had a Sixth Amendment right to have counsel present.

17

SUPREME COURT OF OHIO

{¶ 44} Second, Morris’s right to counsel during his custodial interrogation

was guaranteed by “two sources of law.” (Emphasis in original.) Id. at 795. It was

protected not only by the Sixth Amendment, but also by the United State Supreme

Court’s prophylactic rules adopted in Miranda v. Arizona, 384 U.S. 436 (1966), to

protect a defendant’s Fifth Amendment right against self-incrimination. Montejo

at 795; see also Miranda at 473-474. So, even if the State were correct in its

argument about the attachment of Morris’s Sixth Amendment right, he would still

have had a right to counsel at the interrogation.

{¶ 45} But even though Morris had a right to counsel protected by the Fifth

and Sixth Amendments, that right can be waived. “[A] defendant may waive the

right whether or not he is already represented by counsel; the decision to waive

need not itself be counseled.” Montejo at 786. Generally, when a defendant waives

his Miranda rights, he also waives his Sixth Amendment right to counsel. Id. at

786, 795. “Since the right[s] under both [the Fifth and Sixth Amendment] [are]

waived using the same procedure, doctrines ensuring voluntariness of the Fifth

Amendment waiver simultaneously ensure the voluntariness of the Sixth

Amendment waiver.” (Citation omitted.) Id. at 795.

{¶ 46} An explicit waiver is not required. That is, a defendant can waive

his Miranda rights (and consequently, his Sixth Amendment right to counsel)

implicitly if he understands them and engages in conduct that clearly demonstrates

waiver—such as by answering questions in an interrogation without his lawyer.

See North Carolina v. Butler, 441 U.S. 369, 370-373, 376 (1979).

{¶ 47} Here, there is no dispute that Morris waived his federal right to

counsel before the interrogation when he acknowledged understanding his Miranda

rights and proceeded to answer the detectives’ questions. Morris conceded in his

memorandum in opposition to jurisdiction in this court that he “waived both his

Miranda rights and Sixth Amendment right to counsel by proceeding to answer

questions after Detective Gleckler recited his Miranda rights.”

18

January Term, 2026

b. Morris did not invoke his federal right to counsel during the interrogation

{¶ 48} Even though Morris waived his federal right to counsel before the

interrogation, he was still capable of invoking it partway through. The question is

whether he did.

{¶ 49} The United States Supreme has held that when a suspect has waived

his Miranda rights, he can only invoke his right to counsel with an “unambiguous”

and “unequivocal” request for counsel. Davis v. United States, 512 U.S. 452, 462

(1994). Whether a suspect unambiguously and unequivocally requested counsel is

an “objective inquiry.” Id. at 459. The question is whether a reasonable police

officer would have clearly understood a suspect’s statement to be a request for

counsel. See id. “[I]f 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,” police are

not required to cease questioning. (Emphasis in original.) Id.

{¶ 50} In adopting its holding, the Davis Court recognized the need for a

“bright line that can be applied by officers in the real world of investigation and

interrogation without unduly hampering the gathering of information.” Id. at 461.

It sought to avoid the specter of police officers being “forced to make difficult

judgment calls about whether [a] suspect in fact wants a lawyer even though he has

not said so, with the threat of suppression if they guess wrong.” Id. The Court

recognized that its bright-line rule “requiring a clear assertion of the right to counsel

might disadvantage some suspects who—because of fear, intimidation, lack of

linguistic skills, or a variety of other reasons—will not clearly articulate their right

to counsel although they actually want to have a lawyer present.” Id. at 460. But

it concluded that the Miranda warnings were adequate to address these concerns.

{¶ 51} The Davis Court explicitly declined to adopt a rule requiring officers

to ask clarifying questions if confronted with an ambiguous or equivocal request

for counsel. Id. at 461-462. “If the suspect’s statement is not an unambiguous or

19

SUPREME COURT OF OHIO

unequivocal request for counsel, the officers have no obligation to stop questioning

him.” Id.

{¶ 52} The State argues that Morris did not unambiguously and

unequivocally invoke his right to counsel during the interrogation. Morris argues

that he did. The trial court agreed with Morris, finding that he clearly and

unambiguously invoked his right to counsel in the exchange with Detective

Gleckler that started with Morris asking, “Like, I can’t talk to a lawyer?” We

disagree.

{¶ 53} Recall the crucial moments of the interrogation. The detectives and

Morris had been discussing the February 2022 shooting for several minutes—a

shooting that Morris had consistently maintained he was not involved in. As

annoyance and frustration set in, Morris insisted, “It sounds like y’all are trying to

put something else on me that I don’t got nothing to do with.” Just ten seconds

later, Morris asked: “Like, I can’t talk to a lawyer?” Detective Gleckler told him,

“Anybody can talk to a lawyer.” Morris sat silently. Detective Gleckler then

repeated himself: “Anybody can talk to a lawyer.”

{¶ 54} We note that there is some question as to what Morris said next. As

we review the footage of the interrogation, it seems fairly clear that, with a slight

head shake, Morris said: “Yeah cuz that’s—you know we ain’t goin’ do that cuz I

don’t know what you talkin’ ‘bout.”2 Notably, however, both lower courts dropped

the “ain’t” from Morris’s statement. See 2023-Ohio-4105 at ¶ 9, 12 (1st Dist.).

That is, they have him saying, “[Y]eah cause that’s—we goin’ to do that because I

don’t know what you’re talking about.” Id. at ¶ 12. We think it is more likely that

2. Oddly, the dissent criticizes us for resolving a factual dispute that it says is not properly in front

of us. Dissenting opinion at ¶ 108. But of course, we do nothing of the sort. We credit the trial

court’s interpretation of the video but conclude that even under the trial court’s construction of

Morris’s statement, it did not represent an unambiguous request for counsel.

20

January Term, 2026

Morris said, “Yeah cuz that’s—you know we ain’t goin’ do that cuz I don’t know

what you talkin’ ‘bout.” (Emphasis added.)

{¶ 55} We assume, however, for purposes of our review, that the trial court

was right about what Morris said. But, even crediting this understanding, Morris’s

statement was not an unambiguous and unequivocal request for counsel. Consider

the context. The detectives and Morris had been talking for 45 minutes before the

key ten-second exchange. During those 45 minutes, Morris calmly confessed to a

shooting that resulted in four felonious-assault charges. After a long stretch of

cooperation, they began discussing Morris’s gun and a shooting connected to the

weapon that Morris insisted he never participated in. Suddenly, Morris asked,

“Like, I can’t talk to a lawyer?” Detective Gleckler correctly noted that anybody

could. Then, according to the lower courts, Morris responded, “[Y]eah cause

that’s—we goin’ to do that because I don’t know what you’re talking about.” 2023-

Ohio-4105 at ¶ 12 (1st Dist.).

{¶ 56} That response is both ambiguous and equivocal. It’s not clear what

“that” is or when they are “goin’ to do” it. “[T]hat” could have referred to talking

to a lawyer. But again, Morris could also have been referring to the broader context

where he insisted that the detectives were trying to pin a shooting on him that he

had nothing to do with—that could be what he was saying they were going to do.

The end of his statement—“because I don’t know what you’re talking about”—

makes that possibility more probable. That is, in full context Morris could have

been saying that, since he didn’t know what they were talking about, it looked like

they were going to pin a shooting on him that he didn’t do. The point is that the

statement is ambiguous.

{¶ 57} Further, regardless of what “that” refers to, it’s not clear when they

are going to do it. When someone says that he is going to do something, that

generally means that he will do it in the future. So, even if it were absolutely clear

that Morris used “that” to refer to talking to a lawyer, he implied that he was going

21

SUPREME COURT OF OHIO

to do it at some point in the future rather than presently. Thus, he may have meant

that he was going to talk to a lawyer in the future because he was not going to let

them pin a shooting on him that he didn’t do.

{¶ 58} Morris’s reference to “that” was more ambiguous than other

statements that this court and other courts have found too ambiguous to require

questioning to cease. See, e.g., State v. Brown, 2003-Ohio-5059, ¶ 19 (“[D]on’t I

supposed to have a lawyer present[?]”); State v. Henness, 1997-Ohio-405, ¶ 54 (“I

think I need a lawyer . . .” [ellipsis in original]); Davis, 512 U.S. at 462 (“Maybe I

should talk to a lawyer”); United States v. Mohr, 772 F.3d 1143, 1146 (8th Cir.

2014) (“I think I should get [a lawyer]” [bracketed text in original]); United States

v. Carrillo, 660 F.3d 914, 923 (5th Cir. 2011) (“I just man, I’m not gonna lie to you

I wish I had a lawyer right here knowing that you know it’s gonna I mean I’m gonna

work with y’all I’m telling you I’m gonna tell you everything.”); State v. Moore,

311 Kan. 1019, 1035-1036 (2020) (“Well, I guess it’s lawyer time now then ‘cause

I don’t know what . . . she’s got going on . . . .”).

{¶ 59} Other courts have also found that statements, like Morris’s, that

imply a future rather than present desire to talk to a lawyer to be too equivocal to

satisfy the Davis standard. See, e.g., Kirby v. State, 304 Ga. 472, 475 (2018) (“I’m

going to go ahead and get a lawyer”); Commonwealth v. Durand, 475 Mass. 657,

666 (2016) (“I am going to have to get a lawyer.”); Baker v. State, 363 Ark. 339,

345 (2005) (“I think I’m going to need [a lawyer].”). All that is to say, the lower

courts’ version of Morris’s statement was neither unambiguous nor unequivocal

under Davis.

{¶ 60} The trial court was correct to look beyond individual statements in

determining whether Morris unambiguously and unequivocally invoked his right to

counsel. But it didn’t go far enough. It examined only a ten-second blip in a two-

hour interrogation, ignoring the 45 minutes of context that came before it. The full

context is necessary. And the test is not whether an officer could possibly consider

22

January Term, 2026

Morris’s statement as evincing a desire for a lawyer. The test is whether a

reasonable officer, under the totality of the circumstances, would have understood

Morris’s statement to be an unambiguous and unequivocal request for a lawyer in

that moment. Davis, 512 U.S. at 459.

{¶ 61} Rather than focus on what a reasonable police officer would have

understood based on the totality of the circumstances, the dissent insists that the

statement “like I can’t talk to a lawyer?” was by itself sufficient to invoke the right

to counsel regardless of the surrounding context, dissenting opinion at ¶ 136. But

see Obershaw v. Lanman, 453 F.3d 56, 64-65 (1st Cir. 2006) (concluding that

suspect’s statement “Can I talk to a lawyer first?” was not an unambiguous

invocation of the right to counsel because it was an “inquir[y] whether he could talk

to a lawyer, rather than [an] express[] assert[ion] that he in fact wanted to do so”).

In doing so, the dissent goes astray of the Supreme Court’s admonition that the

inquiry should be based on what a reasonable officer would have understood “in

light of the circumstances” and that if a reasonable officer would have understood

“only that the suspect might be invoking the right to counsel,” the cessation of

questioning is not required. (Emphasis in original.) Davis at 452.

{¶ 62} Because Morris did not unambiguously and unequivocally invoke

his right to counsel, Detectives Gleckler and Bender were not required to stop the

interrogation or clarify what Morris meant. They therefore did not violate his right

to counsel by continuing. Thus, the trial court was incorrect to hold that the Sixth

Amendment required the suppression of all statements Morris made after the 45-

minute mark of the interrogation. The federal Constitution does not require the

suppression of any of the statements he made during the interrogation.

III. CONCLUSION

{¶ 63} Neither the Ohio nor the federal Constitution provided a basis to

grant Morris’s motion to suppress the statements he made to police during his

interrogation. Both the trial court and the First District Court of Appeals erred by

23

SUPREME COURT OF OHIO

holding otherwise. We reverse the First District’s judgment and remand this case

to the trial court with instructions to vacate its order granting Morris’s motion to

suppress and proceed accordingly.

Judgment reversed

and cause remanded.

__________________

KENNEDY, C.J., joined by LANZINGER, J., and by BRUNNER, J., except

for Part II, dissenting.

{¶ 64} I agree with the majority that appellee Isaiah Morris’s right to

counsel under the Ohio Constitution had not attached at the time law enforcement

initiated his interrogation. Therefore, the majority’s reversal of the judgment of the

First District Court of Appeals, which affirmed the suppression of Morris’s

statements based on its faulty reading of the Ohio Constitution, is correct. I

disagree, however, with the majority’s decision to accept appellant the State of

Ohio’s invitation to address its third proposition of law, which concerns whether

Morris unambiguously and unequivocally invoked his right to counsel under the

Sixth Amendment to the United States Constitution during his interrogation. The

appellate court did not resolve that question of law in the first instance when it was

before that court as the fourth issue raised by the State in support of its assignment

of error challenging the suppression order of the common pleas court.

{¶ 65} This court became a court of last resort in 1851 following the

ratification and adoption of Ohio’s current Constitution, which created a system of

intermediate appellate courts. Under amendments approved following Ohio’s 1912

Constitutional Convention, only the intermediate courts of appeals have original

appellate jurisdiction over final orders or judgments of courts of record, which

include the courts of common pleas. And it is still true today that except for death-

penalty cases, only the district courts of appeals retain original appellate jurisdiction

to rule on assignments of error challenging judgments and final orders of the trial

24

January Term, 2026

courts. Because this court has no constitutional authority outside death-penalty

cases to resolve an assignment of error on direct appeal from a court of common

pleas in the first instance, I would decline the State’s invitation to address its third

proposition of law. Therefore, having reversed the judgment of the appellate court

on the third issue presented under the State’s assignment of error, which the First

District did resolve—i.e., whether Morris’s right to counsel under the Ohio

Constitution attached at the time law enforcement initiated the interrogation—this

court should remand this matter to the appellate court for it to address in the first

instance the fourth issue raised in that court under the State’s assignment of error

challenging the judgment of the court of common pleas.

{¶ 66} I also disagree with the majority’s dubious creation of an alleged

issue of fact. In its brief in opposition to Morris’s motion to suppress, the State

limited its argument to the assertion that Morris’s question, “I can’t talk to a

lawyer?,” was not an unambiguous and unequivocal request for counsel. It did not

argue that Morris’s subsequent statements disclaimed or otherwise failed to invoke

his right to counsel. Then, in the assignment of error it asserted in the First District,

the State did not challenge the trial court’s finding of fact that after being told that

he could talk to a lawyer, Morris said, “[Y]eah, cause that’s, we goin’ to do that

cause I don’t know what you are talking about.” And in its brief to this court, the

State again has essentially agreed with the trial court’s determination of what

Morris said.

{¶ 67} Even though the majority has decided to don the robes of the court-

of-appeals judges to decide an unresolved portion of the State’s assignment of error

in the first instance, it is nonetheless bound by the facts as presented by the parties.

It is curious, then, that the majority would manufacture a question of fact (whether

Morris actually said he was not going to speak to a lawyer) while allegedly

accepting the trial court’s interpretation of what Morris said (that Morris said he

was going to speak to a lawyer) to decide the unresolved portion of the assignment

25

SUPREME COURT OF OHIO

of error. If the majority were relying on the trial court’s determination, why would

it raise a nonexistent question of fact?

{¶ 68} It is my fundamental belief that this court should exercise the judicial

restraint required by the Ohio Constitution and remand this case to the court of

appeals for it to exercise its original appellate jurisdiction to review fully the

judgment of the common pleas court in the first instance. But because the majority

fails to adhere to constitutional constraints, I am compelled to address its

determination that Morris did not unambiguously and unequivocally invoke his

right to counsel under the Sixth Amendment. See majority opinion, ¶ 59. After

objectively reviewing Morris’s statement in its context and in light of the

reasonable-police-officer standard, I would conclude that Morris did

unambiguously and unequivocally invoke his Sixth Amendment right to counsel

during the interrogation. Because the majority holds otherwise, I dissent.

I. Article I, Section 10 of the Ohio Constitution Does Not Apply

{¶ 69} Morris moved to suppress statements he made during his

interrogation, which took place after he made his initial appearance and was

appointed counsel. The trial court suppressed those statements, concluding that

police detectives violated Morris’s right to counsel under both Article I, Section 10

of the Ohio Constitution and the Sixth Amendment to the United States

Constitution.

{¶ 70} The State appealed the trial court’s suppression order, asserting one

assignment of error—i.e., “The trial court erred as a matter of law when it granted

[Morris’s] motion to suppress statements.” In support of that assignment of error,

the State set forth four “issue[s] presented for review and argument.” The State’s

third issue asserted, “Courts must be cautious and conservative when asked to

expand constitutional rights under the Ohio Constitution. This Court is urged to

follow Ohio’s Fifth District and rule that Montejo [v. Louisiana, 556 U.S. 778

(2009)] applies to Ohio’s Constitution.” The State’s fourth issue asserted, “A

26

January Term, 2026

suspect must unambiguously request counsel, meaning a suspect must articulate a

desire to have counsel present sufficiently clearly that a reasonable police officer

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

attorney.”

{¶ 71} The First District affirmed the trial court’s judgment but did so only

under Article I, Section 10 of the Ohio Constitution. 2023-Ohio-4105, ¶ 1 (1st

Dist.). The appellate court declined to address the State’s challenge to the portion

of the trial court’s order suppressing Morris’s statements on the basis that he

unambiguously and unequivocally invoked his right to counsel under the Sixth

Amendment during the interrogation. Id. at ¶ 56. It reasoned that it was

unnecessary to reach that issue because all of Morris’s statements had been

suppressed under the Ohio Constitution. Id.

{¶ 72} In reaching its decision, the court of appeals first determined that it

was not bound by the United States Supreme Court’s Sixth Amendment precedent

and that the Ohio Constitution provided greater right-to-counsel protection than the

Sixth Amendment. Id. at ¶ 33-34, 36. It then explained that “Ohio’s policies

protecting the attorney-client relationship and discouraging unlawful police

conduct” supported applying the bright-line rule announced by the United States

Supreme Court in Michigan v. Jackson, 475 U.S. 625 (1986), even though the Court

later overruled Jackson in Montejo. 2023-Ohio-4105 at ¶ 49 (1st Dist.).

Accordingly, the First District held that under Article I, Section 10 of the Ohio

Constitution, “when an accused’s right to counsel has attached and an attorney has

been secured, any uncounseled waiver of the defendant’s right to counsel in a state-

initiated interrogation is deemed invalid.” Id. at ¶ 55.

{¶ 73} I agree with the majority that the right to counsel under the Ohio

Constitution did not attach in these circumstances. Having reversed the First

District’s judgment on a question it did resolve, this court should remand this matter

to the First District for it to resolve the State’s fourth issue, which the First District

27

SUPREME COURT OF OHIO

declined to address in the first instance. Instead, the majority usurps the

constitutional authority of the judges of the First District, improperly purporting to

revert this court’s appellate jurisdiction to the time of Ohio’s 1802 Constitution.

II. Appellate Jurisdiction of the Supreme Court of Ohio

{¶ 74} “The Ohio Constitution gives us limited power.” State ex rel.

Martens v. Findlay Mun. Court, 2024-Ohio-5667, ¶ 10. The majority’s rush to

decide in the first instance the fourth issue that the State asserted in support of its

assignment of error runs roughshod over this fundamental precept of our judicial

system and stretches this court’s original appellate jurisdiction beyond

constitutional bounds. It is ironic that the majority does this so soon after we

decided Martens, in which we overruled State ex rel. Ohio Academy of Trial

Lawyers v. Sheward, 1999-Ohio-123, the posterchild for constitutional overreach

by this court.

A. Constitutional Authority of Appellate Courts in Ohio

{¶ 75} As the first State admitted to the Union from the Northwest Territory

under the Enabling Act of 1802, see Ohio History Connection,

https://www.ohiohistory.org/ohio-the-48th-state/ (accessed Mar. 3, 2026)

[https://perma.cc/SG62-BSGX], Ohio adopted a constitution in 1802 that vested the

judicial powers of the State, “both as to matters of law and equity,” in the Supreme

Court, courts of common pleas, justices of the peace, and such other courts as the

legislature might establish, 1802 Ohio Const., art. III, § 1. At that time, this court

had “original and appellate jurisdiction, both in common law and chancery, in such

cases as shall be directed by law,” id. at § 2, with “exclusive jurisdiction in the trial

of divorce, alimony and capital cases,” Skeel, Constitutional History of Ohio

Appellate Courts, 6 Clev.St.L.Rev. 323, 324 (1957). The court also shared criminal

jurisdiction with the courts of common pleas “as may be pointed out by law.” 1802

Ohio Const., art. III, § 4.

28

January Term, 2026

{¶ 76} With the adoption of the 1851 Ohio Constitution, the judicial system

changed. Skeel at 324. And upon ratification, this court’s original appellate

jurisdiction changed dramatically. The State’s judicial powers were vested in the

Supreme Court, newly created “district courts,” common pleas courts, probate

courts, justices of the peace, and “such other courts, inferior to the supreme court

. . . as the General Assembly, may, from time to time establish.” 1851 Ohio Const.,

art. IV, § 1. Moreover, when the 1851 Constitution was ratified, the Supreme Court

was divested of most of its original jurisdiction, except for the extraordinary writs

of quo warranto, mandamus, habeas corpus, and procedendo. 1851 Ohio Const.,

art IV, § 2. The Supreme Court was also provided with “such appellate jurisdiction

as may be provided by law.” Id.

{¶ 77} The district courts, like the Supreme Court, had original jurisdiction

in quo warranto, mandamus, habeas corpus, and procedendo and “such appellate

jurisdiction as may be provided by law.” Id. at § 6. Although the district courts’

appellate jurisdiction was “defined as the same as that of the Supreme Court,” with

their “place in the judicial system . . . inferior to that of the Supreme Court,” the

district courts were Ohio’s “first attempt . . . to create an intermediate reviewing

court.” Skeel, 6 Clev.St.L.Rev. at 325. It was then that the Supreme Court of Ohio,

like the United States Supreme Court, became a court of last resort—“a court of

review, not of first view,” Cutter v. Wilkinson, 544 U.S. 709, 718, fn. 7 (2005).

{¶ 78} With amendments made to Article IV of the Ohio Constitution in

1883, the district courts gave way to “circuit courts,” 1851 Ohio Const., art. IV,

§ 1 (effective from Oct. 9, 1883, to Jan. 1, 1913); see also Skeel at 327. The circuit

courts had “appellate jurisdiction as may be provided by law,” 1851 Ohio Const.,

art. IV, § 6 (effective from Oct. 9, 1883, to Jan. 1, 1913), which included original

appellate jurisdiction over certain “judgments or final orders” from the common

pleas courts in cases without a right to a jury as well as “final orders or judgments”

of the common pleas courts “for errors appearing on the face of the record,” Skeel

29

SUPREME COURT OF OHIO

at 327, citing R.S. 5226 and 6709. The amendments also granted the Supreme

Court “appellate jurisdiction as may be provided by law.” 1851 Ohio Const., art.

IV, § 2 (effective from Oct. 9, 1883, to Jan. 1, 1913).

{¶ 79} Following the 1912 Constitutional Convention, the judicial system

was reorganized through additional amendments to Article IV. The judicial power

of the State was “vested in a supreme court, courts of appeals, courts of common

pleas, courts of probate, and such other courts inferior to the courts of appeals as

may from time to time be established by law.” 1851 Ohio Const., art. IV, § 1

(effective from Jan. 1, 1913, to May 7, 1968). The same amendment also conferred

on the Supreme Court original jurisdiction over extraordinary writs and “appellate

jurisdiction in all cases involving questions arising under the constitution of the

United States or of this state, in cases of felony on leave first obtained, and in cases

which originated in the court of appeals, and such revisory jurisdiction of the

proceedings of administrative officers as may be conferred by law.” 1851 Ohio

Const., art. IV, § 2 (effective from Jan. 1, 1913, to Nov. 7, 1944). Moreover, “[i]n

cases of public or great general interest,” the Supreme Court could “direct any court

of appeals to certify its record to the supreme court, and [could] review and affirm,

modify or reverse the judgment of the court of appeals.” Id.

{¶ 80} The courts of appeals retained the same original jurisdiction over

extraordinary writs as the circuit courts had possessed and were endowed with

“appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify,

or reverse the judgments of the courts of common pleas, superior courts and other

courts of record within the district as may be provided by law.” 1851 Ohio Const.,

art. IV, § 6 (effective from Jan. 1, 1913, to Jan. 1, 1945). Judgments of the courts

of appeals were final in all cases “except cases involving questions arising under

the constitution of the United States or of this state, cases of felony, cases of which

it has original jurisdiction, and cases of public or great general interest in which the

supreme court may direct any court of appeals to certify its record to that court.”

30

January Term, 2026

Id. Article IV, Section 6 also provided that “whenever the judges of a court of

appeals find that a judgment upon which they have agreed is in conflict with a

judgment pronounced upon the same question by any other court of appeals of the

state, the judges shall certify the record of the case to the supreme court for review

and final determination.” Id.

{¶ 81} The Modern Courts Amendment of 1968 provided the Supreme

Court with appellate jurisdiction over appeals from the courts of appeals in cases in

which the death penalty was affirmed, cases involving constitutional questions,

cases involving felonies on leave first obtained, and cases of public or great general

interest as well as certified conflicts from the courts of appeals. 1851 Ohio Const.,

art. IV, § 2(B)(2) (effective from May 7, 1968, to Jan. 1, 1995). And it preserved

the Supreme Court’s original appellate jurisdiction over appeals from actions

originating in the courts of appeals and over appeals from certain state agencies

when conferred by law. 1851 Ohio Const., art. IV, § 2(B)(2)(a)(i) and (c) (effective

from May 7, 1968, to Jan. 1, 1995). The Modern Courts Amendment also solidified

the court’s authority to superintend the judicial system in Ohio and provided for the

promulgation of rules of practice and procedure. 1851 Ohio Const., art. IV, § 5

(effective from May 7, 1968, to Nov. 6, 1973); see also Steinglass & Scarselli, The

Ohio State Constitution, 290, 308-309 (2d Ed. 2022). What the Modern Courts

Amendment did not do, however, was grant this court original appellate jurisdiction

to consider assignments of error in direct appeals from judgments of the common

pleas courts.

{¶ 82} In 1995, the people of Ohio expanded the original appellate

jurisdiction of the Supreme Court to include direct appeals of judgments imposing

the death penalty, and Ohioans also deprived the courts of appeals of jurisdiction

over direct appeals in those cases. 1851 Ohio Const., art. IV, § 2(B)(2)(c) and

3(B)(2) (effective Jan. 1, 1995). The people of Ohio therefore knew how to grant

31

SUPREME COURT OF OHIO

this court original appellate jurisdiction over decisions of the common pleas courts,

but for nearly all cases originating in the courts of common pleas, they did not.

{¶ 83} As a review of the history of our Constitution shows, the courts of

appeals—not this court—have original appellate jurisdiction to review assignments

of error challenging judgments and final orders of the common pleas courts not

involving the imposition of the death penalty. The Supreme Court does not have

original appellate jurisdiction to review decisions of the courts of common pleas on

direct appeal, except in death-penalty cases. It follows, then, that we lack

jurisdiction to consider an assignment of error or any portion of an assignment of

error challenging a judgment of the court of common pleas that the court of appeals

has not addressed in the first instance. Otherwise, we would essentially be

reviewing the judgment or final order of the court of common pleas on direct

appeal. We lack constitutional authority to do that.

{¶ 84} Given the constitutional boundaries of this court’s original appellate

jurisdiction relative to those of the courts of appeals, it is incumbent on the First

District—not this court—to resolve in the first instance the fourth issue the State

raised in support of its assignment of error presented below—i.e., did Morris invoke

his right to counsel during the interrogation? After all, remanding a matter to the

appellate court for it to address an unresolved assignment of error is not only

required but is also commonplace when this court reverses the judgment of an

appellate court and there is an unresolved assignment of error. See, e.g., State v.

Coker, 2025-Ohio-2051, ¶ 2; Ohio Council 8, AFSCME, AFL-CIO v. Lakewood,

2025-Ohio-2052, ¶ 2; State v. Smith, 2024-Ohio-5745, ¶ 1; In re R.G.M., 2024-

Ohio-2737, ¶ 2; State v. Williams, 2024-Ohio-1433, ¶ 1; State v. Dudas, 2024-Ohio-

775, ¶ 21; State v. Brown, 2024-Ohio-749, ¶ 38; Everhart v. Coshocton Cty. Mem.

Hosp., 2023-Ohio-4670, ¶ 33; State ex rel. Internatl. Assn. of Fire Fighters, Local

1536, AFL-CIO v. Sakacs, 2023-Ohio-2976, ¶ 1; State v. Stalder, 2023-Ohio-2359,

¶ 6; Marchbanks v. Ice House Ventures, L.L.C., 2023-Ohio-1866, ¶ 21; In re

32

January Term, 2026

Adoption of H.P., 2022-Ohio-4369, ¶ 4; State v. Brown, 2022-Ohio-4347, ¶ 33;

State v. Bond, 2022-Ohio-4150, ¶ 38; Goudy v. Tuscarawas Cty. Pub. Defender,

2022-Ohio-4121, ¶ 3; In re K.K., 2022-Ohio-3888, ¶ 11; Ostanek v. Ostanek, 2021-

Ohio-2319, ¶ 6; State v. Gideon, 2020-Ohio-6961, ¶ 30; State v. Fazenbaker, 2020-

Ohio-6731, ¶ 15; In re R.B., 2020-Ohio-5476, ¶ 49; Moore v. Mt. Carmel Health

Sys., 2020-Ohio-4113, ¶ 37; Jones v. Cleveland Clinic Found., 2020-Ohio-3780,

¶ 39; State v. Smith, 2020-Ohio-3747, ¶ 1; State v. Dangler, 2020-Ohio-2765, ¶ 26;

State v. Christian, 2020-Ohio-828, ¶ 29; State v. Gwynne, 2019-Ohio-4761, ¶ 2;

Gembarski v. PartsSource, Inc., 2019-Ohio-3231, ¶ 5; State v. Ireland, 2018-Ohio-

4494, ¶ 1; State v. Jackson, 2018-Ohio-2169, ¶ 31; Giancola v. Azem, 2018-Ohio-

1694, ¶ 22; State v. Gordon, 2018-Ohio-259, ¶ 30; State v. Mohamed, 2017-Ohio-

7468, ¶ 30.

{¶ 85} The majority relies on R.C. 2503.44 as statutory authority for the

proposition that this court may remand cases to inferior courts. Majority opinion

at ¶ 38. What that statute does not do, however, is give this court permission to

review the judgments of common pleas courts. Nor could it. “‘It is a well-

established principle of constitutional law that when the jurisdiction of a particular

court is constitutionally defined, the legislature cannot by statute restrict or enlarge

that jurisdiction unless authorized to do so by the constitution.’” ProgressOhio.org

v. Kasich, 2011-Ohio-4101, ¶ 3, quoting Smith v. State, 289 N.C. 303, 328 (1976).

Importantly, “our jurisdiction is provided directly by the Constitution itself.” State

ex rel. Ctr. for Media & Democracy v. Yost, 2024-Ohio-2786, ¶ 15, citing State v.

Jones, 2024-Ohio-2719, ¶ 25-28 (Kennedy, C.J., concurring in judgment only).

{¶ 86} Article IV, Section 2(B)(2) of the Ohio Constitution establishes the

appellate jurisdiction of this court. And with only one exception—i.e., appeals

from “the proceedings of administrative officers or agencies,” Ohio Const., art. IV,

§ 2(B)(2)(d)—the General Assembly cannot abridge, enlarge, or modify the

appellate jurisdiction granted to this court by the Ohio Constitution. See Jones at

33

SUPREME COURT OF OHIO

¶ 28 (Kennedy, C.J., concurring in judgment only). If R.C. 2503.44 permitted this

court to entertain an appeal from the common pleas court in this case—and it does

not—the statute would conflict with the plain language of the Ohio Constitution.

The majority’s reliance on R.C. 2503.44 is therefore misplaced.

{¶ 87} By accepting the State’s invitation to address its third proposition of

law, the majority reviews the fourth issue that the State raised in support of its

assignment of error and that was not resolved by the court of appeals. In my view,

by doing so, the majority oversteps the constitutional limit on this court’s original

appellate jurisdiction and usurps the original appellate jurisdiction of the court of

appeals. See Ohio Const., art. IV, § (3)(B)(2); R.C. 2501.02(C); R.C. 2953.02. The

people of Ohio established the appellate jurisdiction of this court, and the people—

through constitutional amendments and by acting through the General Assembly—

established the appellate jurisdiction of the courts of appeals. This court should

respect those distinct boundaries. The majority’s reaching to decide the State’s

third proposition of law, knowing that the court of appeals did not address the

State’s fourth issue below, purports to revert this court’s original appellate

jurisdiction to the time of the 1802 Ohio Constitution, when this court had original

appellate jurisdiction over decisions of the trial courts.

{¶ 88} As explained below, the majority offers a reason for usurping the

original appellate jurisdiction of the First District. It says that the United States

Supreme Court does it, so it is therefore appropriate for this court to do the same

now.

B. A Procedural Practice or Rule of the United States Supreme Court Does Not

Reflect the Powers Enumerated in the Ohio Constitution

{¶ 89} This court, like the United States Supreme Court, is a court of last

resort. As such, we should be “mindful that we are a court of review, not of first

view.” Cutter, 544 U.S. at 718, fn. 7. And like the Supreme Court in Cutter, which

declined to hear the respondents’ arguments that were “not addressed by the [Sixth

34

January Term, 2026

Circuit] Court of Appeals,” id., the majority should decline the State’s invitation to

address its third proposition of law, because the First District did not address the

issue below, where it was raised by the State as the fourth issue in support of its

assignment of error. See 2023-Ohio-4105 at ¶ 56 (1st Dist.).

{¶ 90} The majority suggests that the United States Supreme Court

frequently decides issues that have not been addressed in the first instance by the

intermediate appellate courts below. Majority opinion at ¶ 41, fn. 1. To be sure,

the Supreme Court’s sentiment that it is “‘a court of review, not of first view,’” has

recently been called into question. See Vladeck, A Court of First View, 138

Harv.L.Rev. 533, 574 (2024), quoting Cutter at 718, fn. 7. And though I recognize

that the Court has recently decided an increasing number of cases without waiting

for intermediate appellate review, id. at 537-538, there is a difference between those

cases—which often involve applications for emergency relief, matters of

imperative public importance, and appeals from preliminary injunctions, id. at 536-

537, 544—and conventional appeals like the one in this case. When resolving cases

in the traditional appellate process, the Supreme Court routinely declines to reach

issues not decided by the lower courts. See, e.g., Johnson v. Arteaga-Martinez, 596

U.S. 573, 583-584 (2022); Moody v. NetChoice, L.L.C., 603 U.S. 707, 726 (2024);

Jack Daniel’s Properties, Inc. v. VIP Prods., L.L.C., 599 U.S. 140, 161 (2023);

Glacier Northwest, Inc. v. Internatl. Bhd. of Teamsters Local Union No. 174, 598

U.S. 771, 784, fn. 3 (2023); Siegel v. Fitzgerald, 596 U.S. 464, 480-481 (2022);

United States v. Haymond, 588 U.S. 634, 657 (2019); PDR Network, L.L.C. v.

Carlton & Harris Chiropractic, Inc., 588 U.S. 1, 8 (2019); Upper Skagit Indian

Tribe v. Lundgren, 584 U.S. 554, 560-561 (2018); Jennings v. Rodriguez, 583 U.S.

281, 312 (2018); Brownback v. King, 592 U.S. 209, 215, fn. 4 (2021); Andrus v.

Texas, 590 U.S. 806, 824 (2020); Retirement Plans Commt. of IBM v. Jander, 589

U.S. 49, 52 (2020); McWilliams v. Dunn, 582 U.S. 183, 200 (2017); Town of

Chester, N.Y. v. Laroe Estates, Inc., 581 U.S. 433, 441, fn. 4 (2017); BNSF Ry. Co.

35

SUPREME COURT OF OHIO

v. Tyrrell, 581 U.S. 402, 415 (2017); McLane Co., Inc. v. Equal Emp. Opportunity

Comm., 581 U.S. 72, 85 (2017); Manuel v. Joliet, 580 U.S. 357, 372-373 (2017);

Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 913 (2014); Jefferson v.

Upton, 560 U.S. 284, 294 (2010); Arkansas Game & Fish Comm. v. United States,

568 U.S. 23, 37-38 (2012); Skinner v. Switzer, 562 U.S. 521, 537 (2011); Christian

Legal Soc. Chapter of the Univ. of California, Hastings College of the Law v.

Martinez, 561 U.S. 661, 697, fn. 28 (2010); Fed. Communications Comm. v. Fox

Television Stations, Inc., 556 U.S. 502, 529 (2009).

{¶ 91} The majority identifies a few cases in which the United States

Supreme Court reached an issue without awaiting lower-court consideration, see

majority opinion at ¶ 41, fn. 1, but those cases are outliers. Notably, in one of those

cases, Lewis v. Clarke, 581 U.S. 155, 164, fn. 3 (2017), the Supreme Court pointed

out that the unconsidered issue was “an integral part of [the respondent’s] sovereign

immunity argument”; in contrast, here, the State’s third proposition of law—

relating to the Sixth Amendment to the United States Constitution—presents an

issue and argument that is wholly different from the dispositive issue grounded in

the Ohio Constitution. And in another case cited by the majority, Omnicare, Inc.

v. Laborers Dist. Council Constr. Industry Pension Fund, 575 U.S. 175, 182, fn. 1

(2015), the unconsidered issue was “the crux of the parties’ dispute before [the

Supreme] Court.”

{¶ 92} Another one of the cases that the majority cites is Trump v.

Slaughter, __ U.S. __, 146 S.Ct. 18 (Sept. 22, 2025), in which the Supreme Court

passed over the federal court of appeals to hear on the merits a case that had arisen

in a federal district court. While not cited in Slaughter or relied on by the majority

here, Rule 11 of the Rules of the Supreme Court of the United States grants the

Supreme Court authority to review a federal-district-court decision without waiting

for a judgment from the intermediate appellate court when “the case is of such

imperative public importance as to justify deviation from normal appellate practice

36

January Term, 2026

and to require immediate determination.” But Rule 11 does not apply to this court,

and Ohio does not have a rule like it. And even if Ohio had its own version of Rule

11, this case is not of such imperative public importance as to justify immediate

consideration of an issue not decided below. Moreover, if any such rule were

adopted in Ohio, it would be without effect, because no procedural rule or rule of

practice can abridge, enlarge, or modify this court’s original appellate jurisdiction

under the Ohio Constitution. See Ohio Const., art. IV, § 5(B) (“The Supreme court

shall prescribe rules governing practice and procedure in all courts of the state,

which rules shall not abridge, enlarge, or modify any substantive right.”). So,

regardless of whether the United States Supreme Court has the authority to leapfrog

the intermediate appellate courts to decide cases directly from the trial courts, this

court does not. For most cases, review of a common-pleas-court decision must first

pass through the respective court of appeals; we have no authority to short-circuit

the constitutionally mandated process.

{¶ 93} The majority points to opinions in which this court nonetheless has

decided issues that were raised in assignments of error but not first passed upon by

the court of appeals—including State v. Roberts, 2025-Ohio-5120, which I

authored. Upon further research and reflection, I am convinced that this court

cannot make an end run around the limits of our appellate jurisdiction by reviewing

a trial-court judgment under the guise of resolving “individual issues,” majority

opinion at ¶ 40, that have not been passed upon by the court of appeals. As Justice

Antonin Scalia once noted about the United States Supreme Court, “[a]s far as I am

aware, the public is not under the illusion that we are infallible. I see little harm in

admitting that we made a mistake . . . .” Dickerson v. United States, 530 U.S. 428,

464 (2000) (Scalia, J., dissenting).

{¶ 94} Additionally, the majority insinuates that my discussion of the limits

of our appellate jurisdiction is improper because no party has raised the issue. See

37

SUPREME COURT OF OHIO

majority opinion at ¶ 40. That begs the question of what the party-presentation

principle is and whether it applies to this case.

C. The Party-Presentation Principle

{¶ 95} Our adversarial system of adjudication depends on the party-

presentation principle—the idea that “‘we rely on the parties to frame the issues for

decision and assign to courts the role of neutral arbiter of matters the parties

present.’” Snyder v. Old World Classics, L.L.C., 2025-Ohio-1875, ¶ 4, quoting

Greenlaw v. United States, 554 U.S. 237, 243 (2008). The basic premise is that

“‘[parties represented by competent counsel] know what is best for them, and are

responsible for advancing the facts and argument entitling them to relief.’”

(Bracketed text in original.) United States v. Sineneng-Smith, 590 U.S. 371, 375-

376 (2020), quoting Castro v. United States, 540 U.S. 375, 386 (2003) (Scalia, J.,

concurring in part and concurring in the judgment). For this reason, “[o]ur

longstanding policy is not to address an unbriefed issue.” State ex rel. Parisi v.

Dayton Bar Assn. Certified Grievance Commt., 2019-Ohio-5157, ¶ 34 (Kennedy,

J., concurring in part and concurring in judgment only in part) (collecting cases).

Nonetheless, the party-presentation principle is not absolute, and this court has

observed that there are exceptions to it. State ex rel. GateHouse Media Ohio

Holdings II, Inc. v. Columbus Police Dept., 2025-Ohio-5243, ¶ 41; see also Frost,

The Limits of Advocacy, 59 Duke L.J. 447, 461-467 (2009) (discussing exceptions

to the party-presentation principle).

{¶ 96} As important as party presentation is to the adversarial process, there

is a more fundamental value at stake: “It is emphatically the province and duty of

the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. 137,

177 (1803). The parties may advance legal theories about what they think the law

is, but it is the judiciary that has “the ultimate authority to render definitive

interpretations of the law,” TWISM Ents., L.L.C. v. State Bd. of Registration for

Professional Engineers & Surveyors, 2022-Ohio-4677, ¶ 33. This means that we

38

January Term, 2026

must independently determine the meaning of a constitutional or statutory provision

regardless of whether a party has made a correct argument as to what the law means.

See State ex rel. Cable News Network, Inc. v. Bellbrook-Sugarcreek Local Schools,

2020-Ohio-5149, ¶ 48 (Kennedy, J., dissenting).

{¶ 97} Judge Patrick J. Bumatay of the United States Court of Appeals for

the Ninth Circuit recently explained: “‘Judges are never obligated to follow the

parties’ agreement to incorrect law. After all, the parties don’t need to ensure the

best interpretation of the law. Judges do. So even though judges generally rely on

the arguments the parties advance, we should never cede our duty to independently

interpret the law.’” Blackman, The Volokh Conspiracy, Judge Bumatay on

Originalism, Stare Decisis, and the Party Presentation Rule (Nov. 6, 2025),

https://reason.com/volokh/2025/11/06/judge-bumatay-on-originalism-stare-

decisis-and-the-party-presentation-rule/ (accessed Apr. 24, 2026), quoting Hon.

Patrick J. Bumatay, Opening Address, The Federalist Society 2025 National

Lawyers Convention (Nov. 6, 2025), https://www.youtube.com/watch

?v=poT1A5Z_Lm8 (accessed Apr. 24, 2026). After all, “judges are not like

lemmings, following the parties off of the jurisprudential cliff.” Bumatay, Opening

Address, The Federalist Society 2025 National Lawyers Convention,

https://www.youtube.com/watch?v=poT1A5Z_Lm8 (accessed Apr. 24, 2026).

{¶ 98} Nor are we bound by the party-presentation principle when it comes

to the question of subject-matter jurisdiction, a question that reaches the foundation

of our constitutional structure. “Subject-matter jurisdiction refers to the

constitutional or statutory power of a court to adjudicate a particular class or type

of case.” Corder v. Ohio Edison Co., 2020-Ohio-5220, ¶ 14. “‘[T]he focus is on

whether the forum itself is competent to hear the controversy.’” Id., quoting State

v. Harper, 2020-Ohio-2913, ¶ 23. Because “subject-matter jurisdiction is a

condition precedent to a court’s power to adjudicate and render judgment in a case,”

Ostanek, 2021-Ohio-2319, at ¶ 22, “it is axiomatic that ‘[s]ubject-matter

39

SUPREME COURT OF OHIO

jurisdiction cannot be waived and is properly raised by this court sua sponte’”

(bracketed text in original), State ex rel. Dunlap v. Sarko, 2013-Ohio-67, ¶ 13,

quoting State v. Davis, 2011-Ohio-5028, ¶ 11.

{¶ 99} The party-presentation principle therefore does not preclude me, and

should not prevent this court, from addressing a constitutional question about the

subject-matter jurisdiction of this court notwithstanding the lack of briefing and

argument about it. And while I would welcome supplemental briefing on this issue,

see GateHouse Media, 2025-Ohio-5243, at ¶ 41 (observing that the party-

presentation principle may not apply when supplemental briefing has been

ordered), the court has not ordered it here.

{¶ 100} The party-presentation principle is inapplicable for another reason:

we must decide whether to remand this case to the court of appeals or resolve the

state’s third proposition of law ourselves in the first instance. That is an ancillary

issue that does not resolve the federal-constitutional arguments presented, nor does

it turn on the arguments the parties asserted. Importantly, this is not analogous to

a situation in which a court improperly raises a novel legal theory for a party. See

State ex rel. Howard v. Chief Inspector’s Office, 2026-Ohio-1428, ¶ 60 (Kennedy,

C.J., concurring in part and dissenting in part) (“Yet the majority nonetheless raises

a novel argument of its own creation—an argument so novel that the chief

inspector’s office did not think of it”).

{¶ 101} For these reasons, the party-presentation principle does not bar me

or the majority from addressing the question whether this court has jurisdiction to

decide the State’s third proposition of law in the first instance.

{¶ 102} Before addressing the majority’s resolution of the State’s third

proposition of law, I am compelled to address another anomaly in the majority

opinion: its creation of an issue of fact.

40

January Term, 2026

III. The Majority’s Creation of an Issue of Fact

A. The Parties Did Not Disagree About What

Morris Said During His Interrogation

{¶ 103} There is no issue of fact in this case. The State and Morris agreed

with the trial court’s findings as to what Morris said during his interrogation.

Absent an issue of fact raised by the parties, when an appellate court reviews a

ruling on a motion to suppress, the appellate court generally must defer to the trial

court’s findings of fact. See State v. Burnside, 2003-Ohio-5372, ¶ 8.

{¶ 104} In its memorandum in opposition to Morris’s motion to suppress,

the State relied on Morris’s question, “I can’t talk to a lawyer?,” in support of its

argument that Morris did not unambiguously and unequivocally invoke his right to

counsel. The State contended that Morris’s asking for a lawyer in this manner was

not a clear invocation of his right to counsel. The State did not even address

Morris’s subsequent statement, “[Y]eah, cause that’s, we goin’ to do that cause I

don’t know what you are talking about.” Had the State believed that Morris had

really said he did not want a lawyer when making that statement, it naturally would

have said so in its memorandum opposing the motion to suppress. Yet it did not.

{¶ 105} On appeal to the First District, the State did not challenge the trial

court’s determination that Morris said, “‘[Y]eah, cause that’s, we goin’ to do that

cause I don’t know what you are talking about.’” As it did in the trial court, the

State instead focused on Morris’s question, “Like I can’t talk to a lawyer?”—which

was followed by Detective Gleckler’s response, “Anyone can talk to a lawyer”—

to support its argument that “Morris simply asked police a question whether he

could see his lawyer, not that he wanted to see his lawyer.” (Emphasis in original.)

The State went on to assert in its First District brief that “[o]nce it was explicitly

clarified for Morris that he could talk to a lawyer, Morris continued with the

interview and never asked to see or talk to a lawyer during the remainder of the

interview.” Therefore, the State concluded, “Morris did not make a clear,

41

SUPREME COURT OF OHIO

unambiguous, or unequivocal invocation of the right to counsel. Accordingly, the

trial court erred when it suppressed Morris’ statements on the ground that he

invoked his right to counsel.” So, once again, the State did not grapple with

Morris’s statement, “[Y]eah, cause that’s, we goin’ to do that cause I don’t know

what you are talking about.”

{¶ 106} In the merit brief it filed in this court, the State not only agreed with

the trial court’s determination that Morris said, “[Y]eah, cause that’s, we goin’ to

do that cause I don’t know what you are talking about,” but it also recited that

statement in support of its position that Morris did not unambiguously and

unequivocally invoke his right to counsel. Specifically, the State’s brief asserts:

About 45 minutes into the interview, Morris said, “I can’t see a

lawyer?” (T.p. 60, p. 13; State’s Exhibit 2) Detective Gleckler

responded, “anybody can talk to a lawyer.” (T.p. 60, p. 13; State’s

Exhibit 2) After a few seconds, Detective Gleckler repeated,

“anybody can talk to a lawyer,” and Morris replied, “yeah cause

that’s – we goin’ to do that because I don’t know what you’re talking

about.” (T.d. 60, p. 13; State’s Exhibit 2) After this exchange,

Morris continued answering Detective Gleckler’s questions and

never expressed a desire for an attorney or termination of the

interview. (T.p. 19, 44-48, 50-51, 62, State’s Exhibit 2)

(Record citations in original; emphasis added.)

{¶ 107} The State argues that the above exchange does not support the trial

court’s finding that Morris clearly and unequivocally invoked his right to counsel.

The State contends that Morris was simply asking a question and that “Morris’s

statement questioning whether he could see his lawyer . . . was not an unequivocal

invocation of the right to counsel.”

42

January Term, 2026

B. The Majority Advances an Argument Forfeited by the State

{¶ 108} Despite the agreement of the parties and the lower courts that

Morris said, “[Y]eah, cause that’s, we goin’ to do that cause I don’t know what you

are talking about” (emphasis added), the majority inserts in its opinion a finding

that Morris said something different. But that finding was created out of whole

cloth.

{¶ 109} During oral argument, the author of the majority opinion told

Morris’s counsel that he had watched the body-camera footage of the interrogation

and had heard Morris’s statement differently from how it was quoted in the

suppression order, the State’s brief, Morris’s brief, and the court of appeals’

opinion. Specifically, the author of the majority opinion told counsel, “[Morris]

says . . . ‘we ain’t gonna do that,’ which is not what’s been transcribed.” (Emphasis

added.) And then during his rebuttal at oral argument, counsel for the State—

despite contrary language in his brief and not having had the chance to relisten to

the interview—pivoted and agreed with that justice, asserting that he believed

Morris had actually said, “‘[H]e ain’t going to do that—we’re not going to do that.’”

{¶ 110} This court has recognized that an argument is lost if it is raised for

the first time during rebuttal at oral argument. State v. Johnson, 2015-Ohio-4903,

¶ 92. “[F]orfeiture is the failure to timely assert a right or object to an error,” State

v. Rogers, 2015-Ohio-2459, ¶ 21, and here, the State’s conduct throughout this case

fits that description. An appellate court is not obliged to correct an error—even an

obvious one—that has been forfeited. Id. at ¶ 22-23.

{¶ 111} In State v. Quarterman, we declined to entertain an argument that

was neither presented as a proposition of law nor addressed in the appellant’s merit

brief and was instead raised for the first time in the appellant’s reply brief. 2014-

Ohio-4034, ¶ 17-20. Here, the argument the State made in its rebuttal during oral

argument—that Morris declined to speak to an attorney by saying, “[H]e ain’t goin’

43

SUPREME COURT OF OHIO

to do that” (emphasis added)—came even later than that. We should not relieve

the State of its forfeiture now.

{¶ 112} And even if the State had raised this factual dispute in its merit

brief, we still should not entertain a proposed change to the operative facts in the

first instance. See, e.g., Kiyemba v. Obama, 559 U.S. 131 (2010) (“This change in

the underlying facts may affect the legal issues presented. No court has yet ruled

in this case in light of the new facts, and we decline to be the first to do so.”), citing

Cutter, 544 U.S. at 718, fn. 7.

{¶ 113} Not only did the State not contest the trial court’s determination of

Morris’s “we goin’ to do that” statement in its appeal to the lower court or before

this court, it invited error based on its agreement with the trial court’s finding as to

that statement when arguing that he did not unambiguously or unequivocally invoke

the right to counsel. So, even as the majority now dons the robes of the court-of-

appeals judges in deciding in the first instance the State’s fourth issue in support of

the assignment of error it raised in the First District, there is still no factual dispute

for the majority to resolve.

{¶ 114} Nonetheless, in advancing the authoring justice’s version of

Morris’s statement, the majority insists that “there is some question as to what

Morris said . . . . We think it is more likely that Morris said, ‘Yeah cuz that’s—you

know we ain’t goin’ do that cuz I don’t know what you talkin’ ‘bout.’” (Emphasis

in original.) Majority opinion at ¶ 54. But is that true?

{¶ 115} In my view, it does not matter what the majority thinks Morris said.

Absent a challenge by the State through a properly preserved assignment of error

in the court of appeals and a proposition of law in this court, we should limit our

review to the question of law before us—i.e., accepting the trial court’s

determination of what Morris said and the parties’ reliance on that determination

and then deciding whether Morris’s statement, when viewed in context, shows that

he unambiguously and unequivocally invoked his right to counsel.

44

January Term, 2026

{¶ 116} So, why does the majority push this alternative narrative and

initiate an argument that the State did not make? Perhaps the majority is “cert-

proofing” this case from review by the United States Supreme Court. The Court

rarely grants certiorari when there is an issue of contested facts. See United States

Supreme Court Rule 10 (“A petition for a writ of certiorari is rarely granted when

the asserted error consists of erroneous factual findings or the misapplication of a

properly stated rule of law.”). Perhaps the majority is justifying its tenuous legal

conclusion in this case by manufacturing this dubious issue of fact.

C. The Trial Court Heard Morris Correctly

{¶ 117} Regardless of the majority’s motivation, this is what it claims that

Morris said: “‘Yeah cuz that’s—you know we ain’t goin’ do that cuz I don’t know

what you talkin’ ‘bout.’” (Emphasis in original.) Majority opinion at ¶ 54. But I

do not hear that. I hear what the trial court says Morris said.

{¶ 118} I do not hear a word that sounds like “ain’t” in Morris’s statement,

nor do I hear a long “a” or a “t” sound at all. And nothing in Morris’s demeanor or

the context of the questioning indicates he is saying that he does not want to talk to

a lawyer.

{¶ 119} It simply does not make sense for Morris to have replied to

Detective Gleckler like the majority says he did; were he to have said, “[W]e ain’t

goin’ do that,” he would have been acknowledging his right to counsel before

saying he would not be invoking that right but then saying that he did not know

what the detectives were talking about. That leaves one bewildered. On the other

hand, it makes perfect sense for Morris to have acknowledged his right to counsel

and then invoked it because he did not know where the detectives were going with

their interrogation.

{¶ 120} Although the majority says that Morris said something else, it

maintains that in resolving the State’s third proposition of law—actually, the fourth

issue the State raised in support of the assignment of error it asserted in the court

45

SUPREME COURT OF OHIO

of appeals—it is nonetheless “credit[ing] the trial court’s interpretation” of Morris’s

“we goin’ to do that” statement, majority opinion at ¶ 54, fn. 2. But if it were true

that the majority is relying solely on the trial court’s determination of what Morris

said, then why does the majority go out of its way to express disagreement with

what the trial court actually found? Though I cannot answer that question, it is

manifest that the State did not challenge what the trial court found Morris said, and

therefore, the majority should not now question what the trial court found he said.

And even if it were proper to raise this question now, the trial court’s findings as to

what Morris said are correct.

{¶ 121} While there is no Sixth Amendment question properly before us at

this stage of the proceedings, because the majority is deciding in the first instance

an issue raised under the State’s assignment of error below, I proceed to address

whether Morris’s statements to detectives—as determined by the trial court—

constituted an unambiguous and unequivocal invocation of Morris’s right to

counsel under the Sixth Amendment such that a reasonable police officer would

have known that he was requesting an attorney.

IV. The Sixth Amendment

{¶ 122} Ordinarily, I would begin with what happened in the case. But

here, it is important to understand the law and to view the statements Morris made

in this case through the lens of a reasonable police officer who has been trained in

and knows the law governing the Sixth Amendment right to counsel.

A. The Right to Counsel

{¶ 123} “In all criminal prosecutions, the accused shall enjoy the right . . .

to have the Assistance of Counsel for his defence.” U.S. Const., amend. VI. The

Sixth Amendment right to counsel is perhaps the most critical of the protections

guaranteed to the accused. In adopting the Sixth Amendment, “‘the colonists

appreciated that if a defendant were forced to stand alone against the state, his case

was foredoomed.’” United States v. Wade, 388 U.S. 218, 224 (1967), quoting Note,

46

January Term, 2026

An Historical Argument for the Right to Counsel During Police Interrogation, 73

Yale L.J. 1000, 1033-1034 (1964).

{¶ 124} The Sixth Amendment right to counsel attaches upon “a criminal

defendant’s initial appearance before a judicial officer, where he learns the charge

against him and his liberty is subject to restriction, [thereby] mark[ing] the start of

adversary judicial proceedings.” Rothgery v. Gillespie Cty., 554 U.S. 191, 213

(2008). Once the right has attached, “the Sixth Amendment guarantees a defendant

the right to have counsel present at all ‘critical’ stages of the criminal proceedings.”

Montejo, 556 U.S. at 786. And “[i]nterrogation by the State is such a stage.” Id.

This confrontation with law enforcement “might well settle the accused’s fate.”

Wade at 224.

{¶ 125} Despite its critical importance, “the Sixth Amendment right to

counsel may be waived by a defendant, so long as relinquishment of the right is

voluntary, knowing, and intelligent.” Montejo at 786. “The defendant may waive

the right whether or not he is already represented by counsel; the decision to waive

need not itself be counseled.” Id. So, in this case, although Morris had an attorney

representing him, he waived the right to counsel when he began answering the

detectives’ questions after he acknowledged that he understood he had a right to

counsel.

{¶ 126} “[A]fter a knowing and voluntary waiver of the [right to counsel],

law enforcement officers may continue questioning until and unless the suspect

clearly requests an attorney.” Davis v. United States, 512 U.S. 452, 461 (1994);

see also Montejo, 556 U.S. at 794-795. “If the individual states that he wants an

attorney, the interrogation must cease until an attorney is present.” Miranda v.

Arizona, 384 U.S. 436, 474 (1966). However, the accused “must articulate his

desire to have counsel present sufficiently clearly that a reasonable police officer

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

attorney.” Davis at 459. The request must be unambiguous and unequivocal, id. at

47

SUPREME COURT OF OHIO

461-462, viewed “‘not in isolation but in context,’” State v. Cepec, 2016-Ohio-

8076, ¶ 37, quoting State v. Murphy, 2001-Ohio-112, ¶ 32. Put differently,

invocation of the right to counsel requires “‘some statement that can reasonably be

construed to be an expression of a desire for the assistance of an attorney.’” Davis

at 459, quoting McNeil v. Wisconsin, 501 U.S. 171, 178 (1991).

{¶ 127} In this case, then, we should view this issue through the lens of a

reasonable police officer in light of the circumstances faced by the detectives when

conducting Morris’s interrogation. Importantly, “[a] reasonable officer is one who

has been trained in and has knowledge of the governing law,” United States v.

Freeman, 735 F.3d 92, 103 (2d Cir. 2013), including the constitutional protections

embodied in the Sixth Amendment.

B. Morris’s Interrogation

{¶ 128} Detective Gleckler’s body camera recorded the interrogation of

Morris, which lasted for approximately two hours. During the initial 30 minutes of

the interrogation, Morris remained composed and calmly admitted to being

involved in a shooting in April 2022 after detectives confronted him with evidence

from that incident. He explained that some people had been “messing” with his

mother and that someone pulled a gun on her. Morris explained that he approached

them but that he “didn’t mean to shoot the people. [He] was only trying to scare

them.” Morris said he knew that someone had a gun, and he did not think he had

hit anyone. When asked how long he had had the handgun, Morris said,

“Somebody just gave it to me.” He claimed that he had not been carrying a firearm

before then. After discussing with the detectives what potential sentence he faced

for that shooting, Morris became distressed and stated that he had “no future.”

{¶ 129} The detectives then began asking Morris about a February 2022

shooting at a pizza restaurant connected to the same firearm used in the April

incident. At that point, his demeanor changed. In contrast to his earlier confession,

Morris vehemently denied any involvement. He told the detectives that he had

48

January Term, 2026

never shot the handgun other than during the April incident, and he said that he had

just gotten the gun in April and whatever happened with it before April therefore

had nothing to do with him. He emphasized that he did not own the firearm in

February and declared, “[Y]’all can’t put whatever somebody else did with that gun

on me.” Morris denied that he owned clothing like the clothing the suspect had

worn and disputed the detectives’ assertions that he had a distinctive walk. Morris

again claimed that he had only recently acquired the gun and insisted, “Like, I just

got it. So how could it be me?” When the detectives argued that he matched the

description of the suspect and asked him how he would describe his height, Morris

retorted, “Nah, I won’t describe myself as nothin’ right now. Cause it sounds like

y’all tryin’ to put somethin’ else on me that I don’t got nothin’ to do with.”

{¶ 130} At that point, Morris asked, “Like I can’t talk to a lawyer?”

Detective Gleckler responded, “Anybody can talk to a lawyer,” and he repeated that

statement after a brief pause. According to the trial court’s suppression order,

Morris replied, “‘[Y]eah, cause that’s, we goin’ to do that cause I don’t know what

you are talking about.’” Morris’s lawyer, who had been appointed at Morris’s

initial appearance, was not brought in, and the detectives continued the

interrogation for more than an hour.

{¶ 131} Only Detective Gleckler testified at the suppression hearing. He

had roughly 20 years’ experience as a detective and 27 years’ experience as a police

officer in total. During the suppression hearing, he testified that he had been trained

on “constitutional issues such as Miranda protections, [the] right to counsel, [and]

privileges against self-incrimination.” See Miranda, 384 U.S. 436. When

questioned about suspects invoking the right to counsel, Detective Gleckler stated,

“[W]e pretty much know the law.”

{¶ 132} Detective Gleckler had talked with Morris for approximately 45

minutes before Morris asked whether he could speak to a lawyer, and a review of

the interrogation recording shows that Detective Gleckler understood what Morris

49

SUPREME COURT OF OHIO

was saying to him throughout the interview. There are no breaks during the

interrogation in which Detective Gleckler or his partner say something like, “Can

you repeat that?” or “I do not understand what you are saying.” So, it is readily

apparent that Detective Gleckler heard and understood what Morris was saying

throughout the first 45 minutes of the interrogation.

{¶ 133} Context matters in deciding whether a reasonable officer would

know that a suspect has invoked the right to counsel. See Cepec, 2016-Ohio-8076,

at ¶ 37, citing Murphy, 2001-Ohio-112, at ¶ 32. Here, Detective Gleckler had just

watched Morris calmly confess to the April 2022 shooting. He then saw Morris’s

demeanor change once questioning about the February shooting began. Detective

Gleckler witnessed Morris deny multiple times that he had the handgun in February

before observing him deny that his appearance was similar to the suspect’s and

assert that the detectives were accusing him of something he had not done.

{¶ 134} It was then that Morris asked whether he could talk to a lawyer.

Detective Gleckler said that he could. In response, Morris said, “[Y]eah, cause

that’s, we goin’ to do that cause I don’t know what you are talking about.”

{¶ 135} A reasonable officer under these circumstances would know that

“we goin’ to do that” could refer to only one thing—speaking to a lawyer. No

reasonable police officer—especially one with Detective Gleckler’s expertise and

experience who had been interrogating Morris for 45 minutes—could have come

to any conclusion other than that Morris was invoking his right to counsel.

{¶ 136} Again, Morris asked, “Like I can’t talk to a lawyer?” That by itself

was sufficient to invoke the right to counsel. “To hold that a suspect who asks ‘Can

I get an attorney?’ does not invoke his right to counsel would suggest that no

statement phrased as a question could invoke one’s right to counsel—a holding

contrary to law and lacking a fundamental understanding of the nature of human

interaction.” Carter v. State, 129 Nev. 244, 249 (2013); see also Davis at 461

(“questioning must cease if the suspect asks for a lawyer” [emphasis added]); State

50

January Term, 2026

v. Edler, 2013 WI 73, ¶ 35 (“Regardless of the surrounding circumstances,

including [the accused’s] previous experience with [the detective], we are satisfied

that [the accused’s] statement, ‘can my attorney be present for this,’ constituted an

unambiguous, unequivocal invocation.”); United States v. Lee, 413 F.3d 622, 626

(7th Cir. 2005) (“[The accused’s] statement—‘Can I have a lawyer?’—was similar

to these statements recognized by this court as proper invocations of the right to an

attorney.”); Tobias v. Arteaga, 996 F.3d 571, 580 (9th Cir. 2021) (“[The accused’s]

statement—‘Could I have an attorney? Because that’s not me’—was an

unequivocal invocation of his right to counsel under clearly established law.”)

{¶ 137} In my view, the interrogation should have ended then. Instead,

Detective Gleckler responded, “Anybody can talk to a lawyer,” and then paused

briefly before repeating that phrase. But that response does not turn an

unambiguous invocation of the right to counsel into an ambiguous one. If Morris

had said, “I want an attorney,” a response saying that anyone can have an attorney

would not make the assertion of the right to counsel any less plain. Otherwise, a

request for an attorney during an interrogation would just be a word game.

{¶ 138} Morris responded to Detective Glecker’s statements by saying,

“[Y]eah, cause that’s, we goin’ to do that cause I don’t know what you are talking

about.” That is a second clear invocation of the right to counsel. It makes no sense

for Morris to have said “yeah” when told he could speak to a lawyer yet then

immediately disavow any desire to talk to counsel just before continuing to deny

that he had committed the February shooting, especially after he had already calmly

confessed to other crimes. Nor does it make sense that, as the majority suggests,

“he may have meant that he was going to talk to a lawyer in the future because he

was not going to let them pin a shooting on him that he didn’t do,” majority opinion

at ¶ 57. Nobody would think, “I’ll talk to a lawyer later to stop the police from

pinning a crime on me now.”

51

SUPREME COURT OF OHIO

{¶ 139} “[T]here is no exact formula or magic words for an accused to

invoke his right [to counsel].” Lee, 413 F.3d at 625. A suspect is not required to

invoke his or her right to counsel by speaking “‘with the discrimination of an

Oxford don,’” Davis, 512 U.S. at 459, quoting id. at 476 (Souter, J., concurring in

the judgment), “nor does the law require reviewing courts to assume that law

enforcement officers cannot understand plain spoken English,” Murphy, 2001-

Ohio-112, at ¶ 209 (Cook, J., concurring). After speaking with Morris for 45

minutes, becoming accustomed to the way he talked, and observing the dramatic

change in Morris’s demeanor when accused of the February shooting, a reasonable

police officer knowing the full context of Morris’s interview would have known

that he wanted to speak to a lawyer.

{¶ 140} The majority suggests that even if Morris did say, “[W]e goin’ to

do that,” that statement was not an unequivocal request for counsel, because he

indicated an interest in speaking to a lawyer in the future by saying he was “goin’

to” do that. Majority opinion at ¶ 57. But that is plainly not the case here.

{¶ 141} The majority is simply isolating a word from Morris’s statement to

achieve an outcome. It impermissibly removes the context of the statement.

Morris’s use of the word “goin’” is best understood by considering the words he

says before it and after it. Morris said, “[Y]eah, cause that’s, we goin’ to do that

cause I don’t know what you are talking about.” When Morris said he was going

to speak with an attorney, he was describing a present, ongoing intention to do so

because, as he explained, he did not know what the detectives were talking about.

It would be no different if Morris had declared to the detectives that he wanted to

speak with a lawyer “now.” That the actual consultation would occur in the future

was obvious, because Morris’s lawyer was not there in the present. Therefore,

when Morris said that he was “goin’” to speak with an attorney, he unambiguously

and unequivocally expressed a present desire to speak to his lawyer.

52

January Term, 2026

{¶ 142} At that point, the interrogation should have stopped—but the

detectives continued to question Morris. Any statements made after Morris

invoked his right to counsel are inadmissible under the Sixth Amendment.

V. Conclusion

{¶ 143} The analysis in this case should be limited to deciding the issue

properly before us: whether the Ohio Constitution’s right to counsel had attached

at the time Morris’s interrogation was initiated by law enforcement. It had not, and

therefore, the First District Court of Appeals’ judgment to the contrary should be

reversed and this case should be remanded to that court for it to decide in the first

instance whether Morris’s Sixth Amendment right to counsel was violated.

{¶ 144} Instead of remanding this matter to the appellate court for it to

exercise its original appellate jurisdiction as prescribed by the Ohio Constitution,

the majority improperly exceeds the scope of this court’s original appellate

jurisdiction by donning the robes of the judges of the court of appeals and

overreaching to decide an issue raised under an assignment of error that was not

passed on by that court. The majority therefore disregards the structure of Ohio’s

courts as established by the Ohio Constitution, which grants the courts of appeals—

not this court—original appellate jurisdiction to review the judgments and final

orders of the common pleas courts in noncapital cases.

{¶ 145} Compelled to consider the Sixth Amendment question, I would

conclude that Morris made an unambiguous and unequivocal invocation of his right

to counsel, the detectives violated the Sixth Amendment by continuing to question

him, and the trial court therefore correctly suppressed Morris’s statements

following his invocation. Because the majority holds otherwise, I dissent.

__________________

Connie Pillich, Hamilton County Prosecuting Attorney, and Ronald W.

Springman Jr. and Norbert Wessels, Assistant Prosecuting Attorneys, for appellant.

Raymond T. Faller, Hamilton County Public Defender, and Lora Peters and

53

SUPREME COURT OF OHIO

Sarah E. Nelson, Assistant Public Defenders, for appellee.

Dave Yost, Attorney General, Mathura J. Sridharan, Solicitor General, and

Samuel C. Peterson, Deputy Solicitor General, urging reversal for amicus curiae

Ohio Attorney General Dave Yost.

Steven L. Taylor, urging reversal for amicus curiae Ohio Prosecuting

Attorneys Association.

Elizabeth R. Miller, Ohio Public Defender, and Craig M. Jaquith, Charlyn

Bohland, and Russell Patterson, Assistant Public Defenders, urging affirmance for

amicus curiae Office of the Ohio Public Defender.

Cullen Sweeney, Cuyahoga County Public Defender, and Thomas T.

Lampman and John T. Martin, Assistant Public Defenders, urging affirmance for

amicus curiae Cuyahoga County Public Defender.

Russell S. Bensing, urging affirmance for amicus curiae Ohio Association

of Criminal Defense Lawyers.

Mark Godsey and Donald Caster, urging affirmance for amicus curiae Ohio

Innocence Project.

Lauren Gottesman, urging affirmance for amicus curiae The Innocence

Project.

Paul, Weiss, Rifkind, Wharton & Garrison, L.L.P., Andrew Ehrlich, Robert

O’Loughlin, and Adrian Melendez-Cooper, for amici curiae Ohio Innocence

Project and The Innocence Project.

Wilmer Cutler Pickering Hale and Dorr, L.L.P., and Alex Tucker Stewart,

urging affirmance for amici curiae American Civil Liberties Union and American

Civil Liberties Union of Ohio.

David J. Carey, urging affirmance for amicus curiae American Civil

Liberties Union of Ohio.

Matthew Segal, urging affirmance for amicus curiae American Civil

Liberties Union.

54

January Term, 2026

__________________

55