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




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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:




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                                  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.”




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       {¶ 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



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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




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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



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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.




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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



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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.




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        {¶ 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



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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




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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



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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.




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                   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



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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
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       {¶ 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
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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
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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
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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
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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
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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
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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
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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.




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        {¶ 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



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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,




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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



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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




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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
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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
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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.”




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       {¶ 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
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       {¶ 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
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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.




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January Term, 2026




__________________




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