COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70344 STATE OF OHIO : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION JOSEPH HOWARD WATSON : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : MARCH 20, 1997 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-328,848 JUDGMENT : REVERSED AND REMANDED DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor TIMOTHY G. DOBECK, Assistant DOMINIC DELBALSO, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellee: THOMAS M. SHAUGHNESSY MARK T. RUDY Attorneys at Law 11510 Buckeye Road Cleveland, Ohio 44104 (Continued) APPEARANCES: (Continued) REGIS E. McGANN Attorney at Law 450 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 JOSEPH WATSON, pro se #201-600 Lorain Correctional Institute 2075 S. Avon-Belden Road Grafton, Ohio 44044 - 3 - LEO M. SPELLACY, J.: This court is asked to decide whether the trial court proper- ly suppressed evidence of statements made to police by defendant- appellee, Howard Joseph Watson ("appellee"), on the basis that these statements were made after appellee invoked his right to counsel. For the reasons that follow, we find that the statement to the police is not properly suppressed and reverse the decision of the Cuyahoga County Common Pleas Court, which granted the defen- dant's motion to suppress. The record reflects that defendant was arrested at the home of Frank Velotta during the early evening hours of September 23, 1995, in connection with the murder of Daniel Montesanto. At the time of his arrest, defendant was read his Miranda rights and expressed an understanding of these rights. Defendant was then transported to the Homicide Unit at the Justice Center, where he again was read his rights prior to being interviewed by Detective Michael O'Malley of the Cleveland Police Department. After expressing an understanding of these rights, defendant relayed minimal details of the events surrounding the murder. Det. O'Malley testified that this initial interview concluded when it was evident that defendant only wished to discuss his previous homicide charge and trial. He further testified that defendant was placed on a twenty-four-hour - 4 - telephone restriction, which appears to have been extended for another twenty-four hours for reasons unknown to the detective. Nonetheless, Det. O'Malley testified that even with telephone restrictions, defendant would not have been prevented from contacting his attorney. Indeed, telephone logs admitted into evidence demonstrated that defendant made one telephone call on September 25, 1995, and two on September 26, 1995. These telephone calls were subsequent to Det. O'Malley's interview with defendant but prior to the interviews conducted by Detective Jack Bornfeld. During the late afternoon and early evening hours of Septem- ber 26, 1995, defendant was again interviewed, this time by Det. Bornfeld. Det. Bornfeld testified that he advised defendant of his constitutional rights prior to beginning the interview, and defendant stated that he understood those rights. As before, defendant started talking about his earlier homicide charge but then began questioning the detective regarding the wounds received by the victim of the current homicide. After the detective described these wounds, defendant concluded that the slaying could have been manslaughter rather than murder and further stated that if the detective could make a deal with the prosecutor, he would plead guilty to involuntary manslaughter. While Det. Bornfeld interviewed defendant twice on this date, it is not clear from the record during which interview the above statements were made. At the suppression hearing, defendant was given an opportuni- ty to cross-examine Det. Bornfeld. When questioned concerning - 5 - defendant's lack of telephone access to contact his attorney, Det. Bornfeld testified that at some point during the interview, defendant stated that he had called his attorney or had his family contact his attorney. Based on this testimony, the state moved to reopen its case and re-examine Det. Bornfeld. The trial court denied this motion and granted defendant's motion to suppress the statements made to Det. Bornfeld. Determining that this ruling substantially impaired the state's ability to proceed to trial, the state timely appeals pursuant to Crim.R. 12(J) and assigns the following errors for our review: ASSIGNMENT OF ERROR NO. I THE TRIAL COURT ACTED CONTRARY TO THE LAW AS SET FORTH IN XENIA V. WALLACE (1988), 37 OHIO ST.3d 216, AND CRIM.R. 47, AND COMMITTED RE- VERSIBLE ERROR IN SUPPRESSING EVIDENCE UNDER A NEW THEORY WHICH WAS NOT RAISED IN DEFENDANT'S MOTION TO SUPPRESS. ASSIGNMENT OF ERROR NO. II THE TRIAL COURT ABUSED ITS DISCRETION IN RE- FUSING TO PERMIT THE STATE TO REOPEN ITS CASE TO ADDRESS THE NEW THEORY FOR SUPPRESSION ADVANCED DURING THE PRO SE QUESTIONING AND ARGUMENT. ASSIGNMENT OF ERROR NO. III THE TRIAL COURT ERRED IN DETERMINING THAT THE DEFENDANT HAD BEEN INTERROGATED AFTER INVOKING HIS CONSTITUTIONAL RIGHT TO COUNSEL. I. - 6 - In its first assignment of error, the state contends that defendant-appellee presented a new theory at the suppression hear- ing that had not been briefed in appellee's motion to suppress. Specifically, the state maintains that appellee's argument at the hearing was premised on improper questioning after appellee's alleged invocation of his right to counsel. The state asserts that its ability to produce evidence to counter this argument was seriously compromised because this argument was not anticipated based on the appellee's motion to suppress. In reviewing a motion to suppress, an appellate court's duty is to review the record and independently determine whether, as a matter of law, the trial court erred in applying the substantive 1 law to the facts of the case. With this standard in mind, a motion to suppress evidence must adequately state the grounds upon which the motion is based in order for the state to prepare its case and in order that the court may properly rule on evidentiary 2 issues at the hearing. Failure on the part of a defendant to adequately pronounce the basis of his challenge constitutes waiver of that issue on appeal. As such, a defendant must state with 1 State v. Klein (1991), 73 Ohio App.3d 486, 488; State v. Gordon (1994), 95 Ohio App.3d 334, 336. 2 See Crim.R. 47; Xenia v. Wallace (1988), 37 Ohio St.3d 216, 218-219; see, also, State v. Schindler (1994), 70 Ohio St.3d 54, 56-57. - 7 - sufficient particularity the grounds upon which he seeks to ex- 3 clude evidence so as to give the state adequate notice. Appellee's motion challenged the state's use of appellee's oral statements made to law enforcement officers while being interviewed because the officers failed to obtain a knowing, voluntary and intelligent waiver of his constitutional rights. Specifically, the motion states: In the instant case, defendant was held in Cleveland Jail without bail for several days and a series of conferences took place with homicide detectives. His right not to talk to the police was not explained to him and he was not afforded a telephone call until after [he] had met with the detectives. Part of what he told detectives was in the nature of plea discussions which should be excluded at trial for other reasons as well. The state maintains that this excerpt insufficiently apprised the state that appellee intended to challenge that the statements were made after appellee invoked his right to counsel. While the motion is sufficient in setting forth facts relative to statements made to detectives while in custody, it is lacking in specific detail with respect to continued questioning after appellee appar- ently invoked his right to counsel. Nonetheless, we find, on the basis of appellee's references to authority relative to a defen- dant's right to counsel, that the motion sufficiently informed the state that appellee was challenging the propriety of the 3 Id. - 8 - detectives' continued questioning in the absence of a voluntary, 4 knowing and intelligent waiver of his constitutional rights. Under this assignment of error, the state also challenges the propriety of the trial court in permitting appellee the opportuni- ty to cross-examine the state's witnesses. In support of this 5 6 argument, the state relies on State v. Thompson and State v. Day for the proposition that a criminal defendant has a right to appear pro se or to have counsel but does not have a corresponding right to act as co-counsel on his own behalf. In essence, the state argues that it is improper for a defendant represented by counsel to also act as co-counsel and participate in trial. The record reflects that the trial court permitted appellee to conduct limited cross-examination of the state's witnesses and, in fact, elicited the very testimony the trial court relied upon in ruling on the motion to suppress. We recognize that the court may 7 permit a criminal defendant to participate at trial. In this case, the trial judge instructed appellee that he would be limited to cross-examining the state's witnesses only after his trial counsel did so and only if the material was not redundant. 4 See State v. Gullett (1992), 78 Ohio App.3d 138, 143. 5 State v. Thompson (1987), 33 Ohio St.3d 1, 6-7. 6 State v. Day (1991), 72 Ohio App.3d 82, 86. 7 See, e.g., State v. Keenan (Aug. 22, 1996), Cuyahoga App. No. 67452, unreported. - 9 - Moreover, the state approved this procedure. Having invited any 8 error, it cannot now complain. Because we find that appellee's motion to suppress states with the requisite particularity the basis of appellee's evidentiary challenges, the state's first assignment of error is overruled. II. In its second assignment of error, the state contends that the trial court abused its discretion in refusing to allow the state to reopen its case in order to address appellee's alleged new theory. The decision whether or not to reopen a case for the presen- tation of further testimony is within the discretion of the trial court and will not be reversed on appeal absent an abuse of that 9 discretion. An abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is "un- 10 reasonable, arbitrary or unconscionable." In this case, the state requested reopening so that Det. Bornfeld could be re-examined for the purpose of clarifying testimony elicited from him during cross-examination. The record reflects, however, that the state had the opportunity for such 8 See State v. Peagler (1996), 76 Ohio ST.3d 496, 500; State v. Wilson (1996), 74 Ohio St.3d 381, 396; State v. Hill (1995), 73 Ohio St.3d 433, 444; State v. Seiber (1990), 56 Ohio St.3d 4, 17. 9 See Worthington v. Ogilby (1982), 8 Ohio App.3d 25, 15; Columbus v. Grant (1981), 1 Ohio App.3d 96, 97. 10 Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. - 10 - clarification on redirect examination. Merely because the state decided not to seek clarification on redirect does not mean that the trial court abused its discretion in denying the state's motion to reopen. We find that the decision of the trial court denying the state's motion to reopen its case is not unreasonable so as to constitute an abuse of discretion. Accordingly, the state's second assignment of error is overruled. III. In its third assignment of error, the state contends that it was error for the trial court to find that appellee had been interrogated after he had invoked his right to counsel. Specifi- cally, the state maintains that the statements made by appellee were ambiguous and not equivalent to a request for counsel. Alternatively, the state argues that even if such statements could be construed as an invocation of his right to counsel, further conversation between appellee and Det. Bornfeld was initiated by appellee. 11 In Miranda v. Arizona, the United States Supreme Court determined that the Fifth and Fourteenth Amendments' prohibition against compelled self-incrimination requires that custodial interrogation be preceded by advice to the suspect that he has the 11 Miranda v. Arizona (1966), 384 U.S. 436, 479, 86 S.Ct.1602, 1630, 16 L.Ed.2d 694. - 11 - right to remain silent and also the right to the presence of an attorney. If the suspect requests counsel, "the interrogation must 12 cease until an attorney is present." Notwithstanding, a suspect can waive his right to counsel after receiving Miranda warnings, and, in such a situation, law enforcement officers are free to 13 question him. If, at any point during interrogation, however, the suspect invokes his right to have counsel present, further 14 interrogation must cease until such a time as counsel is present. A suspect's request for counsel must be clearly and unambiguously stated so that a reasonable police officer under the circumstances 15 would understand the statement to be a request for an attorney. Ambiguous and equivocal references to an attorney are insufficient 16 to require law enforcement officers to cease further questioning. In this case, Det. Bornfeld testified as follows in response to appellee's question regarding appellee's request to use the telephone: When you asked me if I recall you stating you wanting to use the phone, when I first came to your cell, I said I did not recall that. But I 12 Id. at 474, 86 S.Ct. at 1627; see, also, Michigan v. Mosely (1975), 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313. 13 North Carolina v. Butler (1979), 441 U.S. 369, 372-376, 99 S.Ct. 1755, 1756-1759, 60 L.Ed.2d 286. 14 Edwards v. Arizona (1981), 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1884-1885, 68 L.Ed.2d 378. 15 Davis v. United States (1994), 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362. 16 Id. - 12 - do know that at no time during our con- versation on that date did you ask me speci- fically, I want to call my attorney. The only conversation I can recall that we had about the phone call was when we were in the interview room, and I had already advised you of your rights, and we had some discussion. At some point during our interview, you mentioned something about using a phone and trying to get a hold [sic] of your attorney, or I had asked you about your attorney, and somebody at home was supposed to call. He was supposed to come down and see you, because you were vacillating about waiting to talk to your attorney and make a statement, or when you got a hold [sic] of your attorney, you would make a statement later on to us; that type of thing. The state submits that appellee's references to his attorney are ambiguous statements and that appellee equivocated on whether or not he wanted to speak to his attorney. We agree. As testi- fied to by Det. Bornfeld, appellee was "vacillating" about talking to his attorney. Such indecisiveness is comparable to the equivo- cal statements made by the defendant in Davis, who stated that "maybe" he should speak to a lawyer. It is not incumbent upon an interrogating officer to clarify a criminal defendant's indecisive 17 and equivocal statements in order to derive their intent. To the contrary, if appellee wished to invoke his right to counsel, it was 18 necessary for him to do so with specific clarity. His failure in this regard did not preclude Det. Bornfeld from continuing his interrogation. 17 Davis, 114 S.Ct. at 2356. 18 State v. Fields (1984), 13 Ohio App.3d 433. - 13 - Because we find that appellee did not unequivocally invoke his right to counsel, it was error for the trial court to suppress his statements to Det. Bornfeld. Accordingly, the state's third assignment of error is sustained. The judgment of the trial court is reversed and the cause remanded for proceedings not inconsistent with this opinion. - 14 - It is ordered that appellant recover of appellee its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. Case remanded to the trial court for further proceedings consistent with this opinion. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, P.J. and TERRENCE O'DONNELL, J. CONCUR JUDGE LEO M. SPELLACY N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .