Oregon Supreme Ct - Sept 22, 2016
by: Sara Werboff • September 23, 2016 • no comments
Custodial Interrogation - Police Unconstitutionally Reinitiated Interrogation After Defendant Invoked Right to Counsel
The court concludes that police unconstitutionally interrogated defendant, in violation of Article I, section 12, when they asked questioned designed to elicit an incriminating response after defendant had invoked his right to counsel. Police arrested defendant after defendant’s girlfriend was found dead. Detective Myers questioned defendant. Defendant was in disbelief that his girlfriend was dead but admitted to arguing with her that evening. Defendant then stated “I don’t know why I’m here, so - please don’t talk to me anymore on that aspect until you bring me a lawyer.” Police stopped questioning defendant and he was put in a holding cell. Later, Detective Lewis, who was present during Myers’ questioning of defendant, went to defendant’s cell. Defendant asked Lewis, “Is anybody going to tell me why I’m here?” and told Lewis he needed to call his “baby girl” to tell her where he was. Lewis asked defendant if defendant remembered his earlier conversation with Myers and also asked defendant if “baby girl” referred to defendant’s girlfriend. Lewis reminded defendant that his girlfriend was dead and defendant was under arrest for killing her. At that point, defendant became agitated and asked to speak to Myers. During that continued interrogation, defendant made additional incriminating statements.
On review, defendant argued that he did not reinitiate interrogation, rather, the police did when Lewis questioned him about the earlier conversation defendant had with Myers. The court determines that police reinitiate an interrogation when they ask questions that are reasonably likely to elicit an incriminating response. The court concludes that defendant did not reinitiate conversation with Lewis because his questions about why he was in custody did not indicate that he was willing to enter into a generalized discussion of the substance of the charges without the assistance of counsel. The court further concludes that Lewis reinitiated the interrogation by asking defendant about his memory of the assault, which was in issue, and posing questions that he knew from his prior observation of Myers’ interrogation would likely agitate defendant. Those questions were reasonably likely to elicit an incriminating response by cornering defendant into a far-fetched theory of defense or provoking him to make inconsistent statements that could be used for impeachment. The court further concludes that because Lewis’ interrogation lead defendant to ask to speak to Myers again, there was a causal connection between the unconstitutional interrogation and defendant’s incriminating statements.
State v. Boyd, 360 Or 302 (2016) (Landau, J.)
Vouching - Out-of-Court Statements on Credibility Not Categorically Inadmissible if Offered for Relevant, Non-Opinion Purpose
The court rejects defendant’s vouching challenge to statements made by a police officer during a recorded interrogation of defendant , played during defendant’s trial on sex abuse charges, where the officer repeatedly expressed her opinion that defendant was lying and the victim was telling the truth. The court holds: “when a person makes an out-of-court statement about the credibility of a witness or a non-witness complainant, that statement is subject to the categorical prohibition against vouching evidence only if the statement is offered for the truth of the credibility opinion it expresses.” In other words, an out-of-court statement as to credibility is not categorically inadmissible if the statement is offered for a relevant, non-opinion purpose. In this case, the officer’s statements were not offered for the truth of her credibility determinations, but rather had probative value in the context they provided for defendant’s responses.
However, a statement may be excluded because it does not meet the evidentiary requirements of OEC 401 and 403. In this case, the court concludes that defendant’s OEC 403 prejudice argument is unpreserved. Defendant only made a vouching argument, and the court concludes that a vouching argument is insufficient to alert the trial court that defendant also seeks 403 balancing. A party must specifically raise a 403 objection in order to preserve the argument.
