Oregon Appellate Ct - Sept 7, 2017

Revision as of 14:07, September 13, 2017

Miranda Right to Counsel – Equivocal Invocation of Right to Counsel

Appeal and Review - Preservation - Defendant Sufficiently Preserved Argument

The court concludes that when defendant responded to Miranda warnings by asking “where is the lawyer?” he equivocally invoked his right to counsel and police failed to clarify the intent of his statement. Accordingly, defendant’s subsequent statements were inadmissible and were also not harmless. Defendant was convicted of murder constituting domestic violence. Following defendant’s arrest for that crime, police conducted a custodial interview before defendant was arraigned. After reading defendant his rights, defendant asked “where is the lawyer?” and police responded by asking defendant if he had retained a lawyer. Defendant said he had not and could not afford a lawyer. Police then told defendant that he would be appointed a lawyer at his arraignment. They then asked whether defendant understood his rights and would be willing to speak with them, and defendant said yes.

The parties litigated the admissibility of defendant’s statements as part of a lengthy pretrial omnibus hearing. Defendant cross-examined the officers about whether they followed up with defendant after his statement about a lawyer. Both parties waived closing argument to save time, and the trial court ruled that defendant’s statements were admissible because he did not invoke his right to counsel. On appeal, the state argued that defendant failed to preserve his claim that defendant equivocally invoked his right to counsel because he failed to make a closing argument. The court rejects the state’s preservation argument. It was apparent that all understood the issue was whether defendant’s Miranda right to counsel was violated, and the state had the burden of proving that. Defendant addressed the issue directly during cross. The parties waived argument to save time, and it was understood that each knew the issue being decided, and the trial court squarely addressed the issue in its ruling. The state further argued that had defendant made additional argument below, it would have introduced the recording of the interview, however, the court rejects that argument as well, as it was the state’s burden to show that defendant’s statements were voluntary.

As to the merits, the court agrees with defendant that his statement was an equivocal invocation of the right to counsel, because a reasonable officer would have understood it as an equivocal request for counsel in light of the context in which it was made – immediately after Miranda rights were read and the officer asked whether defendant understood them. Police also failed to clarify the invocation because police, at most, clarified that defendant had the right to a lawyer at arraignment under Article I, section 11, and may have actually misled defendant into believing he did not have a right to counsel during interrogation. And, defendant did not voluntarily cut-off any opportunity for police to ask clarifying questions by spontaneously speaking to the officers about the offense, instead he affirmatively responded to the officer’s questions about continuing the interview.

State v. Sanelle, 287 Or App 611 (2017) (Ortega, P.J.)