State v. Barmon

• Citation: 67 Or.App. 369,679 P.2d 888
• Decision Date: 22 May 1984
• Docket Number: No. 20-791,20-791
• Parties: STATE of Oregon, Respondent, v. Harry Mitchell BARMON, Appellant. ; CA A23867.
• Court: Court of Appeals of Oregon

Page 888

679 P.2d 888

67 Or.App. 369

STATE of Oregon, Respondent, v. Harry Mitchell BARMON, Appellant.

No. 20-791; CA A23867.

Court of Appeals of Oregon

In Banc.

Argued and Submitted Jan. 12, 1983.

Resubmitted In Banc June 8, 1983.

Decided March 14, 1984.

Reconsideration Denied May 4, 1984.

Review Denied May 22, 1984.

Norman Sepenuk, Portland, argued the cause for appellant. With him on the brief was James L. Collins, Portland.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

NEWMAN, Judge.

Defendant appeals his convictions for rape in the first degree, sexual abuse in the second degree and burglary in the first degree. He assigns as errors that the trial court (1) provided written answers to jury questions in the absence of defendant and his counsel and without notice to them and (2) ruled that statements that defendant made to Detective Schultze of the Washington County Sheriff's Office were admissible at trial. Because we hold that the trial court erred in not suppressing statements defendant made to Schultze, we reverse and remand for a new trial and do not consider defendant's assignment of error regarding the court's answers to jury questions.

Defendant allegedly entered the home of the victim around 1 a.m. on April 8, 1981. In mid-morning she reported the incident to the police. She said that defendant had told her his name. Schultze knew defendant, whom he had previously hired to remodel his house. Schultze told defendant's wife that defendant was the prime suspect in a burglary-rape-sodomy investigation and that, if defendant did not contact Schultze by 4 p.m., he would seek a warrant for defendant's arrest. About 4 p.m., defendant's attorney telephoned Schultze and advised him that he was defendant's lawyer, that defendant would come to the police station by 5:15 p.m., that he had advised defendant not to talk to the police and that defendant would not make a statement.

About 5:20 p.m., defendant came to the police station without his counsel. Schultze took defendant into the interview room. He first asked defendant, "Other than this, how have things been going?" Defendant broke down and began to cry. He then asked, "Do I have a right to know what I'm being charged with?" Schultze responded, "Yes, rape, sodomy and burglary." Defendant then exclaimed, "I didn't steal anything!" Schultze then advised defendant of his Miranda rights. Defendant signed a waiver of rights card. Either just before or after Schultze gave the Miranda warnings, but following defendant's exclamation, "I didn't steal anything," Schultze said: "Harry, I'd like to help you if I can, but I've got to get your side of the story before I do." Defendant then made extensive incriminating statements to Schultze.

In a pretrial "Miranda" hearing to determine admissibility, the court ruled that defendant's statements to Schultze were admissible at trial. It found that defendant knew and understood his rights, that he was competent and adequately aware of the circumstances and that he knowingly and voluntarily waived his rights. ¹ Schultze's testimony as to defendant's statements to him became a significant part of the state's case. ² Defendant asserts that his statements to Schultze were obtained in violation of his right to remain silent under the Fifth Amendment to the United States Constitution. ³ He also raises his right, under the Fifth Amendment, to the assistance of counsel at custodial interrogation, relying on Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). ⁴

The trial court, referring to Edwards v. Arizona, supra, commented at the pre-trial hearing that "the accused himself has to initiate, has to actually begin the exchange with the officer." It concluded that "defendant himself did the initiating." The trial court's ruling, however, preceded the United States Supreme Court's analysis in Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), of the constitutional standard to be applied to the facts to determine who initiated the dialogue. Moreover, although we are bound by the trial court's findings of historical facts, we are not bound by its constitutional conclusions. Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968); see also State v. Warner, 284 Or. 147, 585 P.2d 681 (1978); State v. Bishop, 49 Or.App. 1023, 621 P.2d 1196 (1980). Who "initiates" the exchange in light of the Fifth Amendment is not an historical fact but a conclusion of constitutional import. Oregon v. Bradshaw, supra, 462 U.S. at ----, 103 S.Ct. at 2835; see also Edwards v. Arizona, supra. As explained below, we conclude from the historical facts that Schultze, not defendant, "initiated" the dialogue.

First, it is clear that defendant was "in custody." He went to the police station at Schultze's demand and under threat of arrest. Defendant had told the victim his name. Schultze knew defendant was the man he wanted and had looked for defendant that afternoon. He had told defendant's wife to have defendant contact him by 4 p.m., or he would get a warrant for his arrest. In response to that demand, defendant's attorney called Schultze to tell him that defendant would come to the police station by 5:15 p.m., and defendant went to the station. When he asked Schultze, "Do I have a right to know what I am being charged with?", Schultze replied, "Yes, rape, sodomy and burglary." There is not the slightest doubt that Schultze intended to arrest defendant and that he was not free to leave. At the suppression hearing the court asked:

"COURT: When he had come in, meaning Mr. Barmon, I assumed that he was not going to be allowed to go--leave voluntarily; is that correct?"

Schultze replied, "That's correct." From the moment defendant met Schultze at the police station he was in custody. See State v. Roberti, 293 Or. 59, 644 P.2d 1104, 293 Or. 236, 646 P.2d 1341 (1982); State v. Paz, 31 Or.App. 851, 572 P.2d 1036 (1977), rev. den. 282 Or. 189 (1978).

Next, we conclude that defendant's counsel, by his telephone call at 4 p.m., in anticipation of defendant's meeting with Schultze, invoked defendant's rights to remain silent and to have the assistance of counsel at custodial interrogation. See State v. Sparklin, 296 Or. 85, 91, 672 P.2d 1182 (1983). ⁵

Finally, defendant cannot be found to have waived his Fifth Amendment rights here unless he initiated the dialogue with the authorities. Oregon v. Bradshaw, supra; Edwards v. Arizona, supra. In Edwards, the court stated:

" * * * [W]e now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police." 451 U.S. at 484-85, 101 S.Ct. at 1884-85. (Emphasis supplied; footnote omitted.)

In Oregon v. Bradshaw, supra, the court discussed the meaning of the phrase "initiates further communication, exchanges or conversations with the police." There the police questioned the defendant at the police station about the death of a passenger in his pickup truck in a one-vehicle accident. The police gave Miranda warnings to the defendant. The defendant denied involvement in the traffic accident but admitted providing the victim, a minor, with liquor. He was arrested for that offense. An officer again questioned him about the traffic accident and the defendant requested an attorney. The conversation terminated. Later the police placed defendant in a patrol car to take him from the police station to the county jail, a distance of about 10 to 15 miles. On his own initiative, the defendant opened the conversation with the police by asking, "Well, what is going to happen to me now?" The officer reminded the defendant that he did not have to talk because he had requested an attorney. The defendant said that he understood, and a discussion ensued that led to his agreement to take a polygraph test and to the incriminating statements.

In Bradshaw the court ruled that the defendant's question, "Well, what is going to happen to me now?" evinced "a willingness and desire for a generalized discussion about the investigation." A plurality of the court stated:

"There are some inquiries, such as a request for a drink of water or a request to use a telephone that are so routine that they cannot be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation. Such inquiries or statements, by either an accused or a police officer, relating to routine incidents of the custodial relationship, will not generally 'initiate' a conversation in the sense in which that word was used in Edwards.

"Although ambiguous, the respondent's question in this case as to what was going to happen to him evinced a willingness and a desire for a generalized discussion about the investigation; it was not merely a necessary inquiry arising out of the incidents of the custodial relationship." 462 U.S. at ----, 103 S.Ct. at 2835. (Emphasis supplied.)

The issue here, therefore, is whether defendant or Schultze initiated the exchange by conveying a "willingness and desire for a generalized discussion about the investigation."

We conclude that Schultze initiated the exchange when he said, "Harry, I'd like to help you if I can, but I've got to get your side of the story before I do." That statement evinced Schultze's "desire for a generalized discussion about...