State v. Davis

• Decision Date: 30 June 2011
• Docket Number: (CC06CR1271FE; CA A138968; SC S058572).
• Citation: 350 Or. 440,256 P.3d 1075
• Parties: STATE of Oregon, Petitioner on Review,v.John Richard DAVIS, Respondent on Review.
• Court: Oregon Supreme Court

350 Or. 440
256 P.3d 1075

STATE of Oregon, Petitioner on Review,
v.
John Richard DAVIS, Respondent on Review.

(CC06CR1271FE; CA A138968; SC S058572).

Supreme Court of Oregon, En Banc.

Argued and Submitted Jan. 13, 2011.Decided June 30, 2011.

[256 P.3d 1076]

On review from the Court of Appeals.^*Paul L. Smith, Assistant Attorney–in–Charge Criminal Appeals, argued the cause for petitioner on review. With him on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.David A. Hill, Eugene, argued the cause and filed the brief for respondent on review.LANDAU, J.

[350 Or. 442] In this criminal case, the police informed defendant that he was the subject of an investigation for sexual abuse. Defendant retained counsel, who sent a letter to the police invoking defendant's right to remain silent and directing the police to discuss the matter with counsel. Months later, the police obtained incriminating statements from defendant without the presence of his counsel by monitoring his communications with the victim. At issue is whether the police, in obtaining those incriminating statements from defendant, violated his right against self-incrimination and right to counsel under Article I, sections 12 and 11, respectively, of the Oregon Constitution. The trial court concluded that, in light of defendant's earlier invocation of his right to remain silent and right to counsel, the police obtained the incriminating statements in violation of both constitutional provisions. The Court of Appeals affirmed. State v. Davis, 234 Or.App. 106, 227 P.3d 204 (2010). We conclude that the right against self-incrimination under Article I, section 12, bars police questioning only when a defendant is in custody or otherwise in compelling circumstances. We further conclude that the right to counsel under Article I, section 11, bars police questions outside the presence of counsel only once “criminal proceedings” have begun, which, at the earliest, is the time of a suspect's arrest. We therefore reverse and remand for further proceedings.

I. FACTS

We recite the facts consistently with the trial court's findings. State v. Bost, 317 Or. 538, 541, 857 P.2d 132 (1993). On November 18, 2003, the alleged victim, then years old, reported to Roseburg Police Detective Kaney

[256 P.3d 1077]

that her stepfather, defendant, had been sexually abusing her since she was five or six years old. A few days later, Kaney contacted defendant by phone to discuss the allegations. Defendant asked Kaney if there was a warrant out for his arrest and whether he needed an attorney. Kaney responded that defendant was not “wanted” and that it was up to defendant to decide if he wanted an attorney.

[350 Or. 443] On December 31, 2003, Kaney received a letter from attorney Charles Lee. In that letter, Lee stated that he represented defendant, and that Lee was aware that defendant's stepdaughter, the victim, had made sexual abuse allegations against defendant. Lee invoked defendant's right to remain silent, directing Kaney to “not talk to [defendant] except through me.” He also stated that “[i]f you need to do an interview I will be happy to help arrange it.” Kaney continued his investigation, but did not directly contact defendant.

Eight months later, in August 2004, the victim reported to Kaney that defendant had contacted her through her instant messaging service. Kaney believed that defendant would try to contact the victim again, so he asked her to come to his office twice a week to engage in monitored instant message conversations with defendant. She agreed. Kaney instructed the victim regarding the persona she should portray to defendant, with the hope that it would encourage defendant to make statements that would be probative in the sexual abuse investigation. Although most of the statements during those monitored instant message conversations were unscripted small talk between the victim and defendant, at times, Kaney directed the victim to say certain things with the purpose of eliciting potentially incriminating statements. In total, the victim and defendant had three instant message conversations, as well as two monitored phone calls.

During those conversations, defendant made several incriminating statements. Based on those statements, Kaney obtained a warrant to search defendant's instant messaging account for evidence showing that he was the person using the service to communicate with the victim. Ultimately, defendant was charged with five counts of sodomy in the first degree, six counts of rape in the first degree, two counts of sexual abuse in the first degree, and one count of contributing to the sexual delinquency of a minor.

Defendant moved to suppress the evidence derived from his monitored conversations with the victim and any evidence discovered through the execution of the search warrant. Defendant argued that, because he had invoked his constitutional rights to counsel and to remain silent eight months earlier, the police thereafter were obligated not to [350 Or. 444] communicate with him except through counsel. According to defendant, the police, having nevertheless elicited incriminating statements from him through the pretextual communications with the victim, violated those constitutional rights. The trial court agreed and granted defendant's motion to suppress, holding that the police had violated defendant's Article I, section 11, right to counsel and his Article I, section 12, right to remain silent by questioning him, through the victim, without his attorney present.

The state appealed. ORS 138.060(1)(c). The state argued that, because no formal charges had been filed against defendant at the time the incriminating statements had been elicited from him, no right to counsel under Article I, section 11, had been implicated. The state argued that its facilitation of the pretextual conversations did not implicate Article I, section 12, either, because the right against self-incrimination guaranteed by the state constitution applies only when a defendant is in trial or otherwise in compelling circumstances, and no such circumstances occurred in this case.

The Court of Appeals affirmed, but held only that the police violated defendant's right against self-incrimination under Article I, section 12. The court held that the scope of the right against self-incrimination guaranteed by that provision is not limited to compelling circumstances. In the court's view, “[w]hen a person, not in a compelling setting, unequivocally invokes the right to remain silent as to an ongoing investigation conducted by a police officer, the police officer must respect that assertion of the right to remain silent if the police officer is personally

[256 P.3d 1078]

aware of that invocation.” Davis, 234 Or.App. at 113, 227 P.3d 204 (emphasis added). The court concluded that, because, in this case, Kaney had received a letter from defendant's counsel invoking defendant's right to remain silent, thereafter Kaney could not constitutionally contact defendant except through counsel. Id. at 113–14, 227 P.3d 204. The court did not address whether the police had violated defendant's right to counsel under Article I, section 11.

The state petitioned this court for review, arguing that the Court of Appeals erred in holding that the police violated Article I, section 12. According to the state, a defendant's constitutional right to remain silent applies only when [350 Or. 445] a defendant is in custody or other compelling circumstances. Applying that principle, the state asserts that the attempt by defendant's attorney to invoke defendant's right to remain silent did not prevent the police from later reinitiating contact, because at no time was defendant in custody. Additionally, the state asserts that, during the conversations with the victim, defendant was not in compelling circumstances because he did not know that the victim was working as an agent for the police. Therefore, the state argues, the Court of Appeals erred in holding that Article I, section 12, applied outside the context of compelling circumstances, and the incriminating statements made by defendant should not have been suppressed.

Defendant responds that, although this court has not yet held that the right against self-incrimination protected under Article I, section 12, applies in noncompelling circumstances, it should do so in this case. Defendant notes that, in a footnote in State v. Sparklin, 296 Or. 85, 92 n. 9, 672 P.2d 1182 (1983), this court suggested that the right to an attorney under Article I, section 11, is as important during the investigative phase of a case as it is during the trial itself. In a similar way, defendant reasons, the right to remain silent is just as important during the investigative phase as it is during trial.

Defendant also argues (albeit fleetingly) that, even if the Court of Appeals erred in concluding that his statements were obtained in violation of his right against self-incrimination under Article I, section 12, the court's conclusion with respect to the suppression of those statements still is correct on the alternative ground that the statements were obtained in violation of his right to counsel under Article I, section 11.¹

II. ANALYSIS A. Article I, Section 12, Right Against Self-incrimination

We begin with the parties' contentions concerning the state constitutional right against self-incrimination. In [350 Or. 446] Priest v. Pearce, 314 Or. 411, 415–16, 840 P.2d 65 (1992), this court held that, when construing a provision of the original Oregon Constitution, we engage in a three-part analysis of it. We examine the text in its context, the historical circumstances of the adoption of the provision, and the case law that has construed it. Id. Our goal is to ascertain the meaning most likely understood by those who adopted the provision. The purpose of that analysis is not to freeze the meaning of the state constitution in the...