State v. Dodge, A160194
| Decision Date | 10 April 2019 |
| Docket Number | A160194 |
| Citation | 297 Or.App. 30,441 P.3d 599 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Darron Duane DODGE, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Meredith Allen, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Ortega, Presiding Judge, and Hadlock, Judge, and Schuman, Senior Judge.
After defendant’s niece, D, alleged that defendant had sexually abused her when she was a child, detectives interviewed defendant at a sheriff’s office. During that interview, defendant mainly described a supportive, fatherly relationship with D and denied the allegations of sexual contact. However, he also made some inculpatory statements. Defendant eventually was charged with 46 counts of sexual abuse, rape, sodomy, and unlawful sexual penetration. He unsuccessfully moved to suppress the statements he made during the interview on the ground that he had invoked his constitutional right to counsel and detectives had not honored that invocation. At trial, the statements that defendant had sought to suppress were admitted into evidence. Defendant was convicted of five of the counts charged: four counts of first-degree sexual abuse and one count of second-degree unlawful sexual penetration. On appeal, defendant assigns error to the denial of his suppression motion. As explained below, we agree that the trial court committed reversible error when it denied that motion. Accordingly, we reverse and remand.1
To give context for our description of the facts, we set out foundational principles governing the right to counsel during custodial interrogation. Article I, section 12, of the Oregon Constitution states that "[n]o person shall *** be compelled in any criminal prosecution to testify against himself." The right to counsel during custodial interrogation derives from that right against self-incrimination. State v. Roberts , 291 Or. App. 124, 131, 418 P.3d 41 (2018). The right attaches only when a person is in custody or other compelling circumstances. That is, when a person is not in custody or compelling circumstances, officers may continue interrogating that person even after he or she expresses a desire to contact an attorney, so long as the officers do so in a way that does not render the person’s responses involuntary. State v. Anderson , 285 Or. App. 355, 357, 396 P.3d 984, rev. den. , 362 Or. 94, 405 P.3d 154 (2017). However, when a person is in custody or compelling circumstances and unequivocally invokes the right to counsel, interrogation must cease. State v. Sanelle , 287 Or. App. 611, 623, 404 P.3d 992 (2017), rev. den. , 362 Or. 482, 412 P.3d 199 (2018). If the person invokes the right to counsel only equivocally, officers may ask clarifying questions, but those questions must be aimed at clarifying whether the person intended to invoke that specific right. Id . at 627, 404 P.3d 992.
We turn to the facts of this case. In reviewing the trial court’s denial of defendant’s suppression motion, we are bound by the trial court’s findings of historical fact so long as evidence in the record supports them. Roberts , 291 Or. App. at 129, 418 P.3d 41. Except for reference to a few undisputed facts described at trial, which we include only to provide background, we "limit our analysis to the record developed at the motion hearing." Id . We summarize the pertinent facts in accordance with that standard.
As noted, defendant is D’s uncle. When D was a young child, she moved out of her parent’s home and went to live with her grandmother, with whom defendant (the grandmother’s son) also lived. Defendant, D, and D’s grandmother lived together for the next few years, until defendant got married and moved away.
Several years later, D disclosed to her mother that defendant had sexually abused her when they lived together, beginning when she was about eight or 10 years old. D’s mother reported the abuse, and a detective was assigned to investigate. Defendant voluntarily went to a sheriff’s office to speak with detectives because he had been told that he "might be a potential witness in a case they were investigating." He thought that detectives were going to question him about what he suspected was drug activity at his neighbor’s house. Defendant was taken to an interview room on an upper floor at the sheriff’s office via a locked elevator and through a locked door. Because of the locks, he could not have left entirely on his own; somebody from the office would have had to escort him out.
Defendant was seated at a table in the interview room, along with two detectives, one of whom—Brulew—asked most of the questions during the interview. The entire interview was video-recorded. The detectives were in plain clothes and the tone of their questions was conversational. Brulew thanked defendant for coming in, informed him that the interview was being recorded, and asked some preliminary questions. Brulew then reiterated, as he had "explained on the phone, [that defendant was] not under arrest" and that Brulew had "no intention of arresting [defendant] today at all," short of defendant admitting that he had killed somebody. Brulew told defendant that he was free to decline to answer questions and could leave at any time:
Brulew then read defendant his Miranda rights, but explained that having his rights read did not mean that defendant was under arrest:
Brulew asked defendant if he understood those rights, and defendant answered affirmatively. Defendant also responded affirmatively when Brulew asked whether defendant was still willing to talk with him. Brulew then reiterated that "it's not all or nothing, so as we go along, you holler, we'll be out of here."
Brulew then asked defendant about the time when he, his mother, and D lived together. Defendant said that D moved in with them because of "the messed up circumstance" at her parents' house, which reportedly involved D’s parents treating her differently from her siblings. Defendant said that he "watched [D] a lot" while his mother went to work and that he was probably the closest thing to a father that D had ever known. Brulew told defendant that D had reported being physically abused by defendant’s mother. Defendant acknowledged that he had seen his mother "just kind of like grabbing, and shaking, and maybe yelling," but he denied having seen her hit D. Discussion followed about whether D might have exaggerated any of the allegations against her grandmother.
At that point, Brulew told defendant that he had been very honest with defendant and had "no intention of lying to [defendant] or trying to fake [him] out or anything like that." Brulew also said that he hoped that defendant was honest, too, and that defendant would "tell [Brulew] the truth and everything." Brulew then told defendant that D had alleged that defendant "inappropriately touched her." Defendant denied that he had ever touched D in other than an affectionate, fatherly way. Brulew asked if D might have had a crush on defendant or might have misinterpreted an appropriate touch as inappropriate. Defendant responded that he could not think of a time when that could have happened. In response to a question about whether he had ever "been naked with" D, defendant said he had not, but acknowledged that D had seen him naked "by accident" a few times, when she walked into the bathroom or bedroom unannounced.
As the interview continued, Brulew told defendant about specific incidents that D had described, including defendant having touched her breast while they played video games. Defendant said that he did not remember that incident, but "[i]f that happened, it was purely by accident." Brulew told defendant that D was making "very specific" allegations of a type that, in Brulew’s experience, are "not something that kids usually make up." Accordingly, Brulew said, he wanted to "make sure that the whole picture gets out there and so that we fully understand how it happened, um, instead of just taking one side of it." Brulew said that he was concerned that "something did occur and that, you know, the way that [defendant] saw it is different than the way that [D] saw it." Defendant said he could not recall any such incidents, but also suggested that there were times "where [D] was thinking of [defendant] as more romantically than as an uncle." Questions and answers about D’s interest in sexuality and the nature of her relationship with defendant continued for the next several minutes, with defendant reiterating that he and D were close, that he "tried to always be there for her," and that he could not remember anything happening that somebody could view as inappropriate.
The questioning eventually turned to more specific allegations that D...
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State v. Phillips
...that the trial court made in the course of denying defendant’s suppression motion, which the record supports. See State v. Dodge , 297 Or. App. 30, 33, 441 P.3d 599, rev. den. , 365 Or. 533, 451 P.3d 607 (2019) ("In reviewing the trial court’s denial of defendant’s suppression motion, we ar......
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State v. Joaquin
...defendant " ‘neutral follow-up questions intended to clarify the equivocal nature of [the] defendant's statement.’ " State v. Dodge , 297 Or. App. 30, 41, 441 P.3d 599, rev. den. , 365 Or. 533, 451 P.3d 607 (2019) (quoting State v. Hickman , 289 Or. App. 602, 606-07, 410 P.3d 1102 (2017) ).......
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State v. Reed
..."we are bound by the trial court’s findings of historical fact so long as evidence in the record supports them." State v. Dodge , 297 Or. App. 30, 33, 441 P.3d 599, rev. den. , 365 Or. 533 (2019). We therefore set out the evidence pertinent to that aspect of the suppression motion "in the l......
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