State v. Gillispie
| Decision Date | 16 January 2019 |
| Docket Number | A163833 (Control),A163834 |
| Citation | 295 Or.App. 702,436 P.3d 65 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Daniel Ryan GILLISPIE, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Mary M. Reese, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
Defendant appeals a judgment of conviction for manslaughter in the first degree, ORS 163.118, and possession of a destructive device, ORS 166.382. After the trial court denied defendant's motion to suppress, he entered a conditional guilty plea to both charges while reserving his right to appeal the denial of his motion. ORS 135.335(3). On appeal, he assigns error to the trial court's denial of his motion to suppress, arguing that the detectives unlawfully interrogated him in violation of both Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the United States Constitution after he unequivocally invoked his right to counsel. In response, the state contends that the trial court did not err in denying defendant's motion, because defendant initiated further conversation with the detectives and waived his previously invoked right to counsel. We conclude that defendant's incriminating statements that followed his invocation of the right to counsel were not the product of unlawful interrogation by the detectives and that defendant initiated further conversation with the detectives in a manner that evinced a willingness and a desire for a generalized discussion about the charges, preceding his valid waiver.1 Accordingly, we affirm.
We review the denial of a motion to suppress for legal error and are bound by the trial court's findings of fact if evidence in the record supports them. State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993). We state the following facts in accordance with that standard.
In the course of a homicide investigation, Clackamas County Sheriff's Office Detectives Smith and Miller came to believe that defendant was involved in a fatal stabbing and sought to interview him while he was in the Clark County Jail in Washington. Smith and Miller read defendant his rights and, after some discussion with the two detectives, defendant asked if they could continue talking with the video recorder off. The detectives explained that the interrogation must be taped in order to preserve an accurate account of what was said. In response, defendant stated, "Well, then I want a lawyer" and "I got nothing else to say." The detectives asked defendant if he already had a lawyer and defendant stated he had not yet retained one. Miller then informed defendant that he was being charged with murder, that he would be extradited back to Oregon, and that Miller would submit the paperwork that day. The detectives, responding to defendant's earlier request to continue the conversation without the video recorder, explained that, although they had accommodated requests to speak off video in the past, they could not talk to defendant without recording the conversation because The detectives then stated they were ending the interrogation and turning off the recorder, saying that "we'll head out" and "we'll tell them we're done with the interview, okay?"
The detectives did not actually leave or turn off the recorder because defendant started asking them questions. Defendant asked them how soon he would be extradited back to Oregon and they estimated that it could take a couple of days to a week. Defendant then asked them if the case was "going federal" and they responded that they did not know but probably not. Defendant then asked what kind of time he would face if he was found guilty and Miller stated that the process was based on defendant being charged with aggravated murder. Defendant responded that he did not understand what aggravated murder meant. Smith interrupted Miller and explained to defendant that they needed to "kind of stop the interview" because the detectives were not allowed to chit chat with defendant after he had asked for an attorney. Defendant interrupted Smith to ask if defendant's girlfriend knew he was being charged and the detectives responded that she will know. Defendant made it clear that he did not want her caught up in the case, and Miller said it depends on how involved she is; Smith stated, "We have to stop there" and Miller said, "Yeah."
At that point, defendant asked, Smith started to explain again to defendant that he had already asked for an attorney and defendant interrupted him to say, "I'll talk to you guys if ... if you agree to leave her out of this." (Ellipsis in original.) Smith immediately responded:
(Ellipses in original.) Defendant then looked directly into the camera and said, The detectives reminded defendant that if, at any point, he wants an attorney the detectives will stop the questioning, stating that they At that point, the detectives asked, "So what ... what is your question?" (Ellipses in original.) After discussing defendant's girlfriend, the victim, and the events that led to the victim's stabbing, defendant confessed to stabbing the victim.
Defendant entered a conditional guilty plea to one count of manslaughter in the first degree, ORS 163.118, and one count of possession of a destructive device, ORS 166.382. The trial court denied defendant's pretrial motion to suppress statements he made to the detectives after invoking his right to counsel. Defendant's conditional guilty pleas reserved his right to appeal the trial court's denial of his motion to suppress. See ORS 135.335(3).
On appeal, defendant argues that he was interrogated in violation of his right against compelled incrimination under Article I, section 12, and the Fifth Amendment. Specifically, he argues that the detectives violated those rights when they continued interrogating him after he invoked his right to counsel. In response, the state does not dispute that defendant was in custody, that he was being interrogated when he made the incriminating statements, or that defendant unequivocally invoked his right to counsel when he told the detectives that he wanted a lawyer. However, the state contends that the detectives did not unlawfully continue to interrogate defendant after his invocation, but rather that defendant made the incriminating statements after he initiated further discussion with the detectives and voluntarily waived his previously invoked right.
Article I, section 12, states in part, "[n]o person shall *** be compelled in any criminal prosecution to testify against himself."2 Protection against compelled incrimination "adhere[s] when a suspect is subject to custodial interrogation." State v. Scott , 343 Or. 195, 201, 166 P.3d 528 (2007). "Consequently, under Article I, section 12, the police must give a defendant who is subject to custodial interrogation Miranda -like warnings prior to interrogation." State v. Schmidtke , 290 Or. App. 880, 884, 417 P.3d 563 (2018).
Moreover, "once a suspect has invoked the rights to remain silent and to counsel under Article I, section 12, police must immediately cease interrogation unless the suspect initiates further conversation with the police." State v. Boyd , 360 Or. 302, 318, 380 P.3d 941 (2016). Simply, when a suspect asks for a lawyer, the police must stop interrogating that suspect. So, if the police continue to question a suspect, who has unequivocally invoked his rights, in a manner that is "likely to elicit some type of incriminating response," the police have unlawfully continued to interrogate that suspect. Schmidtke , 290 Or. App. at 885, 417 P.3d 563 (). Put another way, statements constituting unlawful continued interrogation are those "appeared designed to confront defendant and prompt a substantive response." State v. Schrepfer , 288 Or. App. 429, 439, 406 P.3d 1098 (2017).
However, there are some questions the police may ask following a suspect's invocation that do not amount to continued interrogation and that are permitted under the circumstances. "The notion that all forms of direct questioning constitute ‘interrogation’ for constitutional purposes is unrealistic[,]" because certain kinds of questions can be "innocuous and do not implicate the constitutional concerns that form the underpinnings of Article I, section 12, and Fifth Amendment rights." Boyd , 360 Or. at 317, 380 P.3d 941. "Under Article I, section 12, an interrogation does not include questions ‘normally attendant...
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