State v. Hensley

• Decision Date: 12 October 2016
• Docket Number: A154760
• Citation: 383 P.3d 333,281 Or.App. 523
• Parties: State of Oregon, Plaintiff–Respondent, v. Jesse Randolph Hensley, Defendant–Appellant.
• Court: Oregon Court of Appeals

281 Or.App. 523

383 P.3d 333

State of Oregon, Plaintiff–Respondent,

v.Jesse Randolph Hensley, Defendant–Appellant.

A154760

Court of Appeals of Oregon.

Argued and submitted June 30, 2015.

October 12, 2016

Erica Herb, Deputy Public Defender, argued the cause for appellant. With her on the opening brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. With her on the reply brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section. Jesse Hensley filed the supplemental brief pro se. Ernest G. Lannett, Chief Defender, Criminal Appellate Section, and Erica Herb, Deputy Public Defender, Office of Public Defense Services, filed the supplemental brief for appellant.

Rebecca M. Auten, Assistant Attorney General, argued the cause and filed the brief for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rebecca M. Auten, Assistant Attorney General, filed the supplemental brief for respondent.

Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

GARRETT, J.

Defendant appeals a judgment of conviction for five counts of first-degree robbery, ORS 164.415, and five counts of being a felon in possession of a firearm, ORS 166.270(1). Defendant assigns error to the trial court's denial of his motion to suppress statements that he made during a police interrogation. At the time of the interrogation, defendant was represented by appointed counsel for a charge of felon in possession of a firearm, yet police did not notify counsel before questioning defendant. During the interrogation, defendant confessed to the charged felon-in-possession offense as well as to five armed robberies for which he had not yet been charged. The convictions challenged by defendant on appeal arise from those five robberies.

On appeal, defendant argues that questioning about one of the robberies—the robbery of a US Bank—violated his right to counsel under Article I, section 11, of the Oregon Constitution. According to defendant, it was reasonably foreseeable that questioning about the US Bank robbery would produce incriminating statements about the charged offense because the two incidents occurred in the same jurisdiction within a short period of time and involved the same weapon. Defendant argues that the trial court should have suppressed all of the statements he made during the interrogation because they were fruits of the constitutional violation. In response, the state concedes that police violated defendant's right to counsel by questioning him about the US Bank robbery and agrees that defendant is entitled to reversal with respect to the convictions stemming from that robbery. The state nevertheless argues that we should affirm the remaining convictions because police would have inevitably obtained defendant's confessions despite the unlawful questioning about the US Bank robbery. We conclude that the state did not provide sufficient evidence to support a conclusion that, in the absence of the unlawful interrogation, predictable investigatory procedures would have inevitably produced defendant's confessions, and, therefore, the trial court erred in denying the motion to suppress. Accordingly, we reverse and remand.

We review a trial court's denial of a motion to suppress for legal error.

State v. Garcia , 276 Or.App. 838, 839, 370 P.3d 512 (2016). We are bound by the trial court's findings of historical fact that are supported by evidence in the record. State v. Bailey , 356 Or. 486, 489, 338 P.3d 702 (2014). We presume that a trial court made implicit factual findings necessary to support its ultimate conclusion, and we are bound by those implicit findings if they are supported by the record. Pereida–Alba v. Coursey , 356 Or. 654, 671–72, 342 P.3d 70 (2015).

The issues on appeal involve a total of six incidents that occurred in Marion County. As to the first incident, on the basis of surveillance video showing him with a gun in a Plaid Pantry store, defendant was charged with being a felon in possession of a firearm. The trial court appointed counsel to represent defendant in that case. The other incidents are five armed robberies: two of the Lone Oak Tavern (one in 2010 and one in 2012), and one each of Dede's Deli, Circle K, and a US Bank branch. At the time of the interrogation, the state had not charged defendant with any offenses stemming from those five robberies.

After defendant failed to appear in the Plaid Pantry case, two police officers arrested him. One of the officers, Corporal Baskett, was the lead investigator for the 2012 Lone Oak Tavern robbery and had evidence implicating defendant in that robbery. Baskett also suspected that defendant was involved in the US Bank robbery, which had occurred six days before the Plaid Pantry incident. The other arresting officer, Detective Kistner, was the lead investigator for the US Bank robbery. Both officers were aware that defendant was a suspect in both the US Bank robbery and the 2012 Lone Oak robbery. Before the interrogation, Baskett had spoken with Officer Manitsas, the arresting officer in the Plaid Pantry case, about defendant's pending felon-in-possession charge, and Baskett had watched the Plaid Pantry surveillance video showing defendant with a gun.

Baskett and Kistner questioned defendant at the police station, first providing Miranda warnings. Both officers knew about the felon-in-possession charge stemming from the Plaid Pantry incident, but neither of the officers attempted to contact defendant's attorney. At the beginning of the interview, Kistner told defendant that he was on video robbing the US Bank, and that police had received calls implicating him.¹ Kistner asked defendant whether the gun used during the US Bank robbery was “real.” Defendant responded that he had not “handled a real gun” since 1993.

Defendant then made some comments about Officer Manitsas, the arresting officer in the Plaid Pantry case. Kistner confirmed that defendant was referring to the Plaid Pantry incident, and Kistner told defendant that he was aware of the felon-in-possession charge. Kistner asked defendant whether he had dropped the gun in the Plaid Pantry store, and defendant denied having done so. Kistner then told defendant that he had watched the Plaid Pantry surveillance video showing defendant hiding the gun. Kistner then told defendant that police “hear[d]” that defendant was a “bank robber” and that defendant was “going to take a hit on all this.” Defendant responded, “The difference between what kind of hit I take here is a couple of different issues,” and suggested that he had information about “armed robberies.”

Defendant then explained why he would prefer a federal sentence to a state sentence.

Defendant hypothesized that, if he was “completely truthful” about having “[done] something with somebody,” he “hope[d] that it gets me somewhere around maybe just the next 10 years.” Kistner went on to state:

“I know you've been involved in other crimes. Will I prove all of them? No. Will I ever know about all of them? No. But I mean there is a couple good cases on you. You know that. The thing with the gun with Manitsas, I'm uncomfortable talking about that, because it's not my case. If you want us to make a statement about it, that's great.”

Defendant suggested that the officers could, as a “tactical maneuver,” show him the video of the Plaid Pantry incident, so defendant could see what he would “face in court,” and he would then decide whether or not to “come clean.” Kistner stated that he and other officers were not “the deal makers” but told defendant that “some people would like closure” on unsolved cases, and the “people who make the deals will see that.” Defendant expressed frustration because “players” that had “help[ed] him out” had decided to “sell [him] out.” He continued, “[W]hy should I take the burn and fucking man up and * * * go do all this fucking time, when they are fucking getting away with * * * equal parts of what I've done[?]” After some back and forth, Kistner stated:

“[W]hat I'm going to ask you to do today is tell me about the US Bank on State Street. These other cases, they aren't my cases. I mean I would love to take a statement if that's what you want to do, but I think the case with Manitsas, frankly, I've looked at the pictures. I see you walking into the bank. * * * If you want to talk to Manitsas or me or Corporal Baskett about the Plaid Pantry, we'll be glad to do it.”

After some discussion about the potential sentences defendant faced, defendant told Kistner that he would tell the truth about the Plaid Pantry incident and “just weigh my odds of my offer after that.”

Defendant then confessed to both the Plaid Pantry and the US Bank incidents. He told Kistner that the same gun was involved in both. Defendant described how he committed the US Bank robbery, including how he obtained the gun, how he split the proceeds with the person who had given him the gun, and his intention to commit another robbery under the same arrangement.

Kistner then asked defendant about the other armed robberies that defendant had mentioned earlier in the interview. Defendant told Kistner that defendant had previously told Baskett to “talk to [his] lawyer” after Baskett had attempted to question defendant about a “shotgun robbery”—referring to the second Lone Oak robbery. Kistner responded:

“And which brings us to you've been advised and now we are talking about that. Are you—you said you want to think about it for a minute. That's fine. But are you willing to talk to us about that without first talking to an attorney? Because I can tell you—* * * the investigation didn't end at that point * * *.”

Defendant asked if they could “go off the record for a second” so he could “weigh[ ] the odds of coming completely clean” or “just sticking with what I got right here.”

After some back and forth about whether defendant would...