State v. Hill

Citation142 Or.App. 189,921 P.2d 969
PartiesSTATE of Oregon, Respondent, v. Wilford Dean HILL, Appellant. CM94-20072; CA A86139.
Decision Date10 July 1996
CourtCourt of Appeals of Oregon

Peter Gartlan, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.

Jonathan H. Fussner, Assistant Attorney General, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Before DEITS, P.J., and De MUNIZ and HASELTON, JJ.

HASELTON, Judge.

In an appeal from a conviction for aggravated murder, defendant assigns error to the introduction of evidence obtained through a police officer's interrogation of defendant while he was in custody and represented by counsel. The trial court considered that evidence, which concerned offenses factually unrelated to the aggravated murder, in sentencing defendant to life without parole. We remand for resentencing. ORS 138.222(5).

The facts found by the trial court are not challenged by the parties and are binding on this appeal. State v. Stevens, 311 Or. 119, 126, 806 P.2d 92 (1991). In January 1994, defendant and co-defendant Cunio abducted two people in Salem, took the victims' personal property, and drove them to an isolated spot in Benton County. There, defendant and co-defendant ordered the victims out of the car, shot them, and then returned to Salem and burglarized one of the victims' apartment. Defendant was arrested and incarcerated in Benton County. The trial court appointed counsel, and defendant was indicted for the crimes of aggravated murder, ORS 163.095(1)(d); ORS 163.095(2)(d), kidnaping in the first degree, ORS 163.235, and robbery in the first degree, ORS 164.415.

On March 16, 1994, Salem Police Detective Stoelk drove to Benton County to interview defendant. Stoelk had worked with officers from the Benton County Sheriff's Department on the double homicide and had participated in investigating the burglary of the victim's apartment. Stoelk knew that defendant was represented by counsel on the homicide charges but did not notify defendant's attorneys of his visit.

Stoelk went to the Benton County Sheriff's Office and told Deputy Luna, an officer assigned to the double homicide, that he wanted to interview defendant about whether he had engaged in sexual intercourse with a minor and about a shooting at an apartment that took place before the homicide. Luna mentioned to Stoelk that he was interested in defendant's gang activity and would like to know anything Stoelk learned about it.

When Stoelk began his interview with defendant, he introduced himself as a Salem police officer and told defendant that he "wanted to speak with him about some incidents in Salem." Defendant replied, "I don't really want to talk if I don't have to." Stoelk replied that that was all right, but said, "Let me advise you of your [Miranda] rights, first." Stoelk then told defendant that he was investigating an allegation that defendant had sex with a minor. At that point, defendant laughed and became more relaxed. Stoelk told defendant that he wanted to clear up some cases and that, because defendant was in so much trouble in Benton County, those cases probably would not be prosecuted. Defendant then said he would talk to Stoelk. In a tape-recorded statement, defendant admitted to having sexual contact with a 13-year-old girl on several occasions in Salem motels and stated that she continued to write letters to him in jail. Stoelk then turned off the tape recorder and questioned defendant about several apartment shooting incidents unrelated to the homicides. Defendant first described his participation in a drive-by shooting of which Stoelk was unaware. Defendant also discussed another incident, in which he took co-defendant Cunio's gun and fired seven rounds into an apartment. At the end of the interview, defendant signed a written statement detailing the events.

Defendant waived his right to a jury and entered into a stipulation of facts sufficient to prove the charges of kidnaping, robbery, and aggravated murder. Based on that stipulation, the trial court found him guilty on all counts and proceeded to act as the fact finder in the sentencing proceeding. ORS 163.150. 1 Defendant filed a motion to suppress "all evidence regarding all statements, oral and written, made to the police on or about March 16, 1994," asserting that those statements were obtained in violation of defendant's privilege against self-incrimination under Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the United States Constitution, and in violation of defendant's right to counsel under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. The motion to suppress was denied.

The suppression court concluded, in part:

"Officer Stoelk was interviewing the defendant solely regarding matters 'unrelated to the Benton County homicide charge.' The law in Oregon is well-established that officers have a right to interview a defendant in these circumstances even though the defendant is represented by an attorney on other charges. The case comes within the general principles of State v. Sparklin, 296 Or. 85 (1983). In almost every case where a defendant has pending charges and has an attorney on those charges and where the defendant talks to police officers about unrelated charges, there is always a very real possibility that what he says on the unrelated charges might be used in the proceeding on the other charges for which he has an attorney--particularly in the sentencing process. As the Court reads the cases, they do not hold that because there is a possibility or even a probability that what the defendant said might be used in a sentencing proceeding in another case invalidates the interview. The finding that the Court has to make is whether the interview was 'factually unrelated' to the homicide charges. The Court makes that finding."

After receiving and considering evidence that included defendant's statements to Stoelk, the trial court sentenced defendant to life in prison without possibility of parole. ORS 163.105(b).

On appeal, defendant assigns error to the denial of his motion to suppress the statements that he made to Stoelk and evidence derived from those statements. As at trial, he argues that his statements were obtained in violation of (1) his right to counsel under Article I, section 11, and the Sixth Amendment; and (2) his privilege against self-incrimination under Article I, section 12, and the Fifth Amendment. We consider defendant's state constitutional claims first. State v. Kennedy, 295 Or. 260, 266, 666 P.2d 1316 (1983). Because we agree with defendant that his statements were obtained in violation of Article I, section 11, we do not address his other arguments.

Article I, section 11, provides, in part:

"In all criminal prosecutions, the accused shall have the right * * * to be heard by himself and counsel[.]"

Defendant asserts that his Article I, section 11, right to counsel had attached with regard to prosecution of the aggravated murder charge. In particular, defendant asserts that, because Stoelk knew defendant was represented by counsel but did not attempt to notify counsel of his intent to interrogate defendant, no evidence obtained from that interrogation may be used to convict, or to enhance defendant's sentence, for aggravated murder.

The state counters that the right to counsel under Article I, section 11, is offense-specific and that the constitutional prohibition against uncounseled interrogation applies only to charges factually related to the charge for which the right to counsel has attached. Thus, the state argues, Stoelk was not precluded from interrogating defendant about the statutory rape or shootings, because those crimes were unrelated to the aggravated murder.

As support for their arguments, both parties invoke State v. Sparklin, 296 Or. 85, 672 P.2d 1182 (1983). The state contends that Sparklin is flatly controlling. Defendant argues that, although Sparklin is materially factually distinguishable, its rationale dictates suppression in this case.

We agree with defendant that Sparklin is materially different from this case and that that difference is constitutionally significant. In Sparklin, the defendant was arraigned for forgery and was provided counsel for the defense of that charge. Thereafter, without notice to the defendant's attorney, the police interrogated the defendant about a "factually unrelated" robbery and murder, and the defendant confessed to those crimes. In the ensuing prosecution for robbery and murder, the defendant unsuccessfully sought to suppress his confession, asserting, inter alia that his statements had been obtained in violation of his right to counsel underArticle I, section 11, and the Sixth Amendment.

The Supreme Court affirmed the defendant's convictions. In so holding, the court rejected his argument that Article I, section 11, compelled suppression of his confession:

"[O]nce a person is charged with a crime, he or she is entitled to the benefit of an attorney's presence, advice and expertise in any situation where the state may glean involuntary and incriminating evidence or statements for use in the prosecution of its case against defendant. This is so whether or not defendant specifically requests an attorney's presence at the interrogation. * * *

"Once an attorney is appointed or retained, there can be no interrogation of a defendant concerning the events surrounding the crime charged unless the attorney representing the defendant on that charge is notified and afforded a reasonable opportunity to attend. No waiver of that right may occur until defendant has consulted with his attorney. In the smallest civil matter an attorney and his or her investigator are restricted...

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6 cases
  • Jewell v. State , 32S04–1104–CR–200.
    • United States
    • Supreme Court of Indiana
    • November 30, 2011
    ...defendant do not extend to the investigation of factually unrelated criminal episodes” (emphasis added)); 12 cf. State v. Hill, 142 Or.App. 189, 921 P.2d 969, 972 (1996) ( Sparklin means that “a defendant cannot be interrogated on matters that are ‘factually related’ to the charges on which......
  • STATE EX REL. JUV. DEPT. v. O'FARRELL
    • United States
    • Court of Appeals of Oregon
    • January 28, 2004
    ...that conduct and it was not inextricably intertwined with the dog case. Sparklin, 296 Or. at 95,672 P.2d 1182; State v. Hill, 142 Or.App. 189, 195-96, 921 P.2d 969 (1996),rev. den., 327 Or. 521, 971 P.2d 408 (1998); McNeil, 501 U.S. at 175,111 S.Ct. 2204; Texas v. Cobb, 532 U.S. 162, 121 S.......
  • State v. Potter
    • United States
    • Court of Appeals of Oregon
    • August 10, 2011
    ...and that the defendant's answers to those questions must be derivatively suppressed. Id. at 338–39, 718 P.2d 1379. In State v. Hill, 142 Or.App. 189, 921 P.2d 969 (1996), rev. den., 327 Or. 521, 971 P.2d 408 (1998), we applied Sparklin in the context of an aggravated murder sentencing. Afte......
  • State v. Sacre, 03040827.
    • United States
    • Court of Appeals of Oregon
    • September 24, 2008
    ...defense, the defendant's counsel must be given notice and a reasonable opportunity to attend the questioning. See State v. Hill, 142 Or.App. 189, 197, 921 P.2d 969 (1996), rev. den., 327 Or. 521, 971 P.2d 408 (1998). If counsel is not notified and given a reasonable opportunity to attend, t......
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