State v. Holcomb

• Decision Date: 30 May 2007
• Docket Number: 99122871.,A116966.
• Citation: 213 Or. App. 168,159 P.3d 1271
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Marc Mealey HOLCOMB, Defendant-Appellant.
• Court: Oregon Court of Appeals

159 P.3d 1271

213 Or. App. 168

STATE of Oregon, Plaintiff-Respondent, v. Marc Mealey HOLCOMB, Defendant-Appellant.

99122871.

A116966.

Court of Appeals of Oregon.

Submitted on Record and Briefs September 29, 2006.

Decided May 30, 2007.

Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, and Eric Johansen, Senior Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant. Marc Mealey Holcomb filed the supplemental brief pro se.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Kaye E. McDonald, Assistant Attorney General, filed the brief for respondent.

Before EDMONDS, Presiding Judge, and ARMSTRONG and WOLLHEIM, Judges.

WOLLHEIM, J.

Defendant appeals a judgment of conviction for murder, ORS 163.115, two counts of attempted murder with a firearm, ORS 163.115, two counts of unlawful use of a weapon, ORS 166.220, attempted aggravated murder, ORS 163.095, two counts of burglary in the first degree with a firearm, ORS 164.225, and burglary in the first degree, ORS 164.225. We agree with defendant that the trial court erred in denying his motion to suppress some of his statements to police during a custodial interrogation. However, we conclude that the error was harmless as to some of his convictions. Accordingly, we affirm in part and reverse in part; vacate defendant's sentences, and remand for resentencing.

We state the facts in the light most favorable to the state because defendant was convicted by a jury. State v. Charboneau, 323 Or. 38, 40-41, 913 P.2d 308 (1996).

In November 1999, defendant and two other men went to the home of Dean and John Pruitt, defendant's acquaintances. The Pruitts resided with their mother, Belanger, in Sweet Home, Oregon. Once inside, defendant pulled a gun from his pants and demanded money. Defendant threatened that, if he did not get the money, he would "blow [Belanger's] head right off the top of her shoulders." Dean Pruitt struggled with defendant, attempting to steer the gun away from Belanger. During the struggle, defendant shot and killed Dean Pruitt. John Pruitt attempted to come to his brother's aid, but defendant shot and seriously wounded him.

Defendant fled and shortly thereafter arrived in Lebanon, Oregon. There, defendant committed numerous crimes by breaking into several residences and threatening the occupants. Defendant's conduct in Lebanon included, among other things, firing shots through the door of the Kauffman residence. There, Ben Kauffman, who was at home with his younger brother, Micah Kauffman, opened the door and saw defendant pull a gun out of his waistband. Kauffman slammed the door shut and defendant immediately fired two shots through the door. Defendant also entered the Newell residence. Matt Newell, who was inside with his younger brother and his neighbor Micah Kauffman,¹ shot defendant in the chest. Next, defendant went to the Rabine residence and pounded on the front door while Sandra Rabine was alone inside. Rabine ran to get her gun and then heard defendant at her back door. Defendant broke a small glass window in the back door, stuck his hand through the broken window, and was trying to unlock Rabine's door.² Ultimately, defendant took several items from the homes, including a van that he used to flee.

Approximately three weeks later, defendant was arrested for the Pruitt shootings and subsequent home invasions. The officers identified defendant by the gunshot wound on his chest, which they found to be "in a healing condition." Defendant did not request medical attention at that time. The officers transported defendant to the sheriff's office, where Officers David and Culley interviewed defendant for approximately one hour. The entire interview was videotaped. Defendant walked with a limp into the interview room but, again, did not request medical attention. Prior to interviewing him, the officers read defendant his Miranda rights, and defendant orally acknowledged that he understood his rights. Defendant made several incriminating statements during the interview, describing his involvement in the crimes. The particulars of those statements are more fully described below. 213 Or.App. at 174-75, 179-80, 181, 159 P.3d at 1277-78, 1279-80, 1280-81. After the interview concluded, the officers drove defendant to a hospital where a physician examined him and prescribed Advil for his pain. Defendant was later booked into the Linn County Jail.

Defendant was charged in a 29-count indictment. He pleaded guilty to 18 of the counts.³ Prior to trial on the remaining counts, defendant moved to suppress his videotaped statements to police on the grounds that the statements were obtained in violation of his right against compelled self-incrimination under the Oregon Constitution and the United States Constitution, and that the statements were involuntary. The trial court denied defendant's motion to suppress, and the state played the entire videotaped interview to the jury. The jury acquitted defendant of three of the counts and found him guilty on the remaining eight counts.⁴

On appeal, defendant contends that the trial court erred in denying his motion to suppress. He renews his argument that the statements were taken in violation of his rights against compelled self-incrimination and were involuntary. The state contends that the trial court's ruling was correct because defendant made an equivocal invocation of his right to remain silent, but then waived that right by initiating further conversation with the officers. In addition, the state argues that defendant did not unequivocally invoke his right to counsel; instead, defendant selectively invoked the right to counsel with respect to certain aspects of the investigation and waived the right with regard to other aspects. Lastly, the state contends that defendant's statements were voluntary.

The right to be free from compelled self-incrimination is guaranteed by Article I, section 12, of the Oregon Constitution, and the Fifth Amendment to the United States Constitution.⁵ Both provisions prohibit the state from compelling a defendant to testify against himself or herself. As the Supreme Court recognized in State v. Sparklin, 296 Or. 85, 89, 672 P.2d 1182 (1983), police interrogation of a suspect who is in custody is inherently coercive. Accordingly, the right against compelled self-incrimination includes a derivative right to the assistance of counsel during custodial interrogation, because a "lawyer's presence at a custodial interrogation is one way to ensure the right to be free from compelled self-incrimination." State v. Meade, 327 Or. 335, 339, 963 P.2d 656 (1998). For that reason,

"we require the police to inform a detained person that he may terminate questioning at any time and that he may have an attorney to advise him before he speaks. When the police honor th[ose] rights if [a] defendant chooses to assert them, the coercive atmosphere of police interrogation is to some degree dispelled."

Sparklin, 296 Or. at 89, 672 P.2d 1182.

We start by examining defendant's claim of error under Article I, section 12, of the Oregon Constitution. See State v. Kennedy, 295 Or. 260, 262, 666 P.2d 1316 (1983) (courts decide state constitutional issues before federal constitutional issues). Defendant contends that the officers violated his Article I, section 12, right against compelled self-incrimination by continuing to interrogate him after he invoked his right to remain silent and his right to have counsel present at the interrogation.

The admissibility of a defendant's statements during custodial interrogation is an issue of law. State v. James, 339 Or. 476, 481, 123 P.3d 251 (2005). We review the trial court's legal conclusion regarding whether a defendant invoked his Article I, section 12 right for legal error. State v. Terry, 333 Or. 163, 172, 37 P.3d 157 (2001), cert. den., 536 U.S. 910, 122 S.Ct. 2368, 153 L.Ed.2d 189 (2002). The question of what transpired during a custodial interrogation is a question of fact for the trial court, and we are bound by the trial court's findings of fact if they are supported by evidence in the record, although "we assess anew whether th[ose] facts suffice to meet constitutional standards." James, 339 Or. at 481, 123 P.3d 251.

We briefly discuss the principles that govern our analysis. When a suspect in police custody unequivocally invokes the right to remain silent or the right to counsel, all police interrogation must cease. Meade, 327 Or. at 339, 963 P.2d 656; State v. Gable, 127 Or.App. 320, 329, 873 P.2d 351, rev. den., 319 Or 274, 877 P.2d 1202 (1994). The opportunity to resume interrogating the suspect varies depending on which right the suspect unequivocally invokes. If the suspect unequivocally invokes the right to remain silent, the police may resume interrogating the suspect after a reasonable period of time has elapsed, provided that the police renew the Miranda warnings, and the suspect validly waives the right to remain silent. State v. Rowe, 79 Or.App. 801, 805-06, 720 P.2d 765, rev. den., 302 Or. 86, 726 P.2d 1185 (1986). If the suspect unequivocally invokes the right to counsel, the police must cease all interrogation until an attorney is provided. State ex rel Juv. Dept. v. Thai/Schmolling, 138 Or.App. 354, 358, 908 P.2d 844 (1995). However, a suspect can validly waive the right against compelled self-incrimination as long as the waiver is knowing and voluntary under the totality of the circumstances. Meade, 327 Or. at 341, 963 P.2d 656.

When a suspect's invocation is equivocal, the police are permitted to ask follow-up questions to clarify whether the suspect, through the equivocal request, intended to invoke either right. Charboneau, 323 Or. at 54, 913 P.2d 308; State v. Montez, 309 Or. 564, 572, 789 P.2d 1352 (1990). An officer's duty to clarify a suspect's equivocal invocation may be obviated if the suspect initiates further substantive conversation concerning...