State v. Isom

• Decision Date: 21 September 1988
• Citation: 761 P.2d 524,306 Or. 587
• Parties: STATE of Oregon, Respondent, v. James Michael ISOM, Appellant. TC C86-05-32246; SC S33725.
• Court: Oregon Supreme Court

Page 524

761 P.2d 524

306 Or. 587

STATE of Oregon, Respondent, v. James Michael ISOM, Appellant.

TC C86-05-32246; SC S33725.

Supreme Court of Oregon,

In Banc.

Argued and Submitted June 7, 1988.

Decided Sept. 21, 1988.

John P. Daugirda, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief were Gary D. Babcock, Public Defender, and Stephen J. Williams, Deputy Public Defender, Salem.

Timothy A. Sylwester, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Jonathan H. Fussner, Brenda J. Peterson and Leslie J. Westphal, Asst. Attys. Gen., Salem.

LENT, Justice.

Defendant was convicted of aggravated murder and was sentenced to death. The case is before us for review pursuant to ORS 163.150(1)(f), which provides:

"The judgment of conviction [of aggravated murder] and sentence of death shall be subject to automatic and direct review by the Supreme Court. * * * "

The dispositive issue is whether Article I, section 12, of the Oregon Constitution precludes the state from impeaching defendant's trial testimony with prior inconsistent statements elicited by police officers after defendant had told the officers that he did not wish to talk to them and that he wanted a lawyer. ¹ We hold that use of the statements is precluded and that the trial court erred in admitting them for impeachment purposes. Because the error affected a substantial right of defendant, OEC 103(1), we reverse his conviction and remand for a new trial.

Defendant was indicted for aggravated murder. The indictment charged that, while an escapee from a correctional facility, defendant "did unlawfully and intentionally" cause the death of Barbara Ann Maher. See ORS 163.095(2)(f). He was found guilty and, after the jury had answered the three questions specified in ORS 163.150(1)(b) in the affirmative, was sentenced to death.

On direct examination at his trial, defendant testified to the following. He met Maher in a Portland bar and, at her suggestion, went with her to his motel room to continue drinking. When they arrived, he became ill from alcohol intoxication and spent several minutes in the bathroom. When he emerged from the bathroom, Maher and a man that he did not recognize attempted to rob him. The man grabbed defendant's left hand, and Maher grabbed his right front pocket. Defendant withdrew a knife from his pocket. He used his right hand, which held the knife, to drive Maher away and then broke free from the man's grip. The man fled. Defendant then saw that Maher was unconscious and bleeding. He carried her into the bathroom, where he discovered that she had been stabbed and was dead. Unable to bring himself to inform the police, he placed her body in the bathtub and left the room. He returned the next morning, expecting to find the police at his room, but, not finding them there, he checked out of the motel. Approximately two hours later, he was arrested at a nearby restaurant after Maher's body had been discovered by a motel maid.

On cross-examination, the state sought to impeach defendant's testimony with statements that he had made to two detectives while in jail shortly after his arrest. Defendant's counsel objected to questions regarding these statements made by defendant to the police officers, which the state had conceded in a pretrial hearing were inadmissible in its case in chief. The objection was overruled. Thereupon, in response to the cross-examination, defendant denied telling the detectives that he deserved "the maximum" for killing Maher. He admitted that he had not told them that he had been attacked by Maher and the unidentified man but explained that he had wanted to consult with a lawyer before discussing the matter with the police. The colloquy appears in the transcript as follows:

"Q. Well, did you have a conversation on May 17th over in the Justice Center with Detective Findling and Detective Nelson?

"A. I most certainly did.

"Q. Okay. And at that time, do you recall that Detective Findling told you that anything you said couldn't be used in direct evidence against you, but that it could be used if you took the witness stand? Do you remember that?

"A. No."

The prosecutor then asked the witness:

"Q. So if he said--if he said that he said that to you, he either--he would either be lying or he had just been mistaken; is that correct?"

With this question the prosecutor violated a basic rule of evidence that no witness may pass upon the credibility of another witness unless authorized by the Oregon Evidence Code.

The prosecutor continued to engage in the same type of impermissible cross-examination and then proceeded as follows:

"Q. Okay. * * * Now, during this entire conversation that you had with Detective Findling, isn't it a fact that you never once mentioned to them that Barbara Maher attacked you or grabbed you in any way?

"A. I didn't want to discuss it at all until I had a lawyer present.

"Q. So, if you kind of focus in on my question, during the entire hour conversation you had with Detective Findling, or forty minutes, or however long it was, you never once told them that Barbara Maher attacked you or grabbed you in any way; is that right?

"A. That's accurate.

"Q. And during this entire hour, or forty-minute conversation, or however long it was that you had with Detective Findling where you told him about what happened, you never once told him about this mystery man, did you?

"A. No. I was waiting for a lawyer to be present, then I was going to tell him.

"Q. And isn't it also true that you told Detective Findling during this conversation that you felt that you deserved the maximum for what you had done and that you should never be on the streets again?

"A. No, I did not.

"Q. So if he says that you told him that you shouldn't be on the streets and that you deserved the maximum, would he be lying about that?

"A. The only thing I can recall about the street, I said if I had been more streetwise, this wouldn't have--would have never happened.

"Q. Okay. But let me ask this question again. If he says that you told him that at that point you felt you should get the maximum and that you felt in your own mind that you shouldn't be out on the streets, would he be lying about that?

"A. Yes, he would."

Prior to the trial of this case, the trial lawyers of this state were emphatically advised in State v. Middleton, 294 Or. 427, 438, 657 P.2d 1215 (1983), that "[w]e expressly hold that in Oregon a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth." We have since restated that position with emphasis. State v. Milbradt, 305 Or. 621, 629-30, 756 P.2d 620 (1988). We now inform all trial counsel that this type of cross-examination will not be tolerated in any court of this state.

In rebuttal, the state called one of the detectives who interrogated defendant, and the detective testified as follows. At the outset of the interrogation, defendant told them that he did not want to talk to them. They continued to question him, however, for a little more than an hour. During that time, defendant once more said that he did not want to talk to them and twice asked for a lawyer before further questioning. ² He eventually admitted killing Maher and stated that he deserved "the maximum" for doing so. He never mentioned an attack on him by Maher or anyone else.

Article I, section 12, of the Oregon Constitution provides, in part: "No person shall * * * be compelled in any criminal prosecution to testify against himself." In State v. Kell, 303 Or. 89, 94-95, 734 P.2d 334 (1987), we interpreted Article I, section 12, as it pertained to uncounseled out-of-court statements by a criminal defendant. We noted that then a majority of this court had not agreed whether Miranda -type warnings are required under the Oregon Constitution, but unanimously agreed, "Miranda questions aside, once a suspect in custody unequivocally requests to talk to a lawyer, that request must be granted and questioning should cease." This admonition should not have come as any surprise to police officers in this state. In State v. Mendacino, 288 Or. 231, 603 P.2d 1376 (1979), "[d]espite the defendant's repeated statements that he did not want to talk and that he wanted an attorney, the detectives continued the interrogation and elicited a confession from the defendant." 288 Or. at 233, 603 P.2d 1376. A few hours later, the detectives elicited a second confession. The trial judge ruled that the two confessions were inadmissible. The issue before this court was whether a third confession was so tainted by the first two that the third must also be suppressed. We unanimously said:

"The police station confessions were rendered inadmissible not because the required warnings were inadequate, rather, the trial judge found that the detectives persisted in questioning the defendant after he had indicated that he didn't want to talk and wanted a lawyer. Therefore the confessions partake more of actual coercion. * * *

" * * *

"In light of all these circumstances, we are required to hold that the coercive conditions which resulted in the first two inadmissible confessions were not effectively removed. * * * "

288 Or. at 238, 603 P.2d 1376.

Also in 1979, in State v. Haynes, 288 Or. 59, 602 P.2d 272 (1979), we held that the prosecution could not use against a defendant statements obtained from him while in police custody after the police, but not the defendant, knew that a lawyer sought to consult with the defendant at the instigation of the defendant's wife. There we held that the defendant's statements must be suppressed even though the defendant himself had not sought to stop questioning to consult with a lawyer.

We are aware that the admonition from Kell, quoted above, came after the conduct of the police officers in the case at bar, but the admonition was not...