State v. James

• Decision Date: 14 November 2005
• Docket Number: (CC 00433302; SC S51472).
• Citation: 339 Or. 476,123 P.3d 251
• Parties: STATE of Oregon, Appellant-Cross-Respondent, v. Morrice Abdul JAMES, Respondent-Cross-Appellant.
• Court: Oregon Supreme Court

Page 251

123 P.3d 251

339 Or. 476

STATE of Oregon, Appellant-Cross-Respondent, v. Morrice Abdul JAMES, Respondent-Cross-Appellant.

(CC 00433302; SC S51472).

Supreme Court of Oregon, En Banc.

Argued and Submitted December 14, 2004.

Decided November 14, 2005.

COPYRIGHT MATERIAL OMITTED

Janet A. Klapstein, Assistant Attorney General, Salem, argued the case and filed the brief for appellant-cross-respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Kathleen M. Correll, Portland, argued the case and filed the brief for respondent-cross-appellant.

DURHAM, J.

In this aggravated murder and robbery case, the state appeals from a pretrial order suppressing evidence of statements that defendant made to police detectives during a custodial interrogation. The question presented is whether the trial court erred in requiring the state to demonstrate that the police obtained defendant's statements in compliance with his right to counsel under Article I, section 11, of the Oregon Constitution, such as by first obtaining defendant's valid waiver of that right before eliciting the challenged statements.¹ For the reasons that follow, we hold that the trial court did not err and affirm its order suppressing evidence.

In February 2000, an assailant shot Portland taxicab driver Johnson (victim) to death in his taxicab and stole money from the vehicle. The police suspected defendant and contacted him, because a videotape from a security camera depicted him leaving an apartment building around the same time that a man had used a nearby telephone booth to summon victim's taxicab just before the killing.

Defendant agreed to speak with police about the homicide. At an interview on April 10, 2000, defendant explained to detectives Weatheroy and Kanzler that he had visited a friend at an apartment complex near the scene of the crime, but had not used the telephone booth or called a taxicab. Defendant stated that he had used his friend's telephone to call his girlfriend for a ride home. The detectives asked defendant if he would take a polygraph test. Defendant said that he would, and asked, "[C]an I bring an attorney with me?" The detectives told him that he could do so.

The next day, April 11, 2000, defendant quarreled with a different girlfriend. She called the police and the police arrested defendant. Because the girlfriend disclosed to police that defendant had told her that he had shot a taxicab driver, detectives Weatheroy and Kanzler interviewed defendant a second time. At the beginning of that interview, the detectives advised defendant of his Miranda rights, after which defendant signed a form on which he acknowledged that he had read the constitutional rights listed thereon and understood them.

The parties disagree as to what transpired during the remainder of that approximately hour-long interview. Defendant contends that, after signing the form, he requested the assistance of a lawyer more than once, but the detectives ignored his requests, telling him that a lawyer could not help him. According to defendant, detective Weatheroy warned that, if defendant claimed that he was innocent, he would get the electric chair, because no one would believe the word of a "black * * * gang member." Also, according to defendant, detective Weatheroy suggested that defendant should make a taped apology stating that the shooting had occurred accidentally during a scuffle after defendant attempted to leave the taxicab without paying. Defendant claimed that the detectives said that, if defendant did so, they could guarantee that defendant would get seven to eight years in jail on a charge of manslaughter, rather than the death penalty. Defendant testified that the detectives had used other coercive tactics and that, ultimately, he had agreed to tape a false confession because he was scared and confused.

In contrast, the state asserts that defendant voluntarily confessed to the shooting and ensuing robbery after detective Weatheroy informed him that telephone records contradicted his story. The state maintains that defendant did not mention a lawyer until detective Kanzler produced a tape recorder in order to record his formal confession. According to the detectives, it was only at that point that defendant asked, "Do I need an attorney before this?" They testified that detective Weatheroy explained that he could not advise defendant on that point, but that, if defendant wanted a lawyer, the detectives would stop the interview. Detective Kanzler stated that defendant then responded, "I want a tape. Turn it on."

A grand jury indicted defendant on three counts of aggravated murder and one count each of robbery in the first degree, felon in possession of a firearm, and tampering with physical evidence. Defendant filed a pretrial motion to suppress evidence of his purported statements during and attendant to his April 10 and 11, 2000, police interviews. The parties offered evidence and presented arguments on the motion. The trial court orally announced its ruling, which allowed in part and denied in part defendant's motion. In particular, the trial court suppressed defendant's statements from the April 11 interrogation because, on the question of whether defendant invoked his right to counsel, the court found parts of both versions of the facts convincing. Subsequently, the state asked the trial court to clarify and reconsider the factual basis of its oral rulings. The state argued that the legal obligations of detectives Weatheroy and Kanzler turned on whether defendant had requested a lawyer and whether he had done so equivocally or unequivocally.² The trial court reconsidered its oral rulings and issued a written opinion and order that again allowed in part and denied in part defendant's motion to suppress. The trial court reiterated its finding that there was a direct conflict in the credible testimony given by defendant and the detectives on the issue whether defendant had invoked his right to have a lawyer present at the April 11 interrogation. The trial court stated that, "[t]he evidence [is] in equipoise on this point." The trial court concluded,

"When the testimony is in equipoise on a point as to which the state bears the burden of proof, the court has to rule that the state has not carried its burden."

Accordingly, the trial court suppressed all statements that defendant made during the April 11 interview, including the audiotaped portion after the point at which defendant testified that he first expressed a desire for a lawyer.

The state appealed the trial court's order to this court under ORS 138.060(2)(a), which authorizes the state to take an expedited appeal directly to this court of a pretrial order suppressing evidence in a murder or aggravated murder case.³ Defendant filed a cross-appeal under ORS 138.040,⁴ challenging the trial court's decision to deny suppression of other incriminating statements.

We begin with the state's appeal. The parties agree that the April 11, 2000, interview was a custodial interrogation. This court reviews a challenge to the admissibility of a defendant's statements during custodial interrogation as an issue of law. State v. Stevens, 311 Or. 119, 135, 806 P.2d 92 (1991). "[W]e review legal conclusions regarding the invocation of the right to counsel for legal error." State v. Terry, 333 Or. 163, 172, 37 P.3d 157 (2001). The question of what transpired during a custodial interrogation, however, is an issue of fact for the trial court and the facts found may be — indeed, usually are — dispositive of the legal inquiry. We are bound by the trial court's findings of historical fact if evidence in the record supports them, although we assess anew whether the facts suffice to meet constitutional standards. Stevens, 311 Or. at 135, 806 P.2d 92; Ball v. Gladden, 250 Or. 485, 487-88, 443 P.2d 621 (1968). As we shall explain, that deference extends to the trial court's factual determination that the evidence that each party offered in regard to a particular disputed fact is equally convincing.⁵

As a threshold matter, we address the trial court's asserted inability to come down decisively on one side or the other on the central question of whether defendant invoked his right to counsel. As noted, the state asserts that a finding that the evidence on that issue is in "equipoise" was a "non-finding" that is not binding on this court and that this court therefore should remand for further factual findings. For the following reasons, we disagree.

There is a difference between a trial court's failure or refusal to make a finding of fact on a pertinent factual issue and a trial court's determination that the conflicting evidence in the record on a factual issue is in equipoise. The latter determination means that, in the trial court's view, the record contains some evidence that supports the factual claim of the party charged with the burden of persuasion, but also contains evidence that supports a different factual inference. As a result, the trial court cannot find as true the fact that the party with the burden of persuasion asserts. A statement by a trial court that disputed evidence is in equipoise is an observation about what the record evidence proves or does not prove and, consistent with familiar rules of appellate review, it is binding on an appeal of the trial court's judgment. As this court decided in State v. Johnson, 335 Or. 511, 523, 73 P.3d 282 (2003), this court is bound by a trial court's determination that a party's evidence is not sufficiently persuasive:

"[W]e are bound by a trial court's `finding' that a party's evidence is not sufficiently persuasive * * * because [that rule] incorporates the same judicial respect for the trial court's weighing of the evidence [as do the familiar rules set out in Ball, 250 Or. at 487, 443 P.2d 621 and State v. Miller, 300 Or. 203, 227, 709 P.2d 225 (1985), cert. den., 475 U.S. 1141, ...