State v. Kell

• Decision Date: 24 March 1987
• Citation: 734 P.2d 334,303 Or. 89
• Parties: STATE of Oregon, Petitioner on review, v. Michael Dale KELL, Respondent on review. CC 10-83-01182/CA A28691/SC S32572.
• Court: Oregon Supreme Court

Page 334

734 P.2d 334

303 Or. 89

STATE of Oregon, Petitioner on review, v. Michael Dale KELL, Respondent on review.

CC 10-83-01182/CA A28691/SC S32572.

Supreme Court of Oregon.

Argued and Submitted Dec. 3, 1986.

Decided March 24, 1987.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for petitioner on review. With him on the petition were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Diane Alessi, Deputy Public Defender, Salem, argued the cause for respondent on review.

Before PETERSON, C.J., and LENT, LINDE, CAMPBELL, CARSON and JONES, JJ.

JONES, Justice.

The state petitions for review from a decision of the Court of Appeals reversing defendant's murder conviction, holding that incriminating statements made by defendant to police while in custody were inadmissible at defendant's trial because the statements were obtained in violation of defendant's rights against self-incrimination under Article I, sections 11 and 12, of the Oregon Constitution ¹ and the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. 77 Or.App. 199, 712 P.2d 827 (1986). We reverse the Court of Appeals and reinstate the judgment of conviction.

This case arises out of the bombing death of Robert Harris. Harris died as the result of a dynamite explosion. The dynamite allegedly was wired to Robert Harris's car by defendant Michael Kell and co-defendant Terry White. Kell and White, along with Barbara Harris, the decedent's wife, were indicted for aggravated murder. Defendant was convicted of aggravated murder. ORS 163.095(2)(c).

Police investigation of the car bombing and death of Robert Harris led to arrest warrants for murder for the three co-defendants. Kell was arrested on the warrant in Santa Barbara, California, and held there for Springfield, Oregon, police. He was questioned by two detectives from the Springfield Police Department at the Santa Barbara jail. The Santa Barbara police recorded the interview.

After a few preliminary comments, the officers read defendant his Miranda rights as set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant acknowledged understanding each of his rights and consented to talk to police. The preliminary discussion concerned defendant's early life, employment, family, residences and the like. The taped interview revealed that the following discussion then occurred:

"POLICE: Would you have been involved in this if you did not know the other people?

"DEFENDANT: I couldn't have; wasn't my idea.

"POLICE: Other people have told us you were the primary instigator.

[FIRST INVOCATION]

"DEFENDANT: That's a raft of bullshit! It was my idea, huh! Well I'm not going to go any further with this until I speak with a lawyer.

[Defendant still talking]

"POLICE: Well let me tell you this though * * *

[Defendant still talking]

"DEFENDANT: No, I mean I'll talk to you about it, but as far as this, my idea, I want to talk to a lawyer because this is a bunch of bullshit!

"POLICE: Do you want to talk to us?

"DEFENDANT: Well, yeah, doesn't matter to me." (Emphasis added.)

At this point the police continued to interview Kell. He went on to make other incriminating statements concerning the theft of the dynamite used; the testing of the dynamite to make sure it was good; the presence of White and Harris at the test; the testing of the wiring in the victim's car to find a "hot" wire; and the actual wiring of the dynamite to the car and his presence at the car when it was wired.

Later in the conversation the Springfield police officers took a break. Upon reconvening the conversation, they again advised defendant of his Miranda rights. Defendant acknowledged that he understood those rights. During that part of the interview, the following conversation took place:

"POLICE: When Mr. Harris was killed, dynamite was placed in his car. Is that correct?

"DEFENDANT: Yes.

"POLICE: Did you put it there?

"DEFENDANT: No.

"POLICE: Did Terry?

"DEFENDANT: You could say yes. I went with him down there, but * * *

"POLICE: Why don't you describe what happened before you went there. Did you go somewhere prior to going down there?

[SECOND INVOCATION]

"DEFENDANT: No. You know, to tell you the truth, I would rather, from what you people have said, from what you're telling me Terry told you, I would rather talk to a lawyer about the whole deal because I think someone is trying to incriminate me.

"POLICE: That is certainly your right if you want to. (Pause) Do you have anything you want to ask us?

"DEFENDANT: Nothing other than the fact that exactly what Terry told you about--that was incriminating to me.

"POLICE: Well basically I told you earlier, Terry said you are the one who set the wire in the car--Harris's car--put the dynamite in there and wired it up.

"DEFENDANT: See, that's what I'm saying, someone is trying to blame everything on me. That's a lot of BS, and I would rather talk to an attorney about it before I say anything about that.

"POLICE: [Concluded the interview]" (Emphasis added.)

At trial defendant sought to prevent the introduction of the tape recordings into evidence. Defendant argued that he had invoked his right to counsel and that the police officers failed to stop the interview until counsel for defendant was provided. After listening to the tapes, aided by a transcript, the trial court ruled:

" * * * I'll admit evidence of statements made by the defendant, notwithstanding his first invocation of his rights to an attorney, for the reason that I've concluded that was an equivocal invocation of his rights and he changed his mind almost immediately and so indicated to the officers."

With regard to the second invocation by defendant of his right to counsel, the trial court ruled that this was an effective invocation of the right.

On appeal, the Court of Appeals stated that defendant asserted violation solely of his right to be free from self-incrimination under Article I, section 12, of the Oregon Constitution and that he made no separate claim under the federal constitution. We respectfully disagree. Defendant at time of trial asserted violation of both state and federal constitutional rights and in his brief to the Court of Appeals incorporated his trial court objection in addition to requesting the appellate court to adopt the rule of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), (set out below) under the Oregon Constitution. We will, therefore, address both the state and federal questions.

The Court of Appeals held that the first invocation by defendant of his right to counsel was not equivocal and therefore the first set of statements was also inadmissible. In a footnote to the opinion, the Court of Appeals held that the police initiated the additional conversation with defendant and, therefore, defendant's clarification of his invocation was not a waiver under Edwards v. Arizona, supra. The Court of Appeals also expressly construed this court's opinion in State v. Sparklin, 296 Or. 85, 672 P.2d 1182 (1983), as requiring Miranda warnings under Article I, section 12, of the Oregon Constitution.

We allowed review to determine if police interrogating a person in custody may properly discuss certain aspects of a crime which the suspect is willing to talk about, even though the suspect wishes to consult a lawyer as to some other specific aspect of the crime. In other words, can there be a partial waiver of the right against self-incrimination?

From a procedural point of view, in deciding whether any state statute or Article I, section 11 or 12, of the Oregon Constitution has been violated, our first step is not to match up interpretation of our state laws and constitution with federal law or the federal constitution on the issue whether this defendant waived his right against self-incrimination by agreeing with the police to speak on certain aspects of a crime but not others. Interpretation of Oregon statutes and the Oregon Constitution is the responsibility of this court. However, we agree with the Court of Appeals' procedural analysis in this case that we must evaluate the issue of waiver in the light both of Oregon's sole responsibility for the meaning of the Oregon Constitution and of the benefits of adhering to rules which are widely followed outside Oregon and which we consider to be satisfactory.

Although no authority outside Oregon can control our decision, there is no value in being different merely for the sake of the difference. That other courts generally follow a particular rule and that it appears to us to work satisfactorily are reasons in favor of following it in Oregon. Further, in this case, defendant states in his response to this court's question concerning waiver that "all that defendant asked in this case was the adoption of the Edwards rule under the Oregon Constitution. Under either constitution, therefore, federal constitutional analysis is applicable." We agree with the Court of Appeals that the federal Edwards waiver rule should be utilized in interpreting similar waiver issues under Oregon law. We followed this approach in State v. Sparklin, supra, where this court refused to require that a suspect be given more detailed warnings than Miranda requires before police questioning. We did so because we did not believe that the alternative warnings were a sufficient improvement to justify a variation from the federal rule "[a]t least as long as the text of the federal Miranda warnings remains the law." 296 Or. at 89, 672 P.2d 1182. A majority of this court has not been able to agree whether Miranda -type warnings are required under the Oregon Constitution. State v. Smith, 301 Or. 681, 725 P.2d 894 (1986). ² We are agreed, however, that, Miranda questions aside, once a suspect in custody unequivocally requests to talk to a lawyer, that request must be granted and questioning should cease.

The question in this case is not whether...