State v. Moller

• Citation: 174 P.3d 1063,217 Or. App. 49
• Decision Date: 19 December 2007
• Docket Number: CF030368.,A130630.
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Shawn Ray MOLLER, Defendant-Appellant.
• Court: Court of Appeals of Oregon

174 P.3d 1063

217 Or. App. 49

STATE of Oregon, Plaintiff-Respondent, v. Shawn Ray MOLLER, Defendant-Appellant.

CF030368.

A130630.

Court of Appeals of Oregon.

Argued and Submitted May 10, 2007.

Decided December 19, 2007.

Jesse Wm. Barton, Salem, argued the cause and filed the brief for appellant.

Janet A. Metcalf, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before LANDAU, Presiding Judge, and SCHUMAN and ORTEGA,^* Judges.

LANDAU, P.J.

Defendant appeals a judgment of conviction for possession of a precursor substance with intent to manufacture methamphetamine, ORS 475.967, conspiracy to manufacture a controlled substance, ORS 161.450, and second-degree criminal trespass, ORS 164.245. He assigns error to the admission of testimony that he had exercised his constitutional right to refuse to consent to a search of his car, to the admission of a laboratory report concerning the nature of the substances found in the car, to the lawfulness of the trial court's jury instructions, and to the lawfulness of the sentence that he received. We conclude that defendant is correct that the trial court erred in admitting the testimony that he had refused to consent to the search of his car. Because that assignment is dispositive, we do not reach his other assignments of error.

The relevant facts are not in dispute. Trooper Zeckman observed a car driving late at night up the driveway of a parcel of rural private property at which tanks of anhydrous ammonia were located. Zeckman was concerned because she had encountered people attempting to steal ammonia from the tanks in the past. Zeckman called for back-up and, when back-up arrived, she approached the car. At that point, Zeckman observed defendant in the driver's seat and two other individuals standing next to the ammonia tanks. Zeckman ordered all three individuals to the ground and asked for identification. Defendant responded that his identification was on his car visor and that Zeckman could retrieve it.

Zeckman went to the car to retrieve defendant's identification. When she reached the car, she asked defendant where the trunk release was located. Defendant replied, "Ma'am, I am not giving you permission to search my vehicle." Zeckman then searched the area under the car and areas that she considered in plain view. She then opened the trunk of the car and found a container of toluene, which she knew was used in the manufacture of methamphetamine, along with two suitcases bearing defendant's address and containing 69 boxes of cold pills.

At trial, defendant denied any knowledge of the contents of the trunk or of any agreement to manufacture methamphetamine. He insisted that, although his two passengers may have been involved in the production of methamphetamine, he was not. In his defense, he offered, among other things, the testimony of one of the two passengers in the car at the time of the arrest that the passenger had packed the suitcases and that defendant had no knowledge of their contents. In response, the state offered the testimony of Zeckman that defendant had refused to consent to the search of his car. Defendant objected on the ground that it is impermissible to comment on the exercise of his constitutional rights to withhold his consent to search his vehicle. The trial court overruled the objection and allowed the testimony. In closing argument, the prosecutor argued to the jury that defendant's refusal to consent was "suspicious" and that he apparently "didn't want Trooper Zeckman looking in that trunk where everything else was found." The jury convicted defendant by a 10-2 vote.

On appeal, defendant renews his objection to the admissibility of the trooper's testimony concerning his refusal to grant consent to search his car. According to defendant, the testimony violated his right against self-incrimination guaranteed by Article I, section 12, of the Oregon Constitution. The state concedes that, ordinarily, it is reversible error to allow into evidence precisely the sort of testimony that it offered through Zeckman in this case. The state nevertheless insists that there was no reversible error in this case because defendant "opened the door" to that evidence by claiming that he knew nothing of the contents of his car. "Given defendant's theory of the case," the state argues, "he opened the door to evidence that would counter his theory of the case and that would tend to prove that he knew what was in the trunk of the car."

It is a well-established rule in Oregon that a person's refusal to consent to something he or she is not legally required to do is not admissible under Article I, section 12, of the Oregon Constitution, as it implicates the constitutional right to remain silent. State v. Hayes, 135 Or.App. 506, 511, 899 P.2d 1198 (1995); State v. Green, 68 Or.App. 518, 525-26 684 P.2d 575 (1984). As the Supreme Court explained in State v. Larson, 325 Or. 15, 22-23, 933 P.2d 958 (1997),

"the Oregon Constitution grants a criminal defendant the right to remain silent. In State v. Wederski, 230 Or. 57, 62, 368 P.2d 393 (1962), this court held that the Oregon Constitution does not permit a prosecutor to draw the jury's attention to a defendant's exercise of the right to remain silent. The United States Supreme Court also has held that the federal constitution prohibits a prosecutor from pointing out that a defendant has exercised his or her right to remain silent. See Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) (so holding). A defendant's right to remain silent is meaningless if the state may refer to the defendant's silence with impunity."

In fact, the Supreme Court has stated that "it is usually reversible error to admit evidence of the exercise by a defendant of the rights which the constitution gives him if it is done in a context whereupon inferences prejudicial to the defendant are likely to be drawn by the jury." State v. Smallwood, 277 Or. 503, 505-06, 561 P.2d 600, cert. den., 434 U.S. 849, 98 S.Ct. 160, 54 L.Ed.2d 118 (1977).

In this case, defendant exercised his constitutional right to refuse consent to a warrantless search of his car. And, the admission of evidence of that refusal invited inferences prejudicial to his defense. It would seem necessarily to follow that the trial court erred in admitting the evidence of defendant...