State v. Randant

• Decision Date: 15 June 2006
• Docket Number: (CC 98-052; CA A111296; SC S52289).
• Citation: 341 Or. 64,136 P.3d 1113
• Parties: STATE of OREGON, Respondent on Review, v. Dale Richard RANDANT, Petitioner on Review.
• Court: Oregon Supreme Court

136 P.3d 1113

341 Or. 64

STATE of OREGON, Respondent on Review, v. Dale Richard RANDANT, Petitioner on Review.

(CC 98-052; CA A111296; SC S52289).

Supreme Court of Oregon, En Banc.

Argued and Submitted March 7, 2006.

Decided June 15, 2006.

On review from the Court of Appeals.^*

Peter Gartlan, Chief Defender, argued the cause and filed the briefs for petitioner on review. With him on the briefs was Peter A. Ozanne, Executive Director, Office of Public Defense Services, Salem.

Kaye McDonald, Assistant Attorney General, argued the cause and filed the briefs for respondent on review. With her on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Dale Richard Randant filed briefs in propria persona. With him on the briefs were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services, Salem.

KISTLER, J.

In this criminal case, defendant repeatedly called the police over a five-month period asking to talk to them. He did so after the police had advised him that he had been indicted for aggravated murder and after his lawyer had advised him not to talk to the police. The question that this case poses is what steps the state and federal constitutions required the police to take before they could accept defendant's repeated invitations to talk with him. The trial court held that the officers had respected defendant's constitutional rights, and the Court of Appeals upheld that ruling. State v. Randant, 192 Or.App. 668, 87 P.3d 688, adhered to on recons., 196 Or.App. 601, 103 P.3d 1134 (2004). For the reasons set out below, we affirm the Court of Appeals decision.

Defendant worked for Saffa and Alaa Nasser at their automobile body shop. The Nassers suspected that defendant had been taking money from their business. One day, defendant and Saffa left the business together. Only defendant returned. Eight days later, the police found Saffa's body on Parrett Mountain. He had been shot, and his body had been hidden several feet off the road in some underbrush.

Two days after law enforcement officers from Oregon discovered Saffa's body, police officers in Olympia, Washington, arrested defendant on an unrelated charge. Detective O'Connell went to Olympia to talk to defendant about Saffa's death. After O'Connell advised defendant of his Miranda rights, defendant invoked his right to counsel and O'Connell terminated the interview.

On December 22, 1997, the State of Oregon indicted defendant for multiple counts of aggravated murder arising out of Saffa's death, kidnapping, and being a felon in possession of a firearm. Approximately four months later, on April 21, 1998, defendant called O'Connell from the jail in Olympia where he still was being held. When O'Connell answered the telephone, he acknowledged that defendant had called "several times * * * a couple of Fridays ago," but explained that he had not been able to call defendant back. O'Connell then asked defendant what was on his mind, and defendant said, "I wanna know, uh, if you guys checked anything out any further and uh, when you're gonna talk to me, and uh, when I'll be going there?" O'Connell reminded defendant that he previously had invoked his right to counsel and that O'Connell could not speak with him about Saffa's death. O'Connell noted that "it appears you've changed your mind on that issue," and defendant replied, "I could talk about some things."

Before speaking further with defendant, O'Connell advised him that he had been indicted for aggravated murder.¹ During the remainder of the call, defendant acknowledged that he had been involved in Saffa's death but stated that it was not a murder. He suggested, without disclosing any details, that another person also had been involved. He asked if the police had, checked for fingerprints on the murder weapon and said that he had been "thinking you guys would come up here and we were gonna talk about [the investigation]."

Defendant called O'Connell a second time on June 8, 1998. He wanted to know why O'Connell had not come up to Olympia to talk to him. During that conversation, defendant said that his lawyer² had told him "not to talk to you." As defendant explained, he had directed his lawyer, "[G]o feel 'em out, you know. Tell the prosecutor or whoever * * * [t]hat I want to talk to 'em. [The lawyer] said * * * no, no you don't talk to 'em, this an[d] that." O'Connell replied, "You do, you know, do what you thin[k] best. I, I am doing my best to try and get up there."

Defendant then briefly sketched out for O'Connell what had occurred the day of Saffa's death. He said that he, his girlfriend, and Saffa had driven to Parrett Mountain to look at some property that defendant was thinking about buying. While they were on Parrett Mountain, defendant and Saffa got into a struggle over the business. The girlfriend took a gun out of the van to try to get their attention. When defendant tried to take the gun away from her, it discharged accidentally hitting and killing Saffa.

Defendant explained that he had called O'Connell because he was concerned that his girlfriend was changing her story, either under the influence of Saffa's brother Alaa or to avoid her own responsibility for Saffa's death. Defendant wanted O'Connell to understand the "true facts," asked O'Connell to arrange a polygraph test so that defendant could prove his innocence, and wanted O'Connell to tape record his conversations with his girlfriend to prove that she had been there when Saffa died.

The day after that telephone call, on June 9, 1998, the trial court appointed a lawyer to represent defendant on the charges arising out of Saffa's death. The lawyer wrote a letter to the district attorney stating that he invoked "defendant's constitutional rights, expressly, but not limited to his right to remain silent. I wish to be present during any questioning, or attempted questioning by any law enforcement officials."

On June 25, defendant called O'Connell a third time. He told O'Connell that he had a lawyer and that the lawyer "didn't want me to talk to you." O'Connell replied that, "[W]ell you, you do, you know, what you think, uhm, you should do." O'Connell explained that he was not going to "comment on [defendant's decision] either way." Defendant then returned to his familiar themes of wanting the officers to arrange a polygraph examination for him, his concerns that his girlfriend was now lying to avoid responsibility, and his efforts to persuade O'Connell that he was innocent.

Defendant spoke with the police officers four more times. Two of those discussions are relevant to the claims that he raises on review.³ The police brought defendant to Oregon on June 29.⁴ Later that day, another officer, Boothby, interviewed defendant at defendant's request. Before talking with defendant, Boothby advised him of his Miranda rights. Defendant said that he had told his lawyer to come to the interview but noted that the lawyer had not done so. When Boothby asked if defendant wanted to wait until his lawyer got there, defendant declined. After noting that the trial court had appointed counsel for defendant, Boothby said, "And he's advised you not to talk about the case, correct?" Boothby then added that he understood that defendant had wanted "to talk about some certain issues." As Boothby was trying to clarify that point, defendant interjected that he knew, "I do not have to talk to you. I've been calling you guys for months asking to talk to you." Defendant then proceeded to tell Boothby about the events leading to Saffa's death.

Approximately a month and a half later, on August 11, 1998, O'Connell spoke with defendant in person, again at defendant's request. O'Connell readvised defendant of his Miranda rights, noted that defendant's lawyer had advised defendant not to speak with the police, noted that defendant's lawyer had written to the district attorney invoking defendant's rights, and observed finally that defendant had asked to speak with him. Having considered that information, defendant reaffirmed that he wanted to speak with O'Connell and discussed, in great detail, the events that had resulted in Saffa's death. In the August 11, 1998, interview, defendant both repeated and expanded on the information that he had told O'Connell and Boothby earlier.

Defendant's efforts to convince the officers that he was not responsible for murdering Saffa proved unsuccessful. The state continued to pursue the prosecution, and defendant filed a pretrial motion to suppress the statements that he had made to O'Connell and Boothby. The trial court denied the motion. During trial, the state introduced evidence from six of those discussions.⁵ The jury found defendant guilty of multiple counts of aggravated murder, murder, kidnapping, and being a felon in possession of a firearm. At sentencing, the jury declined to impose the death penalty but found that defendant should serve a life sentence without the possibility of parole. The trial court entered judgment accordingly.

On appeal, the Court of Appeals accepted the state's concession that the trial court had erred in failing to merge some of the convictions and remanded the case for the trial court to enter a corrected sentence. Randant, 192 Or.App. at 669, 87 P.3d 688. The Court of Appeals, however, affirmed the remainder of the trial court's rulings. Id. Defendant has petitioned for review of those rulings. We allowed review to consider only one issue — whether O'Connell and Boothby's interviews with defendant violated his state or federal constitutional right to counsel.⁶ We begin with defendant's state constitutional claims. See Sterling v. Cupp, 290 Or. 611, 614, 625 P.2d 123 (1981) (stating ordinary sequence of analysis).

The right to counsel derives from two separate provisions in the Oregon Constitution — Article I, section 11, and Article I, section 12, of the Oregon Constitution. The right to counsel recognized...