State v. Reed

• Decision Date: 09 October 2019
• Docket Number: A161030 (Control), A161031
• Citation: 452 P.3d 995,299 Or.App. 675
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Herman Kenneth REED, Defendant-Appellant.
• Court: Oregon Court of Appeals

299 Or.App. 675
452 P.3d 995

STATE of Oregon, Plaintiff-Respondent,
v.
Herman Kenneth REED, Defendant-Appellant.

A161030 (Control), A161031

Court of Appeals of Oregon.

Argued and submitted January 9, 2018.
October 9, 2019

David L. Sherbo-Huggins, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

HADLOCK, P. J.

452 P.3d 997

299 Or.App. 677

Defendant was convicted, following a bench trial, of sex crimes committed against two young girls. He raises four assignments of error on appeal. In his first assignment of error, defendant challenges the trial court’s denial of his motion to suppress two categories of statements that he made while in police custody: (1) statements that he made at a police station, before he unequivocally invoked his constitutional right to counsel, and (2) statements that he made later, after his unequivocal invocation. As explained below, we reject defendant’s argument that the trial court erred in denying the motion to suppress statements he made before his unequivocal invocation. With respect to defendant’s later statements, made after his invocation, we conclude that we need not decide whether those statements should have been suppressed because any error associated with admitting them at trial was harmless. We reject defendant’s second, third, and fourth assignments of error, in which he challenges the admission of "other acts" evidence, without discussion. Accordingly, we affirm.

I. BACKGROUND AND PROCEDURAL FACTS

We review the trial court’s ruling on the motion to suppress for legal error. State v. Jones , 296 Or. App. 553, 555, 439 P.3d 485, rev. den. , 365 Or. 557 (2019). As noted, we resolve defendant’s challenge to one aspect of that ruling (relating to defendant’s pre-invocation statements) on the merits. Thus, in analyzing that aspect of the ruling, "we are bound by the trial court’s findings of historical fact so long as evidence in the record supports them." State v. Dodge , 297 Or. App. 30, 33, 441 P.3d 599, rev. den. , 365 Or. 533 (2019). We therefore set out the evidence pertinent to that aspect of the suppression motion "in the light favoring the court’s ruling." Jones , 296 Or. App. at 556, 439 P.3d 485. However, we resolve defendant’s challenge to a second aspect of the trial court’s denial of his suppression motion (relating to defendant’s post-invocation statements) on harmless-error grounds. "A harmless error analysis is based on reviewing all pertinent portions of the record to determine if there is little likelihood that any error affected the verdict." Id . (internal quotation marks and brackets omitted). We describe the evidence pertinent to the

299 Or.App. 678

ruling on defendant’s post-invocation statements in accordance with that standard.

In 2014, a young girl, N, reported to her family members and others that defendant had touched her private parts. Later the same year, another young girl, S, made similar reports. Both girls eventually were evaluated at CARES, and each disclosed that defendant had sexually abused her.

After N’s disclosures were reported, defendant was taken to a police station and interviewed by Detective Pontius, who read defendant Miranda warnings, obtained defendant’s acknowledgement that he understood those rights, and asked whether defendant had any questions. Defendant responded, "Well, I don’t know. Do I need a lawyer?" Pontius told defendant that that was up to him and that Pontius could not make the decision for him or give him legal advice. Defendant said something like, "We can go and you can let me know what’s going on."¹ Defendant

452 P.3d 998

made arguably incriminating statements. Later in the interrogation, defendant said, "Well, I guess I’m going to need to lawyer up, then," and questioning stopped.

Pontius told defendant that he was being arrested and charged with rape. Pontius worked on paperwork for about half an hour, then drove defendant from the police station to the jail, which took about 15 minutes. During that drive, Pontius noticed that defendant’s behavior had changed. Defendant had appeared to take the interview fairly seriously but, during the drive to jail, was "very nonchalant, almost lackadaisical about his approach." Defendant was "kind of singing at some points" and "making fun of" some people standing nearby. About halfway through the drive, Pontius said, "Dude, here’s some friendly advice. You need to get your shit together." After a pause, defendant said, "I know. This has been a family curse that needs to be broken at the end of a rope. It’s an addiction that I can’t seem to get any control

299 Or.App. 679

over."² Pontius later testified, at the suppression hearing, that he had made the "get your shit together" comment in association with defendant’s demeanor during the car ride.

Defendant was charged in case number 14-CR-21187 with one count each of first-degree rape, first-degree unlawful sexual penetration, and first-degree sexual abuse, each alleged to have been committed against N. In case number 15-CR-11789, defendant was charged with one count of first-degree sexual abuse, committed against S.

Defendant moved to suppress two sets of statements he made to Pontius: (1) those he made at the police station, after he asked Pontius whether he needed an attorney but before he unequivocally invoked his right to counsel, and (2) those he made during the drive to jail, after Pontius remarked that defendant "need[ed] to get his shit together."³ Defendant argued that the first set of statements should be suppressed because he had equivocally invoked his right to counsel by asking Pontius whether he needed an attorney, and Pontius had neither ceased the interrogation nor asked questions to clarify whether defendant was invoking his right to counsel. Defendant argued that the second set of statements should be suppressed because, after he ultimately unequivocally invoked his right to counsel at the police station and interrogation stopped, Pontius impermissibly reinitiated interrogation during the drive to jail when he "made statements to [defendant] that were absolutely calculated to provoke an incriminating response." The trial court denied both aspects of defendant’s suppression motion, although it was "a little more troubled" by Pontius’s comment to defendant during the drive to jail, which the court viewed as "an invitation to talk about the case" that was "provoking further discussion" on that topic.

Defendant waived his right to a jury, and the case was tried to the court. We briefly summarize the most

299 Or.App. 680

pertinent evidence to provide context for the discussion that follows. N’s mother testified that, in 2013 and 2014, she and N had regularly spent nights at defendant’s home. N’s mother testified that defendant was a father figure to N and that he often took care of her, particularly while N’s mother was at work. At some point in 2014, N’s mother and other individuals started to notice times when N was rubbing her vaginal area. Eventually, after being asked a few times about that behavior and whether anybody had ever touched her, N said that defendant had. N’s mother also testified about two times that N went to CARES for evaluation. After N’s disclosures, N’s mother stopped spending nights at defendant’s home.

452 P.3d 999

Two friends of N’s mother also testified as to statements that N made about defendant having touched her. Once, when one of those friends was giving N a bath and asked N to stand up to be washed, N said, "Just please don’t go inside me." The friend asked who had done that to N, and the child responded that defendant had. The other friend testified that N had said that defendant "had put his pee-pee" and then pointed to her genital area. The friend asked if it had happened more than once and N said yes.

S’s mother also was friends with defendant; she and S spent a lot of time with him. S’s mother occasionally allowed S to spend the night at defendant’s house, where S sometimes played with N. A few weeks after N’s mother stopped staying at defendant’s house, S’s mother left S there one evening. The next day, S told her mother that defendant had "put pee-pee medicine on her privates." S’s mother called defendant, who gave "a bunch of excuses of what she may have thought the pee-pee medicine was." At that point, S’s mother called N’s mother because she wanted to know why N was not at defendant’s house any more. S’s mother testified that N’s mother said that N "was saying the same thing"; N’s mother testified that she told S’s mother "that she needed to listen to her daughter."

A counselor who works at CARES as a child interviewer testified...