State v. Roberts

JurisdictionOregon
Parties STATE of Oregon, Plaintiff-Respondent, v. Wayne Douglas ROBERTS, Defendant-Appellant.
Citation418 P.3d 41,291 Or.App. 124
Docket NumberA159647
CourtOregon Court of Appeals
Decision Date04 April 2018

Anne Fujita Munsey, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

David B. Thompson, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Garrett, Presiding Judge, and Lagesen, Judge, and Edmonds, Senior Judge.

GARRETT, P.J.

Defendant appeals a judgment of conviction for assault in the first degree, ORS 163.185. On appeal, defendant raises four assignments of error. We reject the third and fourth assignments without discussion. In his first assignment of error, defendant argues that the trial court erred in denying his motion to suppress incriminating statements made during a police interview after, according to defendant, he invoked his constitutional right to counsel. In his second assignment of error, defendant argues that the trial court should have granted his motion in limine to exclude evidence that he used a racial epithet to describe a black person. For the reasons explained below, we reject defendant's first assignment of error because we conclude that he never invoked his right to counsel. With respect to his second assignment, we conclude that the trial court erred, that the error was not harmless, and that a new trial is necessary. Accordingly, we reverse and remand for a new trial.

Police officers arrested defendant as a potential suspect in a stabbing at a Portland MAX Station. Detectives Hogan and Crate interviewed defendant at the police station early in the morning. Defendant was asleep when they entered the room. After brief introductions, Hogan read defendant his Miranda rights, and then asked if defendant had any questions about them. Defendant responded that he was intoxicated, homeless, and did not know what time it was, where he was, or how he had gotten there. Hogan told defendant the time and explained where he was, and began re-reading his Miranda rights. The following exchange ensued:

"DETECTIVE HOGAN: Okay. You have the right to talk to a lawyer and have him present when you're being questioned. If you want to have a lawyer, you can have a lawyer present, okay?
"[DEFENDANT]: Do I need one?
"DETECTIVE HOGAN: I can't make that decision for you.
"DETECTIVE CRATE: We're just going to be talking to you about stuff that happened tonight, okay, but we need to make sure you understand your rights first before going through them. So once you understand those, we'll explain everything that's going on, okay?
"[DEFENDANT]: Okay.
"DETECTIVE HOGAN: If you cannot afford to hire a lawyer, one will be appointed to represent you at no expense."

(Emphasis added.) Neither defendant nor the detectives further discussed defendant's right to an attorney. A few moments later, the detectives told defendant that they were investigating a fight at a MAX Station, and asked:

"DETECTIVE CRATE: Mr. Roberts, you know that Tri-Met and everything has excellent video on its platforms, right?
"[DEFENDANT]: I have no idea about that, but I was on that platform and this dude punched me in the face, so I punched him and I walked away.
"DETECTIVE HOGAN: Okay.
"[DEFENDANT]: They was probably doing some nigger shit1there . This dude hit me."

(Emphases added.) The detectives later asked about what defendant meant when he said either "nigger shit" or "nigger chick," and learned that defendant was referring to a black woman who witnessed the fight at the MAX Station. The police never discovered her identity, and she had no further significance in the case. After that exchange, defendant made several incriminating statements.

Defendant moved to suppress all statements from the interview, arguing that the police failed to obtain a valid Miranda waiver of his right to remain silent. Defendant's written motion did not make any argument concerning the right to counsel. During arguments on the motion, the court watched a video of the interview and asked the state if defendant's question "Do I need one?" was at least an equivocal invocation of the right to counsel. An extended discussion followed, primarily between the court and state, about what constitutes an equivocal invocation. Both parties cited case law. As the state points out on appeal, however, defendant's counsel never argued that the question "Do I need one?" constituted an equivocal invocation, and never asserted that the trial court did or would err by ruling otherwise. The trial court ultimately determined that defendant had made no invocation, and, even if he had made an equivocal invocation, the police properly clarified his intent before proceeding.

Next, defendant moved in limine to exclude all references in the police interview to the racial epithet, asserting that his use of the word had nothing to do with the case and would cause him unfair prejudice. The court denied the motion, stating:

"THE COURT: The bottom line is, you know, if we start sanitizing everybody's statements—
"[DEFENSE COUNSEL]: Well, it's just the one.
"THE COURT: —where does that end, you know. So, no, I'm not going to ask the State or anybody else to clean up poor word choices that either he or the officers made. You know, it's a path that would lead to nothing but disaster. So, denied."

At trial, defendant relied on a self-defense theory. The state played a portion of the police interview video in which defendant used the racial slur once and the detectives quoted it twice more to clarify what defendant was talking about. The state used the interview video to attack defendant's credibility by highlighting inconsistencies between his interview statements and other contrary evidence. The state also presented one eyewitness of the fight and played a video of Tri-Met security camera footage depicting the stabbing itself; both parties argued extensively over whether the witness testimony and footage proved or disproved defendant's self-defense theory. The jury found defendant guilty by a 10-2 verdict.

On appeal, defendant first argues that the trial court should have granted his motion to suppress on the ground that his question near the beginning of the police interview—"Do I need one?"—was an equivocal invocation of his right to counsel, which the police failed to adequately clarify.2 The state responds that defendant's argument is not preserved, and, in all events, fails on the merits because defendant's question did not constitute an invocation of any rights.

Second, defendant contends that the trial court erred in denying his motion in limine under OEC 403 to exclude evidence of defendant's use of the racial epithet, arguing that the evidence was highly prejudicial and devoid of probative value. The state responds that any error in admitting the evidence was harmless, but that, if it was not harmless, then a limited remand is appropriate under State v. Baughman , 361 Or. 386, 393 P.3d 1132 (2017).3

We begin with the invocation issue. We review for legal error whether defendant's question was an invocation of his right to counsel under Article I, section 12, of the Oregon Constitution, and defer to the trial court's findings of facts if they are supported by the evidence in the record. State v. Sanelle , 287 Or. App. 611, 613, 404 P.3d 992 (2017), rev. den. , 362 Or. 482, 412 P.3d 199 (2018). We limit our analysis to the record developed at the motion hearing. State v. Pitt , 352 Or. 566, 575, 293 P.3d 1002 (2012).

At the outset, we consider the state's argument that defendant failed to preserve this issue. The state's position, as we understand it, is a narrow one. Conceding that the trial court raised the equivocal invocation issue sua sponte , and further conceding that the issue was extensively discussed, briefed, and ruled on, the state points to the fact that defendant never took an explicit position on that issue below, but focused instead on the distinct issue of the right to remain silent. Put more succinctly, the state argues that defendant never put the trial court on notice that defendant believed that it would be error for the court to rule the way that it did, and that defendant may not make that argument for the first time on appeal.

The purposes of the preservation requirement are to (1) apprise the trial court of a party's position such that it can consider and rule on it, (2) ensure fairness to the opposing party by avoiding surprise and allowing that party to address all issues raised, and (3) foster full development of the record. Peeples v. Lampert , 345 Or. 209, 219-20, 191 P.3d 637 (2008) (adding that the "touchstone" of the pragmatic basis for preservation is procedural fairness to the parties and the court).

The record reflects that the invocation issue was extensively discussed, although defendant did little to advance that discussion. As we understand the state's argument, the state does not dispute that the trial court had the opportunity to—and did—"consider and rule" on the invocation issue; nor does the state contend that the state did not have an adequate opportunity to argue the issue or that the record would have developed differently if defendant had been a more active participant in the dialogue.

The state's argument is limited to the fact that defendant did not expressly assert "error" by the trial court. In our view, that argument is foreclosed by our cases that have deemed issues preserved, despite a party's own failure to raise them in the trial court, in circumstances where the issues were nonetheless raised and argued and the purposes of the preservation requirement appear to have been served. For example, in State v. Smith , 252 Or. App. 707, 712, 288 P.3d 974 (2012), rev. den. , 353 Or. 429, 299 P.3d 890 (2013), we held that ...

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19 cases
  • State v. Tellez-Suarez
    • United States
    • Oregon Court of Appeals
    • June 23, 2021
    ...has occurred, and occurred unequivocally, when "the suspect expresses a clear intent to invoke his or her rights." State v. Roberts , 291 Or. App. 124, 132, 418 P.3d 41 (2018). In contrast, an invocation has occurred, but equivocally so, when "the suspect's statement or request is subject t......
  • State v. Brandes
    • United States
    • Oregon Court of Appeals
    • February 24, 2022
    ...the consent was given by an act of free will or was the result of coercion, express or implied."); seealso State v. Roberts , 291 Or. App. 124, 131-32, 418 P.3d 41 (2018) ("We review whether defendant invoked his [Article I, section 12, right to an attorney] by considering his statement in ......
  • State v. Castillo
    • United States
    • Oregon Court of Appeals
    • November 28, 2018
    ...to more than one reasonable interpretation, one of which is that he or she is invoking the right [at issue]." State v. Roberts , 291 Or. App. 124, 132, 418 P.3d 41 (2018). At the same time, "a suspect’s own actions may, in a given case, eliminate any need for clarification by the officers."......
  • State v. Garcia
    • United States
    • Oregon Court of Appeals
    • October 10, 2018
    ...circumstances, we conclude that that assertion was sufficient to raise a challenge under OEC 403. See, e.g. , State v. Roberts , 291 Or. App. 124, 129 n. 3, 418 P.3d 41 (2018) (holding that the defendant had adequately preserved OEC 403 objection even though his argument to trial court prim......
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2 books & journal articles
  • § 39.2 Preserving Issues in Specific Settings
    • United States
    • Oregon Civil Pleading and Litigation (OSBar) Chapter 39 Appellate Considerations for Trial Counsel
    • Invalid date
    ...Arguments discussed at a pretrial hearing and ruled on by the court are preserved for appeal. State v. Roberts, 291 Or App 124, 130-31, 418 P3d 41 (2018); State v. Engweiler, 118 Or App 132, 846 P2d 1163 (1993). § 39.2-1(f) Jury Trial and Selection As a general rule, "[t]he trial of all iss......
  • § 17.5 Scope of Rights
    • United States
    • Criminal Law in Oregon (OSBar) Chapter 17 Right to Counsel
    • Invalid date
    ...at and preceding the time the statement was made. Avila-Nava, 257 Or App at 372. More recently, in State v. Roberts, 291 Or App 124, 133, 418 P3d 41 (2018), the Oregon Court of Appeals held that the defendant's question, "Do I need one?" was not an equivocal invocation of the right to couns......

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