State v. Sanelle

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Paul Joseph SANELLE, Defendant-Appellant.
• Citation: 404 P.3d 992,287 Or.App. 611
• Docket Number: A156503.
• Court: Oregon Court of Appeals
• Decision Date: 07 September 2017

287 Or.App. 611

404 P.3d 992

STATE of Oregon, Plaintiff-Respondent,

v.Paul Joseph SANELLE, Defendant-Appellant.

A156503.

Court of Appeals of Oregon.

Argued and submitted February 23, 2016.

September 7, 2017

Kristin A. Carveth, Deputy Public Defender, argued the cause for appellant. With her on the opening brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. With her on the reply brief was Ernest Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

ORTEGA, P. J.

Defendant appeals his judgment of conviction for murder constituting domestic violence, ORS 163.115. At issue in this appeal is whether defendant equivocally invoked his right to counsel under Article I, section 12, of the Oregon Constitution during a custodial interview and, if he did, whether the interviewing officers clarified whether defendant meant to invoke his right to counsel. The trial court ruled that statements that defendant made in the interview were admissible upon determining that defendant did not invoke his right to counsel when, immediately after officers read defendant his Miranda rights and asked him if he understood them, he responded by asking "Where's the lawyer?" Defendant assigns error to that ruling. For the reasons explained below, we conclude that defendant, contrary to the state's position, preserved his appellate argument and, at the very least, that defendant equivocally invoked his right to counsel. We also conclude that the interviewing officers failed to clarify the intent of defendant's statement, thereby rendering his subsequent statements to police inadmissible. Further, admission of the statements was not harmless. Consequently, we reverse and remand, and need not reach defendant's remaining assignments of error.

We review for legal error whether defendant's statement was an equivocal invocation of his right to counsel. State v. Nichols , 361 Or. 101, 106, 390 P.3d 1001 (2017). We limit our discussion of the circumstances of defendant's statement and the interview to the record developed at the pretrial hearing, State v. Pitt , 352 Or. 566, 575, 293 P.3d 1002 (2012),¹ and are bound by the trial court's findings of what transpired during the custodial interrogation that are supported by evidence in the record, State v. Avila-Nava , 356 Or. 600, 609, 341 P.3d 714 (2014). Consistent with that standard, we set out the facts below.

Before trial, the state moved to schedule a pretrial hearing on whether statements defendant made during a May 12, 2012, custodial interview in which defendant asked "Where's the lawyer?"—as well as other statements made to officers by defendant on the night of the victim's death and at other times before the May 12 custodial interview—were in violation of defendant's right to assistance of counsel during a custodial interview. The pretrial hearing concerning the admissibility of the May 12 statements occurred during a lengthy "omnibus" hearing, which was intended to resolve several legal and procedural issues.

Detectives Anderson and Rau were the officers who interviewed defendant on May 12 and were the last officers to testify during the Miranda portion of the omnibus hearing. As to the May 12 interview, which occurred on a Saturday, Rau testified that defendant had been arrested the day before and was in police custody and, knowing that defendant would be arraigned on Monday, the detectives wanted to ask defendant a "handful" of questions. It was Rau's experience that, "after people are arraigned," there is not "anymore room for interviews." The detectives recorded the interview. Rau first read defendant his Miranda rights. Rau then asked defendant if he understood each of the rights that had been explained to him. Defendant responded, "Where's the lawyer?" Rau asked defendant, "Have you got a lawyer? Have you hired a lawyer?" Defendant answered "No" and said that he could not afford one. Rau told defendant, "You'll be appointed an attorney if you can't afford one," and indicated that the appointment would occur at his arraignment on Monday. Anderson followed up by asking defendant, "Do you understand your rights?" and inquiring whether defendant was willing to speak with the detectives. Defendant answered, "Yes, absolutely."

In particular relevance to our discussion of preservation below, the following exchange occurred during defense counsel's cross-examination of Rau:

"[DEFENSE COUNSEL]: When [defendant] said, ‘All right, where's the lawyer,’ you had a decision to make how to respond to that, right?

"[RAU]: Yes.

"[DEFENSE COUNSEL]: And you asked him, ‘Did you call one already?’

"[RAU]: Correct.

"[DEFENSE COUNSEL]: Did you let him know he was going to be afforded an attorney, that is appointed an attorney on Monday when he was arraigned?

"[RAU]: Yes.

"[DEFENSE COUNSEL]: You specifically said that?

"[RAU]: Yes. Words to that effect. I think that's what I specifically said.

"[DEFENSE COUNSEL]: Did you ask him if he wished to delay the interview until he was appointed an attorney?

"[RAU]: No.

"[DEFENSE COUNSEL]: Did you tell him he could delay the interview until he was appointed an attorney?

"[RAU]: No.

"[DEFENSE COUNSEL]: When he said, yes, he understood his rights, did you clarify with him what he understood?

"[RAU]: No. I think * * * Anderson at that point thanked him for being willing to speak with us.

"[DEFENSE COUNSEL]: So, you interpreted or Detective Anderson—well, you interpreted his understanding of the rights as a willingness to speak?

"[RAU]: He said he understood his rights and we started to converse after that. Had he said he didn't want to or I don't want to do it now, then we would have stopped, but that's not what happened."

Defense counsel concluded his cross-examination, and the state declined the opportunity to conduct a redirect examination of Rau. Thus, evidence came to a close for the Miranda portion of the hearing, and the court called for a 10-minute break.

Upon returning, the court engaged in the following colloquy with the parties:

"THE COURT: * * * The State has presented its evidence on the motion to admit the statements of defendant. Defendant does not want to present any evidence.

And so with that introduction, [prosecutor]?

"[PROSECUTOR]: Well, judge, in the interest of saving time and with the court's permission, I would waive any opening argument and confine my comments to simply responding to defense counsel.

"THE COURT: Okay.

"[DEFENSE COUNSEL]: Your Honor, at this time we're not offering any arguments based on the testimony that we've heard, Your Honor, so—

"THE COURT: Okay.

"[PROSECUTOR]:—(inaudible).

"THE COURT: I would invite comment. I would take it that from the State's perspective that conversation, if you will, about the attorney was not an invocation either equivocal or direct, obviously. That would be the State's position with respect to that testimony?

"[PROSECUTOR]: Yes, Your Honor.

"THE COURT: Okay. Thanks very much. This matter comes before the court for hearing at the request of the State for the court to rule pretrial on whether or not the statements made by defendant to the police officers investigating this case may be admissible at his trial.

"At such a pretrial hearing the State is obligated to convince the court using witnesses and evidence that by a preponderance of the evidence the State has complied with the so-called Miranda rule and that the statements given to the police officers were otherwise knowingly, voluntarily and intelligently made.

"* * * * *

"With respect to the statements that were made to Detective Anderson on the following day, Saturday, May 12th. Defendant, of course, was in custody and prior to the interview with the detectives, defendant was advised of his Miranda warnings formally. In this particular circumstance, defendant * * * was advised of the so-called Miranda warnings by Detective Rau and after the full panoply of Miranda warnings was advised of them orally, defendant responded with the question, ‘Where's the lawyer?’

"Detective Rau replied that you can—or, ‘Did you call a lawyer and retain one?’ Defendant responded with the statement, ‘No.’ And Detective Rau replied, ‘You'll be appointed an attorney at your arraignment on Monday.’ Detective Anderson asked the question, ‘Do you understand your rights?’ Defendant replied, ‘Absolutely.’ And, of course, we know that thereafter another interview was conducted that was audio recorded.

"Defendant was in custody and was advised of his Miranda rights. And the court finds that that question, ‘where's the lawyer’ and the conversation that subsequently followed was not an invocation of either right to remain silent or the right to have counsel present before further questioning is conducted.

"That defendant engaged in a lengthy interview without otherwise invoking his right to remain silent or his request for an attorney, together with his verbal acknowledgment that he understood his Miranda rights absolutely, convinces the court that that is not an invocation of the right to counsel or the right to remain silent."

Consequently, the detectives testified at defendant's trial about what defendant said during the interview, and the state also played the audio recording of the interview. Defendant was convicted of murder constituting domestic abuse. He appeals that conviction.

We set out the relevant legal principles concerning defendant's challenge in greater detail below but, for purposes of our preservation discussion, we note that, under Article I, section 12, a suspect in custody has a right against self-incrimination and a derivative right to counsel.² Avila-Nava , 356 Or. at 609, 611 n. 6, 341 P.3d 714. That right is protected by the requirement that, if the suspect unequivocally invokes...