State v. Simonsen

• Decision Date: 11 August 1994
• Docket Number: CR-1816
• Citation: 319 Or. 510,878 P.2d 409
• Parties: STATE of Oregon, Respondent, v. David Lynn SIMONSEN, Appellant. CC 88-; SC S38966.
• Court: Oregon Supreme Court

Page 409

878 P.2d 409

319 Or. 510

STATE of Oregon, Respondent, v. David Lynn SIMONSEN, Appellant.

CC 88-CR-1816; SC S38966.

Supreme Court of Oregon In Banc.

Argued and Submitted May 12, 1994.

Resubmitted Aug. 8, 1994.

Decided Aug. 11, 1994.

Phillip M. Margolin, Portland, argued the cause for appellant. Beecher C. Ellison, Grants Pass, filed the brief for appellant.

Janet A. Metcalf, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Atty. Gen., Virginia L. Linder, Sol. Gen., and Brenda JP Rocklin and Kaye E. Sunderland, Asst. Attys. Gen., Salem.

FADELEY, Justice.

In this aggravated murder case, the issue is whether the government obtained evidence from defendant in violation of the state constitutional provision against self-incrimination. ¹ We hold that it did and, therefore, reverse a death penalty imposed as a result of a penalty-phase proceeding in which that evidence was utilized.

The Oregon Constitution, Article I, section 12, provides in part:

"No person shall * * * be compelled in any criminal prosecution to testify against himself."

The evidence in question was obtained by interrogating defendant without informing him of the fact that he had a court-appointed lawyer or the fact that the lawyer had asked to consult with defendant before further interrogation took place. Substantial evidence that was before the jury in the penalty-phase proceeding was obtained after the lawyer made that request. Defendant's motion to suppress, based on the above constitutional objection, was denied. If the evidence should have been suppressed, defendant is constitutionally entitled to have his sentence vacated under our prior decisions.

Defendant, who had been arrested in Jackson County for aggravated murder, was transported to Coos County, arriving in the evening. A sheriff's detective removed defendant from the Coos County jail around 9 a.m. the next morning. ² When his court-appointed lawyer arrived at the Coos County jail to consult with him shortly thereafter, defendant was gone. On learning that defendant had been removed from the jail by the detective, defendant's counsel demanded at the sheriff's office that all questioning of defendant cease until counsel and defendant were permitted to consult.

The detective and another deputy sheriff transported defendant to a remote, wooded location near the scene of the crime. The detective who transported defendant turned off his police radio. When two other deputies who were to assist in the interrogation arrived in a separate vehicle, the sheriff's dispatcher called in on their radio, asking to talk to the interrogating detective. The detective, who was in charge at the scene, instructed the newly arrived deputies to turn off their two-way radio also and not to return the call from the dispatcher.

That radio call was from the dispatcher trying to tell the interrogators about defendant's lawyer, who was demanding to see and interview his client and to have questioning of defendant cease until that occurred. Thereafter, defendant made significantly incriminating statements on videotape. During that time, defendant's lawyer continued his attempts to contact defendant.

The consultation that defendant's lawyer sought with defendant was to be the first interview between them. Defendant did not know, at the time that he made the incriminating statements, that he had a lawyer. On the other hand, responsible officers at the sheriff's office and jail knew that the lawyer was available, was seeking the opportunity to consult with defendant, and was demanding that the consultation take place before any further questioning occurred.

Defendant moved to suppress the videotaped evidence. At the hearing on that motion, the detective who had taken physical custody of defendant stated that his reason for turning off his two-way radio, and for requiring another deputy to turn off his separate radio, was that the business on which he then was engaged was more important than any conceivable communication that he might receive by radio. ³ He testified that he turned the radios off to prevent any interference with his interrogation and videotaping. The trial court denied the motion to suppress, because the detective interrogating defendant had not been told personally about the lawyer or his requests.

This court previously has announced the law that applies under the circumstances of this case. Those circumstances are as follows. Defendant was in custody and charged with a specific crime when the interrogation in question commenced. A specific lawyer had invoked defendant's right to remain silent until after a consultation had taken place. Defendant had a right to have that invocation by his lawyer of his right to remain silent honored, at least until he was able to consult with the lawyer or, in the alternative, he waived his right to such a consultation after being fully apprised of the situation that actually existed.

The police knew about the lawyer and his demand that interrogation cease. That knowledge never was imparted to defendant, however. Under those circumstances, the state has not shown, as it is required to do, that defendant knowingly, intelligently, and voluntarily waived his right against self-incrimination when, during custodial interrogation, he made the videotaped statement that the trial court declined to suppress.

In State v. Haynes, 288 Or. 59, 602 P.2d 272 (1979), cert. den. 446 U.S. 945, 100 S.Ct. 2175, 64 L.Ed.2d 802 (1980), the defendant was arrested for homicide and advised of his Miranda rights. That night, the defendant implicated himself in the murder. Early the next morning, defendant identified the murder weapon. At about the same time that defendant identified the murder weapon, the defendant's wife attempted to retain a lawyer for the defendant. She retained a lawyer several hours later. The lawyer called the Springfield police station and attempted to arrange access to the defendant but was told repeatedly that defendant was not there and that no arrest had been made. After checking with other police stations, the lawyer again checked with Springfield police headquarters, where holding cells were located, and was told that the defendant was there. The lawyer notified police that he was coming to the station to interview the defendant. When he arrived, he found that the defendant had been removed from the Springfield station and taken for a drive. During the drive, the defendant disclosed additional details about the homicide. The defendant later was videotaped in a reenactment of the crime.

In Haynes, this court suppressed the defendant's statements and the videotape, holding:

"[A] suspect who has previously been told in general terms of his right to counsel and has waived this right must be informed when counsel actually seeks to consult with him and must voluntarily and intelligently have rejected that opportunity, before further statements may thereafter be taken from him and used against him." 288 Or. at 61, 602 P.2d 272. ⁴

The court explained its holding:

"[W]hen law enforcement officers have failed to admit counsel to a person in custody or to inform the person of the attorney's efforts to reach him, they cannot thereafter rely on defendant's 'waiver' for the use of his subsequent uncounseled statements or resulting evidence against him. We believe this rule protects the suspect's right under [A]rticle I, section 12 [of the Oregon Constitution], and the federal fifth and 14th amendments not to testify against himself, and also that it suffices to satisfy the statement quoted by defendant from Miranda v. Arizona, [384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ], that police interference with consultations between defendant and an attorney 'constitutes a violation of the Sixth Amendment right to the assistance of counsel and excludes any statement obtained in its wake.' 384 U.S. at 465, n. 35, 86 S.Ct. at 1623, n. 35." Id. 288 Or. at 73-74, 602 P.2d 272 (footnote omitted).

This court also held:

"We hold only that when unknown to the person in this situation an identified attorney is actually available and seeking an opportunity to consult with him, and the police do not inform him of that fact, any statement or the fruits of any statement obtained after the police themselves know of the attorney's efforts to reach the arrested person cannot be rendered admissible on the theory that the person knowingly and intelligently waived counsel.

" * * * * *

" * * * [T]he issue of a suspect's access to counsel enters cases like the present as an aspect of his right to answer questions or provide incriminating testimony only voluntarily. Or Const Art I, § 12, US Const, amend V. * * * Thus it is not a generalized right to counsel that the decisions we have quoted enforce but, more concretely, the derivative right to the benefit of counsel's efforts to forestall involuntary and incriminating disclosures." Id. 288 Or. at 70-71, 602 P.2d 272.

In a case closely related to the present case, State v. Isom, 306 Or. 587, 592, 761 P.2d 524 (1988), this court stated:

"Article I, section 12, of the Oregon Constitution provides, in part: 'No person shall * * * be compelled in any criminal prosecution to testify against himself.' In State v. Kell, 303 Or. 89, 94-95, 734 P.2d 334 (1987), we interpreted Article I, section 12, as it pertained to uncounseled out-of-court statements by a criminal defendant. * * * [This court] unanimously agreed, 'Miranda questions aside, once a suspect in custody unequivocally requests to talk to a lawyer, that request must be granted and questioning should cease.' " ⁵

This court stated further:

"Also in 1979, in State v. Haynes, 288 Or. 59, 602 P.2d 272 (1979), we held that the prosecution could not use against a defendant statements obtained from him while in police custody after the police, but not the defendant, knew that a lawyer sought to consult...