State v. Sparklin

• Decision Date: 28 December 1983
• Docket Number: No. CA,CA
• Parties: STATE of Oregon, Respondent on Review, v. Howard Clifton SPARKLIN, Petitioner on Review. A21337; SC 29421.
• Court: Oregon Supreme Court

Page 1182

672 P.2d 1182

296 Or. 85

STATE of Oregon, Respondent on Review, v. Howard Clifton SPARKLIN, Petitioner on Review.

No. CA A21337; SC 29421.

Supreme Court of Oregon, In Banc.

Argued and Submitted July 6, 1983.

Decided Nov. 29, 1983.

Rehearing Denied Dec. 28, 1983.

John Daugirda, Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Rex Armstrong, Portland, Robert C. Welsh, Los Angeles, Cal., and Ronald K.L. Collins, Salem, filed amicus curiae brief for the American Civil Liberties Union Foundation of Oregon, Inc.

ROBERTS, Justice.

The question is whether defendant's request for an attorney at arraignment bars all police interrogation undertaken without the presence of counsel, unless defendant volunteers information on his own initiative and not in response to questioning, and statements are otherwise voluntarily obtained.

Defendant was arrested in Eugene after security personnel at a retail store notified police of their suspicion that defendant and his companion, Taylor, purchased merchandise with a stolen credit card. The credit card was issued to Steven Mansell. The next morning defendant was arraigned on a forgery charge. At the arraignment defendant requested and was provided with an attorney. Portland authorities had information which implicated defendant in an incident in which Steven Mansell had been beaten and his automobile and credit cards stolen. That evening, without notice to his attorney and without providing defendant an opportunity to consult with his attorney, two Portland detectives interrogated defendant about the assault on Mansell and a factually unrelated murder and robbery in Portland of a man named Davidson for which defendant was tried and convicted in this case. Miranda ¹ warnings preceded the questioning. Defendant signed a waiver of his rights. His confession to participation in the Davidson murder gained at this interrogation session was used against him at trial. It is from this conviction that defendant appeals.

Defendant seeks to suppress his confession as the product of compelled self incrimination, and as evidence obtained in the absence of an attorney at a time when he had the right to an attorney's presence and advice.

Defendant suggests first that the Miranda warnings given him in advance of interrogation are inadequate to protect his article I, section 12 rights. ² He urges us to adopt more detailed warning unique to our own constitutional guarantee.

As early as State v. Andrews, 35 Or. 388, 391-92, 58 P. 765 (1899) we were of the opinion that some form of advice of rights and warning was required before incriminating evidence derived from defendant's preliminary examination before the justice of the peace could be used against defendant at his trial. ³ The requirement does not surface again in our jurisprudence until State v. Neely, 239 Or. 487, 395 P.2d 557, 398 P.2d 482 (1965) where we imposed a requirement for warnings prior to custodial interrogation. In Neely these warnings were perceived as a federal constitutional requirement in response to Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and we did not examine the state constitutional guarantee. ⁴

Recently in State v. Mains, 295 Or. 640, 669 P.2d 1112 (1983), after examining the federal Miranda warnings, we stated:

"The Oregon Constitution similarly guarantees the right not to be compelled to testify against oneself in a criminal prosecution. Or Const, Art I, § 12. Like the United States Supreme Court, this court is called upon from time to time to specify the procedure by which a guarantee is to be effectuated. Such specifications are not the same as interpretations of the guarantee itself, that is to say, they may not always and in all settings be the only means towards its effectuation but may be adapted or replaced from time to time by decisions of this court or by legislation in the light of experience or changing circumstances." 295 Or. at 645, 669 P.2d 1112.

In Mains we required the authorities to give additional warnings to a represented defendant who, at the state's instance, submitted to a psychiatric examination and chose to proceed without the presence of his attorney.

In this case, we decline the alternative warnings proposed by counsel on practical grounds. At least as long as the text of the federal Miranda warnings remains the law, we think that the convenience of a single text exceeds any gain from improving that text.

Defendant asserts that his request for an attorney at arraignment activated both his derivative right to the presence of an attorney to prevent compelled incriminating disclosures, rights found in article I, section 12 and the federal fifth amendment, and his substantive right to the presence of an attorney at all confrontations with the police after a formal charge is filed against him, the guarantee of article I, section 11 and the federal sixth amendment.

We begin with defendant's state constitutional claims. ⁵ Article I, section 12 forbids the state from compelling a person to testify against himself. It is compulsion which is proscribed, and we have recognized that any custodial setting, that is, one in which an individual is not free to leave, is, in the words of Justice Tanzer, "inherently coercive". State v. Roberti, 293 Or. 59, 65, 67, 644 P.2d 1104, former opinion withdrawn, 293 Or. 236, 646 P.2d 1341 (1982). An attorney's presence at custodial interrogations is one way to secure the right to be free from compelled self incrimination. For this reason we require the police to inform a detained person that he may terminate questioning at any time and that he may have an attorney to advise him before he speaks. When the police honor these rights if defendant chooses to assert them, the coercive atmosphere of police interrogation is to some degree dispelled.

We do not regard this defendant's request for an attorney at arraignment as an assertion of his right to be free from compelled self incrimination. The need for an attorney's presence at interrogation arises when the state may elicit from defendant admissions or confessions. At arraignment defendant is not confronted with an atmosphere of coercion, nor does anyone seek to gain admissions from him. The request for an attorney here is a matter of routine, and without some more explicit request by defendant we do not view it as a request for an attorney's presence at subsequent interrogations.

In this case the interrogating officers knew that defendant was represented by an attorney on the forgery charge. In New York interrogation with such knowledge is forbidden. The New York rule, grounded in the state's constitutional and statutory guarantees of the privilege against self incrimination, the right to counsel and due process of law, prohibits interrogation of any person taken into custody, whether as an accused, a suspect or a witness, if the police know he has an attorney or if they know an attorney wishes to speak with him. See People v. Hobson, 39 N.Y.2d 479, 348 N.E.2d 894, 384 N.Y.S.2d 419 (1976); People v. Arthur, 22 N.Y.2d 325, 239 N.E.2d 537, 292 N.Y.S.2d 663 (1968). The only way a suspect can waive the right to an attorney at interrogation is in the presence of counsel.

We examined the New York rule 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). In Haynes, the police knew defendant's attorney was attempting to contact him. They did not inform defendant of this and obstructed the attorney's efforts to make contact with defendant. They obtained from defendant a waiver of his right to an attorney for interrogation. We held that no waiver could be adequate unless defendant knew his attorney wanted to see him. However, we did not interpret article I, section 12 to require that any waiver of the right to have an attorney at interrogation must be made only in an attorney's presence. 288 Or. at 72, 602 P.2d 272. We noted in Haynes that a requirement that an attorney be present at any waiver would "obviate the recurring problems of proof" that accompany cases in which the state attempts to rely on admissions or confessions gained from custodial interrogations. There are other ways to address these proof problems, however. ⁶ We hold that defendant's article I, section 12 rights were not violated when the police sought his waiver and interrogated him.

Defendant premises his federal constitutional claim on Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). He asserts that his request for an attorney at arraignment was an invocation of his federal fifth amendment right not to be "compelled * * * to be a witness against himself," a right he asserts can be waived only if the state proves the "necessary fact that the accused, not the police, reopened the dialogue with the authorities," 451 U.S. at 486 n. 9, 101 S.Ct. at 1885 n. 9, and the statement is otherwise voluntarily given.

In Edwards defendant requested an attorney after the police advised him of his rights preparatory to interrogating him. ⁷ The police resumed interrogation the next day without complying with his request. The court held:

" * * * [W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further...