State v. Tellez-Suarez
| Decision Date | 23 June 2021 |
| Docket Number | A168105 |
| Citation | 312 Or.App. 531,493 P.3d 28 |
| Court | Oregon Court of Appeals |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Eliseo TELLEZ-SUAREZ, Defendant-Appellant. |
Anne Fujita Munsey, 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.
Beth Andrews, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General and Michael A. Casper, Assistant Attorney General.
Before Ortega, Presiding Judge, and Shorr, Judge, and James, Judge.
Defendant appeals from judgments of conviction for one count of first-degree unlawful sexual penetration, ORS 163.411, and three counts of first-degree sexual abuse, ORS 163.427, raising six assignments of error. We reject defendant's second assignment without discussion. In his third and fourth assignments, defendant challenges his convictions by nonunanimous verdicts. The state concedes that defendant's convictions reflect a nonunanimous jury verdict on each count, and, accordingly, we must reverse and remand pursuant to Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020). We accept the state's concession, reverse and remand all counts, and our resolution obviates the need to address defendant's fifth and sixth assignments of error. However, we write briefly to address defendant's first assignment of error, which implicates an issue that may arise on remand, wherein defendant contends that the trial court erred in admitting the video of his interview with the police despite his invocation of counsel. We conclude the trial court did not err on this issue.
The facts giving rise to the charges of this case surround incidents of alleged sexual abuse occurring between late 2015 and late 2016. During this time span, M, the alleged victim, was nine and 10 years old and was living with her mother, her stepfather (defendant), and various siblings, half-siblings, and stepsiblings.
In November of 2016, M told her mother that "she no longer wanted to live with [defendant] because he had done bad things to her." At a subsequent counseling session for M's sister later that month, mother told the counselor what M had said, prompting a report to the Department of Human Services and law enforcement. M later described the abuse in more detail to a CARES examiner, stating that the abuse had started approximately one year earlier, and she described different instances—"five or ten times"—in which defendant had touched her sexually.
Those allegations prompted an interview at a police department on December 8, by Detective Schwartz. Because defendant spoke Spanish, Officer Cabrera, a native Spanish speaker, attended the interview as an interpreter. The interview was recorded on video, and portions were played for the court at trial. Schwartz explained to defendant that the room's audio and video were being recorded such that their "words are taken exactly how [they] say them." She also told defendant,
Defendant was read his Miranda rights in Spanish, not interpreted but rather "[v]erbatim from a pre-prepared card." There is some minor uncertainty regarding what precisely was said at that point. The video was played at trial, which the trial transcript before us translates as, "Do you have any questions about that before we start?" Defendant replied, "I don't have a lawyer right now, but let's continue."1
After this exchange, Schwartz next stated, She proceeded to interview defendant about his home life. During the remainder of the interview, defendant denied touching M inappropriately, even when Schwartz told him that she had talked to M and believed the child's story.
Before trial, defendant objected to the admission of the interview and moved to suppress it, arguing that he had made an equivocal invocation of his right to counsel after being informed of his Miranda rights and stating, "I don't have a lawyer right now, but let's continue," and that the officers had violated his rights by failing to clarify whether he had indeed invoked. At the motion hearing, the trial court first found that it was "abundantly clear" that "[d]efendant gave an equivocal invocation here, and that the Court is required to look at the totality of the circumstances." It noted that, "if [defendant] had just said, ‘I don't have a lawyer,’ the officer[s] would have been required to ask follow-up questions." But because defendant followed that statement with "but let's continue," the court determined that it would be reasonable for the officers to understand that they were free to continue the interview. Ultimately, the trial court denied the motion to suppress, a nonunanimous jury found defendant guilty, and this appeal ensued.
We review the denial of a motion to suppress for errors of law. State v. Woodall , 181 Or. App. 213, 217, 45 P.3d 484 (2002). We defer to the factual findings of the trial court—including what transpired during a custodial interrogation and what a defendant did or did not say. State v. Avila-Nava , 356 Or. 600, 609, 341 P.3d 714 (2014). However, we assess anew whether those facts suffice to meet constitutional standards. State v. James , 339 Or. 476, 481, 123 P.3d 251 (2005). In other words, whether a defendant's statement was not an invocation or was an invocation and, if an invocation, whether it was an equivocal or unequivocal invocation are questions of law. Avila-Nava , 356 Or. at 609, 341 P.3d 714 ; State v. Terry , 333 Or. 163, 172, 37 P.3d 157 (2001), cert. den. , 536 U.S. 910, 122 S.Ct. 2368, 153 L.Ed.2d 189 (2002). Whether a defendant reinitiated further conversation after an invocation is also a question of law. State v. Meade , 327 Or. 335, 341-42, 963 P.2d 656 (1998).
Article I, section 12, of the Oregon Constitution states, in part, "[n]o person shall be * * * compelled in any criminal prosecution to testify against himself." That constitutional guarantee protects a person's right against compelled self-incrimination. Avila-Nava , 356 Or. at 608, 341 P.3d 714 ; State v. Sanelle , 287 Or. App. 611, 617 n. 2, 404 P.3d 992 (2017), rev. den. , 362 Or. 482, 412 P.3d 199 (2018). Both the right to counsel during interrogation and the right to silence are derivative of that broader right. State v. Scott , 343 Or. 195, 200, 166 P.3d 528 (2007) ; Sanelle , 287 Or. App. at 617, 404 P.3d 992. Article I, section 12, applies to an interrogation when a person is in custody or "in circumstances that [would] create a setting which judges would and officers should recognize [as] compelling." State v. Roble-Baker , 340 Or. 631, 638, 136 P.3d 22 (2006) (quoting State v. Smith , 310 Or. 1, 7, 791 P.2d 836 (1990) (internal quotation marks omitted)).
The threshold question in an issue of compelled self-incrimination is whether the suspect invoked their rights at all. As has been noted, "courts have developed no simple, clear test for determining whether a suspect's oral reference to a need for legal advice during a police interview amounts to an invocation of the right to counsel." Meade , 327 Or. at 344, 963 P.2d 656 (Durham, J., dissenting). But, generally, an adequate invocation to the right to counsel is "any plain reference, however glancing, to a need or desire for representation." State v. Wickey , 95 Or. App. 225, 230, 769 P.2d 208 (1989) (quoting Connecticut v. Barrett , 479 U.S. 523, 534, 107 S. Ct. 828, 93 L. Ed. 2d 920 (1987) (Brennan, J., concurring) (emphases added)). However, "a mere reference to an attorney" does not necessarily mean a suspect has invoked their right to counsel. State v. Brooke , 276 Or. App. 885, 892, 369 P.3d 1205 (2016). The mere mention of an attorney, disconnected from the need or desire for representation, may be no invocation at all, depending on the contextual circumstances of the interrogation.
An invocation 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 to more than one reasonable interpretation, one of which is that he or she is invoking the right to counsel." Id.
In determining whether there was an invocation at all, and if so, whether it was equivocal or unequivocal, we look to "the defendant's words, in light of the totality of the circumstances at and preceding the time they were uttered, to ascertain whether a reasonable officer would have understood that the defendant was invoking that right." Avila-Nava , 356 Or. at 612, 341 P.3d 714. We consider a suspect's words in context, including the preceding words spoken by the suspect and the interrogating officer; the demeanor, gestures, and speech patterns of the suspect; the demeanor and tone of the interrogating officer; and the point at which the suspect allegedly invoked the right against self-incrimination. Id . at 614, 341 P.3d 714 ; see also State v. Nichols , 361 Or. 101, 109, 390 P.3d 1001 (2017).
When a suspect has invoked his rights, that "triggers a binary decision tree for law enforcement." State v. Schrepfer , 288 Or. App. 429, 436, 406 P.3d 1098 (2017). If the invocation is unequivocal, there is but a single lawful response: interrogation must immediately cease. State v. Boyd , 360 Or. 302, 318, 380 P.3d 941 (2016). When the invocation is equivocal, law enforcement can either terminate the interrogation entirely, or may ask "neutral follow-up questions intended to clarify the equivocal nature of [the] defendant's statement." State v....
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