State v. Wirkkala, A158062

CourtCourt of Appeals of Oregon
Writing for the CourtGARRETT, J.
Citation290 Or.App. 263,414 P.3d 421
Parties STATE of Oregon, Plaintiff-Respondent, v. Luke Anton WIRKKALA, Defendant-Appellant.
Docket NumberA158062
Decision Date14 February 2018

290 Or.App. 263
414 P.3d 421

STATE of Oregon, Plaintiff-Respondent,
v.
Luke Anton WIRKKALA, Defendant-Appellant.

A158062

Court of Appeals of Oregon.

Argued and submitted June 21, 2016.
February 14, 2018


David O. Ferry, Deputy Public Defender, argued the cause for appellant. With him on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Peenesh Shah, 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.

GARRETT, J.

290 Or.App. 265

Defendant appeals a judgment of conviction for murder, ORS 163.115. In his first two assignments of error, defendant challenges the trial court's exclusion of evidence that, according to defendant, was relevant to his theory of self-defense. In his third assignment of error, he challenges the trial court's denial of defendant's motion to suppress statements that defendant made in a police interrogation. As to that issue, we agree with defendant that police impermissibly continued their interrogation after defendant invoked his right to counsel, that the trial court therefore erred in denying the motion to suppress, and that the error was not harmless. That conclusion obviates the need to address defendant's other assignments of error. Accordingly, we reverse and remand.

We review for legal error whether defendant invoked his right to counsel. State v. Sanelle , 287 Or.App. 611, 613, 404 P.3d 992 (2017), rev. den. , 362 Or. 482 (2018). We limit our discussion to the record developed at the pretrial hearing, State v. Pitt , 352 Or. 566, 575, 293 P.3d 1002 (2012), and are bound by the trial court's findings if they are supported by evidence in the record. Sanelle , 287 Or.App. at 613, 404 P.3d 992.

The murder charge arose from the shooting death of the victim at defendant's house. It is undisputed that, after defendant and the victim spent an evening drinking together, defendant shot and killed the victim.

The police interrogation took place at the police station on the night of the shooting, and involved defendant, Officer Hatoor, and Detective Knea. Knea began by reading defendant his Miranda rights. Knea then began asking what he described to defendant

414 P.3d 423

as "preliminary" questions, which defendant answered. After approximately five minutes, the following exchange occurred:

"[DEFENDANT]: We moved here in May.

"DETECTIVE KNEA: That was going to be my next question. Okay. Who else is—so there's another male that was at the house. What's his name?

"[DEFENDANT]: (Pause.) What was his name?
290 Or.App. 266
"DETECTIVE KNEA: Yeah.

"OFFICER HATOOR: What was his name?

"[DEFENDANT]: I appreciate the hospitality here, fellas, but I think I'm going to get a lawyer .

"DETECTIVE KNEA: Okay. Well, that's obviously something that you have a right to, like I said, okay?

"[DEFENDANT]: His name was [the victim].

"DETECTIVE KNEA: And—and I—I understand that there's probably a little bit of trepidation about talking to me, okay? However, I don't know what happened, dude, at all.

"[DEFENDANT]: Well, [n]either do I.

"DETECTIVE KNEA: And I—okay.

"[DEFENDANT]: So get in fuckin' line. Sorry. Sorry. That was rude. Go ahead.

"DETECTIVE KNEA: I'll give you a little time to sober up, and then we'll talk. But you're going to be here for a little bit, so just make yourself comfortable.

"[DEFENDANT]: No, I know. I know.

"DETECTIVE KNEA: Okay. Yeah. This is not exactly how I wanted this whole thing to go down. I just wanted to get kind of an idea of what happened. And from the get-go you're kinda not being real—

"[DEFENDANT]: Not being real?

"DETECTIVE KNEA: No. You're not being real nice to me, okay? And I don't know you from anybody, dude.

"[DEFENDANT]: All right.

"DETECTIVE KNEA: I live—

"[DEFENDANT]: Well, that's fine.

"DETECTIVE KNEA: Okay. So just chill out.

"[DEFENDANT]: You got—

"DETECTIVE KNEA: You can sober up.

"[DEFENDANT]: I can sober up. I'm sorry. This guy's a nice guy. You're kind of a prick.
290 Or.App. 267
"DETECTIVE KNEA: Dude, I just got woken up at 3 o'clock in the morning, okay?

"[DEFENDANT]: So what?

"DETECTIVE KNEA: So what?

"[DEFENDANT]: Yeah. So what?

"DETECTIVE KNEA: I don't know what was going on.

"[DEFENDANT]: That's your fucking job.

"DETECTIVE KNEA: Okay.

"[DEFENDANT]: That's your job.

"DETECTIVE KNEA: Okay. Well, guess what?

"[DEFENDANT]: Guess what?

"DETECTIVE KNEA: I do not—

"[DEFENDANT]: I just fuckin' saw a fuckin' body on my fuckin' floor, blood oozing out in my fuckin' kitchen, so fuck you. You're going to tell me how to wake up?

"DETECTIVE KNEA: I don't think—I don't—

"[DEFENDANT]: You don't know shit—

"DETECTIVE KNEA: I don't think you woke up and just saw him.

"[DEFENDANT]: —about a fucking wake-up."

(Emphasis added.) The interrogation concluded moments later. In total, the videotaped interrogation lasted approximately eight minutes.

Before trial, defendant moved to suppress the portion of the video and transcript following his request for a lawyer, arguing that defendant unequivocally invoked the right to have counsel present during the police interrogation, and that he did not subsequently waive that right by saying, "His name was [the victim]." The trial court struck the evidence

414 P.3d 424

of the invocation itself, but otherwise denied defendant's motion.1

290 Or.App. 268

At trial, defendant asserted defenses of voluntary intoxication and self-defense. To support his self-defense theory, defendant testified that the victim had tried to sexually and physically assault him minutes before the shooting.

In refuting defendant's theory of self-defense, the state played the interrogation video during Knea's direct examination, and replayed the final minutes of the video, in which defendant became hostile toward Knea, during closing argument. At closing, the state highlighted the difference between defendant's demeanor in the interrogation video and his more "appropriate" and "articulate" demeanor at trial:

"Now, the defendant, as he appeared in court—and you can take a moment to look at him. Well
...

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3 practice notes
  • State v. Levasseur, A166406
    • United States
    • Court of Appeals of Oregon
    • March 10, 2021
    ...the 483 P.3d 1173 quality of the erroneously admitted evidence and other evidence admitted on the same issue." State v. Wirkkala , 290 Or. App. 263, 271, 414 P.3d 421 (2018) (internal quotation marks and citations omitted).The state argues that the admission of defendant's prior crimes and ......
  • State v. Jones, A160930 (Control)
    • United States
    • Court of Appeals of Oregon
    • March 20, 2019
    ...portions of the record" to determine "if there is little likelihood that [any] error affected the verdict." State v. Wirkkala , 290 Or. App. 263, 271, 414 P.3d 421 (2018) (internal quotation marks omitted); see State v. Simon , 294 Or. App. 840, 849, 433 P.3d 385 (2018) (similar). We theref......
  • State v. Nguyen, A162284
    • United States
    • Court of Appeals of Oregon
    • August 22, 2018
    ...differences between the quality of the erroneously admitted evidence and other evidence admitted on the same issue." State v. Wirkkala , 290 Or. App. 263, 271, 414 P.3d 421 (2018) (citing Davis , 336 Or. at 33-34, 77 P.3d 1111 ). We also consider "the importance of the erroneously admitted ......
3 cases
  • State v. Levasseur, A166406
    • United States
    • Court of Appeals of Oregon
    • March 10, 2021
    ...the 483 P.3d 1173 quality of the erroneously admitted evidence and other evidence admitted on the same issue." State v. Wirkkala , 290 Or. App. 263, 271, 414 P.3d 421 (2018) (internal quotation marks and citations omitted).The state argues that the admission of defendant's prior crimes and ......
  • State v. Jones, A160930 (Control)
    • United States
    • Court of Appeals of Oregon
    • March 20, 2019
    ...portions of the record" to determine "if there is little likelihood that [any] error affected the verdict." State v. Wirkkala , 290 Or. App. 263, 271, 414 P.3d 421 (2018) (internal quotation marks omitted); see State v. Simon , 294 Or. App. 840, 849, 433 P.3d 385 (2018) (similar). We theref......
  • State v. Nguyen, A162284
    • United States
    • Court of Appeals of Oregon
    • August 22, 2018
    ...differences between the quality of the erroneously admitted evidence and other evidence admitted on the same issue." State v. Wirkkala , 290 Or. App. 263, 271, 414 P.3d 421 (2018) (citing Davis , 336 Or. at 33-34, 77 P.3d 1111 ). We also consider "the importance of the erroneously admitted ......

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