State v. Wirkkala
| Decision Date | 14 February 2018 |
| Docket Number | A158062 |
| Citation | 290 Or.App. 263,414 P.3d 421 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Luke Anton WIRKKALA, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
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.
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 as "preliminary" questions, which defendant answered. After approximately five minutes, the following exchange occurred:
(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 evidenceof the invocation itself, but otherwise denied defendant's motion.1
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:
"It's important to remember that is the [defendant] that [the victim] was with on [the date of the shooting]; a person who can make choices about his behavior, how he acted with who he liked and who he didn't like; a person who said he couldn't remember, but clearly does."
Defendant was convicted of murder.
On appeal, in his third assignment of error, defendant argues that the trial court erred in denying his motion to suppress the portions of the interrogation video and transcript following defendant's statement that he wanted to "get a lawyer." The state disagrees; although the state does not dispute that defendant invoked his right to counsel under the federal and state constitutions, the state argues that defendant then waived that right by immediately proceeding to answer Knea's pending question about the name of the other "male that was at the house."
The right against self-incrimination under Article I, section 12, of the Oregon Constitution includes the derivative right to have counsel present during custodial police interrogations. State v. Scott , 343 Or. 195, 200, 166 P.3d 528 (2007). When a defendant in police custody unequivocally invokes the right to counsel, all police questioning must cease. State v. Meade , 327 Or. 335, 339, 963 P.2d 656 (1998). The state can show that a defendant waived that right, however, by establishing that the defendant, "without prompting from the police, initiated further conversation that evinced a willingness and a desire for a generalized discussion about the investigation." Id. at 341, 963 P.2d 656. See, e.g. , State v. McAnulty , 356 Or. 432, 456, 338 P.3d 653 (2014) (); Meade , 327 Or. at 337, 341, 963 P.2d 656 " .
The state argues that defendant showed a "willingness" to continue the interrogation when, after invoking his right to counsel, and without further prompting, he answered Knea's question about the other "male that was at the house." The state likens this case to State v. Kramyer , 222 Or.App. 193, 194 P.3d 156 (2008), in which the defendant, who was suspected of driving while intoxicated, requested a lawyer but then continued to participate in a field-sobriety test. Id. at 195-96, 194 P.3d 156. We held that the defendant's conduct established a "willingness * * * to continue with the investigation" because he "continued engaging in the conduct that gave rise to the evidence he sought to suppress." Id. at 198, 194 P.3d 156.
We are not persuaded by the comparison of this case to Kramyer . In Kramyer , the defendant's conduct gave rise to the evidence that was the very focus of the...
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