Argued and submitted on November 27, 2012.
Washington County Circuit Court C092845CR Rick Knapp, Judge.
Jedediah Peterson, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Christina M. Hutchins, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Ortega, Presiding Judge, and Haselton, Chief Judge, and Sercombe, Judge.
HASELTON, C. J.
Defendant, who was convicted of first-degree burglary, ORS 164.225; first-degree robbery, ORS 164.415; first-degree kidnapping, ORS 163.235; unlawful use of a weapon, ORS 166.220; and unauthorized use of a motor vehicle, ORS 164.135, appeals, challenging all of his convictions. He assigns error solely to the trial court's admission of statements that he contends were unlawfully elicited after he had invoked the right to remain silent. The state remonstrates that defendant's invocation was equivocal. The state argues, in the alternative, that, even if defendant's statement constituted an unequivocal invocation of his right to remain silent, the interrogating officer's interactions with defendant after that invocation were constitutionally permissible. We conclude that defendant unequivocally asserted his right to remain silent and that the interrogating officer's questions following that assertion violated defendant's right against self-incrimination. Or Const, Art I, § 12. Accordingly, the trial court erred in admitting defendant's statements; we further determine that the erroneous admission of defendant's statements was not harmless, and, thus, we reverse and remand.
We explained the applicable standard of review in State v. Holcomb, 213 Or.App. 168, 173, 159 P.3d 1271, rev den, 343 Or 224 (2007):
"The admissibility of a defendant's statements during custodial interrogation is an issue of law. State v. James, 339 Or 476, 481, 123 P.3d 251 (2005). We review the trial court's legal conclusion regarding whether a defendant invoked his Article I, section 12, right for legal error. State v. Terry, 333 Or 163, 172, 37 P.3d 157 (2001), cert den, 536 U.S. 910 (2002). The question of what transpired during a custodial interrogation is a question of fact for the trial court, and we are bound by the trial court's findings of fact if they are supported by evidence in the record, although 'we assess anew whether th[ose] facts suffice to meet constitutional standards.' James, 339 Or at 481."
(Brackets in Holcomb.)
We state the material facts consistently with those standards. On December 23, 2009, Hillsboro police officers, who were investigating a robbery in which defendant was a suspect, stopped an SUV that defendant was driving. At the scene of the stop, after defendant was handcuffed and taken into police custody, an officer read the Miranda warnings in Spanish from a prepared card to defendant, who did not speak English. Defendant indicated that he understood his rights. The police then transported defendant to the Hillsboro Police Department, where detectives Ganete and Hahn would interview him. Ganete again advised defendant of his Miranda rights in Spanish,  from a prepared card, translated by Ganete as follows:
"It is my [duty] to inform you before you make a declaration: You have the right to remain silent. Anything you say may be used against you in a court of law or a judicial tribunal. You have the right to speak to an attorney and to [have him or her] present during the interrogation. If you do not have the funds to contract an attorney, the Court will assign one to you without cost."
After Ganete had advised defendant of his Miranda rights--defendant's second Miranda warning that day--Ganete inquired whether defendant understood those rights. Defendant replied, "I have a question. Do I have to answer your questions?" Ganete explained that defendant "did not have to answer any questions or talk to [Ganete] if he chose [not] to." Defendant then asked, "Why did mister call the police?" Ganete insisted that defendant needed first to understand the Miranda warnings before they could discuss the events that led to defendant being in police custody. At that point, "to help [defendant] understand, " Ganete "took each ...