Submitted: August 28, 2013.
Multnomah County Circuit Court. 101034155. Eric J. Bergstrom, Judge.
Peter Gartlan, Chief Defender, and Morgen E. Daniels, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Douglas F. Zier, Senior Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Schuman, Senior Judge.
[264 Or.App. 226] SCHUMAN, S. J.
Defendant was convicted of first-degree forgery, ORS 165.013(1), for uttering a counterfeit $50 bill. At trial, the prosecutor elicited testimony from the arresting officer that defendant, when asked to allow the officer to inspect the contents of his pocket, refused to do so. The officer also testified that " a normal person" would have permitted the officer to conduct that inspection. On appeal, defendant argues that allowing the testimony violated his right against self-incrimination guaranteed by Article I, section 12, of the Oregon Constitution. We agree and therefore reverse.
The following facts are undisputed. Defendant and some friends were at a bar in downtown Portland when defendant paid for two drinks with a $50 bill. The waitress was suspicious because the bill had an unusual feel. Using a " counterfeit pen" that can apparently detect fake currency, the waitress observed that the pen test yielded a darker line than she was accustomed to seeing. She took the bill to her boss. Her boss conducted the pen test as well, and, noting that the bill had no watermark, he satisfied himself that the bill was not genuine currency. The waitress then returned the bill to defendant without incident; meanwhile, the owner called the police. When the officer arrived, he asked defendant what had happened, and defendant candidly told him that he had tried to pay for his bar tab with what turned out to be, unbeknownst to him at the time, a counterfeit bill. The officer then asked defendant if he had any other bills, and defendant pulled a crumpled wad of cash from his pocket. [264 Or.App. 227] The officer asked to inspect it, but defendant refused. He then put the money back in his pocket and asked the officer if he was under arrest. The officer replied that he was not. At that point, defendant nonetheless handed the officer a counterfeit $50 bill. The officer believed that the bill was, indeed, fake and asked defendant if he had any other $50 bills in his pocket. Defendant replied " dismissive[ly]" that he did not, but the officer arrested him anyway. In a search incident to that arrest, the officer found additional counterfeit bills.
At a pretrial motion in limine hearing, defendant moved to exclude testimony by the arresting officer and comments by the prosecutor regarding defendant's refusal to allow the officer to inspect the contents of his pocket. The court denied defendant's motion. At trial, the officer testified about defendant's refusal; the officer also testified, on cross-examination, that he believed that " a normal person" would have allowed the search. Further, during closing argument,
the prosecutor called the jurors' attention to defendant's refusal and asked them how they would have acted under similar circumstances. Defendant was subsequently convicted of forgery; an additional charge of criminal possession of a forged instrument was, according to the judgment, " disposed with no conviction" and " merged with" the forgery conviction. This appeal ensued.
It is well settled that " a person's refusal to consent to something he or she is not legally required to do is not admissible under Article I, section 12, of the Oregon Constitution, as it implicates the constitutional right to remain silent." State v. Moller, 217 Or.App. 49, 52, 174 P.3d 1063 (2007) (citing cases). When asked to allow the inspection of the contents of his pocket, defendant was not legally required to comply, and the state does not contend otherwise. Rather, the state makes the following arguments as to why the general rule does not apply in this case.
First, the state argues that the officer's testimony that " a normal person" would have consented was invited error, because the testimony occurred on cross-examination [264 Or.App. 228] by defense counsel. Even if that were a valid point, it nonetheless leaves intact the officer's testimony under questioning by the prosecutor that defendant ...