Argued and Submitted August 19, 2014
111135003. Multnomah County Circuit Court. Stephen K. Bushong, Judge.
Lindsey K. Detweiler, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Ryan P. Kahn, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[272 Or.App. 591] HADLOCK, J.
Under Article I, section 12, of the Oregon Constitution, law enforcement officers must " inform a person subjected to custodial interrogation that he or she has a right to remain silent and to consult with counsel and that any statements that the person makes may be used against the person in a criminal prosecution." State v. Vondehn, 348 Or. 462, 474, 236 P.3d 691 (2010). An exclusionary rule applies when an officer does not meet that obligation:
" If the police conduct a custodial interrogation without first obtaining a knowing and voluntary waiver of the suspect's rights, then they violate the suspect's Article I, section 12, rights. To give effect to those constitutional rights, the state is precluded from using, in a criminal prosecution, statements made in response to the interrogation."
Id.; see also State v. Delong, 357 Or. 365, 372, 350 P.3d 433 (2015) (discussing Vondehn ). That exclusionary rule is not limited to precluding the state from using statements unlawfully obtained from a defendant during the state's case-in-chief. Rather, the exclusionary rule also bars the state from impeaching a defendant on cross-examination with statements that the defendant made during custodial interrogation, after law enforcement officers delivered Miranda warnings but then ignored the defendant's request for counsel. State v. Isom, 306 Or. 587, 594, 761 P.2d 524 (1988). This case presents the question expressly left open in Isom : whether a defendant's uncounseled statements are inadmissible for impeachment purposes, when the defendant made those statements during custodial interrogation and " no warnings were given and no request for a lawyer was ever made." Id.  [272 Or.App. 592] For the
reasons set out below, we hold that such statements are inadmissible for impeachment purposes. Accordingly, we reverse and remand.
The facts leading up to defendant's conviction on assault charges are not in dispute. Defendant immigrated to the United States from Micronesia in 2007. English is not his native language. A language expert who assessed defendant testified that his ability to understand and communicate in English is " at a very basic level."
Defendant and his roommate, A, had a drunken argument at a friend's apartment that escalated into a physical altercation. The altercation ended with A suffering a serious slash wound to the chest and abdomen. Other than defendant and A, no witnesses saw how the wound was inflicted, and, as we explain in more detail below, the two men told different stories about it.
After the altercation ended, A's brother-in-law, Ludwig, came out of the apartment and discovered A lying on the ground. He went back inside and asked someone to call for an ambulance, then came back outside and saw defendant. Ludwig grabbed defendant by the jacket and asked him what had happened. Defendant slipped out of his jacket and fled. He was stopped by a police officer a few blocks away. After the officer patted him down, defendant sat on the sidewalk while the officer awaited instructions. A few minutes later, defendant looked at the officer and said, " I fucked up," and then, " Fucking pissed me off." The officer eventually took defendant to the police station.
[272 Or.App. 593] Defendant was interviewed at the police station by Detectives Dran and Sharp. At the outset, Dran read defendant's Miranda rights to him from a printed sheet. He then asked defendant if he understood his rights. Defendant responded, " Yes, no, maybe so." Dran asked again if he understood, and defendant said, " Yes, no, everything, yes, no, everything, yes, no, everything." Dran told defendant that he was " not in the mood to play silly, stupid games." Defendant protested that he was not stupid. Dran said, " I did not call you stupid. Listen. Listen. I don't want to play silly games. I asked you a simple question, do you understand your rights. The answer is, yes, I understand; or no, I don't understand. Okay?" Defendant responded incoherently.
Sharp asked defendant whether he had been drinking, and an exchange ensued about how much alcohol defendant had consumed and whether he was still drunk. Dran then attempted to explain the seriousness of the situation to defendant and began reading the Miranda warnings again. Before he finished, defendant, who thought that Dran was the officer who had arrested him and to whom he had made several statements, interjected and said that everything that he had said earlier was true. Dran said that he had not been the arresting officer and then returned to the issue of defendant's rights: " So, uhm, do you want me to read these rights to you again, or do you--do you understand your rights that I read to you?" Defendant mumbled, " Yeah, I understand (inaudible)." Dran asked again: " You understand these rights I read to you? You understand this stuff?" Defendant nodded.
Dran then began asking about the incident with A. Defendant said that A had " pissed [him] off" and that he had punched A and then run away. He said that, after he had been arrested, he told the arresting officer, " Somebody fucking piss me off, I punch you, I'm taking off." Later, Dran asked defendant why he had run away after punching A. Defendant told Dran, " I'm nervous for the cops. He told me, 'Fuck you!' I told [him], 'You, fuck you, you fucking wait, the fucking cops is coming for you.'" Dran concluded the interview shortly thereafter. At some point
during the interview, defendant made a " punching motion" to demonstrate to the officers how he had hit A.
[272 Or.App. 594] Defendant was charged with one count of first-degree assault and one count of second-degree assault. While he was in jail awaiting trial, defendant had several telephone conversations with a friend, Hutchinson. In one conversation, defendant told Hutchinson that he had hurt A because A talked too much.
Before trial, defendant moved to suppress the statements that he had made to Dran, arguing that he had not validly waived his right against self-incrimination. The prosecutor did not contend that defendant had validly waived his rights, and she indicated that she did not intend to offer any of defendant's statements to Dran in the state's case-in-chief. However, the prosecutor asserted that she had the right to use those statements as impeachment " should certain testimony arise from the defense at the time of trial." The prosecutor cited State v. Mills, 76 Or.App. 301, 710 P.2d 148 (1985), rev den, 300 Or. 546, 715 P.2d 93 (1986), in which we held that statements that the defendant made after police officers failed to honor his request for an attorney were inadmissible in the state's case-in-chief but could be admitted to impeach the defendant's testimony. We based that holding on a concern that a defendant should not be able to perjure himself without consequence, asserting that it would be " a perversion of an Oregon constitutional right to turn a shield (the right to keep the state from using illegally obtained evidence) into a sword (the right to take affirmative advantage of the unavailability of that evidence to work a fraud on the trier of fact)." Id. at 310. The trial court expressed uncertainty about whether Mills would survive renewed appellate scrutiny, but it concluded that it was bound by that case. Accordingly, it ruled that defendant's statements were admissible for impeachment purposes.
At trial, A testified about the stabbing incident. According to A, defendant was the aggressor. After the two men argued inside their friend's apartment, defendant went outside and then called to A to come out. When A, who was unarmed, went out and approached defendant, defendant ran away. A started to go back inside, but he heard footsteps behind him. As he turned back around, A testified, defendant stabbed him.
[272 Or.App. 595] Defendant also testified at trial, through an interpreter. According to defendant, after he and A argued, he left the apartment and began walking to a bus stop. A followed him, carrying a meat cleaver and a small baseball bat. Defendant told him, " [F]ollow me and the cops will get you." A threw the cleaver at defendant, but it did not hit him. Defendant bent down to pick up the cleaver so that A would not be able to throw it at him again. While he was bent down, A charged at him, wielding the bat. Defendant ran toward A in an attempt to knock him off balance. Defendant was holding the cleaver backwards, with the blade along his forearm. A struck defendant on the shoulder with the bat, breaking the bat in half. The two men then collided, and A fell to the ground. Defendant did not realize that he had cut A, and he walked away. When he saw that A was not following him, defendant went back to check on him and saw that he was unresponsive and bleeding. Defendant ran to a woman who was walking up the street and asked her to call the police. He then walked back toward the apartment, where he encountered Ludwig. Ludwig grabbed his jacket, and defendant was afraid that Ludwig was going to beat him up, so he slipped out of the jacket and ran away.
Defendant testified that he had not intended to cut A and that " maybe it was an accident."
Defendant's lawyer had defendant come off the witness stand and demonstrate how he had hit A. Defendant's demonstration is not described in the record, but the prosecutor later made a comment to the judge that indicates that what defendant showed the jury differed from the " punching motion" that defendant ...