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State v. Sanelle

Court of Appeals of Oregon

September 7, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
PAUL JOSEPH SANELLE, Defendant-Appellant.

          Argued and submitted February 23, 2016

         Washington County Circuit Court C121070CR; James Lee Fun, Jr., Judge.

          Kristin A. Carveth, Deputy Public Defender, argued the cause for appellant. With her on the opening brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services. With her on the reply brief was Ernest Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Doug M. Petrina, 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.

         Case Summary: Defendant appeals his judgment of conviction for murder constituting domestic violence, ORS 163.115. At issue in the appeal is whether defendant equivocally invoked his right to counsel under Article I, section 12, of the Oregon Constitution during a custodial interview and, if he did, whether the interviewing officers clarified whether defendant meant to invoke his right to counsel. The trial court ruled that statements that defendant made in the interview were admissible upon determining that defendant did not invoke his right to counsel when, immediately after officers read defendant his Miranda rights and asked him if he understood them, he responded by asking "Where's the lawyer?" Defendant assigns error to that ruling. Held: Defendant, contrary to the state's position, preserved his appellate argument. Moreover, the trial court erred in ruling that the statements were admissible because, at the very least, defendant [287 Or. 612] equivocally invoked his right to counsel, and the interviewing officers failed to clarify the intent of defendant's statement.

         Reversed and remanded.

         [287 Or. 613] ORTEGA, P. J.

         Defendant appeals his judgment of conviction for murder constituting domestic violence, ORS 163.115. At issue in this appeal is whether defendant equivocally invoked his right to counsel under Article I, section 12, of the Oregon Constitution during a custodial interview and, if he did, whether the interviewing officers clarified whether defendant meant to invoke his right to counsel. The trial court ruled that statements that defendant made in the interview were admissible upon determining that defendant did not invoke his right to counsel when, immediately after officers read defendant his Miranda rights and asked him if he understood them, he responded by asking "Where's the lawyer?" Defendant assigns error to that ruling. For the reasons explained below, we conclude that defendant, contrary to the state's position, preserved his appellate argument and, at the very least, that defendant equivocally invoked his right to counsel. We also conclude that the interviewing officers failed to clarify the intent of defendant's statement, thereby rendering his subsequent statements to police inadmissible. Further, admission of the statements was not harmless. Consequently, we reverse and remand, and need not reach defendant's remaining assignments of error.

         We review for legal error whether defendant's statement was an equivocal invocation of his right to counsel. State v. Nichols, 361 Or. 101, 106, 390 P.3d 1001 (2017). We limit our discussion of the circumstances of defendant's statement and the interview to the record developed at the pretrial hearing, State v. Pitt, 352 Or. 566, 575, 293 P.3d 1002 (2012), [1] and are bound by the trial court's findings of what transpired during the custodial interrogation that are supported by evidence in the record, State v. Avila-Nava, 356 Or. 600, 609, 341 P.3d 714 (2014). Consistent with that standard, we set out the facts below.

         [287 Or. 614] Before trial, the state moved to schedule a pretrial hearing on whether statements defendant made during a May 12, 2012, custodial interview in which defendant asked "Where's the lawyer?"-as well as other statements made to officers by defendant on the night of the victim's death and at other times before the May 12 custodial interview-were in violation of defendant's right to assistance of counsel during a custodial interview. The pretrial hearing concerning the admissibility of the May 12 statements occurred during a lengthy "omnibus" hearing, which was intended to resolve several legal and procedural issues.

         Detectives Anderson and Rau were the officers who interviewed defendant on May 12 and were the last officers to testify during the Miranda portion of the omnibus hearing. As to the May 12 interview, which occurred on a Saturday, Rau testified that defendant had been arrested the day before and was in police custody and, knowing that defendant would be arraigned on Monday, the detectives wanted to ask defendant a "handful" of questions. It was Rau's experience that, "after people are arraigned, " there is not "anymore room for interviews." The detectives recorded the interview. Rau first read defendant his Miranda rights. Rau then asked defendant if he understood each of the rights that had been explained to him. Defendant responded, "Where's the lawyer?" Rau asked defendant, "Have you got a lawyer? Have you hired a lawyer?" Defendant answered "No" and said that he could not afford one. Rau told defendant, "You'll be appointed an attorney if you can't afford one, " and indicated that the appointment would occur at his arraignment on Monday. Anderson followed up by asking defendant, "Do you understand your rights?" and inquiring whether defendant was willing to speak with the detectives. Defendant answered, "Yes, absolutely."

         In particular relevance to our discussion of preservation below, the following exchange occurred during defense counsel's cross-examination of Rau:

"[DEFENSE COUNSEL]: When [defendant] said, 'All right, where's the lawyer, ' you had a decision to make how to respond to that, right?
"[RAU]: Yes.
[287 Or. 615] "[DEFENSE COUNSEL]: And you asked him, 'Did you call one already?'
"[RAU]: Correct.
"[DEFENSE COUNSEL]: Did you let him know he was going to be afforded an attorney, that is appointed an attorney on Monday when he was arraigned?
"[RAU]: Yes.
"[DEFENSE COUNSEL]: You specifically said that?
"[RAU]: Yes. Words to that effect. I think that's what I specifically said.
"[DEFENSE COUNSEL]: Did you ask him if he wished to delay the interview until he was appointed an attorney?
"[RAU]: No.
"[DEFENSE COUNSEL]: Did you tell him he could delay the interview until he was appointed an attorney?
"[RAU]: No.
"[DEFENSE COUNSEL]: When he said, yes, he understood his rights, did you clarify with him ...

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