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State v. Villar

Court of Appeals of Oregon

September 7, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
OSCAR BERNARDO VILLAR, Defendant-Appellant.

          Submitted September 19, 2016.

         Multnomah County Circuit Court 15CR00023; Michael A. Greenlick, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kyle Krohn, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Shannon T. Reel, Assistant Attorney General, fled the brief for respondent.

          Before Egan, Presiding Judge, and Lagesen, Judge, and Schuman, Senior Judge.

         Case Summary: Defendant was convicted by a jury of second-degree criminal trespass, ORS 164.245; resisting arrest, ORS 162.315; and interfering with a peace officer, ORS 162.247. He appeals, contending that the trial court erred by permitting the state to introduce evidence of defendant's invocation of his right against self-incrimination under Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the United States Constitution. The state does not argue that defendant invoked his right against self-incrimination, but contends that defendant's general objection at trial did not preserve his argument on appeal. Held: Defendant's general objection to the admissibility of evidence was sufficient to preserve his argument that the evidence was inadmissible on self-incrimination grounds under the circumstances in this case because the specific grounds for the objection would have been apparent to the trial court from the context of the objection. The state did not dispute that the evidence of defendant's statement to the arresting officer was inadmissible, and the Court of Appeals agreed.

         [287 Or. 657]

          LAGESEN, J.

         Defendant was convicted by a jury of second-degree criminal trespass, ORS 164.245; resisting arrest, ORS 162.315; and interfering with a peace officer, ORS 162.247. He appeals, contending that the trial court erred by permitting the state to introduce evidence of defendant's invocation of his right against self-incrimination under Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the United States Constitution. For the reasons that follow, we conclude that the trial court erred in the manner asserted and, further, that the error was not harmless. We therefore reverse and remand.

         The facts pertinent to the issue on appeal are largely procedural. The charges against defendant arose after an incident at a bathhouse where defendant had rented a room. Bathhouse employees requested that police remove defendant from the premises after he refused to leave at their request. Precisely what happened next was the subject of conflicting testimony at trial; defendant testified to one version of events, while officers and a bathhouse employee testified to another. What is not disputed is that defendant was eventually tased and arrested.

         After defendant was arrested, Sergeant Baxter was called to the scene to investigate the tasing and to assess whether it was a permissible use of force. Baxter spoke with defendant, who was in handcuffs and had just received treatment for injuries that resulted from the tasing. Baxter asked defendant to share his version of events, but defendant declined to do so.

         At trial, the prosecutor called Baxter as a witness, asking her to recount her interaction with defendant. When asked whether defendant was cooperative, Baxter testified that, when she "gave [defendant] the opportunity to give his version of what happened, he said 'I have nothing to say.'" Defendant immediately objected, stating only "objection, " but the trial court directed Baxter to continue with her testimony. Baxter then testified, "Yeah. All he said is-actually I think he said, 'I got nothing to say.'" In closing argument, the prosecutor then urged the jury to discredit defendant's [287 Or. 658] version of events based, in part, on the evidence that he had refused to recount his version of events to Baxter:

"Why didn't he tell Sergeant Baxter his side of the story? He didn't. He didn't have any of that at the time and now, months later, gets on the stand and tells you this story about how, oh, he wanted to leave, 'The officers bum rushed me. They didn't give me a chance. They said hateful things. They tased me without reason.' And he wants you to believe that."

         On appeal, defendant argues that the trial court erred in permitting Baxter to testify that defendant had "nothing to say" to her in response to her request that he tell her his version of events. Defendant points out that he was in custody at the time and had a constitutional right, under Article I, section 12, and the Fifth Amendment, not to answer Baxter's question. He argues that his statement to Baxter was an unequivocal invocation of that right, see State v. Avila-Nava,356 Or. 600, 618, 341 P.3d 714 (2014), and that evidence of that invocation was not admissible at his criminal trial under State v. Smallwood, 277 Or. 503, 505-06, 561 P.2d 600, cert den,434 U.S. 849 (1977) (holding that evidence of a defendant's invocation of the right to remain silent ordinarily is not admissible at the defendant's criminal trial); see also State v. Ragland,210 Or.App. 182, 186-88, 149 P.3d 1254 (2006) (discussing principle). In response, the state (correctly) does not dispute that defendant's in-custody statement that he had "nothing to say" to Baxter was an unequivocal invocation of his state and federal constitutional right against self-incrimination, and also does not dispute ...


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