Submitted September 19, 2016.
County Circuit Court 15CR00023; Michael A. Greenlick, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Kyle Krohn, Deputy Public Defender, Offce of Public Defense
Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Shannon T. Reel, Assistant Attorney General,
fled the brief for respondent.
Egan, Presiding Judge, and Lagesen, Judge, and Schuman,
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.
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.
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.
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.
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."
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 ...