and submitted November 15, 2016
County Circuit Court 201425077; Mustafa T. Kasubhai, Judge.
Stephanie J. Hortsch, Deputy Public Defender, argued the
cause for appellant. With her on the opening brief was Ernest
G. Lannet, Chief Defender, Criminal Appellate Section, Offce
of Public Defense Services. Jason Paul Schrepfer fled the
supplemental brief pro se.
Peenesh H. Shah, Assistant Attorney General, argued the cause
for respondent. With him on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
DeVore, Presiding Judge, and Garrett, Judge, and James,
Or. 430] Case Summary:
Defendant appeals from a judgment of conviction for one count
of robbery in the second degree, ORS 164.405. At issue on
appeal is whether defendant unequivocally invoked his right
to remain silent and, if so, whether the arresting officer
unconstitutionally continued to question him in violation of
Article I, section 12, of the Oregon Constitution. The trial
court denied defendant's motion to suppress statements
made following his invocation and ruled that defendant
reinitiated engagement with the officer after defendant said,
"I'm done talking." Defendant assigns error to
Held: Defendant's invocation was unequivocal and
the officer improperly continued to interrogate defendant
following that invocation. Further, the encounter was ongoing
such that defendant's later statements cannot be
considered unprompted, and thus defendant did not voluntarily
waive his previously invoked right against
Or. 431] JAMES, J.
appeals from a judgment of conviction for one count of
robbery in the second degree, ORS 164.405. On appeal he
raises three assignments of error, and defendant supplements
with a single pro se assignment of error. We reject
all of those assignments without discussion save the first,
where defendant assigns error to the trial court's denial
of his motion to suppress statements made following his
invocation of the right against compelled self-incrimination
under Article I, section 12, of the Oregon
Constitution. At issue on appeal is whether defendant
unequivocally invoked his right to remain silent and, if so,
whether the arresting officer unconstitutionally continued to
question him in violation of Article I, section 12. We
conclude that defendant's invocation was unequivocal and
that the officer improperly continued to interrogate
defendant following that invocation. Further, we conclude
that the encounter was ongoing such that defendant's
later statements cannot be considered unprompted, and thus
defendant did not voluntarily waive his previously invoked
right against self-incrimination. Accordingly, we reverse and
review for legal error and determine, as a matter of law,
whether defendant's statement was an unequivocal
invocation of his derivative right to remain silent.
State v. Nichols, 361 Or. 101, 106, 390 P.3d 1001
(2017); State v. Avila-Nava, 356 Or. 600, 609, 341
P.3d 714 (2014); State v. Sanelle, 287 Or.App. 611,
613, __ P.3d __ (2017). We are bound by the trial court's
findings of fact that are supported by evidence in the
record. Avila-Nava, 356 Or at 609 (referencing
State v. James, 339 Or. 476, 481, 123 P.3d 251
(2005)). We state the facts in accordance with that standard.
officers were dispatched to a department store parking lot
after two women were observed leaving the department store
with merchandise they had not paid for. Two loss-prevention
officers and a mall security guard attempted to stop the
women and retrieve the merchandise [288 Or. 432] when
defendant interfered in the altercation. The dispatched
police officers located defendant driving in the mall parking
lot area and pulled him over.
officers removed defendant from his vehicle, placed him in
handcuffs, read him Miranda warnings, and placed him
in the back of Officer Magnus's patrol car. Magnus asked
defendant a series of basic questions to which defendant
then left defendant in the patrol car while he and other
officers spoke outside of the patrol cars regarding the
incident and who had which person in custody, who would write
up which reports, and who would book which pieces of
evidence. When Magnus returned to his patrol car, defendant
asked Magnus to retrieve his prescription glasses from his
vehicle before it was impounded. Magnus eventually found
defendant's glasses and the two drove off toward the
jail. While driving, Magnus had the following exchange with
"[MAGNUS]: So you drove the car down from Albany?
" [MAGNUS]: How long have you had the car?
"[DEFENDANT]: Uh. I don't know. It's not even
mine. I just borrowed it.
"[MAGNUS]: I know. How long ago did you borrow it?
"[DEFENDANT]: I don't know. " [MAGNUS]: An hour
ago? A week ago? A year ago? I mean-
"[DEFENDANT]: I'm done talking. "[MAGNUS]: Do
we need to call somebody and let them knowthat your ...