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State v. Hickman

Court of Appeals of Oregon

December 28, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
BRANDON ALEXANDER HICKMAN, Defendant-Appellant.

          Submitted July 25, 2017

         Multnomah County Circuit Court 130934284; Jerry B. Hodson, Judge.

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

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, Peenesh Shah, Assistant Attorney General, fled the brief for respondent.

          Before Egan, Presiding Judge, and DeHoog, Judge, and James, Judge.

         Case Summary:

         Defendant appeals from a judgment of conviction for one count of manslaughter in the first degree with a firearm, ORS 163.118. At issue on appeal is whether, after defendant invoked his right to counsel, the interrogating detectives unconstitutionally continued to question him in violation of Article I, section 12, of the Oregon Constitution. Defendant assigns error to the trial court's denial of his motion to suppress statements made following his invocation of the right to counsel. Held: Defendant's invocation was, at the very least, equivocal and the interrogating detectives violated defendant's right to counsel. Further, the detectives did not permissibly clarify defendant's invocation, the encounter was ongoing such that defendant's later statements cannot be considered a waiver of the right to counsel, and defendant's subsequent responses did not amount to further initiation of the conversation.

         Reversed and remanded.

         [289 Or.App. 603] JAMES, J.

         Defendant appeals from a judgment of conviction for one count of manslaughter in the first degree with a firearm, ORS 163.118. He assigns error to the trial court's denial of his motion to suppress statements made following his invocation of the right to counsel under Article I, section 12, of the Oregon Constitution. At issue on appeal is whether, after defendant invoked his right to counsel, the interrogating detectives unconstitutionally continued to question him in violation of Article I, section 12. We agree with defendant that his invocation was, at the very least, [1] equivocal. Further, we determine that the detectives did not permissibly clarify defendant's invocation, that the encounter was ongoing such that defendant's later statements cannot be considered a waiver of his previously invoked right to counsel, and that defendant's subsequent responses did not amount to further initiation of the conversation. Additionally, this error was not harmless, because it had more than a little likelihood of influencing the jury's verdict. Accordingly, we reverse and remand.

         "What transpired during a custodial interrogation, including what a defendant said or did not say, is a question of fact." State v. Avila-Nava, 356 Or. 600, 609, 341 P.3d 714 (2014). We are bound by the trial court's findings of historical fact if evidence in the record supports those findings, although we assess anew whether [those] facts suffice to meet constitutional standards." Id. (internal quotation marks omitted). However, "whether a defendant's statements amounted to an unequivocal invocation of the right against self-incrimination, an equivocal invocation, or no invocation at all, is a question of law." Id. We review such "legal conclusions regarding the invocation of the right to counsel for legal error." State v. James, 339 Or. 476, 481, 123 P.3d 251 (2005). We state the facts in accordance with that standard.

         Defendant was arrested in Las Vegas, Nevada, by United States Marshalls on the suspicion that defendant [289 Or.App. 604] had murdered his cousin a month earlier in Multnomah County. Detectives Snider and Crate traveled to Las Vegas from Oregon to interview defendant and execute a warrant for defendant's arrest. The two detectives sat down with defendant in an interview room. Snider began the interview by telling defendant he was in custody. He then gave defendant his Miranda warnings. Defendant responded that he understood his rights.

         Defendant, Snider, and Crate talked generally for a while and defendant initially denied being at the apartment complex at the time his cousin was shot. Crate told defendant that the police had surveillance video of him running from the apartment complex after the shooting. Defendant asked to see the video and Crate responded that the detectives did not have the video with them. Instead, Crate drew a map of the area for defendant and explained what the video captured. Crate told defendant the following:

"[CRATE]: And when you and when you start walking along you're actually walking in the road in the bicycle lane not on the curb [throat clearing] you guys drop something okay and then you go bound to pick it up and then [friend] does the same thing and you go like this [vocal sound] right across 181st Avenue, [throat clearing] Okay so we're not bullshitting you when we tell you that this is what's going on because these people have talked already okay 'cause they don't wanna be involved in this okay. Yes it's an accident they told us that that's what happened. They said Brandon didn't ...

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