and submitted June 21, 2016.
County Circuit Court 13FE0170; Stephen P. Forte, Judge.
(Judgment) Wells B. Ashby, Judge. (Amended Judgment)
O. Ferry, Deputy Public Defender, argued the cause for
appellant. With him on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
Peenesh Shah, Assistant Attorney General, argued the cause
for respondent. With him on the brief were Ellen F.
Rosenblum, Attorney General, and Paul L. Smith, Deputy
Ortega, Presiding Judge, and Lagesen, Judge, and Garrett,
Summary: Defendant appeals a judgment of conviction for
murder, ORS 163.115, assigning error to the trial court's
denial of his motion to suppress statements that he made
during a police interrogation. Defendant argues that the
trial court erred in admitting the statements because the
detective elicited them by continuing to interrogate
defendant after he had invoked his right to counsel. The
state does not dispute that defendant invoked his right to
counsel, but argues that defendant then waived that right by
immediately answering the detective's preliminary
question that defendant had left unanswered moments earlier.
The state also contends that any error by the trial court was
harmless. Held: The trial court erred in failing to
suppress the statements because defendant invoked his right
to counsel and did not reinitiate the interrogation by
answering the detective's preliminary question. Further,
the error was not harmless because [290 Or.App. 264] the
evidence was not cumulative of other evidence and was
important to whether the jury believed the defendant's
Or.App. 265]GARRETT, J.
appeals a judgment of conviction for murder, ORS 163.115. In
his first two assignments of error, defendant challenges the
trial court's exclusion of evidence that, according to
defendant, was relevant to his theory of self-defense. In his
third assignment of error, he challenges the trial
court's denial of defendant's motion to suppress
statements that defendant made in a police interrogation. As
to that issue, we agree with defendant that police
impermissibly continued their interrogation after defendant
invoked his right to counsel, that the trial court therefore
erred in denying the motion to suppress, and that the error
was not harmless. That conclusion obviates the need to
address defendant's other assignments of error.
Accordingly, we reverse and remand.
review for legal error whether defendant invoked his right to
counsel. State v. Sanelle, 287 Or.App. 611, 613, 404
P.3d 992 (2017), rev den, ___Or ___(2018). We limit
our discussion to the record developed at the pretrial
hearing, State v. Pitt, 352 Or. 566, 575, 293 P.3d
1002 (2012), and are bound by the trial court's findings
if they are supported by evidence in the record.
Sanelle, 287 Or.App. at 613.
murder charge arose from the shooting death of the victim at
defendant's house. It is undisputed that, after defendant
and the victim spent an evening drinking together, defendant
shot and killed the victim.
police interrogation took place at the police station on the
night of the shooting, and involved defendant, Officer
Hatoor, and Detective Knea. Knea began by reading defendant
his Miranda rights. Knea then began asking what he
described to defendant as "preliminary" questions,
which defendant answered. After approximately five minutes,
the following exchange occurred:
" [DEFENDANT]: We moved here in May.
"DETECTIVE KNEA: That was going to be my next question.
Okay. Who else is-so there's another male that was at the
house. What's his name?
"[DEFENDANT]: (Pause.) What was his name?
[290 Or.App. 266] "DETECTIVE KNEA: Yeah.
"OFFICER HATOOR: What was his name?
"[DEFENDANT]: I appreciate the hospitality here,
fellas, but I think I'm going to get a lawyer.
"DETECTIVE KNEA: Okay. Well, that's obviously
something that you have a right to, like I said, okay?
"[DEFENDANT]: His name was [the victim].
"DETECTIVE KNEA: And-and I-I understand that there's
probably a little bit of trepidation about talking to me,
okay? However, I don't know what happened, dude, at all.
"[DEFENDANT]: Well, [n]either do ...