and Submitted June 29, 2017
Multnomah County Circuit Court 14CR31903; A159647 Edward J.
Fujita Munsey, Deputy Public Defender, argued the cause for
appellant. With her on the briefs was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
B. Thompson, Assistant Attorney General, argued the cause for
respondent. With him on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Garrett, Presiding Judge, and Lagesen, Judge, and Edmonds,
Summary: Defendant appeals a judgment of conviction for
assault in the first degree, ORS 163.185. Defendant first
challenges the court's denial of his motion to suppress
incriminating statements made during a police interview
after, according to defendant, he equivocally invoked his
constitutional right to counsel by asking detectives,
"Do I need [a lawyer]?" Defendant also challenges
the trial court's denial of his motion under OEC 403 to
exclude evidence that defendant used a racial epithet to
describe a black person who was immaterial to the case. In
response to defendant's second challenge, the state
argues that the trial court's failure to develop a record
of its balancing analysis necessitates a limited remand under
State v. Baughman, 361 Or. 386, 393 P.3d 1132
(2017). The state alternatively argues that any error in
admitting that evidence was harmless.
First, the trial court did not err in denying defendant's
motion to suppress. Defendant's question, "Do I need
[a lawyer]?" was not an equivocal invocation [291
Or.App. 125] because the only reasonable interpretation of
that question is that defendant had not yet formed an intent
to invoke his right. Second, the trial court erred in denying
defendant's motion to exclude the evidence of the racial
epithet. Although the court failed to make a record of its
OEC 403 balancing analysis, a limited remand under
Baughman is unnecessary here because the
circumstances in this case presented no discretionary options
for the trial court except exclusion. Furthermore, the error
was not harmless because the evidence of the racial epithet
was qualitatively different than the state's other
evidence, which was far from overwhelming in proving
Or.App. 126] GARRETT, P. J.
appeals a judgment of conviction for assault in the first
degree, ORS 163.185. On appeal, defendant raises four
assignments of error. We reject the third and fourth
assignments without discussion. In his first assignment of
error, defendant argues that the trial court erred in denying
his motion to suppress incriminating statements made during a
police interview after, according to defendant, he invoked
his constitutional right to counsel. In his second assignment
of error, defendant argues that the trial court should have
granted his motion in limine to exclude evidence
that he used a racial epithet to describe a black person. For
the reasons explained below, we reject defendant's first
assignment of error because we conclude that he never invoked
his right to counsel. With respect to his second assignment,
we conclude that the trial court erred, that the error was
not harmless, and that a new trial is necessary. Accordingly,
we reverse and remand for a new trial.
officers arrested defendant as a potential suspect in a
stabbing at a Portland MAX Station. Detectives Hogan and
Crate interviewed defendant at the police station early in
the morning. Defendant was asleep when they entered the room.
After brief introductions, Hogan read defendant his
Miranda rights, and then asked if defendant had any
questions about them. Defendant responded that he was
intoxicated, homeless, and did not know what time it was,
where he was, or how he had gotten there. Hogan told
defendant the time and explained where he was, and began
re-reading his Miranda rights. The following
"DETECTIVE HOGAN: Okay. You have the right to talk to a
lawyer and have him present when you're being questioned.
If you want to have a lawyer, you can have a lawyer present,
"[DEFENDANT]: Do I need one?
"DETECTIVE HOGAN: I can't make that decision for
"DETECTIVE CRATE: We're just going to be talking to
you about stuff that happened tonight, okay, but we need [291
Or.App. 127] to make sure you understand your rights first
before going through them. So once you understand those,
we'll explain everything that's going on, okay?
"DETECTIVE HOGAN: If you cannot afford to hire a lawyer,
one will be appointed to represent you at no expense."
(Emphasis added.) Neither defendant nor the detectives
further discussed defendant's right to an attorney. A few
moments later, the detectives told defendant that they were
investigating a fight at a MAX Station, and asked:
"DETECTIVE CRATE: Mr. Roberts, you know that Tri-Met and
everything has excellent video on its platforms, right?
" [DEFENDANT]: I have no idea about that, but I was on
that platform and this dude punched me in the face, so I
punched him and I walked away.
"DETECTIVE HOGAN: Okay.
"[DEFENDANT]: They was probably doing some nigger
shit there. This dude hit me."
(Emphases added.) The detectives later asked about what
defendant meant when he said either "nigger shit"
or "nigger chick, " and learned that defendant was
referring to a black woman who witnessed the fight at the MAX
Station. The police never discovered her identity, and she
had no further significance in the case. After that exchange,
defendant made several incriminating statements.
moved to suppress all statements from the interview, arguing
that the police failed to obtain a valid Miranda
waiver of his right to remain silent. Defendant's written
motion did not make any argument concerning the right to
counsel. During arguments on the motion, the court watched a
video of the interview and asked the state if defendant's
question "Do I need one?" was at least an equivocal
invocation of the right to counsel. An extended discussion
followed, primarily between the court and state, about what
[291 Or.App. 128] constitutes an equivocal invocation. Both
parties cited case law. As the state points out on appeal,
however, defendant's counsel never argued that the
question "Do I need one?" constituted an equivocal
invocation, and never asserted that the trial court did or
would err by ruling otherwise. The trial court ultimately
determined that defendant had made no invocation, and, even
if he had made an equivocal invocation, the police properly
clarified his intent before proceeding.
defendant moved in limine to exclude all references
in the police interview to the racial epithet, asserting that
his use of the word had nothing to do with the case and would
cause him unfair prejudice. The court denied the motion,
"THE COURT: The bottom line is, you know, if we start
sanitizing everybody's statements-
"[DEFENSE COUNSEL]: Well, it's just the one.
"THE COURT: -where does that end, you know. So, no,
I'm not going to ask the State or anybody else to clean
up poor word choices that either he or the officers made. You
know, it's a path that would lead to nothing but
disaster. So, denied."
trial, defendant relied on a self-defense theory. The state
played a portion of the police interview video in which
defendant used the racial slur once and the detectives quoted
it twice more to clarify what defendant was talking about.
The state used the interview video to attack defendant's
credibility by highlighting inconsistencies between his
interview statements and other contrary evidence. The state
also presented one eyewitness of the fight and played a video
of Tri-Met security camera footage depicting the stabbing
itself; both parties argued extensively over whether the
witness testimony and footage proved or disproved
defendant's self-defense theory. The jury found defendant
guilty by a 10-2 verdict.
appeal, defendant first argues that the trial court should
have granted his motion to suppress on the ground that his
question near the beginning of the police interview-"Do
I need one?"-was an equivocal invocation [291 Or.App.
129] of his right to counsel, which the police failed to
adequately clarify. The state responds that defendant's
argument is not preserved, and, in all events, fails on the
merits because defendant's question did not constitute an
invocation of any rights.
defendant contends that the trial court erred in denying his
motion in limine under OEC 403 to exclude evidence
of defendant's use of the racial epithet, arguing that
the evidence was highly prejudicial and devoid of probative
value. The state responds that any error in admitting the
evidence was harmless, but that, if it was not harmless, then