and submitted February 21, 2017
County Circuit Court 14C44096; Tracy A. Prall, Judge.
F. Byl, 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 Benjamin Gutman, Solicitor
DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi,
appeals a judgment convicting him of first-degree
manslaughter. Defendant assigns error to the trial
court's ruling denying his motion to suppress statements
that he made to police following his arrest. Defendant argues
that police did not wait a legally sufficient period of time
before reinitiating conversation after he invoked his right
to remain silent. Defendant alternatively argues that he did
not knowingly and intelligently waive his rights because he
was under the infuence of methamphetamine. Held: The
trial court did not err in denying defendant's motion to
suppress. The police scrupulously honored defendant's
rights before reinitiating questioning, and evidence in the
record supports the trial court's finding that defendant
was not too intoxicated to knowingly and intelligently waive
Or.App. 408] DEHOOG, P. J.
appeals a judgment of conviction entered after a jury found
him guilty of first-degree manslaughter, ORS 163.118, a
lesser-included offense of the murder defendant was charged
with after fatally stabbing his brother, ORS 163.115.
Defendant assigns error to the trial court's ruling
denying his motion to suppress statements that he made to
police following his arrest. He argues that, after he invoked
his constitutional right to remain silent, the police did not
wait a legally sufficient period of time before reinitiating
conversation. He also argues that, because of that initial
violation, evidence from two subsequent interviews must also
be suppressed. Defendant alternatively argues that he did not
knowingly and intelligently waive his right to remain silent,
because he was under the influence of methamphetamine.
Because we conclude that defendant's rights were not
violated, we affirm.
only issues on appeal arise from defendant's motion to
suppress his custodial statements to the police; therefore,
the relevant facts are those presented at defendant's
suppression hearing. On July 3, 2014, Salem police officers
arrested defendant and took him to the police station. At
approximately 5:00 p.m., they brought defendant into an
interview room, where they offered him water. At that time,
Detective Tallan, who ultimately conducted the challenged
interviews, advised defendant of his Miranda rights
by reading them verbatim from a card. Tallan asked defendant
if he had any questions, and defendant indicated that he
understood his rights. Defendant signed the Miranda
card. Tallan also read defendant his rights regarding
requests for consent to search. Defendant subsequently gave
verbal consent to a search of his person.
began his interview with defendant by asking him to provide
background information, such as where he lived and with whom.
Defendant told Tallan that he lived with his brother, the
victim in this case. At 5:20 p.m., after Tallan asked
defendant whether his brother was okay, defendant responded,
"I don't want to say anything right now."
Tallan confirmed that defendant did not want to say anything
further at the moment and stopped his investigative [291
Or.App. 409] questioning. Tallan asked, however, whether the
police could continue to collect physical evidence as
previously discussed. Defendant agreed that they could,
stating, "You may."
proceeded to photograph defendant and collect his clothing.
During that process, defendant asked Tallan whether he could
withdraw his consent as to a blood draw. Tallan explained
that he could withdraw his consent because "it's
consent; you give it, you can take it away." Tallan
further explained, however, that they would draw
defendant's blood even without his consent because of the
exigency involved. Defendant also asked whether he could
revoke his consent to a DNA swab because his DNA was already
"on file." Tallan again explained that defendant
could revoke his consent, but told defendant that he would
prefer to get the DNA directly from him. As officers
continued collecting defendant's clothing, defendant,
unprompted, said that he would consent to the DNA swab. After
the officers finished their initial collection of evidence
from defendant, Tallan took him back to the interview room.
Throughout their encounter, Tallan asked defendant several
times whether he needed to use the restroom or wanted water.
Tallan also ordered defendant pizza.
p.m., defendant asked to smoke a cigarette, and Tallan and
another officer took defendant outside so that he could.
During that smoke break, defendant told them about a
documentary that he had recently seen, but Tallan did not
direct the conversation or question defendant at that time.
Following the break, the police returned defendant to the
interview room and, in response to defendant's complaint
that his head hurt, gave him chocolate.
to Tallan, defendant was fidgety and unable to sit still. At
times it appeared to Tallan as though defendant was having a
conversation with someone who was not in the room. Tallan
believed defendant's behavior was consistent with that of
a person under the influence of a stimulant. Defendant told
Tallan that he ...