and submitted September 18, 2018.
Jackson County Circuit Court 14CR22804; Timothy Barnack,
M. Petrina, Assistant Attorney General, argued the cause for
appellant. Also on the briefs were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Fujita Munsey, Deputy Public Defender, argued the cause for
respondent. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
Summary: This is a state's appeal of an order granting a
motion to suppress in a criminal trial. Defendant is charged
with 12 counts of first-degree assault of his infant son.
Before trial, defendant moved to suppress his statements from
three police interviews, asserting that all of the statements
were made involuntarily and that some were made after he
invoked his right to remain silent under Article I, section
12, of the Oregon Constitution. The trial court granted
defendant's motion in part. It concluded that defendant
had equivocally invoked his right to remain silent during the
third interview, that the police had failed to ask clarifying
questions, and that the statements after the invocation
therefore should be suppressed. As to voluntariness, the
court ruled that all of defendant's statements before the
invocation were voluntary, and it did not decide on the
voluntariness of his statements after the invocation because
it had already ruled to suppress those statements.
Held: In the context in which it was made,
defendant's statement that he was "tired of these
interviews" and "want[ed] to be with [his]
family" was not an equivocal invocation of the right to
remain silent. In any event, defendant promptly clarified his
own intent by requesting to proceed with a polygraph, which
obviated any need for the officers to ask clarifying [295
Or.App. 122] questions. The trial court erred in suppressing
defendant's statements after the alleged invocation. The
alternative issue of voluntariness should be addressed in the
first instance by the trial court on remand.
Or.App. 123] AOYAGI, J.
a state's appeal of an order granting defendant's
motion to suppress. See ORS 138.045(1)(d). Defendant
is charged with 12 counts of first-degree assault, ORS
163.185. Before trial, he moved to suppress evidence of
statements that he made during three police interviews,
asserting that all of the statements were made involuntarily
and that some of the statements were made after he invoked
his right to remain silent. The trial court granted in part
and denied in part defendant's motion. It concluded that
defendant had equivocally invoked his right to remain silent
during the third interview and that the police had failed to
ask clarifying questions, so it suppressed defendant's
statements after the invocation. As to voluntariness, the
court concluded that all of defendant's statements before
the invocation were voluntary, and it did not rule on the
voluntariness of his statements after the invocation because
it had already ruled to suppress those statements. The state
appeals the order granting defendant's motion to
suppress. For the reasons that follow, we reverse and remand.
relevant facts are undisputed. On September 22, G, a
three-month old baby, was admitted to Rogue Valley Medical
Center with serious injuries. G had a subdural hematoma and
had eight bone fractures to his skull, arms, shoulders, ribs,
and one leg. G also was suffering from anemia, vomiting,
fever, and a bulging fontanelle. The next day, G was
transported to OHSU Doernbecher Hospital in Portland for
additional treatment. He was discharged from that hospital on
September 25, but then was readmitted on September 30 because
he was having seizures. On October 3, G was again discharged
and returned home with his mother.
the same time period, the police interviewed defendant,
G's father, on three occasions. The first two interviews
took place at the hospital in Portland on September 24 and
25. The details of those interviews are not relevant to our
resolution of this appeal. The third interview took place at
the sheriff's office in Medford on September 30. That
[295 Or.App. 124] interview began at 12:33 p.m. After
defendant heard and waived his Miranda rights,
Detective Denney questioned defendant regarding G's life,
G's current situation, and what could have caused G's
injuries. Along the way, Denney told defendant that, based on
her conversations with the doctors and a child abuse
specialist, "there's absolutely no way this child
was injured accidentally or by a child." Denney also
said that "the more the doctors know about how [the
brain injury] was caused, the better they can treat that and
so we've got to find that out." Defendant denied any
knowledge of how G had been injured,  and he agreed to take a
p.m., after a short break, Denney said that they had a few
more questions while the polygraph was being set up.
Detective Sigler-who had been present during Denney's
earlier questioning-then gave a lengthy explanation as to why
he felt that defendant's demeanor was inconsistent with
his claims that he knew nothing about how G was injured.
Sigler stated that he found defendant's description of
his weekends alone with five children difficult to believe,
given his own experiences alone with two children. Sigler
noted defendant's lack of emotion and seeming lack of
interest in the details of G's injuries, which was
"not normal" in Sigler's view and "tells
me some things and tells Detective Denney some things."
He also pointed out to defendant that defendant had
"never expressed any anger over how this might have
happened to [his] child, which is very telling." All of
that led Sigler to conclude that defendant was "the
reason that [G] has his injuries," and he encouraged
defendant to admit if he was lying and had lost his temper.
After hearing out Sigler, defendant responded:
"[Defendant]: I'm sorry that-and anybody who knows
me will vouch for this, I am very reserved. Am I pissed?
Absolutely. Am I sad? Absolutely. I don't know what to do
at this point. I'm tired of these interviews. I want to
be with my family.
[295 Or.App. 125] "[Defendant]: And bring in a lie
detector test. I don't know. I'm at-I-I want my-I