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State v. Gillispie

Court of Appeals of Oregon

January 16, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
DANIEL RYAN GILLISPIE, Defendant-Appellant.

          Argued and submitted September 7, 2018

          Clackamas County Circuit Court CR1402207, CR1501226; Jeffrey S. Jones, Judge.

          Mary M. Reese, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for manslaughter in the first degree, ORS 163.118, and possession of a destructive device, ORS 166.382. He assigns error to the trial court's denial of his motion to suppress incriminating statements made during his interrogation, arguing that the detectives unlawfully interrogated him in violation of Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the United States Constitution after he unequivocally invoked his right to counsel. In response, the state contends that the trial court did not err in denying the motion because defendant initiated further conversation with the detectives and waived his previously invoked right. Held: On this record, defendant's interactions with the detectives and his initiation of further conversation manifested his clear intent to walk back his prior invocation in order to further discuss the details of his case. Moreover, the detectives reminded defendant multiple times over the span of four minutes that he had asked for an attorney and that invoking that right meant the conversation [295 Or.App.703] needed to stop. Under the totality of the circumstances, defendant's incriminating statements that followed his invocation were not the product of unlawful interrogation by the detectives because defendant initiated further conversation with the detectives that evinced a willingness and a desire for a generalized discussion about the charges.

         Affirmed.

         [295 Or.App. 704] JAMES, J.

         Defendant appeals a judgment of conviction for manslaughter in the first degree, ORS 163.118, and possession of a destructive device, ORS 166.382. After the trial court denied defendant's motion to suppress, he entered a conditional guilty plea to both charges while reserving his right to appeal the denial of his motion. ORS 135.335(3). On appeal, he assigns error to the trial court's denial of his motion to suppress, arguing that the detectives unlawfully interrogated him in violation of both Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the United States Constitution after he unequivocally invoked his right to counsel. In response, the state contends that the trial court did not err in denying defendant's motion, because defendant initiated further conversation with the detectives and waived his previously invoked right to counsel. We conclude that defendant's incriminating statements that followed his invocation of the right to counsel were not the product of unlawful interrogation by the detectives and that defendant initiated further conversation with the detectives in a manner that evinced a willingness and a desire for a generalized discussion about the charges, preceding his valid waiver.[1] Accordingly, we affirm.

         We review the denial of a motion to suppress for legal error and are bound by the trial court's findings of fact if evidence in the record supports them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). We state the following facts in accordance with that standard.

         In the course of a homicide investigation, Clackamas County Sheriff's Office Detectives Smith and Miller came to believe that defendant was involved in a fatal stabbing and sought to interview him while he was in the Clark County Jail in Washington. Smith and Miller read defendant his rights and, after some discussion with the two detectives, defendant asked if they could continue talking with the video [295 Or.App. 705] recorder off. The detectives explained that the interrogation must be taped in order to preserve an accurate account of what was said. In response, defendant stated, "Well, then I want a lawyer" and "I got nothing else to say." The detectives asked defendant if he already had a lawyer and defendant stated he had not yet retained one. Miller then informed defendant that he was being charged with murder, that he would be extradited back to Oregon, and that Miller would submit the paperwork that day. The detectives, responding to defendant's earlier request to continue the conversation without the video recorder, explained that, although they had accommodated requests to speak off video in the past, they could not talk to defendant without recording the conversation because "you've already talked about you want an attorney. So I'm not going to ask you questions about the interview or about anything that's going to incriminate you." The detectives then stated they were ending the interrogation and turning off the recorder, saying that "we'll head out" and "we'll tell them we're done with the interview, okay?"

         The detectives did not actually leave or turn off the recorder, because defendant started asking them questions. Defendant asked them how soon he would be extradited back to Oregon and they estimated that it could take a couple of days to a week. Defendant then asked them if the case was "going federal" and they responded that they did not know but probably not. Defendant then asked what kind of time he would face if he was found guilty and Miller stated that the process was based on defendant being charged with aggravated murder. Defendant responded that he did not understand what aggravated murder meant. Smith interrupted Miller and explained to defendant that they needed to "kind of stop the interview" because the detectives were not allowed to chit chat with defendant after he had asked for an attorney. Defendant interrupted Smith to ask if defendant's girlfriend knew he was being charged, and the detectives responded that she will know. Defendant made it clear that he did not want her caught up in the case, and Miller said it depends on how involved she is; Smith stated, "We have to stop there" and Miller said, "Yeah."

         At that point, defendant asked, "Well can I unask for a lawyer [.] I just want [girlfriend] to be out there staying [295 Or.App. 706] with my kid[.] I'll talk with you guys if you agree to leave her out of this." Smith started to explain again to defendant that he had already asked for an attorney and defendant interrupted him to say, "I'll talk to you guys if...if you agree to leave her out of this." (Ellipsis in original). Smith immediately responded:

"[DETECTIVE SMITH]: We...no. I ...

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