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State v. Rose

Court of Appeals of Oregon

February 13, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
GARY LEE ROSE, Defendant-Appellant.

          Submitted on remand June 27, 2017.

          On remand from the Oregon Supreme Court, State v. Rose, 361 Or. 524, 395 P.3d 874 (2017).Clackamas County Circuit Court CR1200025; Douglas V. Van Dyk, Judge.

          Peter Gartlan, Chief Defender, and Morgen E. Daniels, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh H. Shah, Assistant Attorney General, fled the brief for respondent.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.

         Reversed and remanded.

         Case Summary: This case is on remand from the Oregon Supreme Court, which vacated the Court of Appeals' prior decision for reconsideration in light of State v. Nichols, 361 Or. 101, 390 P.3d 1001 (2017). In its prior opinion, the Court of Appeals concluded that defendant's statement, "I don't have nothing to say"-when considered in the context that defendant had previously said that he was not thinking and that he was taken aback and surprised that the detectives had possession of incriminating photographs-was an assertion that he had no response to being confronted with the photographs and not an invocation of his constitutional right to remain silent. Held: In light of the court's analysis in Nichols, defendant's statement was an equivocal invocation of his right to remain silent. Because the detectives failed to clarify defendant's intent before proceeding further, the trial court erred in not suppressing the statements that followed the invocation.

         Reversed and remanded.

          [296 Or.App. 100] ORTEGA, P. J.

         In light of State v. Nichols, 361 Or. 101, 390 P.3d 1001 (2017), the Supreme Court vacated our decision, State v. Rose, 278 Or.App. 551, 377 P.3d 613 (2016) (Rose I), and remanded the case for reconsideration. State v. Rose, 361 Or. 524, 395 P.3d 874 (2017) (Rose II). In Rose I, we concluded that defendant's statement-"I don't have nothing to say"- was not an invocation of his right to remain silent under Article I, section 12, of the Oregon Constitution and that the trial court did not err when it denied, in part, defendant's motion to suppress incriminating statements that he made during a custodial interview. On remand, reviewing for legal error, State v. Avila-Nava, 356 Or. 600, 609, 341 P.3d 714 (2014), we conclude that defendant's statement was an equivocal invocation of that right, and the detectives failed to further clarify defendant's intent. Consequently, we reverse and remand.

         We begin with the facts, consistent with the trial court's findings of fact that are supported by evidence in the record. Id. Nine-year-old E reported that defendant-her mother's boyfriend-sexually abused her and recorded on his cell phone sexually explicit photographs and video of her. Detectives Voss and Garrett arrested defendant and, having seized defendant's phone, interrogated him at the police station. The details of the interrogation, taken from Rose I, are as follows:

"At the start, Voss and Garrett administered Miranda warnings before informing defendant that the victim had alleged that he had sexually abused her and that he had taken sexually explicit video and photographs of her with his cell phone. During the first hour of the interview, defendant repeatedly denied that his cell phone contained any such images. He explained that the victim had threatened to make abuse allegations against him to 'get rid of him and was upset with him because he had disciplined her. After about 30 minutes, Garrett accused defendant of lying and told him that the detectives had seen explicit video and photographs of the victim from his cell phone. Defendant continued to deny that he had done anything wrong or that there was anything incriminating on his phone. Garrett continued to question defendant, urging him to take [296 Or.App. 101] responsibility for his actions. Defendant continued to deny any wrongdoing. After nearly an hour of questioning, the detectives gave defendant a break to smoke a cigarette.
"When they returned from the break, the detectives immediately confronted defendant with prints of some of the less explicit photos that they had discovered on his phone. Specifically, Voss showed him three photographs. The first was an inoffensive photograph of defendant and the victim. The second and third photographs were pictures 'aimed downwards towards the pubic area of what appears to be a girl.'
"Voss informed defendant that 'these were taken within a couple minutes of each other.' Defendant sat in silence. Voss, while pointing at the first photograph, stated, 'That's [the victim]; that's you.' After almost 20 seconds of silence, Garrett asked, 'Where's that at?' Defendant responded, At her mom's house, I think.' Voss asked, 'That's not your bedroom at the Oxford House?' Defendant responded, 'No.' Forty-five seconds of silence followed, after which Garrett pressed defendant about the timing of the photographs. The detectives and defendant sat in silence for over one minute. Voss then stated, 'Tell me what you are thinking, man.' Defendant responded, 'I'm not.' Voss asked, 'You're not thinking?' Defendant shook his head no. Garrett then interjected, 'Tell me, does that make ...

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