Submitted on remand June 27, 2017.
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.
Gartlan, Chief Defender, and Morgen E. Daniels, Deputy Public
Defender, Offce of Public Defense Services, fled the brief
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Peenesh H. Shah, Assistant Attorney General,
fled the brief for respondent.
Ortega, Presiding Judge, and Egan, Chief Judge, and Powers,
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.
Or.App. 100] ORTEGA, P. J.
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.
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
"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
"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 ...