and submitted July 27, 2017
Clackamas County Circuit Court CR1301852; Jeffrey S. Jones,
Meredith Allen, Deputy Public Defender, argued the cause for
appellant. Also on the briefs was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
M. Petrina, Assistant Attorney General, argued the cause for
respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Ortega, Presiding Judge, and Hadlock, Judge, and Schuman,
was convicted of four counts of first-degree sexual abuse,
ORS 163.427, and one count of second-degree unlawful sexual
penetration, ORS 163.408. On appeal, defendant assigns error
to the trial court's denial of his motion to suppress
statements that he made during an interview with detectives.
Defendant argues that he invoked his Article I, section 12,
right to counsel prior to those statements and detectives did
not honor that invocation. The state's response includes
a contention that defendant's Article I, section 12,
right to counsel had not attached during the interview
because he was not in custody or compelling circumstances.
trial court committed reversible error when it denied
defendant's motion to suppress. Defendant at least
equivocally invoked his right to counsel. Any questioning
that follows an equivocal invocation of the Article I,
section 12, right to counsel must clarify whether the suspect
is invoking that right to counsel. Here, the detectives did
not ask permissible clarifying questions after defendant
equivocally invoked his right to counsel, but instead
continued the interview. Further, the Court of Appeals
declined to address the state's argument, made for the
first time on appeal, that defendant's Article I, section
12, right to counsel had not attached at the time of the
Or.App. 31] Reversed and remanded.
Or.App. 32] HADLOCK, J.
defendant's niece, D, alleged that defendant had sexually
abused her when she was a child, detectives interviewed
defendant at a sheriff's office. During that interview,
defendant mainly described a supportive, fatherly
relationship with D and denied the allegations of sexual
contact. However, he also made some inculpatory statements.
Defendant eventually was charged with 46 counts of sexual
abuse, rape, sodomy, and unlawful sexual penetration. He
unsuccessfully moved to suppress the statements he made
during the interview on the ground that he had invoked his
constitutional right to counsel and detectives had not
honored that invocation. At trial, the statements that
defendant had sought to suppress were admitted into evidence.
Defendant was convicted of five of the counts charged: four
counts of first-degree sexual abuse and one count of
second-degree unlawful sexual penetration. On appeal,
defendant assigns error to the denial of his suppression
motion. As explained below, we agree that the trial court
committed reversible error when it denied that motion.
Accordingly, we reverse and remand.
context for our description of the facts, we set out
foundational principles governing the right to counsel during
custodial interrogation. Article I, section 12, of the Oregon
Constitution states that "[n]o person shall *** be
compelled in any criminal prosecution to testify against
himself." The right to counsel during custodial
interrogation derives from that right against
self-incrimination. State v. Roberts, 291 Or.App.
124, 131, 418 P.3d 41 (2018). The right attaches only when a
person is in custody or other compelling circumstances. That
is, when a person is not in custody or compelling
circumstances, officers may continue interrogating that
person even after he or she expresses a desire to contact an
attorney, so long as the officers do so in a way that does
not render the person's responses involuntary. State
v. Anderson, 285 Or.App. 355, 357, 396 P.3d 984, rev
den, 362 Or. 94 (2017). However, when a person is [297
Or.App. 33] in custody or compelling circumstances and
unequivocally invokes the right to counsel, interrogation
must cease. State v. Sanelle, 287 Or.App. 611, 623,
404 P.3d 992 (2017), rev den, 362 Or. 482 (2018). If
the person invokes the right to counsel only equivocally,
officers may ask clarifying questions, but those questions
must be aimed at clarifying whether the person intended to
invoke that specific right. Id. at 627.
to the facts of this case. In reviewing the trial court's
denial of defendant's suppression motion, we are bound by
the trial court's findings of historical fact so long as
evidence in the record supports them. Roberts, 291
Or.App. at 129. Except for reference to a few undisputed
facts described at trial, which we include only to provide
background, we "limit our analysis to the record
developed at the motion hearing." Id. We
summarize the pertinent facts in accordance with that
noted, defendant is D's uncle. When D was a young child,
she moved out of her parent's home and went to live with
her grandmother, with whom defendant (the grandmother's
son) also lived. Defendant, D, and D's grandmother lived
together for the next few years, until defendant got married
and moved away.
years later, D disclosed to her mother that defendant had
sexually abused her when they lived together, beginning when
she was about eight or 10 years old. D's mother reported
the abuse, and a detective was assigned to investigate.
Defendant voluntarily went to a sheriff's office to speak
with detectives because he had been told that he "might
be a potential witness in a case they were
investigating." He thought that detectives were going to
question him about what he suspected was drug activity at his
neighbor's house. Defendant was taken to an interview
room on an upper floor at the sheriff's office via a
locked elevator and through a locked door. Because of the
locks, he could not have left entirely on his own; somebody
from the office would have had to escort him out.
was seated at a table in the interview room, along with two
detectives, one of whom-Brulew- asked most of the questions
during the interview. The entire interview was
video-recorded. The detectives were in plain [297 Or.App. 34]
clothes and the tone of their questions was conversational.
Brulew thanked defendant for coming in, informed him that the
interview was being recorded, and asked some preliminary
questions. Brulew then reiterated, as he had "explained
on the phone, [that defendant was] not under arrest" and
that Brulew had "no intention of arresting [defendant]
today at all," short of defendant admitting that he had
killed somebody. Brulew told defendant that he was free to
decline to answer questions and could leave at any time:
"So you saw how we came in and out. You just have to
kind of go through that hallway. And we're [going to]
have some questions and answers, and it's not an all or
nothing thing. You can answer what you want. You can, not
answer what you want. Questions get uncomfortable you say,
hey I wanna-I wanna stop talking, I'll say, great to meet
you, [defendant]. I'll walk you out to the lobby and
we'll be good today, okay. It's not an all or nothing
then read defendant his Miranda rights, but
explained that having his rights read did not mean ...