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State v. Dodge

Court of Appeals of Oregon

April 10, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
DARRON DUANE DODGE, Defendant-Appellant.

          Argued and submitted July 27, 2017

          Clackamas County Circuit Court CR1301852; Jeffrey S. Jones, Judge.

          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 Services.

          Doug 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.

          Before Ortega, Presiding Judge, and Hadlock, Judge, and Schuman, Senior Judge.

         Case Summary:

         Defendant 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.

         Held:

         The 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 interview.

         [297 Or.App. 31] Reversed and remanded.

         [297 Or.App. 32] HADLOCK, J.

         After 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.[1]

         To give 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.

         We turn 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 standard.

         As 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.

         Several 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.

         Defendant 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 thing."

         Brulew then read defendant his Miranda rights, but explained that having his rights read did not mean ...


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