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State v. Reed

Court of Appeals of Oregon

October 9, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
HERMAN KENNETH REED, Defendant-Appellant.

          Argued and submitted January 9, 2018.

          Multnomah County Circuit Court 14CR21187, 15CR11789; Edward J. Jones, Judge.

          David L. Sherbo-Huggins, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office 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 Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary:

         Defendant appeals judgments of conviction for four sex crimes. On appeal, defendant assigns error to the trial court's denial of his motion to suppress statements he made while in police custody. Defendant contends that he equivocally invoked his right to counsel, while being questioned at a police station, when he asked a detective whether he needed a lawyer. Defendant argues that statements he made after asking that question should have been suppressed because the detective did not cease questioning or clarify whether defendant was invoking his right to counsel. Defendant argues also that statements he made later, after he unequivocally invoked his right to counsel, should have been suppressed because the police detective impermissibly reinitiated questioning by making a statement calculated to provoke an incriminating response. Held: First, defendant's question to the detective about whether he needed a lawyer was not an equivocal invocation of his right to counsel. Accordingly, the trial court did not err when it denied defendant's suppression motion with regard to [299 Or.App. 676] the statements defendant made after asking that question. Second, any error the trial court may have committed in denying the motion to suppress the statements defendant made after he invoked his right to counsel was harmless in the context of this case.

         [299 Or.App. 677] HADLOCK, P. J.

         Defendant was convicted, following a bench trial, of sex crimes committed against two young girls. He raises four assignments of error on appeal. In his first assignment of error, defendant challenges the trial court's denial of his motion to suppress two categories of statements that he made while in police custody: (1) statements that he made at a police station, before he unequivocally invoked his constitutional right to counsel, and (2) statements that he made later, after his unequivocal invocation. As explained below, we reject defendant's argument that the trial court erred in denying the motion to suppress statements he made before his unequivocal invocation. With respect to defendant's later statements, made after his invocation, we conclude that we need not decide whether those statements should have been suppressed because any error associated with admitting them at trial was harmless. We reject defendant's second, third, and fourth assignments of error, in which he challenges the admission of "other acts" evidence, without discussion. Accordingly, we affirm.

         I. BACKGROUND AND PROCEDURAL FACTS

         We review the trial court's ruling on the motion to suppress for legal error. State v. Jones, 296 Or.App. 553, 555, 439 P.3d 485, rev den, 365 Or. 557 (2019). As noted, we resolve defendant's challenge to one aspect of that ruling (relating to defendant's pre-invocation statements) on the merits. Thus, in analyzing that aspect of the ruling, "we are bound by the trial court's findings of historical fact so long as evidence in the record supports them." State v. Dodge, 297 Or.App. 30, 33, 441 P.3d 599, rev den, 365 Or. 533 (2019). We therefore set out the evidence pertinent to that aspect of the suppression motion "in the light favoring the court's ruling." Jones, 296 Or.App. at 556. However, we resolve defendant's challenge to a second aspect of the trial court's denial of his suppression motion (relating to defendant's post-invocation statements) on harmless-error grounds. "A harmless error analysis is based on reviewing all pertinent portions of the record to determine if there is little likelihood that any error affected the verdict." Id. (internal quotation marks and brackets omitted). We describe the evidence pertinent to the [299 Or.App. 678] ruling on defendant's post-invocation statements in accordance with that standard.

         In 2014, a young girl, N, reported to her family members and others that defendant had touched her private parts. Later the same year, another young girl, S, made similar reports. Both girls eventually were evaluated at CARES, and each disclosed that defendant had sexually abused her.

         After N's disclosures were reported, defendant was taken to a police station and interviewed by Detective Pontius, who read defendant Miranda warnings, obtained defendant's acknowledgement that he understood those rights, and asked whether defendant had any questions. Defendant responded, "Well, I don't know. Do I need a lawyer?" Pontius told defendant that that was up to him and that Pontius could not make the decision for him or give him legal advice. Defendant said something like, "We can go and you can let me know what's going on."[1] Defendant made arguably incriminating statements. Later in the interrogation, defendant said, "Well, I guess I'm going to need to lawyer up, then," and questioning stopped.

         Pontius told defendant that he was being arrested and charged with rape. Pontius worked on paperwork for about half an hour, then drove defendant from the police station to the jail, which took about 15 minutes. During that drive, Pontius noticed that defendant's behavior had changed. Defendant had appeared to take the interview fairly seriously but, during the drive to jail, was "very nonchalant, almost lackadaisical about his approach." Defendant was "kind of singing at some points" and "making fun of some people standing nearby. About halfway through the drive, Pontius said, "Dude, here's some friendly advice. You need to get your shit together." After a pause, defendant said, "I know. This has been a family curse that needs to be broken at the end of a rope. It's an addiction that I can't seem to get any control [299 Or.App. 679] over."[2] Pontius later testified, at the suppression hearing, that he had made the "get your shit together" comment in association with defendant's demeanor during the car ride.

         Defendant was charged in case number 14-CR-21187 with one count each of first-degree rape, first-degree unlawful sexual penetration, and first-degree sexual abuse, each alleged to have been committed against N. In case number 15-CR-11789, defendant was charged with one count of first-degree sexual abuse, committed against S.

         Defendant moved to suppress two sets of statements he made to Pontius: (1) those he made at the police station, after he asked Pontius whether he needed an attorney but before he unequivocally invoked his right to counsel, and (2) those he made during the drive to jail, after Pontius remarked that defendant "needled] to get his shit together."[3]Defendant argued that the first set of statements should be suppressed because he had equivocally invoked his right to counsel by asking Pontius whether he needed an attorney, and Pontius had neither ceased the interrogation nor asked questions to clarify whether defendant was invoking his right to counsel. Defendant argued that the second set of statements should be suppressed because, after he ultimately unequivocally invoked his right to counsel at the police station and interrogation stopped, Pontius impermissibly reinitiated interrogation during the drive to jail when he "made statements to [defendant] that were absolutely calculated to provoke an incriminating response." The trial court denied both aspects of defendant's suppression motion, although it was "a little more troubled" by Pontius's comment to defendant during the drive to jail, which the court viewed as "an invitation to talk about the case" that was "provoking further discussion" on that topic.

         Defendant waived his right to a jury, and the case was tried to the court. We briefly summarize the most [299 Or.App. 680] pertinent evidence to provide context for the discussion that follows. N's mother testified that, in 2013 and 2014, she and N had regularly spent nights at defendant's home. N's mother testified that defendant was a father figure to N and that he often took care of her, particularly while N's mother was at work. At some point in 2014, N's mother and other individuals started to notice times when N was rubbing her vaginal area. Eventually, after being asked a few times about that behavior and whether anybody had ever touched her, N said that defendant had. N's mother also testified about two times that N went to CARES for evaluation. After N's disclosures, N's mother stopped spending nights at defendant's home.

         Two friends of N's mother also testified as to statements that N made about defendant having touched her. Once, when one of those friends was giving N a bath and asked N to stand up to be washed, N said, "Just please don't go inside me." The friend asked who had done that to N, and the child responded that defendant had. The other friend testified that N had said that defendant "had put his pee-pee" and then pointed to her genital area. The friend asked if it had happened more than once and N said yes.

         S's mother also was friends with defendant; she and S spent a lot of time with him. S's mother occasionally allowed S to spend the night at defendant's house, where S sometimes played with N. A few weeks after N's mother stopped staying at defendant's house, S's mother left S there one evening. The next day, S told her mother that defendant had "put pee-pee medicine on her privates." S's mother called defendant, who gave "a bunch of excuses of what she may have thought the pee-pee medicine was." At that point, S's mother called N's mother because she wanted to know why N was not at defendant's house any more. S's mother testified that N's mother said that N "was saying the same thing"; N's mother testified that she told S's mother "that she needed to listen to her daughter."

         A counselor who works at CARES as a child interviewer testified generally about CARES evaluations and about her interview of N, which occurred on N's second visit [299 Or.App. 681] to CARES.[4] N was then four years old. N told the interviewer that defendant had "got right there with his pee-pee," pointing between her legs. N said that what defendant did was "[n]ot okay" and that it happened more than one time. She also said that defendant "pushed in there" when he put his "pee-pee," which looked like a big snake stuck to his body, in N's "pee-pee." N asserted that "medicine" had "came out of [defendant's] pee-pee and went right inside" of N. N also indicated that defendant touched her genital area with his finger, which got "inside there." N responded negatively when asked about other types of sexual touching and she denied being sexually touched by anybody other than defendant.

         Another CARES interviewer testified about his interview of S, which took place when she was just under six years old, months after the incident at defendant's home.[5]During the first part of the interview, when he and another CARES worker explained to S that their job was to make sure that she was healthy and safe, S said that her friend, N, had been hurt by defendant. S said that she had heard that from her mother.[6] S also said that defendant had "peed on her" (meaning S) when she was in his bedroom, that "the pee went in her pee-pee and it burned." She described defendant's "pee-pee" as looking like a very big stick. On cross-examination, the CARES interviewer acknowledged concern about S's mother having told S that defendant had sexually abused N; one reason for concern is that S was at a "fairly suggestible" age. However, S herself "did not seem particularly suggestible" during the interview and she denied that [299 Or.App. 682] defendant had touched any part of her body, except by "peeing" on her.

         Both children testified at trial. N, who was then five years old, identified defendant and said that she had not seen him in a while because "he hurts my feelings". When asked what she meant by that, N testified that she did not "like it when he hurts me like that" and, after another question about what she meant, said that defendant hurt her in her "private parts." As questioning continued, N testified that defendant hurt her "almost every single night" and that he touched her, including inside her private part, with his own private part and with his fingers.

         S also testified; at the time of trial, she was six years old. S was reluctant to identify anybody in the courtroom whom she recognized other than her parents and the prosecutor; she testified, "Don't want to say it." When asked about defendant by name, she said, "Don't like it." She then whispered and, when the prosecutor asked her to speak up a little louder about why she did not "like talking about" defendant, S said, "Pee." The prosecutor asked S what she remembered about the pee, and S said, "it coming out" from defendant's "pee-pee." S testified that she was lying on defendant's bed in his bedroom when that happened, that defendant was standing up, and that the pee got on her privates. S testified that defendant's pee-pee looked like a stick. What happened made S feel mad.

         Detective Pontius testified and, through him, the state introduced the statements by defendant that were the subject of defendant's suppression motion. Pertinent to the issues on appeal, Pontius testified about having said to defendant, on the drive from a police station to jail, "Dude, here's some friendly advice. You need to get your shit together." Pontius then reported defendant's response, to the best of his recollection: "I know. This has been a family curse that needs to be broken at the end of a rope. It's an addiction * * * I can't seem to get any control over."

         Defendant called two witnesses at trial. The first witness, Steinman, used to date defendant and, during that relationship, she became acquainted with S's mother. In Steinman's opinion, S's mother is not a truthful person. [299 Or.App. 683] Defendant's second witness was a psychologist who used to work as a child interviewer at CARES and who led a team that drafted the first version of the Oregon guidelines for interviewing children. The psychologist testified about the possible effect of N's mother having repeatedly questioned N about possible touching before the second CARES interview, explaining in detail why such questioning could lead a child to go along with what she thinks her parent wants to hear.

         The psychologist also testified about concerns associated with S reporting that her mother had told her what defendant had done to N. Given the amount of time that passed between when S spent the night at defendant's house and when the CARES interview occurred, "and suddenly the child's being influenced about something that happened with another child, * * * they may add some of that to their own memory. They may begin to think, gosh, maybe something like that happened to me." The psychologist also testified about other reasons that S's memory may have faded over time.

         On cross-examination, the psychologist acknowledged that the CARES interviewer did a good job in interviewing N, that the statements N made were age-appropriate, and that research shows that the kind of details N gave "are correlated with accuracy." The psychologist also acknowledged that, in describing what defendant had done to her, S did not report all of the same types of things that she believed defendant had done to N.

         The trial court found defendant guilty of all charges: one count each of first-degree rape, first-degree unlawful sexual penetration, and first-degree sexual abuse with N as the victim, and a single count of first-degree sexual abuse with S as the victim. In announcing its verdict, the court stated that it found N and S to be credible and that it ...


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