State v. Brown

367 P.3d 544, 276 Or. App. 308, 2016 Ore. App. LEXIS 125
CourtCourt of Appeals of Oregon
DecidedFebruary 3, 2016
Docket12C47551; A156289
StatusPublished

This text of 367 P.3d 544 (State v. Brown) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brown, 367 P.3d 544, 276 Or. App. 308, 2016 Ore. App. LEXIS 125 (Or. Ct. App. 2016).

Opinion

DEVORE, J.

Defendant appeals a judgment of conviction for murder with a firearm, unlawful use of a weapon with a firearm, and felon in possession of a firearm. ORS 163.115 (murder); ORS 166.220 (unlawful use of a weapon); ORS 166.270 (felon in possession of a firearm); ORS 161.610 (providing an enhanced penalty for the use of a firearm in the commission of a felony). He assigns error to the trial court’s partial denial of his motion to suppress statements to police, arguing that detectives violated Article I, section 12, of the Oregon Constitution and the Fifth and Fourteenth Amendments to the United States Constitution by interrogating him after he had requested an attorney. We review for legal error the trial court’s ruling that defendant’s statements were admissible on the basis that defendant had not yet made an unequivocal invocation of the right to counsel. See State v. Avila-Nava, 356 Or 600, 609, 341 P3d 714 (2014). We affirm.

The facts are undisputed. Detective Tallan was called to investigate a murder in a Walmart parking lot in Salem. The victim, Knorr, had been in the parking lot with his girlfriend, talking to another person. As Knorr stood there, a Honda CR-V drove by. The driver pointed a gun through the window, fatally shot Knorr, and drove away.

The investigating detectives identified the Honda as defendant’s vehicle and suspected that defendant was the gunman. Police obtained an arrest warrant, located defendant at a Tigard motel room, and arrested him at 7:30 a.m. the next day. After being advised of his Miranda rights, defendant agreed to participate in a police interview at the Tigard police station.

At the police station at about 8:20 a.m., Tallan and another detective began interviewing defendant. Tallan advised defendant that the interview would be video recorded and read defendant his Miranda rights a second time. Defendant confirmed that he understood his rights and signed an acknowledgment card. In the course of the interview, defendant made inculpatory statements. He admitted that he had been driving the Honda the previous day and that he had told his mother to report the vehicle as stolen. [310]*310Tallan asked defendant about a past argument defendant said that he had had with Knorr. Defendant claimed that he had not seen Knorr since the day of the argument. They continued:

“[Tallan]: Well, yeah you did. You saw [Knorr] yesterday morning.
“[Defendant]: No, actually I didn’t.
“[Tallan]: Ok.
“[Defendant]: If you can put a gun in my hand, if you can put, dude if you can put a gun in my hand, the gun in my hand, then please go ahead and do so. If not, then we should probably contact my lawyer because then be done here, [sic] Because if you can put a gun in my hand, then let’s do so.
“[Tallan]: Let’s do what?
“ [Defendant]: Put a gun in my hand.
“[Tallan]: Ok. I am not sure what that means.
“[Defendant]: That means, where’s the gun. Put it in my hand, uh, I didn’t shoot anybody. If I would. If I had a problem with [Knorr], I would have got out of my damn, I would have got out of my Honda and I would have whipped his ass. I would have swung on him, I would have thrown down on him, I certainly wouldn’t have (inaudible) and shot him. That is the most retarded thing I have ever heard. I would’ve beat the brakes off of him, him and his, whoever was with him. I don’t give a flying rat’s ass, I would have whooped his fuckin’ ass.
“ [Tallan]: Who was with him?
“[Defendant]: I, I don’t know. Obviously he wasn’t there by himself because, you know, um, there was multiple reports of, uh, man I heard all kinds of crap coming across the news. *** I wouldn’t have shot him. Everything that I know came from my brother telling me what was on the news, then came from the news last night and, um, I didn’t even bother turning on the TV this morning, so[.]
[Tallan]: Ok. You mentioned a lawyer, does that mean that you want to talk to a lawyer or do you want to talk about this?
[311]*311“ [Defendant]: I have a * * * lawyer on my other cases so she might as well deal with this too. I am telling you, if you got a gun and you can put it in my hand, well then let’s do so. If you don’t then, get my lawyer up here so I can get the hell out of here because this doesn’t work for me.
* * * *
“[Tallan]: So this sounds like a conditional thing.
“[Defendant]: No, it’s not conditional of anything.
“[Tallan]: It’s important that I clarify this okay because I want to keep talking to you and I don’t know, I am not sure if you want to keep talking or not, but you have given me this condition of, okay, if I can put a gun in your hand then I gotta bring your lawyer in. Well what if I can’t. Okay. I don’t know that I can.
“[Defendant]: But if you can’t put a gun in my hands, then we got nothin’ to talk about. If you cannot put a gun, if you don’t have a gun, you can’t put it in my hand — here’s my hand, scrape it, scrub it, do whatever it is you gotta do, get up here in my nostrils and my eyes, whatever it is you all gotta do for [gunshot residue tests], whatever, if you can put a gun in my hand, and tell me I fired a gun, then do so, please and we’ll move forward in that direction. If not,
“ [Tallan]: Well let me tell you this
“[Defendant]: then get my lawyer up here so I can the hell [sic] out of here.
“[Tallan]: Well, let me tell you this. All right. When you pulled in there, I’m suggesting that you didn’t get out and whoop his ass.”

Although the interview continued for some minutes, that content, following Tallan’s last statement here, was suppressed by the trial court because the detective’s statement was not a clarifying question, and that content is not the subject of this appeal.

Approximately one hour into the interview, Tallan took a break. He resumed the interview at 10:10 a.m. and began by explaining that defendant was under arrest, that he would be jailed regardless of whether the recorded interview continued and that it was defendant’s choice whether to continue the interview. Tallan restated defendant’s Miranda [312]*312rights a third time, and defendant acknowledged that he understood his rights. Defendant did not make any additional references to legal counsel. He continued to deny being at Walmart the previous morning and denied any involvement in the shooting.

At 10:37 a.m., Tallan stopped the interview to get food and to transport defendant to the Salem police station. While on the way to Salem, defendant asked to make a recorded statement and did so using a handheld digital recorder.

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Cite This Page — Counsel Stack

Bluebook (online)
367 P.3d 544, 276 Or. App. 308, 2016 Ore. App. LEXIS 125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brown-orctapp-2016.