State v. Determann

839 P.2d 748, 115 Or. App. 627, 1992 Ore. App. LEXIS 1954

Opinions

DEITS, J.

Defendant appeals his convictions on two counts of first degree sodomy, ORS 163.405, first degree rape, ORS 163.375, first degree burglary, ORS 164.225, first degree kidnapping, ORS 163.235, two counts of first degree robbery, ORS 164.415, and two counts of menacing. ORS 163.190. He also assigns error to the trial court’s imposition of sentence. We affirm the convictions but remand for resentencing.

During the course of robbing a sandwich store, defendant kidnapped, raped and sodomized one of the store’s employees. Police responded to a silent alarm and arrested him at the scene. Detective Lind interviewed him approximately two hours after the arrest. Lind read defendant the Miranda rights, and he signed an acknowledgment. He told Lind that he wanted to talk to an attorney before he answered any questions. Before talking to his attorney, however, he was shown a picture of the knife used against the employees. Defendant then asked if he could be photographed with the knife. Lind encouraged him to make a statement, telling him that he had an opportunity to “tell his side of the story.” Defendant responded, “You guys got me” and refused further discussion. Defendant moved to suppress the statements that he made after requesting counsel. The state conceded that suppression was proper, and the trial court suppressed the evidence.

At trial, defense counsel announced his intention to present an intoxication defense. He told the court that he would question Lind about certain statements that defendant made after invoking his right to counsel. The prosecution responded that, if defense counsel did that, it would question Lind about other statements that defendant made. Over defendant’s objection, the trial court ruled that, if defendant presented evidence of any of the statements that he made after invoking his right to counsel, the state could ask about other statements that he made at that time.

On direct examination, defense counsel questioned Lind about defendant’s request to be photographed with the knife. On cross-examination, the prosecution asked Lind about defendant’s statement, “You guys got me,” his invocation of his right to counsel and his refusal to talk to the police after invoking that right:

“Q Now, Detective, after you read him those rights, how did he respond to those rights?

‘ ‘A He indicated that he felt he should talk to an attorney before he answered any questions.

“Q Okay. Now, did you have some discussion with him after he told you that he felt he should consult an attorney?

“A Yes.

“Q Okay. And it was during that time, was it not, that he made some mention about the knife relating to this case?

“A Yes, he did.

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“Q Now, Detective, you said that he did speak with you and told you something further about this incident other than just his comments about the knife. And what did he tell you?

“A Well, after he had asked me the questions about the knife, I felt that he — he might be willing to talk to me at that point, he might have changed his mind. So I reminded him that the interview was his opportunity to tell me his side of the story, if he wanted. He didn’t have to talk to me if he didn’t want to; I reminded him of that.

“And at that point, he said, quote, ‘You guys got me,’ end quote, and then I said, ‘Well, do you want to make a statement?’ and he repeated again that he did not, he wished to talk to his attorney. So I didn’t take a full statement.

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“Q Or did you inquire any further?

“A I — he—he sort of clammed up on me, didn’t want to talk any further.”

After Lind’s testimony, the trial judge said that the prosecution had gone beyond the scope of cross-examination that he had anticipated. Nonetheless, when defendant moved for a mistrial, the court denied it.

Defendant first argues that the trial court erred in allowing the prosecution to cross-examine Lind concerning the statements that defendant made after invoking his right to counsel. Article I, section 12, of the Oregon Constitution requires that “[u]pon request for counsel, questioning not only ‘should’ but must cease.” State v. Isom, 306 Or 587, 593, 761 P2d 524 (1988). Statements made after a request for counsel are generally inadmissible. An exception to this general rule exists, however, when the defendant “opens the door.” As the court said in State v. Miranda, 309 Or 121, 128, 786 P2d 155, cert den 498 US 879 (1990):

“A defendant’s own inquiry on direct examination into the contents of otherwise inadmissible statements opens the door to further inquiry on cross-examination relating to those same statements.”

State v. Miranda held that, by introducing “selected portions” of his otherwise inadmissible conversations with officers, the defendant had opened the door to other questions concerning those statements.¹ 309 Or at 129. Here, defendant introduced his statements about wanting to be photographed with the knife to support his contention that he was so intoxicated that he could not have had the requisite intent to commit the alleged crimes. In response to that, the state asked about other statements that defendant made at that time, including his comment, “You guys got me.” The state’s inquiry was relevant to rebut defendant’s contention, because it also related to his state of mind at that time. The trial court did not err in allowing the state to cross-examine Lind concerning the statements.

Defendant’s second assignment of error is that the trial court erred in failing to grant his motion for mistrial on the ground that the state improperly brought out that defendant had invoked his right to counsel and to remain silent. As the state concedes, that was impermissible. See Wainwright v. Greenfield, 474 US 284, 106 S Ct 634, 88 L Ed 2d 623 (1986). The state contends, however, that the error does not require reversal. It first argues that “[defendant failed to object when this evidence was introduced and defendant’s motion for a mistrial was extremely untimely.” To be timely, a motion for mistrial must be made when the allegedly improper statements were made. State v. Walton, 311 Or 223, 248, 809 P2d 81 (1991). Defendant’s counsel had noted a continuing objection to the prosecutor’s line of cross-examination of Lind. Although defense counsel did not object to any specific statements about defendant’s invocation of the right to remain silent or his refusal to speak, his continuing objection was sufficient to preserve the claim of error.

The state also argues that the error does not require reversal, because it did not affect the verdict. A defendant’s conviction may still be affirmed, in spite of an error at trial affecting the defendant’s federal constitutional rights if the state proves beyond a reasonable doubt that the error did not affect the verdict. State v. Walton, supra, 311 Or at 231.

Defendant admitted committing the crimes. The only contested issue was whether he had the required intent when he committed them. He argued that he did not, because he was intoxicated. However, the evidence was overwhelming that, despite his drinking, he had the required intent. Although some of the witnesses testified that they smelled alcohol on his breath, none thought that he was intoxicated. Defendant’s actions during the incident show that he was not so inebriated that he was unable to make decisions. He took money from the cash register, held two employees at knife-point, ordered them to undress and raped and sodomized one of them. In view of that evidence, we conclude that the evidence of defendant’s invocation of his right to counsel two hours after his arrest did not change the jury’s assessment of his capacity at the time of the crimes. We conclude that there was substantial and compelling evidence of defendant’s guilt and that the state proved, beyond a reasonable doubt, that any error did not affect the verdict.

Finally, defendant assigns error to the sentence imposed. It designated one of the sodomy convictions as the primary offense and departed from the presumptive sentence after concluding that defendant was a dangerous offender. Under grid block 10A, the presumptive sentence range for first degree sodomy is 121 to 130 months. The trial court said that defendant’s presumptive sentence was 125 months. It imposed an upward departure sentence of360 months on the basis of defendant’s being a dangerous offender. It then imposed the presumptive sentences on defendant’s other convictions, all to run consecutively.

Defendant first argues that the trial court erred in sentencing him, because it imposed a determinate sentence of 30 years as a dangerous offender rather than an indeterminate sentence. However, the trial court did not say that the dangerous offender sentence was being imposed as a determinate sentence and, under ORS 161.725, ORS 161.735 and ORS 161.737, all dangerous offender sentences are, by law, indeterminate. As we explained in State v. Serheinko, 111 Or App 604, 607, 826 P2d 114 (1992):

“The imposition of an indeterminate sentence up to 30 years as a dangerous offender provides a statutory exception to the determinate sentences authorized under the guidelines. However, the exception does not extend to the minimum term of incarceration that a defendant must serve before consideration for parole. * * * [U]nder ORS 161.737(2), a sentencing court must indicate the presumptive term which a defendant would have served had a dangerous offender sentence not been imposed. When the presumptive sentence has been served, a defendant automatically becomes eligible for consideration for parole.”

The dangerous offender sentence imposed is an indeterminate sentence.

Defendant also argues that the total incarceration term of his dangerous offender sentence combined with his other consecutive sentences exceeds the maximum allowable under OAR 253-12-020(2) and OAR 253-08-007 ² That is true. Dangerous offender sentencing is subject to the limitations set by the sentencing guidelines and the “400 percent rule.” If a person is sentenced as a dangerous offender, the total incarceration term of consecutive sentences “cannot exceed four times the presumptive incarceration term for the primary offense.” State v. Davis, 113 Or App 118, 122, 830 P2d 620 (1992). In this case, the primary offense was sodomy. The presumptive term was set at 125 months. Four times that is 500 months, 48 months less than defendant’s term as set by the trial court. Accordingly, the trial court improperly sentenced defendant.

Defendant also argues that the trial court failed to make the requisite findings to support consecutive sentences. ORS 137.123; State v. Racicot, 106 Or App 557, 809 P2d 726 (1991). Defendant did not preserve his argument below. We decline to address it. State v. Crane, 109 Or App 217, 817 P2d 771 (1991).

Convictions affirmed; remanded for resentencing.

Footnotes

1

The dissent reads Miranda as allowing cross-examination only on the specific statements that defendant brought out on direct examination. However, in Miranda, as in this case, the state was allowed to bring out numerous other statements that were part of the same conversation with the police. As the court emphasized in Miranda, a defendant may not bring up only “selected portions” of his conversation with the police and still be protected from cross-examination.

2

OAR 253-08-007 provides, in part:

“(3) When a departure sentence is imposed for any individual offense sentenced consecutively, the incarceration term of that departure sentence shall not exceed twice the maximum presumptive incarceration term that may be imposed for that offense as provided in OAR 253-12-020(2)(a).”

OAR 253-12-020 provides, in part:

“(2)(a) Subject to the provisions of subsection (b) of this section, the presumptive incarceration term of the consecutive sentences is the sum of:

“(A) The presumptive incarceration term for the primary offense, as defined in OAR 253-03-001(17); and

“(B) Up to the maximum incarceration term indicated in the Criminal History I Column for each additional offense imposed consecutively.

“(b) The total incarceration term of the consecutive sentences, including the incarceration term for the primary offense, shall not exceed twice the maximum presumptive incarceration term of the primary sentence except by departure as provided by OAR 253-08-007.”