VAN HOOMISSEN, J.
Defendant appeals his conviction by a jury for murder. ORS 163.115. He contends, inter alia, that the trial court erred in allowing a police officer to testify about hearsay statements made by defendant’s father. We agree and, therefore, reverse and remand for a new trial.
The essential facts are not in dispute. In August, 1984, hunters found human remains in a remote area of Tillamook County. The deceased was later identified as Terry Reiser. Detective Stephenson was assigned to investigate the death. On September 6, he went to defendant’s home. Defendant lived there with his father, Harold Lyon, and Michael Stowell. Stephenson questioned defendant, who was not in custody, about Reiser’s death.
On September 7, after advising defendant of his Miranda rights, Stephenson questioned him again. Stephenson told him that Reiser’s remains had been identified and that he had died from a gunshot wound. Defendant denied any involvement in or knowledge of Reiser’s death. Stephenson asked him if he would take a polygraph examination. He replied that he would. Stephenson also discussed Reiser’s death with defendant’s father and asked whether the father and Stowell would also take polygraph examinations. The father said that they would discuss it and that he would tell Stephenson the next day whether they would take the tests. Stephenson served defendant with a grand jury subpoena that required him to appear before the grand jury investigating Reiser’s death.
On September 8, defendant’s father told Stephenson that he and defendant wanted to talk with an attorney before taking polygraph examinations. Later that day, Stowell contacted the police and made arrangements to take the polygraph examination administered by Detective Plester. During Stowell’s examination, defendant’s father telephoned Stephenson and asked whether he and defendant could take polygraph examinations that day. Stephenson said that they could, and he made arrangements for the father to be examined first by Plester. The father took a polygraph examination, and then Stephenson drove him home. At the suppression hearing, Stephenson testified:
“We drove to the residence. Harold Lyon invited us inside. [595]*595Howard Lyon [defendant] was there. His father asked him — or stated to him, ‘Well, it’s your time. Do you want to take it?’ And he said — excuse me. He — Howard Lyon said that he had been drinking. He had had one beer to drink, but he — and he was asked by his father, ‘Do you want to take it or do you not? It’s voluntary. You don’t have to if you don’t want to,’ and he said — in effect, I think he said, ‘Let’s go for it,’ and got his hat and coat and willingly accompanied us to the Beaverton Patrol Office.”
Plester met defendant at the police station. He told him that he did not have to take the examination if he did not want to and he gave him Miranda warnings.1 Defendant agreed to talk to Plester and to take a polygraph examination. He signed a “rights advisal form.” Plester then read him a polygraph “stipulation” form.2 He told defendant that he [596]*596knew defendant did not have an attorney. According to Plester, defendant stated that he understood that, “but he [597]*597would agree to sign it and go along with the stipulation as it was read to him.” Defendant then signed the form that Plester had just read to him.
After defendant took the polygraph examination, Plester concluded that he was not telling the truth. In defendant’s presence, he told Stephenson, “This is your shooter.” Stephenson arrested defendant, again advised him of his Miranda rights and asked him if he wanted to talk. Defendant then said that he wanted an attorney. Stephenson did not question him further.
On September 10, defendant’s father testified before the grand jury, after which he visited with defendant for about 45 minutes. According to Stephenson, while he was driving the father home after the visit, the father told him that defendant “wanted to waive his right to counsel and to appear before the Grand Jury.” Stephenson replied that he would so advise the District Attorney.
On September 11, Stephenson went to the jail. He testified:
“I went to the jail and I asked to have Mr. Lyon brought forward. They did. They brought him to the counter there. He said he didn’t want to talk to me or make any statement to me and I said, before he says anything, I want to inform him of his rights and I read him his rights again from the standard form and said, ‘This is concerning your wanting to testify before the Grand Jury. I am simply here to inquire whether or not you wish to do that.’
“He said that he — his statement was, ‘Yes, that’s exactly what I want to do.’ I said that I would convey that to Mr. Heard and that if he was to testify before the Grand Jury, he would be brought down by Sheriffs Department staff, and I told the staff there that it would be — if it was going — if he was going to testify, it would be sometime in the future. They said they would make arrangements to have him brought down if they were so directed.”
About 1:30 p.m., the police brought defendant to the grand jury. He was handcuffed and wearing jail clothing. The deputy district attorney advised him:
“If you want to talk to the grand jury, you may certainly do so. I am not going to force you, and you don’t have an obligation to do so. You can if you wish.”
[598]*598Defendant stated that he wanted to testify and signed a waiver of rights card. The District Attorney told defendant that he understood that defendant would be charged with murder that afternoon by an information. Defendant responded that he still wanted to testify before the grand jury. About an hour later, he was arraigned on the information. An attorney was appointed to represent him. After a jury trial, defendant was convicted of Reiser’s murder.
Defendant contends that the trial court erred in allowing Stephenson to testify about statements defendant allegedly made to his father on September 8 and September 10 and which the father allegedly repeated later to Stephenson. Neither defendant nor his father testified at trial.3 Defendant argues that the statements were hearsay. The state argues that defendant’s accounts of Reiser’s death, as related by defendant to his father, who, in turn, related the statements to Stephenson, were false and that, therefore, the evidence was not offered to prove the truth of the matter asserted but, rather, to cast doubt upon the account of Reiser’s death that defendant had given to the grand jury. The trial court held that, because the evidence was not offered to prove the truth of the matter asserted, it was not hearsay, and therefore, it was admissible. OEC 801(3).4 We disagree.
Stephenson testified that defendant’s father had told him that defendant had given the father a certain account of the death. The state offered Stephenson’s testimony to prove that defendant had made the statements. That testimony was, therefore, offered to prove that defendant had made the statements to his father.
Free access — add to your briefcase to read the full text and ask questions with AI
VAN HOOMISSEN, J.
Defendant appeals his conviction by a jury for murder. ORS 163.115. He contends, inter alia, that the trial court erred in allowing a police officer to testify about hearsay statements made by defendant’s father. We agree and, therefore, reverse and remand for a new trial.
The essential facts are not in dispute. In August, 1984, hunters found human remains in a remote area of Tillamook County. The deceased was later identified as Terry Reiser. Detective Stephenson was assigned to investigate the death. On September 6, he went to defendant’s home. Defendant lived there with his father, Harold Lyon, and Michael Stowell. Stephenson questioned defendant, who was not in custody, about Reiser’s death.
On September 7, after advising defendant of his Miranda rights, Stephenson questioned him again. Stephenson told him that Reiser’s remains had been identified and that he had died from a gunshot wound. Defendant denied any involvement in or knowledge of Reiser’s death. Stephenson asked him if he would take a polygraph examination. He replied that he would. Stephenson also discussed Reiser’s death with defendant’s father and asked whether the father and Stowell would also take polygraph examinations. The father said that they would discuss it and that he would tell Stephenson the next day whether they would take the tests. Stephenson served defendant with a grand jury subpoena that required him to appear before the grand jury investigating Reiser’s death.
On September 8, defendant’s father told Stephenson that he and defendant wanted to talk with an attorney before taking polygraph examinations. Later that day, Stowell contacted the police and made arrangements to take the polygraph examination administered by Detective Plester. During Stowell’s examination, defendant’s father telephoned Stephenson and asked whether he and defendant could take polygraph examinations that day. Stephenson said that they could, and he made arrangements for the father to be examined first by Plester. The father took a polygraph examination, and then Stephenson drove him home. At the suppression hearing, Stephenson testified:
“We drove to the residence. Harold Lyon invited us inside. [595]*595Howard Lyon [defendant] was there. His father asked him — or stated to him, ‘Well, it’s your time. Do you want to take it?’ And he said — excuse me. He — Howard Lyon said that he had been drinking. He had had one beer to drink, but he — and he was asked by his father, ‘Do you want to take it or do you not? It’s voluntary. You don’t have to if you don’t want to,’ and he said — in effect, I think he said, ‘Let’s go for it,’ and got his hat and coat and willingly accompanied us to the Beaverton Patrol Office.”
Plester met defendant at the police station. He told him that he did not have to take the examination if he did not want to and he gave him Miranda warnings.1 Defendant agreed to talk to Plester and to take a polygraph examination. He signed a “rights advisal form.” Plester then read him a polygraph “stipulation” form.2 He told defendant that he [596]*596knew defendant did not have an attorney. According to Plester, defendant stated that he understood that, “but he [597]*597would agree to sign it and go along with the stipulation as it was read to him.” Defendant then signed the form that Plester had just read to him.
After defendant took the polygraph examination, Plester concluded that he was not telling the truth. In defendant’s presence, he told Stephenson, “This is your shooter.” Stephenson arrested defendant, again advised him of his Miranda rights and asked him if he wanted to talk. Defendant then said that he wanted an attorney. Stephenson did not question him further.
On September 10, defendant’s father testified before the grand jury, after which he visited with defendant for about 45 minutes. According to Stephenson, while he was driving the father home after the visit, the father told him that defendant “wanted to waive his right to counsel and to appear before the Grand Jury.” Stephenson replied that he would so advise the District Attorney.
On September 11, Stephenson went to the jail. He testified:
“I went to the jail and I asked to have Mr. Lyon brought forward. They did. They brought him to the counter there. He said he didn’t want to talk to me or make any statement to me and I said, before he says anything, I want to inform him of his rights and I read him his rights again from the standard form and said, ‘This is concerning your wanting to testify before the Grand Jury. I am simply here to inquire whether or not you wish to do that.’
“He said that he — his statement was, ‘Yes, that’s exactly what I want to do.’ I said that I would convey that to Mr. Heard and that if he was to testify before the Grand Jury, he would be brought down by Sheriffs Department staff, and I told the staff there that it would be — if it was going — if he was going to testify, it would be sometime in the future. They said they would make arrangements to have him brought down if they were so directed.”
About 1:30 p.m., the police brought defendant to the grand jury. He was handcuffed and wearing jail clothing. The deputy district attorney advised him:
“If you want to talk to the grand jury, you may certainly do so. I am not going to force you, and you don’t have an obligation to do so. You can if you wish.”
[598]*598Defendant stated that he wanted to testify and signed a waiver of rights card. The District Attorney told defendant that he understood that defendant would be charged with murder that afternoon by an information. Defendant responded that he still wanted to testify before the grand jury. About an hour later, he was arraigned on the information. An attorney was appointed to represent him. After a jury trial, defendant was convicted of Reiser’s murder.
Defendant contends that the trial court erred in allowing Stephenson to testify about statements defendant allegedly made to his father on September 8 and September 10 and which the father allegedly repeated later to Stephenson. Neither defendant nor his father testified at trial.3 Defendant argues that the statements were hearsay. The state argues that defendant’s accounts of Reiser’s death, as related by defendant to his father, who, in turn, related the statements to Stephenson, were false and that, therefore, the evidence was not offered to prove the truth of the matter asserted but, rather, to cast doubt upon the account of Reiser’s death that defendant had given to the grand jury. The trial court held that, because the evidence was not offered to prove the truth of the matter asserted, it was not hearsay, and therefore, it was admissible. OEC 801(3).4 We disagree.
Stephenson testified that defendant’s father had told him that defendant had given the father a certain account of the death. The state offered Stephenson’s testimony to prove that defendant had made the statements. That testimony was, therefore, offered to prove that defendant had made the statements to his father. The value of the evidence was dependent on the truth or falsity of the father’s out of court assertion that defendant had made the statements to him. We conclude that Stephenson’s testimony regarding what defendant allegedly told his father was inadmissible hearsay.
[599]*599The state argues that, even if the evidence was inadmissible hearsay, any error was harmless. See OEC 103(1); State v. Miller, 300 Or 203, 220, 709 P2d 225 (1985), cert den 106 S Ct 1793 (1986); see also State v. Van Hooser, 266 Or 19, 511 P2d 359 (1973); State v. Harmon, 77 Or App 705, 708, 714 P2d 271, rev den 301 Or 240 (1986). We disagree. At trial, defendant did not testify. His counsel told the jury that defendant’s account of the cause of Reiser’s death was the same the account that he had given the grand jury. His counsel told the jury that defendant’s responses during the polygraph examination were influenced by his nervousness over initially having told the police that he last saw Reiser in Garibaldi, which was not true.
Defendant’s “accidental death” account was impugned by Stephenson’s testimony. The account of Reiser’s death that Stephenson attributed to defendant, through his father, was significantly different from his grand jury account.5 Moreover, Stephenson testified that defendant’s father had told him that, on the day of Reiser’s death, defendant had told Stowell that defendant had shot Reiser. We cannot say that there is little, if any, likelihood that that evidence did not affect the verdict in this case. We conclude that the trial court committed reversible error in permitting [600]*600Stephenson to testify about statements that defendant allegedly made to his father.
Because other issues raised by defendant in this appeal are likely to arise on retrial, we shall consider them. Defendant contends that the trial court erred in denying his motion to suppress evidence of his polygraph examination. The trial court found that defendant knowingly and voluntarily stipulated to the admissibility of the polygraph evidence. Defendant does not contest the fact that he stipulated to the admissibility of the results of the polygraph test administered in this case, and his own statement of facts in his appellate brief clearly supports the trial court’s finding that he knowingly and voluntarily did so. He argues, however, that polygraph evidence should never be admissible, even when stipulated to, and, in the alternative, that it should not be admissible in this case, because he had stipulated to its admissibility before he was charged and without the advice of counsel.6 He points to no constitutional basis for his arguments, but asks that we adopt them as interpretations of OEC 403 and OEC 702. We decline to do so.7 See State v. Brown, 297 Or 404, 445 n 35, 687 P2d 751 (1984); State v. Bennett, 17 Or App 197, 521 P2d 31 (1974); State v. Bass, 76 Or App 396, 708 P2d 1207 (1985); State v. Skelton, supra, n 2; see also State v. Taylor, 409 NE 2d 1246 (Ind App 1980); but see State v. Valdez, 91 Ariz 274, 371 P2d 894 (1961).8
[601]*601Defendant also contends that the trial court erred in denying his motion to suppress his grand jury testimony. He argues that use of the evidence violated his rights under Article I, section 12, of the Oregon Constitution and the Fifth Amendment. We disagree.
After defendant was told that the polygraph examination suggested that he was lying, he invoked his right to counsel. Stephenson testified that defendant’s father, after talking with defendant, told Stephenson that defendant wished to “waive counsel and appear before the grand jury.” Defendant does not argue that his father was acting at the behest of the police or that his father’s statement to Stephenson was obviously improbable. Therefore, Stephenson could contact defendant to determine whether he wanted to appear before the grand jury. See State v. Sparklin, 296 Or 85, 93, 672 P2d 1182 (1983). When Stephenson contacted defendant, he said that he did not wish to talk. However, that statement was not a request for the assistance of counsel so as to then [602]*602preclude Stephenson from any further inquiry about whether defendant wanted to testify before the grand jury. See State v. Rowe, 79 Or App 801, 720 P2d 765, rev den 302 Or 86 (1986). Neither was it inconsistent with defendant’s request that he be allowed to appear before the grand jury. Stephenson could ask defendant if he wanted to appear before the grand jury. When defendant said that he did, Stephenson arranged for him to do so. The trial court did not err in holding that Stephenson did not violate defendant’s rights under Article I, section 12.
There also was no violation of the Fifth Amendment. Although the police were required to respect defendant’s invocation of his right to counsel, Edwards v. Arizona, 451 US 477, 101 S Ct 1880, 63 L Ed 2d 378 (1981), they could respond to his initiation of further contact as communicated to them by his father. See Oregon v. Bradshaw, 462 US 1039, 103 S Ct 2830, 77 L Ed 2d 405 (1983). Furthermore, defendant’s statement that he did not wish to talk with Stephenson was not a request for the assistance of counsel so as to preclude Stephenson from asking whether defendant wanted to appear before the grand jury. Compare Smith v. Illinois, 469 US 91, 105 S Ct 490, 83 L Ed 2d 488 (1984).
Defendant argues that, because formal charges were pending against him when he testified, his testimony to the grand jury without the opportunity to consult with counsel violated his right to counsel under Article I, section 11, and the Sixth Amendment. We disagree. Between the time of defendant’s conversation with Stephenson and defendant’s grand jury testimony, the district attorney charged defendant with murder. Even if his right to counsel attached before his grand jury testimony, see State v. Sparklin, supra, 296 Or at 92, there was no violation of Article I, section 11. Because defendant had already requested counsel when he asked to testify to the grand jury, the police could not initiate any questioning. Nevertheless, before he was arraigned and before the court appointed counsel, he chose to initiate contact with the police about his testifying before the grand jury, to waive counsel and to testify before the grand jury. His decision was voluntary and not in response to any improper police conduct. See State v. Sparklin, supra, 296 Or at 93; State v. Beaver, 248 Or 101, 432 P2d 509 (1967). Similarly, the police did not [603]*603violate his rights under the Sixth Amendment.9 The trial court did not err in denying defendant’s motion to suppress his grand jury testimony.10
Reversed and remanded.