State v. Rose

377 P.3d 613, 278 Or. App. 551, 2016 Ore. App. LEXIS 682
CourtClackamas County Circuit Court, Oregon
DecidedJune 2, 2016
DocketCR1200025; A154758
StatusPublished
Cited by1 cases

This text of 377 P.3d 613 (State v. Rose) is published on Counsel Stack Legal Research, covering Clackamas County Circuit Court, Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Rose, 377 P.3d 613, 278 Or. App. 551, 2016 Ore. App. LEXIS 682 (Or. Super. Ct. 2016).

Opinion

ORTEGA, P. J.

A jury found defendant guilty of two counts of first-degree unlawful sexual penetration, ORS 163.411(l)(b), seven counts of using a child in a display of sexually explicit conduct, ORS 163.670(1), and four counts of first-degree sexual abuse, ORS 163.427(l)(a)(A). Defendant appeals the resulting judgment, asserting three assignments of error. First, he argues that the trial court erred in concluding that his statement, “I don’t have nothing to say,” during a police interrogation was neither an unequivocal nor equivocal assertion of his right against compelled self-incrimination under Article I, section 12, of the Oregon Constitution. Second, he asserts that the trial court erred in excluding evidence that the victim had made prior false accusations of sexual abuse against her stepbrother. Third, he asserts that the trial court plainly erred when it ordered him to pay $16,000 in court-appointed attorney fees in the absence of evidence that he had the “ability to pay.”

We reject defendant’s first assignment of error, concluding that defendant’s statement, when considered in the totality of the circumstances and the facts found by the trial court, was an assertion that defendant had no response to being confronted with incriminating photographs from his cell phone, and that a reasonable officer would not have understood the statement to constitute an unequivocal or equivocal invocation of his right against compelled self-incrimination. We also reject defendant’s second assignment of error, concluding that the trial court did not err in excluding the victim’s prior accusations against her stepbrother, because the record supports the trial court’s finding that there was insufficient evidence that the victim had recanted those accusations, and to the extent that there was a question about the veracity of her accusations, the trial court properly exercised its discretion to exclude the evidence because its probative value was substantially outweighed by the risk of prejudice. Finally, the state concedes error as to the court-appointed attorney fees, and we accept that concession. Accordingly, we reverse the portion of the judgment requiring defendant to pay attorney fees, and otherwise affirm.

We generally discuss the relevant facts during our analysis of each assignment of error, but offer context with [554]*554the following undisputed background facts. The nine-year-old victim reported to her aunt that defendant—the victim’s mother’s boyfriend—had sexually abused her and recorded sexually explicit photographs and video of her using his cell phone. The victim’s aunt took the victim to the hospital for an evaluation. When defendant and the victim’s mother arrived at the hospital, a sheriffs deputy accompanied them to a security office, told them about the allegations, and seized defendant’s phone. Detectives Voss and Garrett later arrested defendant, gave him Miranda warnings, and interrogated him in an interview room at the Milwaukee Police Station. After the detectives questioned defendant for about an hour, they confronted him with incriminating photographs from his cell phone. In response to a question about why the photographs were on his phone, defendant stated, “I don’t have nothing to say.” Detectives continued to question defendant, and he made several incriminating statements.

A grand jury later indicted defendant on 14 counts— the counts on which he ultimately was convicted, and a count of first-degree sodomy that the state dismissed before trial. Defendant moved to suppress statements he made during interrogation. He argued that he had invoked his right against compelled self-incrimination at seven distinct points in the interrogation, and urged suppression of all of his statements made after the first asserted invocation. The trial court concluded that his first asserted invocation—“I don’t have nothing to say”—was not an invocation and, thus, the trial court did not suppress the statements defendant made immediately thereafter. The court agreed with defendant, however, that, about a half hour later, he equivocally invoked his right against compelled self-incrimination when he said, “I really don’t want to talk about it.” Accordingly, because the officers failed to ask clarifying questions, the trial court suppressed all of defendant’s statements made after that equivocal invocation.

INVOCATION OF RIGHT AGAINST COMPELLED SELF-INCRIMINATION

Under Article I, section 12,1 “police must cease custodial interrogation when a criminal suspect unequivocally [555]*555invokes his or her right against self-incrimination.” State v. Avila-Nava, 356 Or 600, 602, 341 P3d 714 (2014). If a suspect makes an ambiguous or equivocal invocation of rights under Article I, section 12, the police must ask follow-up questions to clarify what the suspect meant before proceeding with the interrogation. 356 Or at 609. Whether a defendant’s statements amount to an unequivocal or equivocal invocation, or no invocation at all, is a question of law. Id. To determine “whether a defendant’s words constituted an unequivocal invocation of the right against self-incrimination under Article I, section 12, a reviewing court must consider those words, in the context of the totality of the circumstances existing at the time of and preceding their utterance, to determine whether a reasonable officer would have understood that the defendant was invoking that right.” Id. at 613.

However, what happened during a custodial interrogation, including what a defendant did or did not say, is a question of fact. Id. at 609. Moreover, the totality of the circumstances includes tone, inflection, any gestures that preceded or accompanied the defendant’s statement, and the tenor of the conversation that preceded it, which are also questions of fact for the trial court. Id. at 621 (Kistler, J., concurring). We are bound by the trial court’s findings of fact that are supported by evidence in the record. Id. at 609.

In light of the applicable legal framework, we examine defendant’s interrogation in detail. At the start, Voss and Garrett administered Miranda warnings before informing defendant that the victim had alleged that he had sexually abused her and that he had taken sexually explicit video and photographs of her with his cell phone. During the first hour of the interview, defendant repeatedly denied that his cell phone contained any such images. He explained that the victim had threatened to make abuse allegations against him to “get rid of’ him and was upset with him because he had disciplined her. After about 30 minutes, Garrett accused defendant of lying and told him that the detectives had seen explicit video and photographs of the victim from his cell phone. Defendant continued to deny that he had done anything wrong or that there was anything incriminating on his phone. Garrett continued to question defendant, urging [556]*556him to take responsibility for his actions. Defendant continued to deny any wrongdoing. After nearly an hour of questioning, the detectives gave defendant a break to smoke a cigarette.

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Related

State v. Rose
437 P.3d 1144 (Court of Appeals of Oregon, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
377 P.3d 613, 278 Or. App. 551, 2016 Ore. App. LEXIS 682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rose-orccclackamas-2016.