State v. Staunton

718 P.2d 1379, 79 Or. App. 332, 1986 Ore. App. LEXIS 2810
CourtCourt of Appeals of Oregon
DecidedMay 14, 1986
Docket33238, 33235, 33237; CA A33556, A33557, A33558
StatusPublished
Cited by7 cases

This text of 718 P.2d 1379 (State v. Staunton) 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. Staunton, 718 P.2d 1379, 79 Or. App. 332, 1986 Ore. App. LEXIS 2810 (Or. Ct. App. 1986).

Opinion

NEWMAN, J.

Defendant appeals his conviction on three counts of burglary. His principal assignment of error is that the court refused to suppress statements that he made to Officer Kohlmeyer of the Salem Police. We reverse and remand for a new trial.

At approximately 6 a.m. on March 29, 1984, Salem police officers received a call to investigate an automobile accident in Salem. Officer Harrell first arrived at the scene, followed by Officer Behrens moments later. The trial court entered these findings of fact:

“When they arrived they found the defendant to be extremely intoxicated and sitting in the front seat of the automobile. He had just vomited, had bloodshot eyes, smelled strongly of alcohol, had a ‘real dull look’, slurred speech, staggered when he walked, passed out occasionally and experienced mood changes from cooperative to hostile. The officers checked the vehicle’s license with their records and learned that it had been stolen in a burglary. This burglary is the one charged in case number 33237. The officers immediately placed the defendant under arrest for Unauthorized Use of a Motor Vehicle, Driving Under the Influence of Intoxicants, Driving Without an Operator’s License and Driving the Wrong Way on a One Way Street. The defendant was handcuffed and placed in the back of a patrol car.”

The trial court also found:

“After defendant was arrested, but while he was still at the scene of the accident, Officer Custer of the Salem Police Department advised the defendant of his constitutional rights from a prepared rights card. Custer then asked the defendant if he wanted to talk. The defendant responded, ‘No, I want to talk to an attorney’. Custer ceased his questioning of the defendant at that time.” (Emphasis supplied.)

The police took defendant to Salem Memorial Hospital for treatment and then to the Marion County Jail. During the transportion and while he was at the hospital and jail, the police questioned him. He made statements regarding his intoxication; he also admitted that he had stolen the car. The trial court suppressed those admissions, and they are not in issue.

Later that morning, Kohlmeyer, who was responsible [335]*335for investigation of residential burglaries, was informed that the car that defendant had been driving just before he was arrested had been stolen in a burglary of the Elling residence 28 days before defendant’s arrest. Kohlmeyer contacted Elling and received permission to search her automobile. Although he discovered no other evidence of the Elling burglary, he found a motel room key that connected defendant with a reported kidnap and rape.

At approximately 2:10 p.m. that afternoon, Kohlmeyer initiated contact with defendant at the jail and read him Miranda warnings from a printed card.1 Defendant said that he understood his rights, had no questions about them and signed the printed card. Kohlmeyer then questioned him about his involvement in the Elling burglary and the kidnap and rape. Defendant said that he was willing to discuss the burglary and the theft of the car. During the questioning, which lasted 15 to 20 minutes, he admitted that he had broken into the Elling residence and had taken 20 dollars and the car. He did not resist questioning or ask to speak with an attorney at any time during the interrogation. Kohlmeyer testified that he “was real cooperative.” At the close of the interrogation Kohlmeyer told defendant that he would be back in contact with him.

The following day, March 30,1984, Kohlmeyer initiated two more interviews. In the first, at 12:50 p.m., he read defendant the Miranda warnings again, and defendant again acknowledged that he understood them. They had a short conversation regarding the Elling burglary, and then Kohlmeyer asked if he had been involved in other burglaries. Defendant indicated that there were four or five other burglaries and wanted to know whether Kohlmeyer could “make a deal” if he talked. Kohlmeyer said that he could not make a deal but that he would contact the district attorney. Because the Elling burglary had occurred in Polk County, Kohlmeyer contacted the Polk County district attorney’s office.

At 1:25 p.m. Kohlmeyer again contacted defendant and explained that there could be no negotiations at that point. He again read the Miranda warnings, and defendant [336]*336signed the warning card. He then admitted other burglaries and gave Kohlmeyer a tape recorded statement. He then agreed to accompany Kohlmeyer in the field, where he identified two homes, other than the Elling residence, that he had burglarized. Defendant did not ask to speak with an attorney at any time during the two March 30 interviews. On April 11, 1984, he was indicted for the three burglaries. In a consolidated trial to the court on stipulated facts he was found guilty on each charge.

Defendant argues that Kohlmeyer’s initiation of discussions with him after his assertion of his right to the assistance of counsel at a custodial interrogation violates both Article I, section 12, and the Fifth Amendment. Edwards v. Arizona, 451 US 477, 101 S Ct 1880, 68 L Ed 2d 378 (1981); State v. Kell, 77 Or App 199, 712 P2d 827 (1986). In Edwards, the Court held, under the Fifth Amendment:

“[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” 451 US at 484. (Footnote omitted.)

In Kell we adopted the Edwards rule under Article 1, section 12.

Relying on State v. Sparklin, 296 Or 85, 672 P2d 1182 (1983), however, the state asserts that the Edwards rule is not applicable to custodial interrogation concerning charges unrelated to those about which a defendant asserts his right to counsel. It argues that, because defendant’s request for counsel related to charges stemming from the traffic accident, the police could initiate custodial interrogation concerning the burglaries, which it contends are factually unrelated to the charges stemming from the traffic accident.

In Sparklin the court held that, if a defendant has counsel, the police may not interrogate him “concerning the events surrounding the crime charged unless the attorney [337]*337representing the defendant on that charge is notified and afforded a reasonable opportunity to attend.” 296 Or at 93. The court also held, however, that police do not violate Article I, section 11, or the Sixth Amendment when they initiate discussions with a suspect who is in custody and represented by counsel on unrelated charges. 296 Or at 98.

We need not decide whether a similar “unrelatedness” exception to the general rule of non-initiation applies when a suspect at a custodial interrogation asserts his right to counsel under Article I, section 12, because the Elling burglary was related to the original charges against defendant.2

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Bluebook (online)
718 P.2d 1379, 79 Or. App. 332, 1986 Ore. App. LEXIS 2810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-staunton-orctapp-1986.