State v. Wickey

769 P.2d 208, 95 Or. App. 225, 1989 Ore. App. LEXIS 205
CourtCourt of Appeals of Oregon
DecidedFebruary 22, 1989
Docket87-03-31515; CA A45134
StatusPublished
Cited by11 cases

This text of 769 P.2d 208 (State v. Wickey) 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. Wickey, 769 P.2d 208, 95 Or. App. 225, 1989 Ore. App. LEXIS 205 (Or. Ct. App. 1989).

Opinions

[227]*227RICHARDSON, P. J.

The state appeals a pretrial order suppressing statements that defendant made to police detectives. The trial court concluded that the statements were elicited after defendant had invoked his right to counsel. The state argues that defendant’s request for an attorney was equivocal and that, therefore, the detectives could make additional inquiries to clear up the ambiguous request and that, while in the process of clearing up the ambiguity, defendant voluntarily waived his right to counsel. We affirm.

This case arises from the murder of Eddie Lee Gibbs. Defendant and Kevin Roper were charged with aggravated murder, robbery and kidnapping as a result of the homicide. Defendant first became involved in the investigation when he reported that he had discovered the body. Investigating detectives had several conversations with him after the homicide was reported, and one detective described defendant then as only a “peripheral suspect.” On the tenth day after the homicide was discovered, defendant voluntarily accompanied the detective to the police station and agreed to take a polygraph examination. Before the test, the polygraph operator informed him of his constitutional rights, and he signed a form acknowledging that he understood them. He also signed a form agreeing to take the examination, which began shortly after 9 a.m.

After completing the examination, the examiner took defendant to the investigating detectives and told them whether, in his opinion, defendant was telling the truth about the homicide.1 The detectives began interviewing defendant at approximately 11:30 a.m. After initially denying involvement, defendant admitted his participation and implicated Roper. During that time, defendant expressed remorse, at times cried and talked of being upset and losing sleep since the murder. Detective Jensen, who conducted the interview, described what occurred at the end of the hour long sessions:

“A Obviously to this point, it was just him expressing maybe some concern about his mental stability. He had not mentioned up to this point, and did not mention at this instance, a request to have legal counsel present.
[228]*228“Q [Prosecutor:] Did [defendant] ever use the word ‘lawyer’ at that point?
“A Not at that point.
“Q Okay. Did he ever?
“A Yes.
“Q When was that?
“A Several minutes [after the admission] — again, as the interview was pretty much coming to a conclusion, he again said something to the effect — and I won’t put quotation marks around this, but words to the effect of, I think I need to talk to somebody, or, I think I should talk to somebody.
“So we said, ‘You mean a doctor? Do you mean a doctor?’ ‘cause we had just discussed that a few minutes before. And he goes, ‘Maybe a doctor. Maybe a lawyer. I don’t know’ — words to that effect.
“Q And what did you do after that?
“A After that, we — as we had had his story, we took him back to his interview — I mean, not an interview room, but a holding cell * * *.”2

The detectives immediately stopped interviewing defendant and took him to a holding cell at approximately 12:30 p.m. Sometime between then and 5:19 p.m., he was discovered unconscious after an attempt to strangle himself with his shoe laces. Paramedics treated him in his cell, and no further medical attention was necessary. His attempted suicide did not cause any further medical difficulty or affect his ability to speak.

At 5:19 p.m., the detectives who had interviewed defendant at 11:30 a.m. took him to an interview room and began a second, tape-recorded interview. At the beginning of that session, he was again informed of his constitutional rights and again signed a form acknowledging that he understood them. The detectives then asked:

“Q. Previously when we spoke with you, did you say that you wanted a doctor?
[229]*229“A. Yeah, I think there’s gotta be something wrong with me. For what I’ve done.
“Q. Did you ever say that you wanted an attorney?
“A. I think it would be a good idea to talk to one.
“Q. Okay. Do you want an attorney at this time?
“A. No.” (Emphasis supplied.)

The detectives began questioning defendant about the homicide, and he gave them a detailed statement, which was tape recorded.

In the motion to suppress, defendant argued that he had requested counsel before the polygraph test was administered and sought suppression of all of his statements on the ground that his rights under the federal and state constitutions were violated. The trial court concluded:

“I’m satisfied with the noncustodial investigatory posture of the State’s case up to the invocation of counsel event at the end of the nontaped 11:30 a.m. interview that took place when [defendant], at about 12:30, after oral admissions, indicated that he wished to talk to a doctor and maybe a lawyer.
“This was a sufficient assertion of his desire for counsel; and anything after this point, including the taped interview at 17:19 on March the 16th — this latter taped interview havings been a contact initiated by the police and not by the defendant, instigated by the police after invocation of his rights to counsel — is suppressed.”

The state argues that defendant’s statement about an attorney near the end of the 11:30 a.m. interview was ambiguous and that the detectives were entitled to initiate another interview at 5:19 p.m. to clear up the ambiguity. At that interview, the state contends, defendant said he did not want counsel at that time and, consequently, the tape-recorded statement was not unlawful under either constitution.

Under the Fifth Amendment, once a defendant invokes a right to counsel, the police must cease questioning until counsel is provided or the defendant initiates further conversation and waives the previously asserted desire for counsel. Edwards v. Arizona, 451 US 477, 484, 101 S Ct 1880, 68 L Ed 2d 378 (1981). Recently, the Oregon Supreme Court made a similar interpretation of Article I, section 12, of the Oregon Constitution: “Upon request for counsel, questioning [230]*230not only ‘should’ but must cease.” State v. Isom, 306 Or 587, 593, 761 P2d 524 (1988); see also State v. Kell, 303 Or 89, 95-96, 734 P2d 334 (1987). Consequently, statements obtained as a result of further interrogation may not be used as direct evidence or for impeachment. State v. Isom, supra, 306 Or at 592-95.

The question in this case is whether defendant invoked his right to counsel. An adequate invocation is “any plain reference, however glancing, to a need or desire for representation.” Connecticut v. Barrett, 479 US 523, 534, 107 S Ct 828, 93 L Ed 2d 920 (1987) (Brennan, J., concurring); see also Miranda v. Arizona, 384 US 436, 444-45, 86 S Ct 1602, 16 L Ed 2d 694 (1966). The putative request for counsel must be analyzed in the light of the circumstances existing when it was made.

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State v. Wickey
769 P.2d 208 (Court of Appeals of Oregon, 1989)

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Bluebook (online)
769 P.2d 208, 95 Or. App. 225, 1989 Ore. App. LEXIS 205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wickey-orctapp-1989.