State v. Boyd ( 2016 )


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  • 302	                       September 22, 2016	                          No. 59
    IN THE SUPREME COURT OF THE
    STATE OF OREGON
    STATE OF OREGON,
    Respondent on Review,
    v.
    ROBERT DARNELL BOYD,
    Petitioner on Review.
    (CC 201026332; CA A151157; SC S063260)
    On review from the Court of Appeals.*
    Argued and submitted January 12, 2016.
    Laura A. Frikert, Deputy Public Defender, Salem, argued
    the cause and filed the brief for petitioner on review. With
    her on the brief was Ernest G. Lannet, Chief Defender, Office
    of Public Defense Services.
    Rebecca M. Auten, Assistant Attorney General, Salem,
    argued the cause and filed the brief for respondent on review.
    With her on the brief were Ellen F. Rosenblum, Attorney
    General, and Paul L. Smith, Deputy Solicitor General.
    Before Balmer, Chief Justice, and Kistler, Walters,
    Landau, Baldwin, and Brewer, Justices, and Garrett, Justice
    pro tempore.**
    LANDAU, J.
    The decision of the Court of Appeals is reversed. The
    judgment of the circuit court is reversed, and the case is
    remanded to the circuit court for further proceedings.
    ______________
    **  Appeal from Lane County Circuit Court, Lauren S. Holland, Judge. 
    270 Or App 41
    , 346 P3d 626 (2015).
    **  Nakamoto, J., did not participate in the consideration or decision of this
    case.
    Cite as 
    360 Or 302
     (2016)	303
    Case Summary: Upon defendant’s arrest on suspicion of having beaten his
    girlfriend to death, a police detective attempted to question him. Defendant
    claimed to have no memory of the events leading up to his arrest and seemed not
    to believe the detective when he told him that his girlfriend was dead and that
    he was under arrest for her murder. When defendant told the detective he did not
    wish to be questioned without a lawyer present, the detective ended the inter-
    view and had defendant placed in a holding cell. Hours later, defendant asked
    a different police officer why he was in jail and stated that he needed to call his
    “baby girl.” The police officer’s responses—asking defendant whether his “baby
    girl” was his girlfriend and if he “didn’t remember” being told why he was in jail,
    and then telling defendant that he had been arrested for killing his girlfriend—
    caused defendant to become agitated and to ask to speak to the police detective
    who had attempted to interrogate him the night before. The detective was called
    in and interviewed defendant about the circumstances surrounding the girl-
    friend’s death. Prior to his trial for murdering the girlfriend, defendant moved to
    suppress his statements during that interview on the ground that the police offi-
    cer’s responses to his question about why he was there amounted to reinitiation of
    interrogation which, because defendant had previously invoked his right to coun-
    sel, was prohibited under the Fifth Amendment to the United States Constitution
    and Article I, section 12, of the Oregon Constitution. The trial court denied the
    motion to suppress and, on defendant’s appeal from his subsequent conviction,
    the Court of Appeals affirmed. Held: Because the police officer’s questions and
    comments to defendant were reasonably likely to elicit some type of incriminat-
    ing response from him, they constituted custodial interrogation, which, given
    that defendant had invoked his right to counsel, was prohibited under Article I,
    section 12, of the Oregon Constitution.
    The judgment of the circuit court and the decision of the Court of Appeals
    are reversed. The case is remanded to the circuit court for further proceedings.
    304	                                            State v. Boyd
    LANDAU, J.
    The issue in this case is whether police unlawfully
    interrogated a criminal defendant after he invoked his rights
    to counsel and against compelled self-incrimination, guar-
    anteed by Article I, section 12, of the Oregon Constitution
    and the Fifth Amendment to the United States Constitution.
    The state argues that defendant had asked a “confusing”
    question and that police responded by seeking “clarifica-
    tion,” which did not amount to unconstitutional interroga-
    tion. Defendant argues that he had merely asked why he had
    been taken into custody and whether he could make a phone
    call, that there was nothing particularly confusing about
    the requests, and that police responded with questions that
    were reasonably likely to—and in fact did—elicit incrimi-
    nating evidence. As a result, he contends, that incriminat-
    ing evidence should have been suppressed. The trial court
    agreed with the state and denied defendant’s motion to sup-
    press. The Court of Appeals affirmed. State v. Boyd, 
    270 Or App 41
    , 346 P3d 626 (2015). For the reasons that follow, we
    conclude that defendant is correct that the police unconsti-
    tutionally interrogated him, in violation of Article I, section
    12.
    The relevant facts are not in dispute. Defendant’s
    girlfriend, Archibald, was found dead on the street, the vic-
    tim of a severe beating. Witnesses saw her on the ground
    and saw defendant running away from the scene. A few min-
    utes later, police arrested defendant, who had Archibald’s
    blood on his hands, shoes, and pants. The arresting officers
    advised defendant of his constitutional rights and ques-
    tioned him. Defendant told the police that he was not sure
    what happened. He saw that his hand was bleeding and
    “figured” that he had been in a fight or had punched a car
    window. He said that he recalled that Archibald had become
    angry with him because she thought he had pushed her and
    that she had hit him several times. But he denied hitting
    her, insisting that he would never hit a woman. He repeat-
    edly asked about Archibald’s welfare.
    The officers took defendant to the police station.
    There, Detective Myers questioned him while Sergeant
    Lewis observed. Defendant again said that he could not
    Cite as 
    360 Or 302
     (2016)	305
    remember what had happened and that, given the injury
    to his hand, he must have “either punched somebody’s car
    or punched somebody.” He said that he knew that he “was
    pissed off, because I was arguing with my girl.” He then
    stated that “I don’t know why I’m here, so—please don’t talk
    to me anymore on that aspect until you bring me a lawyer.”
    Myers told defendant to change into jail clothes.
    As defendant did that, he asked Myers why he had been
    arrested. Myers told him that Archibald was dead and that
    he was being arrested for her murder. Defendant became
    agitated, expressing disbelief:
    “A:  Whoa, whoa, whoa, what the fuck you mean, my
    girlfriend is dead, man?
    “Q:  She’s dead.
    “A:  No, no, no, no—Ally’s at home.
    “Q:  Change your clothes. Let’s go.
    “A:  Ally’s at home.
    “Q:  Have a seat and change your clothes. That’s all
    you’ve got to do. Relax and change your clothes.
    “A:  What you mean, my girlfriend’s dead, man? That’s
    not, no, no, no, we just had an argument. I left her—my
    girl ain’t dead. My girl is drunk at home with the baby. I
    don’t—fuck what y’all is saying, and why the fuck are all of
    you mother-fuckers gathering up on me?
    “Q:  We are not gathering up on you. We’d just like you
    to change your clothes, sit down and we’ll get through the
    process.
    “A:  All right, but my girl ain’t dead. My baby is at
    home, peaceful. No, I refuse to even entertain that thought.
    Fuck you, you can kiss my ass. My baby’s at home with the
    baby. She’s at home where she ought to. No, hell no, fuck
    you, you can kiss my ass. No, my baby is fine. I don’t give a
    fuck what y’all—my baby is at home with Elija. I wouldn’t
    give a fuck what y’all talking about. Fuck that shit.
    “Q:  You want to slide your pants over here?
    “A:  Man, listen. Fuck that, my baby ain’t dead. My
    baby is at home with the baby. [inaudible] No, no, no—
    306	                                                State v. Boyd
    “Q:  You just sit here until officers come to take pos-
    session of your things. Can someone transport him? Put
    your hands behind your back. I’ll try hard not to [inaudi-
    ble] them too hard. I know you got a bum finger.
    “A:  I’m not about to fight you because my baby ain’t
    dead [inaudible] I don’t know what the fuck happened
    tonight, but my baby ain’t dead.”
    Lewis observed the foregoing interchange between defen-
    dant and Myers.
    About seven hours later, Lewis learned that defen-
    dant had been transferred to a holding cell with a sink
    and running water. Concerned that defendant could have
    washed his hands and destroyed potential evidence, he
    went to defendant’s cell. He checked defendant’s hands and,
    apparently satisfied that defendant had not washed them,
    turned to leave. Defendant spoke to Lewis, asking, “Is any-
    body going to tell me why I’m here? I need to call my baby
    girl because she’s going to wonder where I’m at.” As Lewis
    later recalled in testimony at a suppression hearing, the fol-
    lowing exchange then occurred:
    “A:  I asked him if he didn’t remember Detective Myers
    telling him why he was here, and he replied, ‘no, I don’t
    remember nothing about that or talking to nobody.’
    “Q:  Then what?
    “A:  I asked him, when he was talking about his baby
    girl, if he was referring to * * * Archibald and he said that
    he was, and then I just told him that I was present when
    Detective Myers told him that she was dead and he was
    under arrest for killing her, and he got real agitated and
    started breathing heavy and clenching his fists and told
    me, ‘no, no, she ain’t dead, you’re lying’ and then he tells
    me ‘I want to talk to the detective that you said I talked
    to.’ ”
    Lewis went to get Myers, who arrived at defendant’s
    holding cell within minutes. Once there, Myers reminded
    defendant that he had earlier asked to speak with a law-
    yer and asked him if he still wanted one. Defendant said
    that he did not want a lawyer but wanted to talk to Myers
    about what had happened. Myers advised defendant of his
    Miranda rights and again asked if defendant wished to
    Cite as 
    360 Or 302
     (2016)	307
    speak to him without a lawyer present. Defendant said, yes.
    In the ensuing interview, defendant described an altercation
    with Archibald during which she had hit him repeatedly,
    making him angry so that “he felt like bashing her fucking
    head.” He recalled that he had pinned Archibald against a
    van and then hit her once, causing her to fall and hit her
    head on the ground. Defendant asserted that, after hitting
    Archibald, he had “blacked out and just took off walking.”
    When Myers told defendant that Archibald’s injuries were
    inconsistent with a single punch, defendant requested an
    attorney, and the interview ended.
    The state charged defendant with Archibald’s mur-
    der. Before trial, defendant moved to suppress his state-
    ments to Myers, arguing that they were obtained in viola-
    tion of his right against compelled self-incrimination under
    Article I, section 12, of the Oregon Constitution and the
    Fifth Amendment to the United States Constitution. He
    argued that the police had “either circumvented or coerced”
    him into making those statements in spite of his explicit
    invocation of his right to speak to an attorney. The trial
    court denied the motion, holding that defendant had know-
    ingly and voluntarily waived his right to counsel. The trial
    court explained that the interview with Myers had occurred
    “only upon defendant’s request to have further contact with
    * * * Myers” and only after Myers readministered Miranda
    warnings.
    During the trial to the court, the state introduced
    evidence of defendant’s statements to Myers, in particular,
    defendant’s statement about being angry with Archibald
    and that he “felt like bashing her fucking head.” Defendant
    did not dispute that he had killed Archibald. His defense
    was that he lacked the requisite culpable mental state.
    In support of that defense, he took the stand and testified
    that he had never intended to hurt Archibald, that he had
    been unaware of punching her at the time, and that he did
    not remember doing so after the fact. In rebuttal, the state
    presented the testimony of a psychological expert who had
    relied in part on defendant’s statements to Myers to reach
    his conclusion that defendant was malingering. The trial
    court convicted defendant of murder, ORS 163.115, and sen-
    tenced him to imprisonment for life.
    308	                                            State v. Boyd
    On appeal, defendant argued that the trial court
    erred in denying his motion to suppress his statements to
    Myers after he invoked his right to counsel, and that the
    error was prejudicial. He also asserted an unpreserved
    argument that the trial court should have suppressed the
    statements that he made to the police before he invoked his
    right to counsel, on the ground that the advice of his rights
    when he initially was contacted by the police was defective.
    The Court of Appeals affirmed. The court concluded
    that, because Lewis’s responses to defendant’s questions
    were not of a sort that the officer should have known would
    be likely to produce an incriminating statement from defen-
    dant, it was not a reinitiation of interrogation. Boyd, 270 Or
    App at 47. The court explained that defendant himself had
    reinitiated interrogation, by “request[ing] to speak to Myers,
    indicating his desire for a generalized discussion about the
    investigation.” Id. at 48. The court concluded that, in light
    of Myers’s readministration of Miranda rights, the passage
    of time between defendant’s invocation and his profession of
    a wish to speak to Myers without a lawyer, and the absence
    of any evidence of mental impairment, the trial court had
    not erred in finding that defendant had knowingly and vol-
    untarily waived his right to be questioned only in the pres-
    ence of counsel. Id. Finally, the court rejected defendant’s
    unpreserved contention that the initial advice of rights was
    inadequate without discussion. Id. at 43.
    On review before this court, defendant argues that
    he did not reinitiate interrogation; rather, he asked rou-
    tine questions associated with being taken into custody. In
    defendant’s view, it was the police that reinitiated interro-
    gation, when Lewis questioned him about his lack of mem-
    ory about the earlier conversation concerning the assault
    on Archibald. Defendant asserts that, once he asserted his
    right to refrain from speaking with police without counsel
    present, police were prohibited by Article I, section 12, and
    the Fifth Amendment from asking any direct questions in
    the absence of a waiver of that right. At the least, defendant
    contends, police were forbidden to ask questions that were
    likely to elicit incriminating information. In this case, he
    argues, the questions that Lewis posed to him were likely
    Cite as 
    360 Or 302
     (2016)	309
    to do just that, given the fact that defendant already had
    denied remembering the assault. Defendant also reprises his
    unpreserved contention that, at all events, the initial advice
    of rights that he received was constitutionally inadequate.
    The state argues that defendant is wrong in assert-
    ing that Article I, section 12, forecloses questioning of any
    sort once a defendant has invoked a right to counsel. In the
    state’s view, all that is prohibited is asking questions that
    are likely to elicit incriminating information from the defen-
    dant. In this case, the state contends, defendant’s questions
    about why he was in custody were “confusing,” given that
    defendant had been told several hours earlier why he had
    been arrested. In light of the confusing nature of defen-
    dant’s questions, the state argues, it was lawful for Lewis to
    ask “clarifying” questions that were not reasonably likely to
    elicit an incriminating response. In any event, the state con-
    tends, the incriminating information at issue—defendant’s
    statement that he intended to beat Archibald—derived from
    Myers’s questioning, not Lewis’s. And that occurred only
    after defendant expressly waived his constitutional rights
    and demanded to speak to the officer.
    Defendant replies that, although he did demand to
    speak with Myers, that demand was a direct result of Lewis’s
    interrogation, before any waiver of constitutional rights.
    At the outset, we reject without discussion defen-
    dant’s contention that the initial advice of rights was con-
    stitutionally inadequate. The parties’ remaining conten-
    tions are rooted both in Article I, section 12, of the Oregon
    Constitution and in the Fifth Amendment. We begin with
    defendant’s arguments under Article I, section 12. State v.
    Kennedy, 
    295 Or 260
    , 262, 666 P2d 1316 (1983) (court gen-
    erally considers state law questions before reaching federal
    constitutional claims). But, because this court’s case law
    under that section of the state constitution has relied heavily
    on federal Fifth Amendment doctrine, we precede our state
    constitutional analysis with a brief summary of federal law
    to provide some context.
    The Fifth Amendment to the United States
    Constitution provides that, “[n]o person shall *
    * * be
    310	                                                State v. Boyd
    compelled in any criminal case to be a witness against him-
    self.” In Edwards v. Arizona, 
    451 US 477
    , 484-85, 
    101 S Ct 1880
    , 
    68 L Ed 2d 378
     (1981), the United States Supreme
    Court held that, once a suspect invokes his or her Fifth
    Amendment rights, there can be no “further interrogation
    by the authorities until counsel has been made available
    * * * unless the accused * * * initiates further communica-
    tion, exchanges, or conversations with the police.” Left unde-
    fined in Edwards were what the Court meant by an accused
    “initiat[ing]” further communication, as well as the nature
    of the “interrogation” that must cease until the accused does
    so.
    The Court addressed the first issue in Oregon v.
    Bradshaw, 
    462 US 1039
    , 
    103 S Ct 2830
    , 
    77 L Ed 2d 405
    (1983). In that case, the defendant asked a police officer on
    the way to jail, “Well, what is going to happen to me now?”
    A plurality of the Court concluded that the defendant, in
    posing that question, had “initiated” further communication
    with the police for Fifth Amendment purposes. In reaching
    that conclusion, the Court distinguished the defendant’s
    questions from what it described as “routine inquiries”:
    “There are some inquiries, such as a request for a drink of
    water or a request to use a telephone, that are so routine
    that they cannot be fairly said to represent a desire on the
    part of an accused to open a more generalized discussion
    relating directly or indirectly to the investigation. Such
    inquiries or statements, by either an accused or a police
    officer, relating to routine incidents of the custodial rela-
    tionship, will not generally ‘initiate’ a conversation in the
    sense in which that word was used in Edwards.”
    
    Id. at 1045
    . The four justices who dissented did not take
    issue with the plurality’s definition of what amounted to
    “initiating” a conversation; rather they disputed the plural-
    ity’s application of that test to the particular facts, conclud-
    ing that the defendant’s question did not indicate a desire
    for a generalized discussion about the investigation. 
    Id. at 1055-56
     (Marshall, J., dissenting).
    The Court addressed the second issue in Rhode
    Island v. Innis, 
    446 US 291
    , 
    100 S Ct 1682
    , 
    64 L Ed 2d 297
    (1980). In that case, the defendant was arrested for murder
    Cite as 
    360 Or 302
     (2016)	311
    and advised of his Miranda rights, after which he asked
    to speak with a lawyer. On the way to the police station,
    two police officers who accompanied the defendant did not
    question him. They did talk among themselves, noting that
    (among other things) a child from a school for handicapped
    children near where the murder had occurred might find
    the gun with which the murder victim had been shot and
    accidentally shoot someone. Hearing the conversation, the
    defendant told the police to return to the scene of his arrest,
    so that he could show them where he had left the gun. Id. at
    293-95. Following the defendant’s arrest for the murder, he
    moved to suppress the gun and his statements to the police,
    on the ground that the evidence had been obtained in viola-
    tion of his Fifth Amendment rights. The trial court denied
    the motion, but the Rhode Island Supreme Court reversed.
    Id. at 295-97.
    The United States Supreme Court vacated the
    decision of the Rhode Island Supreme Court. A majority of
    the Court concluded that, for Fifth Amendment purposes,
    “interrogation” refers “not only to express questioning, but
    also to any words or actions on the part of the police * * *
    that [they] should know are reasonably likely to elicit an
    incriminating response.” Id. at 301. That test, the majority
    said, “focuses primarily upon the perceptions of the suspect,
    rather than the intent of the police.” Id. Applying that test,
    the majority concluded that the police conversation was not
    of a sort that the officers should have known was likely to
    elicit an incriminating response. Id. at 303. The majority
    noted that there was no evidence that the officers knew that
    defendant was “peculiarly susceptible to an appeal to his
    conscience concerning the safety of handicapped children.”
    Id. Three justices dissented, two of whom agreed with the
    majority’s definition of what constituted “interrogation,” but
    disputed its application of the test to the facts of that case.
    Id. at 305-06 (Marshall, J., dissenting).
    The Innis test was ambiguous, to say the least.
    In particular, it was not clear whether “interrogation”
    included any and all direct questioning on the part of
    police or only questioning that police should have known
    was likely to elicit an incriminating response. Portions of
    312	                                                             State v. Boyd
    the Court’s opinion in Innis appeared to support either
    interpretation.1
    In Pennsylvania v. Muniz, 
    496 US 582
    , 
    110 S Ct 2638
    , 
    110 L Ed 2d 528
     (1990), the court returned to the
    issue of what constitutes Fifth Amendment “interrogation.”
    The Court was confronted with an argument that certain
    questions—those that are routine in the booking process—
    do not constitute interrogation because they are not intended
    to elicit information for investigative purposes. A plurality
    of the Court rejected that argument, but held that replies
    to such questions are admissible under a “routine book-
    ing exception” to the Miranda rule. 
    Id. at 600-02
    . But the
    same plurality suggested that certain other questions—
    specifically, questions about whether a suspect in custody
    understood the instructions he had been given about a
    breathalyzer test and was willing to submit to the test—did
    not constitute interrogation within the meaning of Miranda
    at least in part because those questions were “not likely to
    be perceived as calling for any incriminating response.” 
    Id. at 605
    . The Court thus appeared to adopt the view—without
    expressly addressing the issue, to be sure—that “interroga-
    tion” does not include all forms of direct questioning.
    Not surprisingly, federal circuit courts have split
    on the issue of what constitutes “interrogation.” A few
    have held that, for Fifth Amendment purposes, “interro-
    gation” includes any form of direct or express police ques-
    tioning, regardless of content. See, e.g., Smiley v. Thurmer,
    542 F3d 574, 582 (7th Cir 2008) (“Innis does nothing more
    than define when police practices, other than express ques-
    tioning, constitute interrogation.”) (Emphasis in original.);
    United States v. Montgomery, 714 F2d 201, 202 (1st Cir
    1
    The ambiguities of Innis go much further than that. It is not entirely clear,
    for example, whether the Innis test imposes an objective or a subjective test, or
    whether it focuses on perceptions of the suspect or the officer. Once again, the
    opinion itself provides something for everyone, leading to splits among lower
    courts in every imaginable direction. See generally Kyle C. Welch, Asking the
    Scary Question: What Is the Correct Understanding of “Interrogation” Under
    Rhode Island v. Innis?, 50 Cal W L Rev 233, 256 (2014) (describing “chaotic
    outcomes in cases where interrogation was the principal issue”); Alexander S.
    Helderman, Revisiting Rhode Island v. Innis: Offering a New Interpretation of the
    Interrogation Test, 33 Creighton L Rev 729, 738 (2000) (“There is little consis-
    tency among the federal circuit courts’ interpretation of the Innis test.”).
    Cite as 
    360 Or 302
     (2016)	313
    1983) (“Since the questioning here was express, we have no
    occasion to go farther. This was custodial interrogation.”).
    Most hold that direct questioning, by itself, is not enough to
    amount to “interrogation” for Fifth Amendment purposes.
    See, e.g., United States v. Booth, 669 F2d 1231, 1237 (9th Cir
    1981) (“We hold, therefore, that custodial questioning consti-
    tutes interrogation whenever, under all the circumstances
    involved in a given case, the questions are reasonably likely
    to elicit an incriminating response from the subject.”).
    Article I, section 12, of the Oregon Constitution
    is phrased nearly identically to the Fifth Amendment in
    providing that, “[n]o person shall * * * be compelled in any
    criminal prosecution to testify against himself.” In conse-
    quence, this court has found case law applying the Fifth
    Amendment guarantee to be useful in construing the simi-
    larly worded guarantee of Article I, section 12.
    In State v. Kell, 
    303 Or 89
    , 95-100, 734 P2d 334
    (1987), this court concluded that the rule in Edwards
    that police must cease interrogation once a defendant has
    invoked his Fifth Amendment rights is “equally applicable”
    to Article I, section 12. See also State v. Isom, 
    306 Or 587
    ,
    593, 761 P2d 524 (1988) (“Upon request for counsel, ques-
    tioning not only ‘should’ but must cease.”).
    In State v. Meade, 
    327 Or 335
    , 963 P2d 656 (1998),
    the court concluded that police could engage in further
    interrogation if a defendant “initiated” further discussion
    about the investigation into whether the defendant had com-
    mitted a criminal offense. 
    Id. at 340
    . The court concluded
    that whether a defendant “initiated” such further discussion
    depended on whether the defendant had shown that he or
    she “was willing to enter into a generalized discussion of
    the substance of the charges without the assistance of coun-
    sel.” 
    Id.
     That particular formulation of the test borrowed
    directly from the United States Supreme Court’s decisions
    in Bradshaw and Edwards, although the court did not men-
    tion those cases by name.2 See also State v. McAnulty, 
    356 Or 432
    , 456, 338 P3d 653 (2014), cert den, __ US __, 136
    2
    In fact, the majority’s borrowing from Fifth Amendment doctrine was one
    of the issues on which it and the dissent parted company. Id. at 351-52 (Durham,
    J., dissenting).
    314	                                            State v. Boyd
    S Ct 34, 
    193 L Ed 2d 48
     (2015) (Defendant “re-initiated”
    further conversation with authorities because her comments
    “expressed a willingness to continue a discussion about the
    investigation.”).
    This court likewise borrowed from federal case law
    in determining what constitutes “interrogation” for Article I,
    section 12, purposes. In State v. Scott, 
    343 Or 195
    , 166 P3d
    528 (2007), the defendant was arrested on suspicion of mur-
    der, advised of his Miranda rights, and transported to the
    police station, where he was placed in an interview room.
    When two officers entered the room, the defendant said,
    “I would appreciate a lawyer present before I say anymore
    to you guys.” As one of the officers turned on a recording
    device, defendant said two more times that he wanted to see
    a lawyer. The officer replied that he wanted to review the
    defendant’s rights with him first and proceeded to reiter-
    ate his Miranda rights. The officer then asked whether the
    defendant had any questions about those rights, to which
    the defendant replied that he did not and that, because of
    what he had “seen on TV,” he thought he needed a lawyer.
    The officer responded with a question: “You saw something
    on TV?” The defendant explained that he had seen a report
    that he had “killed somebody.” The officer then replied,
    “Saying that you killed somebody, huh?,” after which he
    waited eight to ten seconds before asking whether defendant
    wanted a particular lawyer. The defendant said that he “just
    want[ed] one here.” The officer asked whether there was a
    particular lawyer that the defendant had worked with in the
    past, at which point the defendant stated that he no longer
    cared about a lawyer and that he was ready to speak with
    the officers. 
    Id. at 198
    .
    The defendant then made incriminating statements
    to the officers, which he later sought to suppress on the
    ground that the police did not cease interrogating him after
    he had invoked his right to counsel under Article I, section
    12. The trial court agreed and suppressed the statements,
    and this court affirmed. At the heart of the parties’ argu-
    ments on appeal was the meaning of the term “interroga-
    tion” for Article I, section 12, purposes. Both the defendant
    and the state tailored those arguments to the United States
    Cite as 
    360 Or 302
     (2016)	315
    Supreme Court’s decision in Innis. This court responded by
    explicitly relying on that Fifth Amendment decision:
    “This court has emphasized that the constitutional pro-
    tections afforded to suspects and criminal defendants set
    out in the Oregon Constitution require an analysis inde-
    pendent of similar protections set out in the United States
    Constitution. Here, however, the question does not concern
    the construction of any term set out in Article I, section
    12; instead, our task involves defining a familiar term—
    ‘interrogation’—that both this court and the United States
    Supreme Court repeatedly have used to delineate situa-
    tions in which Miranda-type warnings are required or
    Miranda-type rights are implicated under either the state
    or federal constitutions. Additionally, neither party con-
    tends, in the context of each one’s arguments in this case,
    that the concept of interrogation carries any meaning dif-
    ferent from the one that the United States Supreme Court
    articulated in Innis. In view of those considerations, we
    shall apply the Court’s definition of the term interrogation,
    for purposes of Miranda’s Fifth Amendment requirements,
    to our analysis of defendant’s Article I, section 12, rights
    at issue here.”
    Id. at 203. This court noted that whether that questioning
    amounted to “interrogation” for Article I, section 12, pur-
    poses depended on whether that questioning was of a sort
    that “the police should know is likely to elicit an incriminat-
    ing response,” taking into account “both the substance of the
    questions posed to [the] defendant and the manner in which
    those questions were asked.” Id.
    Turning to the particular police questions at issue,
    the court noted that the officer’s questioning about what the
    defendant had seen on television was aimed at the very rea-
    son for the defendant’s arrest for murder and that “any fur-
    ther discussion of that broadcast would serve only to prolong
    a discussion that [the] defendant had tried to terminate
    and, indeed would be reasonably likely to elicit some type of
    incriminating response.” Id. at 203-04. The court observed
    that the officer’s long pause after asking about the televi-
    sion broadcast—“Saying that you killed somebody, huh?”—
    provided the defendant “an invitation, and an opportunity,
    to provide an incriminating response.” Id. at 204.
    316	                                               State v. Boyd
    The court’s analysis in Scott appears to dispose
    of defendant’s argument in this case that any direct ques-
    tioning by police after an invocation of Article I, section
    12, rights amounts to “interrogation,” as a matter of law.
    The court concluded that the officer’s questioning in that
    case amounted to “interrogation” for Article I, section 12,
    purposes not merely because it was direct questioning, but
    because of “the substance of the questions posed to [the]
    defendant and the manner in which those questions were
    asked.” Id. at 203. Moreover, the court read Innis to require
    the application of an essentially objective test—namely,
    whether the nature of the police questioning was such that it
    was reasonably “likely to elicit an incriminating response.”
    Id.
    Defendant insists that, although the court in Scott
    did apply the “likely to elicit incriminating evidence” test
    to direct questioning, the case “does not control the resolu-
    tion of this case” because no one in Scott made the precise
    argument that he is making and because failing to con-
    clude that direct questioning of any sort is “interrogation”
    is inconsistent with Innis. We are not persuaded by either
    argument.
    It is true that the court qualified its decision in Scott
    with the observation that no one in that case had suggested
    that a different test should be applied. In subsequent cases,
    though, this court has cited Scott for the same test, without
    any such qualifications. See, e.g., State v. Vondehn, 
    348 Or 462
    , 466 n 3, 236 P3d 691 (2010) (noting that whether police
    questions constitute “interrogation” for Article I, section 12,
    purposes depends on whether they are of a kind that “police
    should know [is] reasonably likely to elicit an incriminating
    response”).
    To the extent that any ambiguity remains about the
    test for determining whether “interrogation” has occurred
    we conclude in this case that Scott correctly stated the test
    for the following reasons. First, whether Scott was cor-
    rectly decided is not necessarily determined by reference to
    whether it properly applied Innis. As this court often has
    observed, while it may from time to time borrow a doctrine
    or concept from federal court decisions when it interprets or
    Cite as 
    360 Or 302
     (2016)	317
    applies the state constitution, the court is doing so “because
    it finds the views there expressed persuasive, not because it
    considers itself bound to do so by its understanding of fed-
    eral doctrines.” Kennedy, 
    295 Or at 267
    .
    Second, in any event, Scott is not inconsistent
    with Innis or later United States Supreme Court case law.
    We noted earlier that Innis itself is not a model of doctri-
    nal clarity; the Court left notoriously unclear whether its
    “likely to elicit an incriminating response” test applied
    to direct questioning. The Court’s later opinion in Muniz,
    however, strongly suggests that the Innis test does apply to
    direct questioning. The Court held that some forms of direct
    questioning—for example, questions about whether a per-
    son being asked to undergo sobriety testing understands the
    instructions and is willing to submit to the testing—do not
    constitute “interrogation” for Fifth Amendment purposes at
    least in part because such questions are not likely to elicit
    incriminating responses. 
    496 US at 605
    .
    Third and finally, aside from the fact that Scott
    appears consistent with post-Innis federal case law, its
    holding makes sense on its own terms. The notion that
    all forms of direct questioning constitute “interrogation”
    for constitutional purposes is unrealistic. Some types of
    questions—“Would you like a glass of water?”—are often
    innocuous and do not implicate the constitutional con-
    cerns that form the underpinnings of Article I, section 12,
    and Fifth Amendment rights. See generally LaFave et al,
    2 Criminal Procedure 854-55 (4th ed 2015) (cases holding
    that some “innocuous” questions do not implicate Miranda
    are “certainly correct”). The heart of both state and federal
    constitutional guarantees, after all, is protecting against
    compelled incrimination. See generally State v. Davis, 
    350 Or 440
    , 455-57, 256 P3d 1075 (2011) (reviewing history and
    prior case law regarding constitutional guarantees of “com-
    pelled self-incrimination”). In that regard, we find persua-
    sive the discussion of the issue by the Court of Appeals for
    the Ninth Circuit in Booth. Holding that “interrogation” con-
    sists of not all police questioning, but only questioning that
    is reasonably likely to produce an incriminating response,
    the court explained:
    318	                                                State v. Boyd
    “[W]e believe that the reasoning supporting the Court’s
    decision [in Innis], indeed, the very purpose behind Miranda
    itself, compels the conclusion that not every question posed
    in a custodial setting is equivalent to ‘interrogation.’
    “* * * * *
    “* * * Certainly not every question is an interrogation.
    Many sorts of questions do not, by their very nature, involve
    the psychological intimidation that Miranda is designed
    to prevent. A definition of interrogation that included any
    question posed by a police officer would be broader than
    that required to implement the policy of Miranda itself.”
    Booth, 669 F2d at 1237.
    With the foregoing legal principles in mind, we turn
    to the issues in this case. As we noted, once a suspect has
    invoked the rights to remain silent and to counsel under
    Article I, section 12, police must immediately cease interro-
    gation unless the suspect initiates further conversation with
    the police. Isom, 
    306 Or at 593
    . In this case, then, the ques-
    tions are (1) whether defendant himself initiated further
    conversation with the police and, if not, (2) whether police
    continued unlawfully to interrogate him.
    The Court of Appeals answered the first question in
    the negative. Boyd, 270 Or App at 47. On review before this
    court, defendant contends that the Court of Appeals was
    correct in that respect. The state contends that “defendant
    initiated a conversation” with Lewis by asking, “Is anybody
    going to tell me why I’m here, I need to call my baby girl
    because she’s going to wonder where I’m at?”
    We conclude that the Court of Appeals was correct.
    In arguing that defendant “initiated” further conversation
    with the police, the state focuses on whether any police
    interrogation that occurred was in any way prompted by
    something that defendant said first. That, however, is not
    the test. The test is whether a defendant’s questions or
    statements indicate that he or she “was willing to enter into
    a generalized discussion of the substance of the charges
    without the assistance of counsel.” Meade, 
    327 Or at 340
    . A
    defendant merely asking why he or she has been taken into
    custody does not satisfy that test, and the state does not
    appear to contend otherwise.
    Cite as 
    360 Or 302
     (2016)	319
    The Court of Appeals also answered the second
    question in the negative. The court explained that, when
    Lewis asked defendant whether he recalled having a con-
    versation with Myers about defendant having killed his
    girlfriend and whether defendant had referred to his girl-
    friend as his “baby girl,” those questions were not of such
    a nature that Lewis should have known they would likely
    elicit an incriminating response from defendant. Boyd, 270
    Or App at 47-48. On review, defendant argues that the court
    erred in so concluding. The state, meanwhile, argues that
    the court correctly determined that Lewis’s questions were
    merely “follow-up” questions intended to clarify the nature
    of defendant’s inquiries.
    We conclude that defendant is correct that the Court
    of Appeals erred. As this court explained in Scott, whether
    police questioning constitutes unlawful “interrogation” for
    Article I, section 12, purposes depends on whether “the sub-
    stance of the questions posed to [the] defendant and the
    manner in which those questions were asked” demonstrated
    that they were “likely to elicit some type of incriminating
    response.” 
    343 Or at 203-04
    . In this case, when defendant
    asked why he had been taken into custody, Lewis responded
    with questions of his own about whether defendant was refer-
    ring to his girlfriend Archibald and whether he recalled the
    earlier conversation with Myers, when Myers told defendant
    that Archibald was dead. It should be recalled that Lewis
    was present when defendant had that prior conversation
    with Myers, and he was aware of defendant’s response to
    that conversation. Specifically, Lewis knew that defendant
    had become agitated when told that his girlfriend had been
    killed, that he had disclaimed any memory of an altercation
    with his girlfriend, and that he had claimed not to remem-
    ber how his hand had been hurt. Lewis knew that defendant
    had denied knowing that his girlfriend was dead and that, in
    fact, defendant had asserted at least six times that he did not
    believe that his girlfriend was dead. In other words, Lewis
    was well aware that defendant’s memory of the assault was
    very much in issue and that posing the questions that he
    did was likely to agitate him. In that context, Lewis should
    have known that any further questioning about defendant’s
    memory concerning the assault or the investigation into the
    320	                                            State v. Boyd
    assault was reasonably likely to elicit from defendant an
    incriminating response, either in cornering defendant into
    a possibly far-fetched theory of the defense or in provoking
    him to make potentially inconsistent statements about his
    memory of the events that later could be used to impeach
    him.
    The state argues in the alternative that, even if
    Lewis’s questions constituted unlawful interrogation, those
    questions did not produce any incriminating information.
    According to the state, the incriminating statements that
    defendant sought to suppress occurred only after defendant
    told Lewis that he wanted to talk to Myers. Citing State v.
    Acremant, 
    338 Or 302
    , 108 P3d 1139, cert den, 
    546 US 864
    (2005), the state argues that, even when an officer disre-
    gards a suspect’s invocation of Article I, section 12, rights,
    the suspect may later validly waive his or her rights and
    speak with police so long as the defendant’s later renewal of
    contact with police was not a product of the earlier unlawful
    interrogation.
    We are not persuaded by the state’s alternative argu-
    ment. In Acremant, the defendant was arrested in Stockton,
    California, on suspicion of having committed two murders in
    Oregon. He was transported to the local police station. Two
    Oregon police detectives met with the defendant, informed
    him of his Miranda rights, and confirmed that the defen-
    dant understood those rights. Id. at 317-18. The defendant
    spoke with the detectives for a short time, but then invoked
    his right to counsel. The Oregon detectives said that they
    were “disappointed” that the defendant had elected to end
    the interview, that they were interested in hearing his side
    of the story, and that they were curious about his motive for
    the murders. There followed an approximately 13-minute
    conversation about the investigation, including the detec-
    tives’ theory of his motive for the crimes. The two Oregon
    detectives ultimately left, saying to the defendant that they
    would be in Stockton for a few more days and that, if he
    decided that he wanted to talk to them, he should let the jail
    staff know. Id. at 318-19.
    About an hour later, the defendant knocked on
    the door of the interview room and asked to speak to the
    Cite as 
    360 Or 302
     (2016)	321
    detectives from Oregon. Shortly after that, two different
    Oregon detectives met with him, readvised him of his con-
    stitutional rights, and interviewed him. During that inter-
    view, the defendant made inculpatory statements about
    the two murders. Id. at 319. The defendant later moved to
    suppress those statements, but the trial court denied the
    motion. Id. at 320-21.
    On review of the denial of the motion, this court
    affirmed. The court began by concluding that the first two
    Oregon detectives had indeed violated the defendant’s rights
    under Article I, section 12, when they continued to probe
    him about the murders after he had invoked his right to
    counsel. Id. at 322. But the court concluded that the inculpa-
    tory statements that the defendant later made to the police
    need not be suppressed, because the prior unlawful interro-
    gation had not “induced” the defendant to make them. Id. at
    322-23. The court noted that the first two detectives had left
    the defendant alone for an hour, after which time he reiniti-
    ated contact with them on his own. Id. at 323.
    This case is distinguishable. In Acrement, there was
    a clear break of approximately one hour between the unlaw-
    ful interrogation and the defendant’s later unprompted
    reinitiation of contact with the police. In this case, there
    was no break at all. In this case, unlike Acremant, there
    was a causal connection between Lewis’s interrogation of
    defendant and defendant’s request to talk with Myers. After
    defendant asked why he had been taken into custody, Lewis
    asked defendant if he remembered Myers telling him why
    he had been arrested and stated further that, in fact, Lewis
    remembered Myers telling defendant that he had been
    arrested for killing his girlfriend. Defendant immediately
    became “agitated” and responded that, “no, no, she ain’t
    dead, you’re lying and * * * I want to talk to the detective
    that you said I talked to.” Defendant’s request to speak with
    Myers thus was hardly unprompted. It was a direct response
    to Lewis’s interrogation of defendant in violation of Article I,
    section 12.
    We conclude that police interrogated defendant in
    violation of his state constitutional right to counsel and that
    the incriminating statements to Myers that resulted from
    322	                                            State v. Boyd
    that violation should have been suppressed. The state con-
    cedes that, if the trial court erred in failing to grant defen-
    dant’s motion to suppress, the admission of his statements
    was not harmless. The case therefore must be reversed and
    remanded for a new trial. Because of our decision on state
    constitutional grounds, we need not address the parties’
    arguments under the Fifth Amendment.
    The decision of the Court of Appeals is reversed.
    The judgment of the circuit court is reversed, and the case
    is remanded to the circuit court for further proceedings.
    

Document Info

Docket Number: CC 201026332; CA A151157; SC S063260

Judges: Balmer, Kistler, Walters, Landau, Baldwin, Brewer, Garrett

Filed Date: 9/22/2016

Precedential Status: Precedential

Modified Date: 3/1/2024