418 P.3d 41
Or. Ct. App.2018Background
- Defendant arrested as suspect in a stabbing after a fight at a Portland MAX station; interviewed by detectives Hogan and Crate at the station after being Mirandized.
- Early in the interview, after rights were recited, defendant — disoriented/intoxicated — asked, “Do I need one?” in response to a statement about the right to counsel; detectives did not treat that as an invocation and continued questioning.
- During the interview defendant used a racial epithet once referring to an unidentified bystander; police clarified the reference and later elicited incriminating statements from defendant.
- Defendant moved to suppress statements (arguing invalid Miranda waiver) and moved in limine to exclude the racial epithet under OEC 403; the trial court denied suppression and denied redaction, saying it would not “sanitize” statements.
- At trial the state played portions of the interview (including the epithet) and security camera footage of the stabbing was shown; jury convicted 10–2. On appeal defendant challenged (1) the denial of suppression (invocation of right to counsel) and (2) the admission of the racial slur under OEC 403.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant’s question “Do I need one?” was an invocation (unequivocal or equivocal) of the right to counsel | State: Question was not an invocation; trial record adequate; reasonable officers would not have understood it to mean "I want a lawyer." | Roberts: The question was at least an equivocal invocation requiring clarification; suppression warranted if police failed to clarify intent. | Court: Preserved for review; question was not an invocation (not reasonably susceptible to meaning "I want a lawyer"); affirmation of denial of suppression. |
| Whether the trial court erred under OEC 403 in admitting defendant’s use of a racial epithet from the police interview | State: Trial court’s record insufficiently explains 403 balancing; suggests limited remand under Baughman or harmless error. | Roberts: Slur was irrelevant, highly prejudicial, and should have been excluded as its probative value was nil. | Court: Trial court failed to record OEC 403 analysis; slur had no probative value and was manifestly prejudicial; exclusion required and error was not harmless — conviction reversed and remanded for new trial. |
Key Cases Cited
- State v. Baughman, 361 Or. 386 (Or. 2017) (limited remand when trial court fails to make requisite OEC 404/403 analysis)
- State v. Nichols, 361 Or. 101 (Or. 2015) (totality-of-circumstances test for invocation of counsel)
- State v. Avila-Nava, 356 Or. 600 (Or. 2014) (police must clarify equivocal invocation with neutral follow-up)
- State v. Dahlen, 209 Or. App. 110 (Or. App. 2006) (questions phrased to explore options may still be ambiguous; phrasing that expresses present desire may constitute invocation)
- State v. Meade, 327 Or. 335 (Or. 1997) (equivocal invocation requires clarifying questions)
- State v. Lipka, 289 Or. App. 829 (Or. App. 2018) (admission of racial epithet may be permissible where probative value outweighs prejudice)
- State v. Parker, 285 Or. App. 777 (Or. App. 2017) (exclude evidence where probative value is insubstantial and prejudice predominates)
- State v. Scott, 343 Or. 195 (Or. 2007) (right to counsel derives from Article I, §12)
- State v. Sanelle, 287 Or. App. 611 (Or. App. 2017) (standard of review for invocation and deference to trial court findings)
- State v. Alarcon, 259 Or. App. 462 (Or. App. 2013) (timing/wording of questions about counsel can constitute equivocal invocation)
- State v. Brooke, 276 Or. App. 885 (Or. App. 2016) (asking to call a family member who is a lawyer can be an unequivocal invocation)
- Bray v. American Property Management Corp., 164 Or. App. 134 (Or. App. 1999) (potential for unfair prejudice from racial epithets is manifest)
- State v. Lyons, 324 Or. 256 (Or. 1996) (definition of unfair prejudice as tendency to suggest decision on improper, often emotional, grounds)
- State v. Mayfield, 302 Or. 631 (Or. 1987) (four factors trial court should consider in 403 balancing)
- State v. Garcia-Rocio, 286 Or. App. 136 (Or. App. 2017) (trial court errs as matter of law when it fails to conduct or record OEC 403 balancing)
- State v. Zimmerlee, 261 Or. 49 (Or. 1972) (where nonprejudicial equivalent exists, prejudicial evidence is inadmissible)
- State v. Rogers, 330 Or. 282 (Or. 2000) (no discretion when only one legally permissible outcome exists)
- State v. Davis, 336 Or. 19 (Or. 2003) (harmless-error standard: little likelihood the error affected the verdict)
- State v. Maiden, 222 Or. App. 9 (Or. App. 2009) (erroneous admission more likely to affect verdict when evidence is qualitatively different)