State v. Sanelle, 404 P.3d 992

Background

Defendant was arrested and, the day after arrest, detectives Rau and Anderson read Miranda warnings and asked if he understood them; defendant asked, “Where’s the lawyer?”
Rau asked whether defendant had a lawyer; defendant said no and that he could not afford one; Rau said an attorney would be appointed at arraignment two days later.
Anderson then asked if defendant understood his rights and if he was willing to speak; defendant answered, “Yes, absolutely,” and an audio-recorded custodial interview followed.
At a pretrial Miranda hearing the state presented detective testimony (but did not play the recording); defense cross-examination elicited that detectives did not ask clarifying questions about whether defendant meant to invoke the right to counsel or offer to delay questioning until counsel was available.
The trial court ruled the question “Where’s the lawyer?” was not an invocation (equivocal or unequivocal) and admitted the statements; defendant was convicted and appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellate claim was preserved	State: defendant did not present argument at hearing or renew it at trial, so issue unpreserved	Defendant: cross-examination and hearing context preserved the argument	Preserved — court finds defense sufficiently raised and the court ruled on the issue at the hearing
Whether “Where’s the lawyer?” was an equivocal invocation of right to counsel	State: it was not an invocation; could be asking when appointed counsel would arrive or about retained counsel	Defendant: in context—immediately after Miranda warnings—a reasonable officer would view it as at least equivocal	Held: At minimum equivocal; contextual test requires viewing the question in light of preceding Miranda warning
Whether officers satisfied duty to clarify equivocal invocation	State: follow-up (asking if he had retained counsel, telling him counsel would be appointed at arraignment, and asking if he wanted to talk) sufficed; clarification questions are permissive	Defendant: officers failed to ask whether he meant to invoke his Article I, §12 right to have counsel present during interrogation; merely restating rights or discussing appointed counsel is insufficient	Held: Officers failed to clarify intent; their follow-up did not inquire whether defendant was invoking his Fifth/Article I, §12 right to counsel and may have misled him
Whether admission of statements was harmless error	State: (did not seriously contest harmlessness)	Defendant: statements were highly incriminating; error likely affected verdict	Held: Admission was not harmless; conviction reversed and remanded

Key Cases Cited

State v. Nichols, 361 Or. 101 (contextual inquiry for invocation of right to counsel)
State v. Avila-Nava, 356 Or. 600 (police must ask follow-up questions when invocation is equivocal under Article I, §12)
State v. Meade, 327 Or. 335 (circumstances where suspect’s conduct can obviate duty to clarify)
Miranda v. Arizona, 384 U.S. 436 (rights to counsel and to be informed of that right during custodial interrogation)
State v. Scott, 343 Or. 195 (right to counsel derived from Article I, §12)
State v. Charboneau, 323 Or. 38 (permissible, narrow follow-up questions to clarify equivocal invocation)
State v. Montez, 309 Or. 564 (officer questions limited to clarifying whether suspect wanted an attorney)
State v. Peeples, 345 Or. 209 (preservation rule purposes and pragmatics)
State v. Walker, 350 Or. 540 (preservation and fairness considerations)