State v. Schiller-Munneman, 346 P.3d 636

Background

Defendant was convicted of first-degree rape after the victim, who had slept at his house, reported waking to being raped by defendant.
Detective Myers instructed the victim to send two text messages to defendant that evening; the victim did so and defendant did not respond.
The state disclosed the text message content to defense counsel before trial but did not disclose police involvement until opening statement; defense counsel then moved to suppress and for mistrial.
At trial the victim testified the police had scripted the messages and that defendant did not reply; photographs of the messages were admitted over objection.
Trial court ruled (1) defendant’s silence was not an adoptive admission and (2) Article I, section 12 (right against self-incrimination) was not implicated because defendant was not in custody or in compelling circumstances; defendant later testified and gave an explanation for nonresponse.
On appeal defendant argued (a) use of his silence violated Article I, section 12, and (b) his nonresponse was not an adoptive admission under OEC 801(4)(b)(B). The court affirmed.

Issues

Issue	State's Argument	Defendant's Argument	Held
Whether admitting the victim’s police‑directed texts and defendant’s nonresponse violated Article I, §12	Davis controls: Article I, §12 protects against compelled testimony in custody/compelling circumstances only; defendant was not in custody, so no protection	Police-directed messages were interrogation; defendant’s silence was an exercise of his Article I, §12 right and prosecution’s references were impermissible comment on silence	Court held no §12 violation because defendant was not in custody or in compelling circumstances (Davis governs)
Whether defendant’s silence was an adoptive admission under OEC 801(4)(b)(B)	State framed messages to show they were sent and to permit inferences from nonresponse; court did not admit them as adoptive admissions	Nonresponse cannot be deemed an adoption of the messages’ assertions; silence does not satisfy adoptive‑admission requirements	Court found evidence at best ambiguous for adoptive‑admission and did not admit on that basis
Whether the text messages themselves were hearsay	State: messages were not offered for truth of assertions (were questions/context) and thus not hearsay; even if nonresponse were a statement, it would be party admission (OEC 801(4)(b)(A))	Texts and nonresponse are hearsay and inadmissible to prove truth of accusations	Court held texts were not offered for truth and thus not hearsay; nonresponse, even if a statement, would be a party admission; hearsay objection rejected
Whether Marple/Pigg control to bar comment on pre‑arrest silence	State: Marple and Pigg do not undermine Davis; those cases involved compelling circumstances or were decided on other grounds	Reliance on Marple/Pigg to assert a prearrest right to silence immune from comment	Court held Marple/Pigg are inapposite or limited; Davis controls and prearrest silence absent custody/compelling circumstances is not protected

Key Cases Cited

State v. Davis, 350 Or. 440 (Supreme Court 2011) (Article I, §12 protects against compelled testimony; absent custody or compelling circumstances police may seek incriminating statements)
State v. Larson, 325 Or. 15 (Supreme Court 1997) (prosecutor may not highlight defendant’s exercise of right to remain silent where protections apply)
State v. Smallwood, 277 Or. 503 (Supreme Court 1977) (comment on exercise of constitutional rights likely reversible if prejudicial)
State v. Ehly, 317 Or. 66 (Supreme Court 1993) (standard of review for suppression rulings; appellate deference to trial court factual findings)
State v. Cook, 340 Or. 530 (Supreme Court 2006) (two‑part review for hearsay‑exception evidentiary rulings: factual findings upheld if supported; legal conclusions reviewed de novo)
State v. Marple, 98 Or. App. 662 (Or. Ct. App. 1989) (defendant’s oral refusal to answer officer’s question treated as invocation of right to remain silent in a compelling‑circumstances context)
State v. Pigg, 87 Or. App. 625 (Or. Ct. App. 1987) (pre‑arrest silence issue resolved on OEC 403 probative‑vs‑prejudicial grounds)