*1 January 12; Argued and submitted resubmitted In Banc June reversed and 4,May petition remanded for new trial March reconsideration denied for review 22,1984 (297 May 227) denied Or OREGON,
STATE OF Respondent, BARMON, HARRY MITCHELL Appellant. (20-791; A23867) CA
Thomas H. Assistant him on the brief were respondent. the cause for With argued General, Gary, F. Frohnmayer, Attorney and William Dave General, Salem. Solicitor
NEWMAN, J. Hoomissen, J., part, dissenting specially concurring Van part. NEWMAN, J. in the rape appeals
Defendant his convictions burglary degreе sexual abuse in the second degree, first (1) trial court assigns He as errors that degree. the first questions in the absence provided jury written answers (2) notice to them and defendant and his counsel and without made to Detective ruled that statements were County Sheriffs Office Washington Schultze of erred we hold that the trial court admissible at trial. Because Schultze, made to we in not statements defendant suppressing remand for a new trial and do not consider reverse and court’s answers assignment regarding of error to jury questions. allegedly
Defendant entered the home of victim April mid-morning reported arоund 1 a.m. on 1981. she had her police. the incident to the She said defendant told defendant, previously his name. Schultze knew whom he had hired to remodel his house. Schultze told defendant’s wife that defendant in a prime suspect burglary-rape-sodomy that, did not contact investigation Schultze p.m., for defendant’s arrest. would seek warrant *3 p.m., attorney telephoned About 4 Schultze and lawyer, advised him that he was defendant’s by that he had police p.m., would come to station 5:15 advised defendant not to talk to the and that defendant would not make a statement. p.m.,
About 5:20 defendant came to the statiоn inter- without his counsel. Schultze took defendant into the defendant, this, view room. He first asked “Other than how began Defendant broke down and to things going?” have been asked, I’m cry. right being He then “Do I have a to know what “Yes, rape, sodomy and charged responded, with?” Schultze exclaimed, any- Defendant then “I didn’t steal burglary.” defendant of his Miranda thing!” Schultze then advised rights just a card. Either rights. signed Defendant waiver the Miranda warnings, but gave before or after Schultze exclamation, anything,” “I didn’t steal following defendant’s can, you got if I but I’ve “Harry, help Schultze said: I’d like to made I do.” Defendant then your story to side of the before gеt incriminating extensive statements to Schultze. to determine pretrial “Miranda” ruled that defendant’s statements to
admissibility, the court at trial. It found that defendant Schultze were admissible competent that he and rights, knew and understood his was knowingly of the circumstances and that he adequately aware testimony as to voluntarily rights.1 and waived his Schultze’s part him became a significant defendant’s statements to that his statements to state’s case.2 Defendant asserts pretrial hearing provide: findings Miranda The trial court’s and order from April by “1. made defendant to Louis Schultze on That the verbal statements promise freely voluntarily, or were made and without consideration lenience, coercion; and without threat or prior being rights, “2. advised of his the defendant volunteered That to statement, anything’; ‘I didn’t steal police, prior any interrogation defendant was advised of “3. That to following rights: silent; to remain “a. against anything could used the defendant “b. That the defendant said be Court; prior during questioning; counsel to and
“c. to indigent; right Court-appointed counsel the defendant is “d. The competent rights, and understood these and was “4. That defendant knew circumstances, voluntarily knowingly adequately waived and and aware of * * * these statement, testimony opening prosecutor that Schultze In his described the give: would — you simply, you will “Put he will describe to Detective Schultze describe said, and, very significant, again, but in detail what Mr. Barmon that will be — drug. basically lonely; His brain it he took some he took he lights; eyes following bright exploded. him or There are no statements about two July got lonely He He and went to this house. saw no Fourth of effects. put through sliding-glass door. He his shoulder to her bedroom woman. He went gloves. put just her her. No He didn’t his hands around door. He wanted to talk to throat; suggest you put hear what I are them on her shoulders. You will — versiоn, well, extremely mitigating mitigating factors from Mr. Barmon’s said, effect, you that this woman submitted or wanted will hear that he over, things, kissing him him. She wanted to kiss her all do these and she started effect, participated, instigated these acts.
and she Barmon, testimony and the statement that Mr. “That will be the signifi- Defendant, Again, gave next afternoon. that will be to Lou Schultze the — may may *4 cant, have been said in of what have not and I think terms you and, credibility. going certainly, Who are to in terms of the issue of later particular these facts? in situation and under believe this * case in chief* *.” “So that’s the State’s in case in chief to the statеments Schultze testified the state’s in the state’s rebuttal case. defendant’s statements to him. He also testified to made remain violation of his to were obtained in Schultze States Amendment to the United under the Fifth silent *3 under the Fifth right, raises his He also Constitution.* inter counsel at custodial Amendment, to the assistance of Arizona, 477, 101 Ct S on Edwards v. rogation, relying (1981).4 1880, 2d 68 L Ed jury, emphasized prosecutor, closing argument the differences in his
The
testimony at trial:
to Schultze and defendant’s
between defendant’s statements
* *
“Now,
any
charge burglary
*.
about that?
fourth
is
Is there
doubt
“* * *
words,
entered,
knowingly.
[Wjhen
it
In other
he was aware
he did
crime,
doing
intent to commit a
either the
he was
and he did it with the
what
then,
crime,
sodomy,
rape
assault
and I submit
crime of
or the crime of
a sexual
— putting
gets
in
in
the defense aside for
what that
us to
the State’s case
chief
—
you
upon
from the victim and from
is based
the facts that
heard both
moment
—
1,
through
his interview with the Defendant
No.
Detective Schultze
credibility
there,
being
but to Detective
issue exists because the Defendant admits
—
—
important things
finding
there’s
he admits
an unlocked
Schultze
and
some
hall, putting
sliding glass
opening
going
He
down the
his
door and
it.
admits
* *
a locked bedroom door
shoulder to
pleading
guilty,
given written notice to thе state
In addition to
not
defendant had
rely
responsibility
excluding
under ORS
of intent to
on mental disease or defect
161.309(1),
responsibility
diminishing
under ORS 161.300
161.295 and ORS
and also
case,
161.309(2).
psychiatrist,
part
that in
Defendant’s
as
of defendant’s
testified
ingesting
opinion
suffering
her
defendant was
from a mental disease or defect from
statements,
light
testimony
prosecutor, on
LSD. In
cross-examination,
of Schultze’s
as to defendant’s
diagnosis “if the
asked her what effect it would have on her
you
recounting
happened
being
truthful with
in
what
defendant was not
being
evening?”
psychiatrist replied
thought
truthful and
The
that she
defendant
any
diagnosis.
change her
lаter answered that in
event it would not
were obtained
Defendant does not assert that his statements to Schultze
Constitution,
I,
12,
Oregon
and so we
under
violation of his
Article section
question.
do not consider the state constitutional
extensively.
pretrial
court,
argues
Edwards
At
In his brief
1981,
decided,
September,
court
argu
held after Edwards was
the trial
Miranda
specifically
Following the close of the evidence and the
considered Edwards.
counsel, the
stated:
ments of
court
—
see,
been,
I have been
I have
as counsel can
“The trouble I have here
—
attorney
looking
an
tells the officer thаt
at some case law and that when
statement,
bring
vs. State
going
it within Edwards
to make a
does
client is not
accused,
that,
U.S.Supreme
Spring
‘When an
Court this last
said
of Arizona.
police only through
Edwards,
expressed
having
his desire to deal with the
such as
counsel,
interrogation by
subject
until counsel has
further
the authorities
is not
him,
further commu-
the accused himself initiates
been made available to
unless
nication,
police.’
exchanges
is does
So one issue we have
or conversation with
attorney
equate
the officer is told
also with the fact situation where
that
that, ‘My
so, you
you
going
speak
period. And if he tries to do
client is
me.’,
words to that effect.”
should call
or some
(1984),
Stumes, _US_,
L
Ct
79 Ed 2d 579
In Salem v.
104 S
Edwards,
May
apply
Supreme
decided
Court declined to
the United States
*5
Arizona,
v.
to Edwards
court,
referring
The trial
supra,
at the
that “the accused
pretrial
commented
initiate,
actually
exchange
with
begin
himself has to
has to
that “defendant himself did the
the officer.” It concluded
however, preceded the
initiating.”
ruling,
The trial court’s
Oregon
v.
analysis
in
Supreme Court’s
United States
Bradshaw,
2830,
(1983),
1039, 103
First, custody.” that defendant was “in it is clear and under at Schultze’s demand police went to the station his name. had told the victim threat of arrest. Defendant аnd had was the man he wanted Schultze knew defendant had defendant’s that afternoon. He told looked for defendant by get 4 or he would p.m., defendant contact him wife to have demand, defen response his arrest. to that warrant attorney called to tell him dant’s Schultze by p.m., 5:15 and would come to the station Schultze, “Do I have a the station. When he asked went to with?”, being charged what I am Schultze to know There is not the “Yes, rape, sodomy burglary.” replied, defendant and doubt that Schultze intended arrest slightest suppression hearing free to leave. At the that he was not court asked: corpus retrоactively in the federal court to a final state review on habeas a collateral opinion eight years before Edwards. Its states “[f]or court conviction rendered Edwards.”_US case, purposes at--We all we need decide about of this that is retroactively applies appeal review that Edwards in a direct have held on direct Taylor, State v. Edwards was decided. 56 Or rulings in the case that were made before Oregon 708, (1982). apply Edwards 703, App P2d We are free here to
Bradshaw,
2830,
(1983),
interpreted
1039, 103
it.
Schultze
custody.
dant met
at the
he was in
See
Schultze
station
Roberti,
59,
1104,
236, 646 P2d
State v.
293 Or
644 P2d
293 Or
Paz,
(1977),
31 Or
Next,
we conclude that defendant’s
meeting
telephone
p.m.,
anticipation
call at
Schultze,
remain silent and
with
invoked defendant’s
interrogation.
to have the assistance of counsel at custodial
(1983).5
See State v.
296 Or
tion would amendment, attorney interrogations until the cessation of all an was made (Footnote omitted.) available to him.” minor, victim, liquor. a with He was arrested providing the traffic questioned offense. An officer him about again con- requested attorney. and the defendant an accident in a police placed versation terminated. Later the county him station to the patrol car to take from initiative, a 10 to 15 miles. On his own jail, distance about police by with the opened the defendant the conversation “Well, to me now?” The asking, going happen what is tаlk reminded the defendant that he did not have to officer attorney. The defendant said requested because he had understood, and a discussion ensued that led to that he incriminating and to the polygraph to take a test agreement statements. the defendant’s
In Bradshaw the court ruled that evinced “Well, happen to me now?” question, going what discussion about willingness generalized “a and desire for stated: plurality A of the court investigation.” inquiries, request such as a for a drink of “There are some request telephone to use a that are so routine water or a fairly represent pаrt they be said to a desire on the cannot relating open up generalized discussion an accused to a more indirectly investigation. inquiries or directly or to the Such officer, statements, by relating to either an accused or a relationship, gener- will incidents of the custodial routine ally in which that word ‘initiate’ a conversation the sense in Edwards. was used ambiguous, respondent’s question
“Although happen him evinced a going as to what was case generalized willingness discussion about the and a desire for merely necessary inquiry arising investigation; it was not *7 relationship.” 462 US at of the incidents of the custodial out (Emphasis supplied.) 1045-46. therefore, or here, is whether defendant Schultze
The issue
a
and desire
by conveying
“willingness
the exchange
initiated
investigation.”
about the
generalized
for a
discussion
exchange
the
conclude that Schultze initiated
We
can,
I
I’ve
said, “Harry,
help you
got
I’d like to
if
but
when he
story
I do.” That statement
side of the
before
get your
to
about
generalized
a
discussion
“desire for
evinced Schultze’s
also constituted “words
The statement
investigation.”
the
normally
than those
part
police,
the
other
actions on
custody,
police
the
should know
arrest and
attеndant on
incriminating response
reasonably likely
from
to solicit an
are
Fitzgerald,
suspect.”
P2d
60 Or
the
(1982);
301-02, 100
Innis,
S
Island v.
Rhode
Rodriguez,
see also State
1682,
Moreover, to the circumstances sequence setting, events and the conver- Bradshaw, police. were orchestrated sation with defendant sought to demanded that he come out defendant and Schultze police station, at the defendant arrived station. When began the room and took him into the interview Schultze things by saying, this, than how have conversation “Other question, Despite apparently opening going?” his neutral been reasonably intention can conclude that Schultze’s we bringing to initiate a the interview room was defendant into investigation. dialogue with him about the criminal question Schultze, “Do I Furthermore, defendant’s to being charged right is not a a know what I’m with?” have generalized question evinced “a for a discussion desire question investigation.” the defendant’s about the Unlike inquiry Bradshaw, here related more to “rou- relationship. wanted tine” incident of the custodial Defendant succeeding charges against Moreover, him. his to know the anything,” response exclamation, “I didn’t steal charges, evince a recitation of the also did not Schultze’s desire to investiga- open generalized discussion about limiting apparently nature of tion. Schultze realized help you response, “Harry, stated, I’dlike to he then because story got get your I do.” can, I before but I’ve side exchange statement, into a turned the With this Schultze investigation generalized and “initi- criminal discussion of the meaning exchange Bradshaw. within the ated” the requires Bradshaw, the court stated that Edwards analysis two-step Amendment. As the Court under the Fifth Bradshaw, an accused has invoked ruled in after interrogation custodial not conduct counsel the communication, unless, first, initiates the аccused exchanges second, and, or conversation with the subsequent initiation the accused to the state shows that intelligently knowingly Amendment the Fifth waived interrogation. present during do We to have counsel *8 378 waiver, however, we conclude reach the issue of because dialogue initiate with the
that the defendant did not the police.6 Accordingly, which defendant’s statements followed “Harry, help you statement, can, like if I I’d but Schultze’s your story get got do,” I’ve I should have side of the before suppressed. been beyond a
The trial error was not harmless court’s Chapman 18, 27, California, doubt. v. 87 S reasonable (1967). 824,17 Ct L Ed 2d 705 trial.
Reversed and remanded a new specially concurring HOOMISSEN, J., VAN part; dissenting part. majority is
I concur with the entitled reject trial, I to a but the stated. the new not for reason analysis suppression agree majority’s and would the issue court are with the trial that defendant’s statements admissi- required, judge however, ble.1 trial is the trial A new because by communicating jury committed reversible error with defendant’s absence. suppression issue, as framed defendant in this way litigated trial; i.e., issue at
court, reflects
was
knowing,
were made after
whether defendant’s statements
voluntary
rights.2
intelligent waiver of his Mirаnda
argue
he had
did not
in the trial court that
asserted
Defendant
6
Sparklin, supra,
State
stated:
court
retained,
attorney
interrogation
appointed
is
can be no
of a
“Once an
there
concerning
surrounding
charged
crime
unless the
defendant
the events
attorney representing
charge
on that
is notified and afforded a
the defendant
right
opportunity
No waiver
occur until
reasonable
to attend.
of that
attorney.” 296
has consulted with his
Or at 93.
<<:}: sfc if: sft if:
represented by
attorney
against
an
for the crimes
“Because defendant was
Mansell, interrogation
subject
improper and no waiver
on this
was
Steve
case,
However,
regard
given effect.
with
the unrelated Davidson
can be
* * *”
See State v. P2d Or 1231, 1237 (9th 1981) rev den Cir F2d Rather, prosecutor suppress. made did not file a written motion to 2 Defendant admissibility pretrial hearing to Miranda determine oral motion for defendant’s statements. questioning.3 attorney present during have an police had not here, There, only argued as remain silent. his desire to scrupulously hоnored Detective Schultz’s found that The trial court going?” this, things how have been inquiry, “Other than *9 see State equivalent,4 functional interrogation neither nor its (1982), and P2d 1289 Fitzgerald, v. 60 Or I’m to know what right “Do I have question, that defendant’s exclamation, “I didn’t steal his with?” and being charged charged being that he was being after informed anything!” The were “volunteered.” sodomy burglary, and rape, with threats, duress or were no court found that “there also ade- was made coercion,” rights “the advisement of that was not that defendant’s free will quately properly” and and “overcome.” application specifically rejected
The court Arizona, stating: Edwards v. inopposite Arizona is “I case that Edwards v. find this [sic] And, initiating. there-
in that the defendant himself did fore, made, properly and he was the statements since adquately stances, rights and understood his circum- advised of his at his trial.”
the statements will be admissible concluded: The court and, two,
“So, one,
rights;
his
I find Mr. Barmon understood
up
rights
effectively
gave
those
when
waived those
and
* * *”
responses
he made
to Detective Schultz.
trial court.
I
with the conclusion of the
agree
his
that defendant asserted
majority
The
assumes
interrogation
attorney present during
an
right to have
1886,
Arizona,
477,
68 L
451 US
101 S Ct
applies Edwаrds v.
Bradshaw,
1039, 103
462 US
S
(1981),
Oregon
v.
Ed 2d 378
(1983),
analysis.
majority
2830,
2d 405
its
Ct
77 L Ed
silent and
to remain
right
between the
blurs
distinction
to an
is material
attorney present,
an
which
to have
this distinction
Edwards noted
analysis of waiver.
1602,
L
436,
Arizona,
86 S Ct
384 US
made in Miranda
I,
Amendment,
under Article
claim under the Sixth
3 Defendant makes no
11,
Oregon
section
Constitution.
custody
purposes.
Miranda
that defendant was
4 The state assumes
Mosley,
Michigan
96, 96
Ed 2d 694
see also
S
Ct
When
advice
silent,
make
to remain
he indicates that he chooses to
his
requests
However,
consultation with
own decisions.
when he
attorney
attorney present,
an
or to have an
he indicates
deciding
make a stаtement
need for assistance in
whether to
questions. The interdiction of Edwards is based on
or answer
precise
distinction. The Edwards court said:
Edwards,
accused,
having
such
“We further hold that an
as
only
expressed
police
through
his desire to deal with
counsel,
subject
interrogation
the authorities until
has been made available.”
Even when
silent, later determine
wishes to remain
right previously asserted. Edwards v.
wishes to waive the
Mosley,supra,
supra,
Michigan
Arizona,
484;
423
451 US at
v.
App
Jackson,
681, 685,
P2d 592
102-04; State v.
60 Or
655
US
(1983).
(1982)
Nothing in Edwards
rev den
The
whether a
has waived his
usually
uniquely
and
one of fact. It
must
to remain silent is
presence
attorney
urges
adopt per
requiring
of an
5Defendant
that we
se rule
any alleged
previously
right if the
are aware
at the time
waiver of a
asserted
of
attorney.
Supreme
specifically
person
represented by
Court has
that a
is
The
383, 398-99,
(1981);
Quinn,
rejected
approach.
P2d 630
State
State v.
290 Or
(1979),
(1980);
Haynes,
59, 70,
den
“Answer: Yes
“(2) degree of sexual abuse on Count Can we find lesser only (Sodomy). explain. II III Please finding any more of may make a on one or “Answer: You in other words regarding the counts a lesser offense each of independent the other. each count is “(3) guilty him Counts If we find on #2 #3 degree? degree, we have to vote on the lesser first do
“Answer: No.” present when defendant nor his counsel
Neither
attempt
given.
answers
No
were asked and the
questions
counsel became
them. Defendant’s
aware
was made to contact
17.325,
59D, formerly
provides:
ORS
6ORCP
*11
any
deliberation,
jury requests
on
if the
information
“After retirement
law,
having
charge
point
judge
require
in
conduct
them
to
the
the officer
of
court,
being brought
Upon
jury
the information
into
court.
them into
of,
presence
orally
writing
given,
given
in
or
requested,
or in
shall be
either
to,
parties
or their counsel.”
after notice
Heintz,
See, e.g.,
proceedings.
applied
provision
has been
criminal
This
(1978).
155, 580
App
Or
P2d
possibility
only
returning
jury
communications
after
employe
from the restaurant. His associate observed a court
alоud,
give
partially
a note to the
who read it
and then
judge,
said, “No,”
a
it
something
piece
paper
wrote
on
and handed
to the
The associate
to the
employe.
brought this
attention
counsel,
a
suspected
might
who
that it
have been
confirmed, however,
jury communication. That fact was not
until after the verdict was returned. At the
on defen-
trial,
judge acknowledged
dant’s motion for a new
his
concluded, however,
prejudicial.
error.'He
that it was not
that, if
argues
brought
The state
defense counsel had
suspicions
judge’s
his
to the
attention before the verdict was
received, the
hаve
judge
opportunity
would
had
correct
error,
significantly, by
or at
least
to attenuate
it
receiving
jury
questioned
the verdict until
had been
appropriately.
argues
cautioned
It further
error,
a
precluded
raising
from
because the denial of
an appealable ruling
motion for
new trial is not
when the
motion is
had
party
knowledge
based on matters of which
See,
Truxall,
214, 216-17,
trial.
during
e.g.,
State
Or
reject
The state next that defendant was not diced the error. I likewise The state reject argument. ques- concedes in its brief that an examination of the jury’s and the had some judge’s jury tions answers shows difficulty applying the instructions. The understanding simple “yes” response state also that the judge’s concedes question “probably first unclear.” As to the jury’s jury’s question, posits: third the state аmbiguity, jury’s question, on a
“Because of its third point questions, different from that addressed the first two two; potential may seem have more for error than the first any but it is evident that error would have been to defendant’s benefit, potential did not materialize. and that error convict asks, required question Either the third ‘Are we *12 acquit him abuse if of the lesser offense sexual we defendant — answered, sodomy?’ correctly case the court which — asks, question vote on the even have to or the ‘Do we ‘no’ acquit if we defendant offense of sexual abuse lesser — sodomy?’ negative results case the court’s аnswer which case, charge. In there is acquittal on that either defendant; fact, the prejudice to but in it clear that no seems question, they ulti- jury asking inasmuch as was the former acquitted sodomy found mately of one count of guity of offense of sexual abuse on the other.” him the lesser asking or jury on what the was speculate I would decline to on might have had the influence the answers judge’s what jury’s deliberations. asking for the argues
The state also is a per requiring judge of a se rule reversal whenever adoption provides requests answers to a written jury’s written of its instructions in the absence of defendant clarification White, 55 a rule in v. Or rejected per and counsel. We se State (1982), attempted 729, P2d 1291 the trial App judge where counsel, unsuccessfully to contact defense whose whereabouts Thereafter, sent the a written judge jury were unknown. had given objection. instruction he earlier without We said: question comply
“The
is whether the trial court’s
failure
prejudicial
grounds
ORCP 59D
error and therefore
with
was
procedure
that it
The
followed
for a mistrial. We hold
was not.
by
made
judge
the trial
because of the record
was reviewable
appeal.
judge
The
oral communication with
on
triаl
had no
by
question,
He
him
jury.
received a written
delivered to
by
question
delivering
The
the bailiff.
answered
verdict,
Following
trial
jury the written instruction.
explained
procedure
had followed.
judge
on the record the
part
question
are
of the record.
The
instruction
error
Although it
have been technical
to reinstruct
absence,
prejudicial
it
error that
jury in counsels’
was not
omitted.)
(Citations
requires
Or
732.
a mistrial.” 55
at
also
distinguishable
here are
from White. See
State
The facts
(1967).
Beeson,
411,
248 Or
Defendant did not waive his
to be
nor
participate
did he waive his
to have his counsel
in the
jury’s questions
decision of how the
all,
answered,
should be
if at
judge.
say
I cannot
that the error was harmless
beyond
Chapman
a reasonable doubt.
California,
18,
27,
824,
87 S
705,
Ct
17 L Ed 2d
reh den
Richardson, Rossman, Warren and specially concurring dissenting opinion.