Defendant challenges a judgment of conviction for one count of second-degree sodomy, ORS 163.395, and two counts of first-degree sexual abuse, ORS 163.427, contending that the trial court erred when it denied his motion to suppress statements that he made during a custodial interview at the Washington County Jail. Defendant argues that the investigating detectives violated his right to remain silent and right to counsel under Article I, section 12, of the
I. FACTS
This court reviews a trial court’s denial of a motion to suppress for legal error. State v. Mitchele,
After 13-year-old W reported that defendant, then age 18, had engaged in sexual contact with W in defendant’s bedroom, Tigard Police detectives Hockin and Lee interviewed defendant on the porch of defendant’s house. Almost immediately after arriving at defendant’s house, Hoсkin read defendant Miranda warnings, and defendant acknowledged that he understood his rights. Defendant denied that he had engaged in sexual contact with W and denied that W had ever been at defendant’s house. Hockin told defendant that the detectives had seen approximately 155 text messages between defendant and W and that some of those messages corroborated W’s allegation. The following exchange then took place:
“DETECTIVE LEE: I think what Detective Hockin is trying to say is that, you know, we want to give you this opportunity. The reality is — I understand. You get a free pass because here it is. We understand that when we come to your door, everybody has a self-preservation instinct. You know what I mean? Everybody initially lies to the police. You have an instinct to preserve yourself, but the reality is—
“THE DEFENDANT: Well, you see, I’ve done this before, okay, a long time ago, okay? And I obviously know how this works. I mean I — I’m telling the truth right now. He never came over to my house, okay? And if — nothing ever happened.”
The detectives stated that they could track W’s cell phone and collect DNA evidence to prove that W had been in defendant’s bedroom. Defendant then stated, “I would like to have an attorney or sоmething here present.” Hockin told defendant that the conversation would end if defendant wanted an attorney. After some discussion about whether defendant wanted to call an attorney, Hockin added that the detectives knew “89 percent of what there [was] to know about the case” and that they did not “even really need” defendant’s statement, but “in fairness” to defendant,
When Hockin, Lee, and defendant arrived at the jail, they pulled into the sally рort. The detectives went behind the car, where they stood with the trunk open, engaging in “small talk” and “rummaging through the trunk” while defendant remained in the back seat of the car with the windows rolled up. Hockin expressed surprise to Lee that defendant did not “admit to something [that they] could obviously prove, the fact that [W] was over at [defendant’s] house.” As the detectives escorted defendant from the car to the door of the intake room, defendant, who had overheard the detectives’ conversation, asked, “Can we talk?” Hockin responded that they could talk again after defendant was booked and after they had “another conversation about Miranda * * * ”
After defendant was booked, Hockin, Lee, and defendant met inside the jail in a room that was adjacent to the intake room. It was 8:00 p.m. Hockin read defendant Miranda warnings a second time, and defendant again acknowledged that he understood them. The detectives then began a second interview. Hockin first described the events that had earlier taken place — that the detectives had interviewed defendant on the porch of defendant’s house, that defendant had mentioned an attorney, and that the deteсtives had “pretty much shut down the interview” and transported defendant to jail, where defendant asked the detectives if they could talk again. The following exchange then took place:
“DETECTIVE HOCKIN: You still have a right to an attorney. Just because you’re — you mentioned one earlier, we terminated the interview, and now you’re saying you want to talk. You can talk, but you can also talk with an attorney.
“THE DEFENDANT: I don’t see (inaudible) be any better, to telling tell the truth right away, so—
“DETECTIVE HOCKIN: Okay. It’s completely up to you.
“THE DEFENDANT: Yeah.
“DETECTIVE HOCKIN: All right. Well, you understand the importance of us having to go through all this because it’s different again. That was just a conversation with you on your porch еarlier, and now this is — you’re in jail and you previously had talked about an attorney. Do you understand why we’re going through all this?
“THE DEFENDANT: Yeah.”
Defendant then gave a “dramatically revised” account of events, admitting that W had been at defendant’s house and that defendant had had sexual contact with W. At the close of the second interview, the detectives posed the following questions:
“DETECTIVE HOCKIN: *** [D]o you feel comfortable that we gave you a fair opportunity to talk to us about your side of the story?
“THE DEFENDANT: Yeah.
“DETECTIVE HOCKIN: Okay. Do you feel like we in any way coerced you or threatened you or made you say something you didn’t want to say?
“THE DEFENDANT: No.
“DETECTIVE LEE: Did we make you any promises that, you know, you admit to this and we’ll give you some special deal?
“THE DEFENDANT: Huh-uh (negative response). No.”
II. PROCEDURAL HISTORY
Before trial, defendant moved to suppress “any and all” of his statements, that is, those that he made to the detectives on the porch
During a hearing on defendant’s motion to suppress, defendant argued that he invoked those constitutional rights on the porch of his house when he stated, “I would like to have an attorney or something here present” and that the dеtectives violated those rights when they failed to cease questioning him on the porch of defendant’s house and talked about the case behind the car at the jail. Defendant also argued that he made statements at the jail only in response to an implied promise of leniency and that those statements were therefore involuntary. Hockin testified that neither he nor Lee made defendant any promises, that they had engaged in “small talk” behind the car at the jail, and that he had merely expressed surprise that defendant had not admitted that W had been at defendant’s house. Hоckin further testified that he did not think that defendant could hear the conversation and that he did not intend for defendant to hear the conversation. Defendant testified that, when the detectives were talking about the case behind the car at the jail, they said that “it would have been so much easier” for him if he had “just confessed back at the house [.]”
During cross-examination, defendant testified that he initiated further contact with the detectives, but only because he believed that the detectives would release him or give him a lenient sentence if he told them what they wanted to hear:
“[DEFENDANT:] I did ask Detеctive Hockin to continue the conversation, but the reason I asked him was because I heard them talking behind the car. And I also remembered [Detective] Lee, I think it was, saying, Oh, this is — you only get one free chance to say your thing, say your, say your story or whatever. So, yeah, I heard them talking behind the car. I was like, maybe this’ll get me released or get some lenient sentence or something like that, you know.
“[PROSECUTOR:] So it was at that point that you decided you wanted to talk to the police officers again and tell them the truth?
“[DEFENDANT:] Just to tell them what they wanted to hear, yes.
“[PROSECUTOR:] So it wasn’t the truth?
“[DEFENDANT:] Hmm-mm (negative response).
“[PROSECUTOR:] It was a lie?
“[DEFENDANT:] Yes.
“[PROSECTOR:] How did you expect a lie to gеt you out of custody?
“ [DEFENDANT:] ‘Cause it’s what they wanted to hear.”
The trial court denied defendant’s motion to suppress. The trial court first found that defendant unequivocally invoked his right to counsel on the porch of his house when he stated, “T would like [to have] an attorney [or something here] present.’” The trial court also found that the conversation at that point should have stopped, but that there “were some questions that followed after that.” The trial court also found that the statements that defendant made at the house “were not subject to any kind of coercion or promises!,]” and the court admitted those statements “uр to the invocation of rights * * * ” The trial court then stated:
“And then later on there’s the conversation that I guess I need to address that occurred behind the trunk. I’m not convinced or persuaded that that conversation was for the defendant’s benefit. That was a private conversation, from the way I understood the testimony. The defendant happened to overhear it. The windows were up. He’s in the backseat. They’re in the trunk. And the conversation is an expression of some surprise on the part of the detectives that the defendant didn’t admit to something that seemed to them was obviously going to be proven.
“The defendant may have overheard it and taken it for much more than it really was and added his own kind of color to what it meant to him in context of other conversations and created this impression in his own mind. That may or may not be true. I don’t find the defendant to be particularly credible.
“But in any event, the defendant then initiated freely, voluntarily and intelligently a conversation with the police officers, and in that conversation was reminded of his Miranda warning. There was a lengthy discussion regarding the fact that he had previously invoked his right to a lawyer. He clearly then waived his Miranda rights and Fifth Amendment rights and gave а free, voluntary statement to the police.”
III. ANALYSIS
On appeal, defendant assigns error to the trial court’s denial of his motion to suppress. He argues that the detectives violated his right to remain silent and right to counsel under Article I, section 12, and the Fifth Amendment when they failed to cease questioning him on the porch of his house and when they talked about defendant’s case behind the car at the jail, and that those violations affected the validity of his subsequent waiver of his constitutional rights at the jail.
A. Waiver by initiating contact
We first consider whether defendant validly waived his rights at the jail. See State v. Acremant,
We begin by considering defendant’s state constitutional claim. See State v. Kennedy,
In this case, the trial court made findings and conclusions that are relevant to our analysis of the waiver issue. First, the trial court concluded that defendant asserted the right to counsel on the porch of defendant’s house when defendant stated, “I would like
First, taken in context, the statement that defendant made on the porсh of his house that he “would like to have an attorney or something here present” is an unequivocal invocation of the right to counsel because it expressed defendant’s desire to consult with an attorney before continuing to speak to the detectives. See Acremant,
Second, the detectives violated defendant’s rights on the porch of his house when they failed to cease questioning him after his unequivocal invocation of rights. Although the detectives appeared to recognize that defendant had invoked his right to counsel by making that statement, the detectives nevertheless continued to probe defendant for information, saying that they knew “89 percent of what there [was] to know about the case”; that they did not “even really need” defendant’s statement but that “in fairness” to defendant, defendant had “the right to tell [the detectives his] side”; that defendant could “stick with” his earlier statements regarding W and they would give defendant “a few more seconds to digest that”; and that they would give defendant, who asked if his parole officer knew about the allegation, a “[l]ast chance” to add anything. Although that continued questioning violated the “flat rule” requiring law enforcement officers to cease questioning upon request for counsel, Isom,
Third, the detectives did not violate defendant’s rights when they talked about the case behind the car at the jail; in light of the trial court’s factual findings, the detectives’ conversation did not amount to interrogation. The definition of interrogation extends “only to words or actions on the part of police officers that they should have known were reasonably likely tо elicit an incriminating response.” Rhode Island v. Innis,
We reject defendant’s argument because it is based on an incorrect understanding of the law. As the Oregon Supreme Court has explained, “The Hall methodology applies to violations of Article I, section 9. It does not apply to violations of Article I, section 12.” State v. Jarnagin,
Rather than applying Hall, we apply Acremant, a case in which the Oregon Supreme Court held, on facts that are similar to those presented in this case, that the trial court’s admission of the defendant’s statements was not error.
The Oregon Supreme Court considered whether, given an intervening violation of the right to counsel, the defendant nonetheless had made a valid waiver of his rights under Article I, section 12, and the Fifth Amendment. In its Article I, section 12, analysis, the court determined that the detectives unlawfully continued the first interview when they failed to cease the interrogation after the defendant unequivocally invoked his right to counsel. The court then nоted that the police left the defendant alone after the termination of the first interview; that the defendant reinitiated contact with the police after having no contact for an hour; that the detectives ensured that the defendant understood his constitutional rights before beginning the second interview; and that the defendant confirmed that he understood his rights before making any inculpatory statements. Id. at 323. Accordingly, the court concluded that the detectives’ unlawful conduct did not induce the defendant’s subsequent statements and that the defendant knowingly and voluntarily waived his right to counsel under Artiсle I, section 12. Id. at 323-24.
Looking to Acremant, we conclude that the detectives’ unlawful failure to cease questioning defendant on the porch of his house after his invocation of rights did not induce defendant’s confession at the jail. First, similar to the defendant in Acremant, defendant here initiated contact with the detectives after an extended break in questioning; defendant was not questioned during the 40-minute transport and was not interviewed at the jail until 8:00 p.m., more than an hour after
We next consider whether defendant made a valid waiver of his right to counsel under the Fifth Amendment. The United States Supreme Court has stated, “Miranda itself indicated that the assertion of the right to counsel was a significant event and that once exercised by the accused, ‘the interrogation must cease until an attorney is present.’” Edwards,
Guided by Acremant, we conclude that defendant in this case knowingly, intelligently, and voluntarily waived his right to counsel under the Fifth Amendment. Like the defendant in Acremant, defendant here did not make any incriminating statements in response to the unlawful police prompting on the porch of defendant’s house. Furthermore, like the defendant in Acremant, defendant here later initiated further contact with the detectives in the jail after an extended break, asking, “Can we talk?”
In sum, we conclude that the trial court did not err when it rejected defendant’s argument that his statements were tainted by constitutional violations and were therefore inadmissible. Although the detectivеs violated defendant’s rights when they failed to cease questioning him on the porch of his house after defendant unequivocally invoked his right to counsel, the detectives’ failure to cease questioning defendant on the porch did not induce defendant to later confess at the jail.
B. Promise of leniency
We now consider whether the statements that defendant made at the jail were inadmissible because they were made in response to an implied promise of leniency and therefore involuntary. When reviewing the voluntariness of a defendant’s statements, we are bound by the trial court’s findings of historical fact, but we independently assess the ultimate determination of voluntariness. Id. at 324; see also State v. Tanner,
The test for voluntariness under both Article I, section 12, and the Fifth Amendment is “whether, under the totality of the circumstances, it is apparent that the ‘defendant’s will was not overborne and his
As noted, the trial court first found that the statements that defendant made on the porch of his house “were not subject to any kind of coercion or promises.” The trial court further found that the conversation that occurred between the detectives behind the car at the jail was not undertaken for defendant’s benefit, and that defendant, who “happened to overhear” the conversation, took it “for much more than it really was and added his own kind of color to what it meant to him in context of other conversations and created [a wrong] impression in his own mind.” Hоwever, the trial court immediately noted, “That may or may not be true. I don’t find the defendant to be particularly credible.” Finally, the trial court concluded that defendant “gave a free, voluntary statement to the police.”
In light of the trial court’s factual findings, which are supported by evidence in the record, we agree with the trial court’s conclusion and reject defendant’s argument that his statements were involuntary. See Acremant,
IV. CONCLUSION
In sum, the trial court did not err when it denied defendant’s motion to suppress the statements that defendant made at the jail. We conclude that, despite the violation of defendant’s rights under Article I, section 12, and the Fifth Amendment that occurred when the detectives failed to cease questioning defendant on the porch of dеfendant’s house after defendant had invoked his right to counsel, defendant, at the jail, knowingly, intelligently, and voluntarily waived those rights. We also conclude that defendant’s statements were not made in response to an implied promise of leniency and were not involuntary but were made voluntarily.
Affirmed.
Notes
Article I, section 12, provides, in part, “No person shall be *** compelled in any criminal prosecution to testify against himself.” The right against self-incrimination, as provided by Article I, section 12, includes the “derivative right” to the assistance of counsel during custodial interrogation. State v. Scott,
The Fifth Amendment provides, in part, “Nо person * * * shall be compelled in any criminal case to be a witness against himself [.]” The Fifth Amendment right against self-incrimination “comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.” Miranda v. Arizona,
In Miranda,
Defendant’s argument is predicated upon the underlying contention that “the Miranda warnings thаt police did provide were in fact required to be provided.” The state does not argue that Miranda warnings were not required on the porch of defendant’s house and concedes that defendant unequivocally invoked the right to counsel on the porch of defendant’s house. See State v. Smith,