In this criminal case, defendant repeatedly called the police over a five-month period asking to talk to them. He did so after the police had advised him that he had been indicted for aggravated murder and after his lawyer had advised him not to talk to the police. The question that this case poses is what steps the state and federal constitutions required the police to take before they could accept defendant’s repeated invitations to talk with him. The trial court held that the officers had respected defendant’s constitutional rights, and the Court of Appeals upheld that ruling.
State v. Randant,
Defendant worked for Saffa and Alaa Nasser at their automobile body shop. The Nassers suspected that defendant had been taking money from their business. One day, defendant and Saffa left the business together. Only defendant returned. Eight days later, the police found Saffa’s body on Parrett Mountain. He had been shot, and his body had been hidden several feet off the road in some underbrush.
Two days after law enforcement officers from Oregon discovered Saffa’s body, police officers in Olympia, Washington, arrested defendant on an unrelated charge. Detective O’Connell went to Olympia to talk to defendant about Saffa’s death. After O’Connell advised defendant of his Miranda rights, defendant invoked his right to counsel and O’Connell terminated the interview.
On December 22, 1997, the State of Oregon indicted defendant for multiple counts of aggravated murder arising out of Saffa’s death, kidnapping, and being a felon in possession of a firearm. Approximately four months later, on April 21,1998, defendant called O’Connell from the jail in Olympia where he still was being held. When O’Connell answered the telephone, he acknowledged that defendant had called “several times * * * a couple of Fridays ago,” but explained that he had not been able to call defendant back. O’Connell then asked defendant what was on his mind, and defendant said, *67 “I wanna know, uh, if you guys checked anything out any further and uh, when you’re gonna talk to me, and uh, when I’ll be going there?” O’Connell reminded defendant that he previously had invoked his right to counsel and that O’Connell could not speak with him about Saffa’s death. O’Connell noted that “it appears you’ve changed your mind on that issue,” and defendant replied, “I could talk about some things.”
Before speaking farther with defendant, O’Connell advised him that he had been indicted for aggravated murder. 1 During the remainder of the call, defendant acknowledged that he had been involved in Saffa’s death but stated that it was not a murder. He suggested, without disclosing any details, that another person also had been involved. He asked if the police had checked for fingerprints on the murder weapon and said that he had been “thinking you guys would come up here and we were gonna talk about [the investigation].”
Defendant called O’Connell a second time on June 8, 1998. He wanted to know why O’Connell had not come up to Olympia to talk to him. During that conversation, defendant said that his lawyer 2 had told him “not to talk to you.” As defendant explained, he had directed his lawyer, “[G]o feel ’em out, you know. Tell the prosecutor or whoever * * * [t]hat I want to talk to ’em. [The lawyer] said * * * no, no you don’t talk to ’em, this an[d] that.” O’Connell replied, “You do, you know, do what you thin[k] best. I, I am doing my best to try and get up there.”
Defendant then briefly sketched out for O’Connell what had occurred the day of Saffa’s death. He said that he, his girlfriend, and Saffa had driven to Parrett Mountain to look at some property that defendant was thinking about buying. While they were on Parrett Mountain, defendant and Saffa got into a struggle over the business. The girlfriend *68 took a gun out of the van to try to get their attention. When defendant tried to take the gun away from her, it discharged accidentally hitting and killing Saffa.
Defendant explained that he had called O’Connell because he was concerned that his girlfriend was changing her story, either under the influence of Saffa’s brother Alaa or to avoid her own responsibility for Saffa’s death. Defendant wanted O’Connell to understand the “true facts,” asked O’Connell to arrange a polygraph test so that defendant could prove his innocence, and wanted O’Connell to tape record his conversations with his girlfriend to prove that she had been there when Saffa died.
The day after that telephone call, on June 9, 1998, the trial court appointed a lawyer to represent defendant on the charges arising out of Saffa’s death. The lawyer wrote a letter to the district attorney stating that he invoked “defendant’s constitutional rights, expressly, but not limited to his right to remain silent. I wish to be present during any questioning, or attempted questioning by any law enforcement officials.”
On June 25, defendant called O’Connell a third time. He told O’Connell that he had a lawyer and that the lawyer “didn’t want me to talk to you.” O’Connell replied that, “[W]ell you, you do, you know, what you think, uhm, you should do.” O’Connell explained that he was not going to “comment on [defendant’s decision] either way.” Defendant then returned to his familiar themes of wanting the officers to arrange a polygraph examination for him, his concerns that his girlfriend was now lying to avoid responsibility, and his efforts to persuade O’Connell that he was innocent.
Defendant spoke with the police officers four more times. Two of those discussions are relevant to the claims that he raises on review. 3 The police brought defendant to Oregon on June 29. 4 Later that day, another officer, Boothby, *69 interviewed defendant at defendant’s request. Before talking with defendant, Boothby advised him of his Miranda rights. Defendant said that he had told his lawyer to come to the interview but noted that the lawyer had not done so. When Boothby asked if defendant wanted to wait until his lawyer got there, defendant declined. After noting that the trial court had appointed counsel for defendant, Boothby said, “And he’s advised you not to talk about the case, correct?” Boothby then added that he understood that defendant had wanted “to talk about some certain issues.” As Boothby was trying to clarify that point, defendant inteijected that he knew, “I do not have to talk to you. I’ve been calling you guys for months asking to talk to you.” Defendant then proceeded to tell Boothby about the events leading to Saffa’s death.
Approximately a month and a half later, on August 11, 1998, O’Connell spoke with defendant in person, again at defendant’s request. O’Connell readvised defendant of his Miranda rights, noted that defendant’s lawyer had advised defendant not to speak with the police, noted that defendant’s lawyer had written to the district attorney invoking defendant’s rights, and observed finally that defendant had asked to speak with him. Having considered that information, defendant reaffirmed that he wanted to speak with O’Connell and discussed, in great detail, the events that had resulted in Saffa’s death. In the August 11, 1998, interview, defendant both repeated and expanded on the information that he had told O’Connell and Boothby earlier.
Defendant’s efforts to convince the officers that he was not responsible for murdering Saffa proved unsuccessful. The state continued to pursue the prosecution, and defendant filed a pretrial motion to suppress the statements that he had made to O’Connell and Boothby. The trial court denied the motion. During trial, the state introduced evidence from six of those discussions. 5 The jury found defendant guilty of multiple counts of aggravated murder, murder, kidnapping, and being a felon in possession of a firearm. At *70 sentencing, the jury declined to impose the death penalty but found that defendant should serve a life sentence without the possibility of parole. The trial court entered judgment accordingly.
On appeal, the Court of Appeals accepted the state’s concession that the trial court had erred in failing to merge some of the convictions and remanded the case for the trial court to enter a corrected sentence.
Randant,
The right to counsel derives from two separate provisions in the Oregon Constitution — Article I, section 11, and Article I, section 12. The right to counsel recognized by Article I, section 12, is an adjunct to a defendant’s state constitutional
Miranda
right.
See State v. Haynes,
*71
In his brief on the merits, defendant does not contend that the police violated his right to counsel under Article I, section 12. Rather, he relies solely on his right to counsel under Article I, section 11. He contends that, under
Sparklin,
his Article I, section 11, right to counsel attached when the state indicted him for aggravated murder. All of defendant’s discussions with O’Connell and Boothby occurred after that date, and defendant argues that those discussions violated Article I, section 11, for one of three reasons. First, he argues that he could not waive his Article I, section 11, right to counsel without his counsel’s presence or at least advance notice to his counsel. Second, he contends that any waiver of that right must satisfy the standard set out in
State v. Meyrick,
We begin with defendant’s argument that either his counsel’s presence or advance notice was necessary before he could waive his Article I, section 11, right to counsel. Commenting on that right, this court explained in Sparklin:
“[Ojnce a person is charged with a crime[,] he or she is entitled to the benefit of an attorney’s presence, advice and expertise in any situation where the state may glean involuntary and incriminating evidence or statements for use in the prosecution of its case against defendant. This is so whether or not [a] defendant specifically requests an attorney’s presence at the interrogation.”
The court did not have occasion in
Sparklin
to consider what procedures police officers must follow when a defendant initiates a conversation with them after the right to counsel has attached. Four years later, however, the court addressed that issue in
State v. Foster,
The court held that the defendant validly had waived his Article I, section 11, right to counsel and chosen to speak with the police. Id. at 530. The court reasoned:
“In prohibiting police interrogation of a defendant after the appointment or retention of counsel, this court was careful in Sparklin to note that ‘[a] defendant may, of course, volunteer statements, but this must be on his own initiative and not in response to questioning.’296 Or at 93 . In support of this proposition, the court cited State v. Beaver,248 Or 101 ,432 P2d 509 (1967), wherein the defendant, after appointment of counsel, initiated contact with the police and confessed. The same form of initiation occurred here when, according to the trial court’s findings, defendant asked [a friend] to contact the police so that he could give a full statement of his involvement in the crime.”
Id. Noting that the defendant had “decided to speak with the police without any request on the part of the police,” the court found that the resulting police interview had complied with the defendant’s Article I, section 11, right to counsel. Id. at 530-31.
The court’s decision in Foster answers defendant’s argument that O’Connell and Boothby could not talk with him unless his counsel was present or unless they had advised his counsel that they were going to speak with him. Foster makes clear that neither counsel’s presence nor advance notice is necessary when a defendant voluntarily chooses to speak with the police. In this case, defendant contacted the police on each occasion and initiated conversations with them. 7 Because defendant sought to speak with O’Connell and Boothby without any request on their part, we *73 conclude that, under Foster, they did not need to notify his counsel before accepting his invitation. See id. (recognizing proposition).
Defendant advances a second argument. He contends that, before the officers could speak with him, they needed to go through the sort of colloquy that this court required in
Meyrick
to ensure a knowing waiver of the Article I, section 11, right to counsel. Defendant’s reliance on
Meyrick
is misplaced. The issue in that case was the level of knowledge necessary before a defendant could forego representation by counsel at trial and appear
pro se. See Meyrick,
In this case, defendant did not seek to waive his right to counsel and represent himself at trial. It follows that the sort of colloquy that the court required in
Meyrick
was not necessary for defendant to make a voluntary and intelligent waiver of his rights in this situation. Rather, as the decision in
Foster
makes clear, when a defendant voluntarily initiates contact with the police after counsel has been appointed, knowledge of the
Miranda
rights is sufficient to ensure that the defendant’s waiver of his or her Article I, section 11, right is a knowing one.
See Foster,
Applying that standard, we note that, as defendant argues, O’Connell did not readvise defendant of his
Miranda
rights before talking with him on the telephone on April 21, June 8, and June 25. The state responds that there is evidence in the record from which the trial court could have found that defendant was aware of his
Miranda
rights. Not only did O’Connell and defendant discuss some of the
Miranda
rights during their first telephone conversation, but
*74
defendant told O’Connell during their second and third conversations that his lawyer had told him not to talk with the police — a fact from which the trial court could infer that defendant was aware of the rights that he was relinquishing by talking with O’Connell.
See Meyrick,
We need not decide whether the references to
Miranda
during the first three telephone calls were sufficient to ensure that defendant knew all the rights that he was giving up when he called O’Connell. As explained below, any error in admitting evidence from those calls was harmless. On June 29, 1998, Boothby readvised defendant of his
Miranda
rights before talking with him, and O’Connell read-vised defendant of those same rights before he spoke with him on August 11, 1998. Both officers also noted, as defendant had told them on several occasions, that defendant’s counsel had advised him not to talk to them. Defendant’s decision to waive his right to counsel on those two occasions clearly met the standard stated in
Foster.
Even if the earlier waivers were insufficient, a question on which we express no opinion, we conclude that any error in admitting the transcripts of those three conversations at trial was not likely to have affected the jury’s verdict and thus was harmless.
See State v. Davis,
Defendant advances a final argument under Article I, section 11. He contends, even if he initiated the discussions with O’Connell, O’Connell impermissibly interfered during the course of those discussions with his right to counsel. Defendant argues that O’Connell discussed certain issues with defendant, such as taking a polygraph or tape recording *75 defendant’s conversation with his girlfriend, that should be the subject of lawyer-client communications. He also contends that O’Connell undermined the lawyer-client relationship by questioning defendant’s lawyer’s decisions. One difficulty with defendant’s argument is that defendant was the person who raised the issues that he now contends O’Connell should not have discussed. Moreover, having examined the transcripts of the interviews, we agree with the trial court that O’Connell acted professionally throughout his conversations with defendant. In many instances, O’Connell clarified defendant’s misunderstandings, reminding him, for example, that defendant could not talk “off the record” and that what defendant said could be used against him.
Defendant also argues that the officers violated his Sixth Amendment right to counsel. Before analyzing defendant’s argument, we briefly review the United States Supreme Court’s cases discussing the scope of the Sixth Amendment right to counsel and the terms on which a defendant may waive it. A majority of the Court held in
Massiah v. United States,
*76
Because the defendant in
Massiah
did not know that he was speaking to a government informant, that case did not require the Court to decide whether the defendant had waived his Sixth Amendment right to counsel.
See United States v. Henry,
In
Brewer v. Williams,
Having recognized in
Brewer
that prior notice to or consultation with counsel is not necessary before a represented defendant may waive his or her Sixth Amendment right to counsel, the Court considered what steps the police must take to ensure a valid waiver of a defendant’s Sixth
*77
Amendment rights in
Patterson v. Illinois,
The Court held that, even though the Sixth Amendment right to counsel had attached, the Miranda warnings that the officer provided were sufficient to ensure that the defendant’s waiver of that right was knowing. The Court reasoned:
“[W]e have taken a more pragmatic approach to the waiver question — asking what purposes a lawyer can serve at the particular stage of the proceedings in question, and what assistance he could provide to an accused at that stage — to determine the scope of the Sixth Amendment right to counsel, and the type of warnings and procedures that should be required before a waiver of that right will be recognized.”
Id. at 298. The Court noted that, at one end of the spectrum, it had concluded that there is no Sixth Amendment right to counsel at a postindictment photographic display identification. Id. At the other end of the spectrum, “recognizing the enormous importance and role that an attorney plays at a criminal trial, [the Court has] imposed the most rigorous restrictions on the information that must be conveyed to a defendant * * * before permitting him to waive his right to counsel at trial.” Id. The Court concluded:
“Applying this [pragmatic] approach, it is our view that whatever warnings suffice for Miranda’s purposes will also be sufficient in the context of postindictment questioning. The State’s decision to take an additional step and commence formal adversarial proceedings against the accused does not substantially increase the value of counsel to the accused at questioning, or expand the limited purpose that an attorney serves when the accused is questioned by authorities. With respect to this inquiry, we do not discern *78 a substantial difference between the usefulness of a lawyer to a suspect during custodial interrogation, and his value to an accused at a postindictment questioning.”
Id. at 298-99 (footnote omitted). 11
The Court was careful to make clear that the issue in
Patterson
arose after indictment but before the defendant had requested counsel at arraignment and before counsel had been appointed. It noted that, once a defendant requests counsel at arraignment or counsel is appointed, “a distinct set of constitutional safeguards aimed at preserving the sanctity of the attorney-client relationship takes effect.”
Id.
at 290 n 3. In those two situations, the Sixth Amendment right to counsel prohibits police from initiating a conversation with the defendant that leads to waiver.
See Michigan v. Jackson,
With that background in mind, we turn to the six discussions between defendant and the police that the state introduced at trial. The first two discussions occurred after the state had indicted defendant but before the trial court had appointed counsel to represent him on the charges arising out of Saffa’s death. Under Patterson, defendant’s waiver *79 of his Sixth Amendment right to counsel will be valid if defendant was aware of his Miranda rights. The last four discussions occurred after indictment and after counsel had been appointed to represent defendant on the charged crimes. Patterson teaches that, in that situation, defendant’s waiver will be valid only if he initiated the conversation that led to the waiver and if he was aware of his Miranda rights.
As explained above, defendant initiated each of the discussions with the officers. He also received
Miranda
warnings before his June 29 discussion with Boothby and his August 11 discussion with O’Connell. As also explained above, we need not decide whether defendant was aware of his
Miranda
rights on the other four occasions. Even if he were not, any error in admitting the transcripts of those conversations was harmless in light of the evidence concerning the June 29 and August 11 interviews.
See Harrington v. California,
The decision of the Court of Appeals is affirmed.
Notes
When advised of that fact, defendant asked, “Is that bad, bad, bad?” O’Connell replied, ‘Yeah, I won’t, I won’t sugar coat it, that’s bad.”
On June 9, 1998, the trial court appointed a lawyer for defendant on the charges arising out of Saffa’s death. Because this conversation occurred a day earlier, defendant presumably was referring to the lawyer appointed to represent him on the unrelated charges in Washington.
The first of the other two discussions was a September 14, 1998, telephone call to O’Connell, in which defendant asked about the status of investigative leads that he wanted O’Connell to pursue. The second discussion was a December 14, 1998, telephone call to O’Connell, which the state did not offer at trial.
The State of Oregon held defendant in custody until his trial on the aggravated murder and other charges arising out of Saffa’s death.
The state introduced the transcripts of the telephone conversations on April 21,1998; June 8,1998; June 25,1998; and September 14,1998. It also introduced the transcript of O’Connell’s August 11, 1998, interview with defendant. Finally, the state called Boothby, who testified concerning his June 29,1998, interview with defendant.
Defendant has filed a pro se supplemental brief raising additional issues. We decline to consider those issues and limit our review of the Court of Appeals decision to the issue stated above.
Indeed, defendant often expressed frustration because the police officers had not called him back or come to talk with him; as he told the officers, “I’ve been calling you guys for months asking to talk to you.”
Similarly, we need not decide whether O’Connell was required to readvise defendant of his Miranda rights before accepting his September 14, 1998, telephone call. Even if he were, any error was harmless.
In two later cases, the Court explored the boundaries of
Massiah.
The first case held that the police “deliberately elicited” information from a represented defendant when they placed a jailhouse informant in the defendant’s cell, who then engaged the defendant in conversations about his crimes.
United States v. Henry,
In
Brewer,
the police officers had told the defendant’s lawyer that they would not interrogate him while they were transporting him to a different location.
The Court added in a footnote that it “has recognized that the waiver inquiry focuses more on the lawyer’s role during such questioning, rather than the particular constitutional guarantee that gives rise to the right to counsel at that proceeding.”
Patterson,
In
Jackson,
the Court held as a matter of the Sixth Amendment that, “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s [Sixth Amendment] right to counsel for that police-initiated interrogation is invalid.”