State v. Wirkkala
State v. Wirkkala
Opinion of the Court
*265Defendant appeals a judgment of conviction for murder, ORS 163.115. In his first two assignments of error, defendant challenges the trial court's exclusion of evidence that, according to defendant, was relevant to his theory of self-defense. In his third assignment of error, he challenges the trial court's denial of defendant's motion to suppress statements that defendant made in a police interrogation. As to that issue, we agree with defendant that police impermissibly continued their interrogation after defendant invoked his right to counsel, that the trial court therefore erred in denying the motion to suppress, and that the error was not harmless. That conclusion obviates the need to address defendant's other assignments of error. Accordingly, we reverse and remand.
We review for legal error whether defendant invoked his right to counsel. State v. Sanelle ,
The murder charge arose from the shooting death of the victim at defendant's house. It is undisputed that, after defendant and the victim spent an evening drinking together, defendant shot and killed the victim.
The police interrogation took place at the police station on the night of the shooting, and involved defendant, Officer Hatoor, and Detective Knea. Knea began by reading defendant his Miranda rights. Knea then began asking what he described to defendant *423as "preliminary" questions, which defendant answered. After approximately five minutes, the following exchange occurred:
"[DEFENDANT]: We moved here in May.
"DETECTIVE KNEA: That was going to be my next question. Okay. Who else is-so there's another male that was at the house. What's his name?
"[DEFENDANT]: (Pause.) What was his name?
*266"DETECTIVE KNEA: Yeah.
"OFFICER HATOOR: What was his name?
"[DEFENDANT]: I appreciate the hospitality here, fellas, but I think I'm going to get a lawyer .
"DETECTIVE KNEA: Okay. Well, that's obviously something that you have a right to, like I said, okay?
"[DEFENDANT]: His name was [the victim].
"DETECTIVE KNEA: And-and I-I understand that there's probably a little bit of trepidation about talking to me, okay? However, I don't know what happened, dude, at all.
"[DEFENDANT]: Well, [n]either do I.
"DETECTIVE KNEA: And I-okay.
"[DEFENDANT]: So get in fuckin' line. Sorry. Sorry. That was rude. Go ahead.
"DETECTIVE KNEA: I'll give you a little time to sober up, and then we'll talk. But you're going to be here for a little bit, so just make yourself comfortable.
"[DEFENDANT]: No, I know. I know.
"DETECTIVE KNEA: Okay. Yeah. This is not exactly how I wanted this whole thing to go down. I just wanted to get kind of an idea of what happened. And from the get-go you're kinda not being real-
"[DEFENDANT]: Not being real?
"DETECTIVE KNEA: No. You're not being real nice to me, okay? And I don't know you from anybody, dude.
"[DEFENDANT]: All right.
"DETECTIVE KNEA: I live-
"[DEFENDANT]: Well, that's fine.
"DETECTIVE KNEA: Okay. So just chill out.
"[DEFENDANT]: You got-
"DETECTIVE KNEA: You can sober up.
"[DEFENDANT]: I can sober up. I'm sorry. This guy's a nice guy. You're kind of a prick.
*267"DETECTIVE KNEA: Dude, I just got woken up at 3 o'clock in the morning, okay?
"[DEFENDANT]: So what?
"DETECTIVE KNEA: So what?
"[DEFENDANT]: Yeah. So what?
"DETECTIVE KNEA: I don't know what was going on.
"[DEFENDANT]: That's your fucking job.
"DETECTIVE KNEA: Okay.
"[DEFENDANT]: That's your job.
"DETECTIVE KNEA: Okay. Well, guess what?
"[DEFENDANT]: Guess what?
"DETECTIVE KNEA: I do not-
"[DEFENDANT]: I just fuckin' saw a fuckin' body on my fuckin' floor, blood oozing out in my fuckin' kitchen, so fuck you. You're going to tell me how to wake up?
"DETECTIVE KNEA: I don't think-I don't-
"[DEFENDANT]: You don't know shit-
"DETECTIVE KNEA: I don't think you woke up and just saw him.
"[DEFENDANT]: -about a fucking wake-up."
(Emphasis added.) The interrogation concluded moments later. In total, the videotaped interrogation lasted approximately eight minutes.
Before trial, defendant moved to suppress the portion of the video and transcript following his request for a lawyer, arguing that defendant unequivocally invoked the right to have counsel present during the police interrogation, and that he did not subsequently waive that right by saying, "His name was [the victim]." The trial court struck the evidence *424of the invocation itself, but otherwise denied defendant's motion.
In refuting defendant's theory of self-defense, the state played the interrogation video during Knea's direct examination, and replayed the final minutes of the video, in which defendant became hostile toward Knea, during closing argument. At closing, the state highlighted the difference between defendant's demeanor in the interrogation video and his more "appropriate" and "articulate" demeanor at trial:
"Now, the defendant, as he appeared in court-and you can take a moment to look at him. Well dressed. He's been appropriate through trial, articulate on the stand, knows the case well, described-you know, self-described anxiety in social situations. A storyteller, a writer, someone who composes, works things through. But you are not looking just at the defendant as he appears before you today.
"We are talking about the defendant on [the date of the shooting]. His conduct on that day, how he behaved, how he acted. And that's really difficult because for the last eight days, that's the [defendant] you've seen; the [defendant] in court. The [defendant] who has an incentive and a motive to present a certain way.
"When you're examining his statements, when you're examining his testimony, and when you evaluate that testimony, you have to take that into consideration.
"[Interrogation video played.]
"It's important to remember that is the [defendant] that [the victim] was with on [the date of the shooting]; a person who can make choices about his behavior, how he acted with who he liked and who he didn't like; a person who said he couldn't remember, but clearly does."
Defendant was convicted of murder.
On appeal, in his third assignment of error, defendant argues that the trial court erred in denying his motion to suppress the portions of the interrogation video and transcript following defendant's statement that he wanted to "get a lawyer." The state disagrees; although the state *269does not dispute that defendant invoked his right to counsel under the federal and state constitutions, the state argues that defendant then waived that right by immediately proceeding to answer Knea's pending question about the name of the other "male that was at the house."
The right against self-incrimination under Article I, section 12, of the Oregon Constitution includes the derivative right to have counsel present during custodial police interrogations. State v. Scott ,
*425The state argues that defendant showed a "willingness" to continue the interrogation when, after invoking his right to counsel, and without further prompting, he answered Knea's question about the other "male that was at the house." The state likens this case to State v. Kramyer ,
*270We are not persuaded by the comparison of this case to Kramyer . In Kramyer , the defendant's conduct gave rise to the evidence that was the very focus of the investigation.
Knea's response is also inconsistent with an understanding that defendant had thereby demonstrated a willingness "to enter into a generalized discussion of the substance of the charges" or investigation. Meade ,
Accordingly, police questioning should have stopped after defendant invoked his right to counsel. Meade ,
We next must determine whether the error was harmless. An error is harmless if there is "little likelihood that the error affected the verdict." State v. Davis ,
In arguing that any error was harmless, the state points out that it "relied on the recording not for the substance of defendant's statements, but instead to show that *426his demeanor upon arrest was different from his demeanor during trial[.]"
But that use of the video was nonetheless important. This case turned on whether the jury believed defendant's theory of self-defense. Accordingly, evidence bearing on the jury's assessment of defendant was important. See Maiden , 222 Or.App. at 13,
For those reasons, we cannot conclude that there was "little likelihood that the error affected the verdict." Davis ,
Reversed and remanded.
The trial court did not specify whether defendant's invocation was equivocal or unequivocal. That issue is not contested on appeal.
Reference
- Full Case Name
- STATE of Oregon, Plaintiff-Respondent v. Luke Anton WIRKKALA
- Cited By
- 3 cases
- Status
- Published