State v. Moore

695 P.2d 936 (1985)

72 Or.App. 202

STATE of Oregon, Respondent, v. Billy Tom MOORE, Appellant.

27395; CA A30449.

Court of Appeals of Oregon.

Argued and Submitted December 20, 1984.

Decided February 20, 1985.

Helen I. Bloch, Salem, argued the cause for appellant. With her on the brief was Gary D. Babcock, Public Defender, Salem.

Robert M. Atkinson, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Before GILLETTE, P.J., and VAN HOOMISSEN and YOUNG, JJ.

GILLETTE, Presiding Judge.

Defendant appeals[1] his conviction for theft in the first degree, ORS 164.055, on the ground that the trial court erred in admitting statements he made to the police after he asked for an attorney.[2] We reverse and remand for a new trial.

La Grande police officers picked up defendant at his mother's house on January 14, 1982, and took him to the city police station for questioning concerning the theft of some guns from a hardware store. Although defendant was not formally arrested at that time, he and the state agree that he was in police custody. He received appropriate Miranda warnings. He was formally arrested that evening and booked at the Union County jail. According to his testimony, both before and after the booking he told the officers that he wanted to talk to an attorney. The trial court disbelieved defendant and accepted the testimony of the officers that he had not made any request to them. We are bound by those factual findings. Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968).

The only other evidence of defendant's desire for an attorney is the jail log, which has the following entry at 7:41 p.m., about an hour after the booking: "MOORE, W. MADE CALL TO MOM TO GET ATTY. *937 CONTACT MADE."[3] The issue is whether defendant's call to his mother to try to get an attorney prevents the state from meeting its heavy burden of showing that defendant knowingly and intelligently waived his right to counsel during interrogation.[4]See North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979); Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 1612-13, 16 L. Ed. 2d 694 (1966); State v. Cox, 47 Or. App. 1067, 1073, 615 P.2d 1144 (1980). We hold that the state failed to meet its burden.

In Miranda v. Arizona, supra, the Supreme Court held that if a defendant "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." 384 U.S. at 444, 86 S. Ct. at 1612. Defendant was in custody, charged with a crime. He called his mother to ask her to get him an attorney. We infer that he wanted legal advice on the custodial questioning he was then undergoing. He had a right to that advice as part of his right not to make compelled statements, and it is that right which the Miranda rules are designed to protect. We cannot say that the state has adequately shown that defendant knowingly and intelligently waived that right by answering subsequent questions. The trial court should have suppressed all statements which defendant made after 7:41 p.m., along with any fruits of those statements.[5]

Reversed and remanded for a new trial.[6]

[1] Defendant's trial attorney failed to perfect an appeal of his conviction within the statutory period, despite defendant's request that he do so. Defendant thereafter brought a post-conviction case on the ground of inadequate assistance of counsel and won the right to this delayed appeal.

[2] While defendant relies on Article I, section 12, of the Oregon Constitution, both his brief and that of the state treat the problem as though the relevant analysis were the same under either the state or the federal constitution. In the absence an articulated argument from defendant to the contrary, we assume for the purposes of this case that the analysis would be the same.

[3] Defendant testified that his mother's phone was busy and so he was unable to reach her. The trial court accepted the log as accurate. The court stated,

"[I]t would appear from reviewing the log that the defendant was given a right to make a call, that he was not denied that request. Whether or not that was for purposes of getting an attorney is not clear, but I don't think it's critical."

In view of the burden of proof in cases of this kind, we disagree.

[4] There is no evidence that the desk officer at the jail, a county deputy sheriff, told the city police officers questioning defendant about this call. However, his knowledge is imputed to them. State v. Paz, 31 Or. App. 851, 867, 572 P.2d 1036 (1977), rev. den. 282 Or. 189 (1978).

[5] The state relies on State v. Sparklin, 296 Or. 85, 672 P.2d 1182 (1983), in which the court held that a request for an attorney at arraignment was not an assertion of the right to be free of compelled self-incrimination. The court noted that a defendant is not confronted with an atmosphere of coercion at an arraignment, that no one seeks admissions at that time and that the request for an attorney is a matter of routine. A request for an attorney at an arraignment is thus very different from an expressed desire to talk to an attorney during custodial interrogation.

[6] Because we dispose of this case on waiver grounds, we need not address the defendant's contention which is probably well taken that the state has also failed to show he initiated the conversations with the police that led to the statements in question. See State v. Barmon, 67 Or. App. 369, 679 P.2d 888 (1984).