State v. Schiller-Munneman

Under State v. Davis, defendant’s right to silence is not implicated when defendant is not in custody or under compelling circumstances, and a non-response is not a statement or non-verbal conduct and therefore is not hearsay.

Defendant appealed his judgment convicting him of first-degree rape. Defendant sexually assaulted victim while victim was staying at defendant’s residence after a party. Victim reported the incident to the police, and sent defendant two text messages at the instruction of the police detective. Defendant did not respond to victim’s text messages. Defendant moved to suppress defendant’s non-response to text messages sent from the victim, and moved for mistrial. The trial court denied defendant’s motion holding that defendant’s non-response was not a statement under the hearsay rule, and even if it were a statement, it would be an admission by party opponent. The trial court convicted defendant. Defendant appealed, and argued that because the text messages were made at the instruction of police, that failure to suppress his non-response violated his right to remain silent. Defendant also argued that his silence was not an adoptive admission under OEC 801(4)(b)(B). The Court of Appeals held that under State v. Davis, defendant’s right to silence was not implicated because defendant was not in custody or compelling circumstances. The Court further held that the non-response was not a statement or non-verbal conduct, and therefore is not hearsay. Affirmed.