State v. Brooke

Simply referencing an attorney does not necessarily constitute an unequivocal invocation of the right to counsel under Article I, section 12, of the Oregon Constitution, but a defendant’s expression of his clear desire to speak with an attorney is an unequivocal invocation of that right.

Defendant appealed a judgment of conviction for strangulation (ORS 163.187) and assault in the fourth degree (ORS 163.160). Defendant’s second of multiple assignments of error asserted the trial court erred by admitting statements made to police after, Defendant claimed, he unequivocally invoked his right to counsel under Article I, section 12, of the Oregon Constitution. Defendant and his girlfriend were involved in an altercation, after which a student called campus police. A city officer was also dispatched to support the campus police. During the interview with Defendant, he was advised of his rights, including his right to talk to a lawyer, and asked if he understood, to which Defendant responded, “Yeah * * * Can I call my mom? She’s a lawyer.” Defendant was not allowed to call his mom at that time and the interview continued, during which Defendant made statements against his interest. Prior to trial, Defendant challenged the voluntariness of his statements; the trial court held a hearing and the statements were subsequently admitted at trial. On appeal, Defendant argued that his request to call his mom, a lawyer, in response to being advised of his right to a lawyer, was an unequivocal invocation of his right to counsel and the interview should have stopped; therefore, the officers’ follow-up questions were impermissible and Defendants’ statements should have been suppressed. The State argued that the invocation was not unequivocal because it was in the form of a question and Defendant did not advise officers his mom would be representing him or that he wished to seek legal advice from her. The Court held, under the totality of the circumstances, Defendant did unequivocally invoke his right to counsel when he asked to call an attorney, and the fact that the attorney was also his mom did not change the analysis. Because the Court also found it could not say there was little likelihood the error affected the verdict, it held the error was not harmless. Reversed and remanded.