State v. Reed

A defendant asking, "[d]o I need one?" is not an invocation of the right to counsel. State v. Roberts, 291 Or App 124, 133, 418 P3d 41 (2018). Erroneous admission of evidence may be harmless if the court's speaking verdict did not cite the challenged evidence, or if it did, the record shows "the court would have found the Defendant guilty" without it. State v. Klontz, 257 Or App 684, 702, 308 P3d 214 (2013); State v. Montgomery, 217 Or App 139, 174 P3d 1040 (2007).

Defendant appealed a conviction of first-degree rape, first-degree sexual penetration, and two counts of first-degree sexual abuse. Defendant assigned error to the trial court's denial of his motion to suppress statements he made to police both before and after the equivocal invocation of his right to counsel. On appeal, Defendant argued that he invoked his right to counsel when he asked the officer "[d]o I need a lawyer?" Additionally, Defendant argued because he invoked his right to counsel, the officer's follow up questions went beyond the scope of clarifying Defendant's invocation. In response, the State argued Defendant's question only showed Defendant was contemplating invoking his right, not that he asserted it. Additionally, the State argued even if an error was found, it was harmless because the verdict did not rely on any statement made by Defendant after he allegedly invoked his right to counsel. A defendant asking, "[d]o I need one?" is not an invocation of the right to counsel. State v. Roberts, 291 Or App 124, 133, 418 P3d 41 (2018). Erroneous admission of evidence may be harmless if the court's speaking verdict did not cite the challenged evidence, or if it did, the record shows "the court would have found the Defendant guilty" without it. State v. Klontz, 257 Or App 684, 702, 308 P3d 214 (2013); State v. Montgomery, 217 Or App 139, 174 P3d 1040 (2007). The Court held Defendant's question to the officer, "[d]o I need one?", did not invoke his right to counsel and the admission of his statements made post-equivocal invocation was a harmless error because the court's verdict expressly relied on other testimony and not the statements at issue. Affirmed.