State v. Dean

                                        249

        Argued and submitted January 30, 2019, reversed and remanded
                             February 10, 2021


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                        ERNEST LEE DEAN,
                         Defendant-Appellant.
                     Clatsop County Circuit Court
                         14CR02802; A164189
                                    

     Defendant appeals from a judgment of conviction for several crimes related
to the robbery of a hotel. On the day of defendant’s arrest for those crimes, he was
taken into police custody and, after he invoked his right to counsel, detectives
informed him in detail of the evidence they had discovered that implicated him in
the robbery. Soon after, while still in custody, defendant confessed to the robbery
despite detectives repeatedly reminding defendant that he had invoked his right
to counsel. Defendant moved to suppress the incriminating statements, and the
trial court denied the motion. On appeal, the issues are whether the detectives
violated defendant’s right to counsel under Article I, section 12, of the Oregon
Constitution, and, if so, whether defendant’s subsequent waiver of that right was
valid in light of the earlier violation. Held: The trial court erred in denying defendant’s motion to suppress. The detectives violated defendant’s right to counsel
when they set out the evidence against him in great detail, and the state failed
to meet its burden of proving, under the totality of the circumstances, that defendant made a knowing, intelligent, and voluntary waiver of his Article I, section
12, rights in light of that violation.
    Reversed and remanded.



    Paula Brownhill, Judge.
   Mary M. Reese, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Doug M. Petrina, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
250                        State v. Dean

  SHORR, J.
  Reversed and remanded.
Cite as 

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           SHORR, J.
         An employee at a hotel in Cannon Beach was
robbed at gunpoint. Defendant was taken into police custody in Portland and, after he invoked his right to counsel,
detectives informed him in detail of the evidence they had
discovered that implicated him in the Cannon Beach robbery. Soon after, while still in police custody, defendant confessed to the robbery despite detectives repeatedly reminding defendant that he had invoked his right to counsel.
Defendant, who was charged with crimes related to the robbery, moved before trial to suppress the incriminating statements that he had made after invoking his counsel right.
The trial court denied the motion, and defendant was convicted of first-degree robbery, ORS 164.415, second-degree
kidnapping, ORS 163.225, and possession of a firearm as
a felon, ORS 166.270, and he appeals from the judgment of
conviction.
         The main questions presented on appeal are whether
the detectives violated defendant’s right to counsel under
Article I, section 12, of the Oregon Constitution and the
Fifth Amendment to the United States Constitution, and,
if so, whether defendant’s subsequent waiver of that right
was valid—that is, given the circumstances, the waiver was
knowing, intelligent, and voluntary—in light of the earlier
violation. For the reasons explained below, we conclude that
the detectives violated defendant’s right to counsel when
they set out the evidence against him and that the subsequent waiver was not valid. The trial court therefore erred
in denying defendant’s motion to suppress.1 We reverse and
remand.2
     1
       Because we reverse on the motion to suppress, we need not reach defendant’s second assignment of error.
     2
       Defendant also raises two assignments of error in a supplemental brief. In
a combined argument, defendant contends that the trial court plainly erred when
it instructed the jury that it could return a nonunanimous guilty verdict and
when it entered convictions for the crimes listed above after the jury had been
so instructed. The trial court erred under the Sixth Amendment to the United
States Constitution when it gave the nonunanimous jury instruction. See Ramos
v. Louisiana, 

, 

, 

 (2020). However, defendant did not object to the nonunanimous verdict instruction at trial, nor was the
jury polled. Defendant argues that, although he did not preserve an objection to
the erroneous jury instruction, we should conclude that the court plainly erred
and exercise our discretion to review the error. The Supreme Court addressed
252                                                              State v. Dean

         We review a denial of a motion to suppress for
legal error, accepting the trial court’s findings of fact that
are supported by constitutionally sufficient evidence in the
record. State v. Doyle, 

, 

,
rev den, 

 (2014). In this case, the court made factual findings in a letter opinion explaining its decision to
deny defendant’s motion to suppress. The following excerpt
is taken from that letter opinion. We discuss additional facts
from the record throughout our analysis as needed.
        “On January 5, 2014, a man stole cash at gunpoint
    from the Stephanie Inn in Cannon Beach, Oregon.
    Lt. Christopher Wilbur investigated the robbery. Portland
    Police Detective Brett Hawkinson was investigating robberies similar to the Cannon Beach crime. Eventually
    police determined that defendant Ernest Lee Dean committed the robberies. Defendant was arrested the morning
    of February 21, 2014 and taken to the thirteenth floor of the
    Portland Justice Center. Police obtained search warrants
    from Multnomah County Circuit Court, and they executed
    the warrants on the day of defendant’s arrest.
        “One of the search warrants was for defendant’s
    Portland storage unit. Detectives searched the unit for
    identification, jewelry, cell phones, keys, guns, clothing,
    strings, wires, electrical tape, and zip ties. They opened
    bags and boxes while searching for these items.
       “At 4:36 p.m. on February 21, 2014, after the warrants
    were executed, Lt. Wilbur and Detective Hawkinson began
    an interview with defendant in an interview room equipped
    with audio and video recorders. Detective Hawkinson read
    defendant his Miranda rights, and defendant signed a
    form indicating he understood his rights. Defendant was
    not under the influence of alcohol or drugs, and he was not
    suffering from any apparent mental illness. Detectives
    did not promise him anything or pressure him. Detectives
    Hawkinson and Wilbur were courteous and conversational
    with defendant. Defendant was alert and articulate, and
    he is intelligent.

those same circumstances and defendant’s argument in State v. Dilallo, 

, 

 (2020). The court concluded that it was not appropriate to consider the defendant’s unpreserved assignment of error because of the absence of a
jury poll. 

. Accordingly, for the reasons identified in Dilallo, we decline
to exercise our discretion to review defendant’s supplemental assignments of
error.
Cite as 

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      “Detective Hawkinson explained that he was investigating a robbery. Defendant wanted to know why he was
  being detained. At 4:55 p.m., when Detective Hawkinson
  finished reading the arrest warrant out loud, defendant
  said, ‘I’ll need a lawyer before I can go any further with
  you.’ Detective Hawkinson said, ‘No problem. You are
  afforded that.’ He did not ask defendant any questions, but
  he told defendant about the searches earlier that day, and
  he described some of the evidence that implicated defendant in several robberies. When defendant tried to speak,
  Detective Hawkinson told defendant he did not want defendant to respond. He said he couldn’t listen or accept statements from defendant, but he wanted defendant to know
  why he was in custody. Defendant said he had not robbed
  anyone, and Detective Hawkinson said he could not accept
  defendant’s answer because he has a right to legal counsel
  and he’s going to get legal counsel before detectives ask any
  questions.
      “Detective Hawkinson gave defendant a cell phone, and
  defendant called his girlfriend at 5:03 p.m. He returned
  to the holding cell at 5:04 p.m. Detective Hawkinson told
  defendant to knock if he needed something. Defendant was
  dressed in his own clothes, was given a blanket, and was
  not handcuffed. No one contacted him in the holding cell.
     “Defendant knocked at 5:08 p.m. Sgt. Santos responded,
  and defendant said he wanted to speak to the detective. At
  5:10 p.m., Detective Hawkinson contacted him. Defendant
  said he wanted to talk to him again and have a cigarette.
  Detective Hawkinson said he would let him smoke, but he
  would have to get direction about talking. He said, ‘I really
  do want you to have an opportunity to have your lawyer
  and talk to him. I don’t want to trounce your rights at all.
  You have the right to have a lawyer.’ Defendant said he
  understood but wanted to clear his conscience.
      “At 5:26 p.m., Detective Hawkinson and Lt. Wilbur
  opened the cell, told defendant he was being recorded, gave
  defendant cigarettes, cuffed him in front, and took him
  downstairs for a smoke break. Detective Hawkinson told
  defendant repeatedly that he did not have to talk to detectives. He said, ‘You have asked for a lawyer, and you have
  a right to have that lawyer, okay? I want to make sure that
  what you’re doing is free and voluntary and is completely
  what you want. And it’s not because I’m giving you a smoke
  break. You’ve talked to me, okay? And that’s what I want
254                                               State v. Dean

  to make sure, because you have rights, and I respect your
  rights. Okay?’ He suggested they finish the smoke break
  and return to the interview room before he answered defendant’s questions.
      “When they reached the parking garage in the basement, defendant started talking about how police may have
  identified him as a suspect. Detective Hawkinson asked
  him about being followed. Without mention of the robberies for which he was detained, defendant talked about his
  circumstances, prior criminal involvement, and heroin
  dealing.
     “At approximately 5:36 p.m., when defendant said
  he remembered the bank (scene of one of the robberies),
  Detective Hawkinson interrupted and advised defendant
  of his Miranda rights. Defendant said he understood.
  Detective Hawkinson said he wanted to be sure defendant
  understood his rights. Defendant said he understood, but
  he didn’t want to take the rap for someone else. Detective
  Hawkinson said, ‘More importantly, and you can say no,
  okay? I want to make sure it’s on record that you are coming to me and you want to talk to me, right? I haven’t asked
  you, I haven’t reapproached to ask you any more questions,
  that I want you to have a lawyer before I ask you any questions. Right? You understand that, right?’ Lt. Wilbur noticed
  defendant was shaking his head, and he asked defendant
  to speak out loud. Defendant said, ‘Yeah. I understand.’
  Lt. Wilbur said, ‘You understand and you want to talk to
  us?’ Defendant said, ‘Yeah.’ Detective Hawkinson asked,
  ‘And this isn’t because I’m letting you smoke?’ Defendant
  replied, ‘I know.’
     “Defendant told them more about his situation. Around
  5:44 p.m., he told detectives he was planning a robbery at
  Spirit Mountain. Detectives questioned him about his plan,
  and the conversation continued. He said he took $7,000
  from the safe in Cannon Beach.
      “At 5:53 p.m., after defendant finished smoking,
  Lt. Wilbur, another detective, and defendant returned to
  the interview room on the 13th floor. Detective Hawkinson
  joined them a few minutes later. Detective Hawkinson
  advised defendant of his Miranda rights again. Defendant
  said he understood. Defendant read and signed a written
  Miranda form at 5:57 p.m. Detective Hawkinson told defendant he did not have to speak to them at all. Defendant
  said he understood. At 5:58 p.m., Detective Hawkinson
Cite as 

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   suggested they start at the beginning. The interview
   resumed.”
Thereafter, defendant made incriminating statements and
confessed to the Cannon Beach hotel robbery.
          The trial court explained that defendant “unequivocally invoked his right to counsel at 4:55 p.m. when he told
detectives he needed to talk to a lawyer before he could go
any further.” The court noted that, in response, Hawkinson
did not ask any questions or allow defendant to speak further, and that Hawkinson’s intent in describing the evidence
was to “inform defendant of the reason for his arrest, not to
elicit incriminating responses.” Accordingly, the court reasoned that the pertinent question was “whether [defendant]
made a valid waiver of his right to counsel under Article I,
[section] 12, of the Oregon Constitution and the Fifth
Amendment to the U.S. Constitution when he answered the
detectives’ additional questions.”
        The trial court concluded that defendant made
a knowing and voluntary waiver of his right to counsel,
explaining that,
   “[a]fter [defendant] invoked his right to speak to a lawyer,
   he had sufficient time to decide whether to talk to a lawyer or to resume the interview with detectives. Once he
   asked [to speak with] Detective Hawkinson, 18 minutes
   elapsed before Detective Hawkinson [took defendant from
   his holding cell], and 28 minutes passed before defendant
   mentioned the bank. Defendant volunteered the bank
   comment; it was not a result of custodial interrogation.
   At that point, Detective Hawkinson stressed defendant’s
   right to talk to a lawyer and repeated defendant’s Miranda
   rights. He read the Miranda rights a third time in the
   interview room, and defendant signed another Miranda
   form. Defendant understood he did not have to talk to
   detectives before he consulted a lawyer, and he chose to
   speak to them.”
         On appeal, defendant argues, as he did before
the trial court, that Hawkinson’s statements to defendant
immediately after defendant invoked his right to counsel constituted an interrogation, which amounted to a violation of defendant’s Article I, section 12, right against
self-incrimination. Defendant further contends that his
256                                                           State v. Dean

subsequent waiver of his right to counsel was invalid because
it was a product of that violation. In response, the state
acknowledges that defendant invoked his right to counsel
but asserts that Hawkinson’s post-invocation statements
did not constitute interrogation. And, the state argues, if
those statements were interrogation, and thus a violation
of defendant’s Miranda rights, defendant’s waiver was not
the product of the earlier violation, but knowing and voluntary.3 Thus, we must determine whether Hawkinson’s post-invocation statements to defendant constituted interrogation, and, if so, we must determine whether that violation of
defendant’s Miranda rights affected his subsequent waiver
to the extent that the waiver was invalid.
         Article I, section 12, provides that “[n]o person shall
… be compelled in any criminal prosecution to testify
against himself.” Or Const, Art I, § 12. The right against
self-incrimination protected under that provision extends to
custodial interrogations and includes a derivative right to
have counsel present during questioning. State v. Scott, 

, 

 (2007).
         Accordingly, police must give Miranda warnings
before interrogating suspects in custody, and “[f]undamental to protect the derivative right to counsel is that, when a
suspect in custody makes an unequivocal request to speak
with a lawyer, all police interrogation must cease.” State v.
Fink, 

, 

 (2017) (citing State
v. Meade, 

, 

 (1998)). Police may
continue speaking with a defendant who has invoked the
rights to remain silent or to counsel only to ask questions
or make statements that are “normally attendant to arrest
and custody.” State v. Schmidtke, 

, 

 (2018). Statements obtained in violation of a defendant’s Article I, section 12, rights must be suppressed. Scott,

.

     3
       Defendant and the state argue that the issue on appeal is whether the subsequent waiver of the right to counsel was a “product” of the earlier Miranda violation. See State v. Jarnagin, 

, 

 (2012). We understand the issue to be whether defendant’s subsequent waiver was nevertheless
a knowing, intelligent, and voluntary waiver of his Article I, section 12, rights.
See State v. Ward, 

, 

 (2020). We frame the issue in that
manner throughout the rest of the opinion.
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          When a suspect in custody invokes the right to counsel, the suspect may later waive that right “by initiating further contact with the police.” State v. Acremant, 

, 

, cert den, 

 (2005). And “even
after an Article I, section 12, violation, a suspect retains the
power to validly waive the right against self-incrimination
‘as long as that waiver is knowing, intelligent, and voluntary
under the totality of the circumstances.’ ” State v. Schrepfer,

, 437, 

 (2017) (quoting State v.
McAnulty, 

, 

 (2014), cert den, 

 (2015)).
        It is readily apparent, and the state does not dispute, that defendant unequivocally invoked his right to
counsel when he said, “I’ll need a lawyer before I can go
any further with you.” Therefore, Hawkinson’s statements
following defendant’s invocation violated defendant’s right
to counsel if those statements constituted interrogation.
         An officer’s statements were interrogation if those
statements were “likely to elicit some type of incriminating response.” State v. Boyd, 

, 

(2016). An “incriminating response” means “any inculpatory or exculpatory response that the prosecution later may
seek to introduce at trial.” Scott, 

. Questions
“normally attendant to arrest and custody” are not interrogation for the purposes of Article I, section 12, unless
those questions are “designed” to elicit incriminating information. Schmidtke, 

. Those questions or
statements that are normally attendant to arrest and custody may include statements informing the defendant of
the charged crime or the reasons for the defendant’s arrest.

. However, when police confront a suspect in custody with evidence of that suspect’s guilt, that confrontation
can constitute interrogation, depending on the manner in
which the suspect is confronted. 

.
         Schmidtke is illustrative of that rule. In that case,
the police officer detained the defendant, placed him in
handcuffs, and informed him that he was being investigated for thefts reported in the area. The officer also told the
defendant that he had been observed on a surveillance video
in the area of the crime. 

. We concluded that the
258                                             State v. Dean

officer’s later statement indicating that the defendant was
identified in a surveillance video in the area was interrogation. We came to that conclusion because that statement,
which the officer made unprompted, was “not made as part
of the statement letting defendant know the criminal conduct for which he was being detained—a type of statement
that … is ‘normally attendant to arrest and custody.’ ”

. Although the officer in that case could have
informed the defendant of the crime for which he was
detained without discussing the video, the officer’s statement “used the video to explicitly connect defendant to the
crime and, thus, to confront defendant with his guilt.” 

. Those factors “created circumstances under which
a reasonable officer in [the officer’s] circumstances should
have known that the officer’s statements were likely to elicit
an incriminating response.” 

.

         Here, defendant asked Hawkinson why he was under
arrest, and Hawkinson responded by reading the arrest warrant. At that point, defendant invoked his right to counsel.
After defendant’s invocation, Hawkinson continued to talk
to defendant about the investigation. Hawkinson described
the investigation and the evidence of defendant’s guilt in
detail. Hawkinson told defendant that the police had executed search warrants on defendant’s vehicles, motel room,
and storage locker. He listed several items found during the
execution of those search warrants and explained how those
items connected defendant to the charged crimes. Defendant
attempted to interrupt Hawkinson, but Hawkinson put
his hands up and spoke over defendant to stop him from
speaking.
      “[Hawkinson:] Hold on. Hear me out. Because I don’t
   want you to respond. I just want you to know what’s coming, okay? So here’s the thing—

      “[Defendant:] No, here’s the deal. You respond, then I
   have to respond towards what you are saying. Because I
   don’t feel like, you know, you want me to agree with what
   you are saying and I can’t—

     “[Hawkinson:] Nope, I don’t want you to say—I don’t
   want you to say anything. I just want you to understand
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   because I want to be fair and I want to make sure you
   understand that, why you’re going to jail, and ultimately
   prison. That’s it. Don’t respond. Please don’t.
      “[Defendant:] You guys, you guys, let me tell you something. Look, I understand with you’re—I understand what
   you’re doing, okay. But, from my standpoint I don’t feel like,
   you know, I’m in any, I don’t feel like I want to sit here and
   cater to you. You know, and to—
       “[Hawkinson:] You’re not catering to me. I promise
   you’re not catering. I’m trying to be fair to you. I’m trying to
   let you know why you’re under arrest. Do you understand?
       “[Defendant:] Yeah, you just explained that. You just
   told me—
      “[Hawkinson:] I’m not done.
      “[Defendant:] Okay.
      “[Hawkinson:] I’m not done.
      “[Defendant]: Okay.”
         Hawkinson continued describing the evidence connecting defendant to various robberies and how the items
that police had found during the searches that day implicated
defendant in those robberies. Defendant interrupted again
to say that he “ha[d] used those items” before Hawkinson
told defendant not to speak. Hawkinson told defendant
that he could not “accept” defendant’s answers or responses
because defendant needed an attorney. Hawkinson resumed
his explanation of the evidence against defendant, including evidence that defendant rented the vehicles used during
the robberies. Hawkinson then told defendant that the evidence he had just described was “just the tip of the iceberg.”
Defendant attempted to speak several more times, before
Hawkinson concluded the interview and gave defendant a
cell phone to call his girlfriend.
      “[Defendant:]    I will say this—I’ve never robbed anyone.
       “[Hawkinson:] Okay. And that’s—but I’m not—again,
   I can’t accept your answer or your statement, do you understand that? Because you have a right to legal counsel and
   you’re going to get legal counsel before I ask you any questions, okay. I don’t want to trounce your rights.
260                                                 State v. Dean

      “[Defendant:] You’ve already asked questions.
      “[Hawkinson:] Well not after you said you wanted a
   lawyer though.
       “[Defendant:] Well no, you’ve, you said I had a right to
   a lawyer and then you asked questions.
       “[Hawkinson:] That’s correct, but you didn’t tell me
   you wanted a lawyer until just a little while ago. So all
   I’ve been doing, I want this on record, all I’ve been doing is
   letting you know what you’re facing, because you asked me,
   right? And I told you, alright? I’m going to get my phone
   and I’ll let you call [your girlfriend], okay?”
         Unlike the trial court, we conclude that Hawkinson’s
post-invocation statements were interrogation. As in
Schmidtke, Hawkinson’s statements to defendant were
unprompted and were not part of his answer to defendant’s request to know the crime for which he was arrested.
Hawkinson had already read the arrest warrant to
defendant—that statement answered defendant’s question completely. And defendant indicated that he wanted
the presence of counsel, which provided a natural break.
Additionally, Hawkinson spent several minutes describing the incriminating evidence discovered during the
searches executed that day. In doing so, he explained in
detail why that evidence implicated defendant in the robberies, and even told defendant that he wanted defendant
to know why he was “going to jail, and ultimately prison.”
That confrontation was a clear and serious violation of
defendant’s right to counsel. Although the court found that
Hawkinson’s intent was merely to inform defendant of the
reasons for his arrest, a reasonable officer in Hawkinson’s
circumstances should have known that Hawkinson’s statements were likely to elicit an incriminating response.
That defendant continually tried to interrupt demonstrated
just how likely that was.
         Because Hawkinson interrogated defendant in violation of his Article I, section 12, right to counsel, we must
determine whether the state met its burden of showing
that defendant’s subsequent waiver of that right was valid.
See State v. Foster, 

, 

 (1980)
(“Our concern, however, is not with the voluntariness of
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defendant’s statements … but with the voluntariness of
defendant’s signed waiver which preceded his statements.
… We must therefore ascertain whether the police actions
that had occurred on April 11 affected defendant’s waiver on
April 12.”). The state bears the burden of proving, “under the
totality of the circumstances, that defendant made a knowing, intelligent, and voluntary waiver of the Article I, section 12, rights at the time of the … interrogation.” State v.
Ward, 

, 

 (2020). When the state
contends, as it does here, that a defendant “validly waived
his rights despite an earlier violation, ‘there is a presumption that the waiver was involuntary and the state has a
heavy burden to demonstrate that the defendant knowingly
and intelligently waived those rights.’ ” 

 at 201 (quoting
State v. Singleton, 

, 

 (1979) (quotation marks in Singleton omitted)). That is so because, when
police fail to “scrupulously honor” a defendant’s invocation of
his Article I, section 12, rights, “it can have a particularly
significant impact on a defendant’s later decision to answer
questions.” 

.

         Recently, in Ward, the Supreme Court emphasized
the heavy burden on the state in overcoming the harm of
a prior Miranda violation. The court noted that, “[i]n those
cases in which we have held that the state proved a valid
waiver despite a prior violation, we have pointed to countervailing circumstances.” 

. Those circumstances
identified in Ward included a defendant’s reinitiation of
conversation after the violation, a defendant’s affirmative
statements that demonstrated the defendant’s “meaningful
understanding” of the rights to silence and counsel, and a
gap in time between the violation and the defendant’s subsequent waiver, if the gap in time is followed by fresh Miranda
warnings. 

.

         The court stressed that any “countervailing circumstances” must be viewed in the context of all the relevant circumstances. For example, in that case, after the
initial Miranda violation, four days passed before the detectives provided new Miranda warnings, drove the defendant
five hours to a different county and began the interrogation,
at which point, the state contended, the defendant made a
262                                                          State v. Dean

valid waiver of his Article I, section 12, rights. Although
there was a substantial gap in time, “any value that the
passage of time might normally provide was diluted … by
the fact that defendant was held in jail during that entire
time without the benefit of advice from counsel.” 

.
Similarly, the potential value of the fresh Miranda warnings “was undermined by the fact that the detectives gave
those warnings at the start of the five-hour trip.” 

         The state contends that several factors aid it in
overcoming its burden of proving that defendant validly
waived his right to counsel. First, the state argues that
there was a “clear break” in time between the initial violation and defendant’s subsequent waiver.4 Second, the state
contends that the detectives’ behavior during that break in
time helped to mitigate the harm of the violation, because,
after defendant contacted Hawkinson, the detectives did
not immediately resume the interrogation or attempt to
elicit a Miranda waiver. The detectives also took defendant
into a new environment—the parking garage—where they
allowed defendant to smoke a cigarette. Third, the state
points to Hawkinson’s repeated assurances to defendant
that he did not have to speak with the detectives and that he
had a right to counsel. The state also notes that Hawkinson
made several attempts to ensure that defendant understood
his rights. Finally, the state asserts that defendant did not
make incriminating statements during the first unlawful
interrogation, which, according to the state, lessened the
harm of the violation.
         As we explain in more detail below, we conclude
that, under the totality of the circumstances, the state failed
to meet its “heavy burden” of proving that defendant made a
valid waiver of his Article I, section 12, rights. Although the
state has identified certain countervailing circumstances,
those circumstances are not sufficient to overcome the harm
of the initial violation, when viewed in context with all of the
relevant circumstances.
    4
      The state contends that defendant waived his Article I, section 12, rights
in the parking garage before the detectives asked defendant questions about his
plans to rob Spirit Mountain, in addition to the written waiver that defendant
signed before the second interview in the interview room. Our analysis is the
same—and we reach the same conclusion—with respect to both waivers.
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         We begin with a description of the violation.
Hawkinson’s explanation of the evidence implicating defendant in the robberies prompted defendant to respond several times, and defendant explained that he did not want to
sit silently while Hawkinson gave his explanation. Despite
the clear effect of Hawkinson’s statements in prompting
further responses from defendant, Hawkinson persisted in
making those statements and repeatedly prevented defendant from responding. That violation created the impression that defendant’s assertion of his right was meaningless.
Specifically, Hawkinson’s actions likely left defendant with
the impression that invoking his right merely subjected him
to further interrogation without the ability to defend himself from the criminal accusations at issue. Perhaps more
concerning, it may have further created the impression that
defendant’s assertion of his rights would subject him to retribution, because Hawkinson told defendant that he had to
listen to Hawkinson’s explanation in silence because he had
invoked his right to counsel.

         The substance and manner of the interrogation
also likely influenced defendant’s later decision to contact
Hawkinson. Hawkinson primed defendant to respond by
confronting him and then leaving him in his cell to consider the substantial and weighty evidence of his guilt.
Hawkinson’s behavior in forbidding defendant’s responses
also frustrated defendant, and likely increased his desire to
respond in kind. That defendant did not make incriminating statements in response to the interrogation is of little
help to the state, given that defendant’s inability to respond
likely prompted his later reinitiation of contact.

         Given the nature of the violation in this case, we are
not persuaded that the mitigating circumstances identified
by the state are sufficient to aid it in overcoming its burden.
First, defendant remained in custody in the time between
the violation and his later waiver. After the violation, defendant was placed in a holding cell, where he remained until
the detectives transported him to the parking garage inside
of the same building. Moving defendant from one location in
the jail to another did not counteract the coercive effects of
incarceration.
264                                              State v. Dean

         Second, contrary to the state’s assertion, there was no
“clear break” between the unlawful interrogation and defendant’s subsequent waiver. That assertion fails to account for
defendant’s reinitiation of contact with the detectives, which
is significant for multiple reasons. Defendant reinitiated
contact with Hawkinson mere minutes after Hawkinson
violated his right to counsel. Because our concern is with
the validity of defendant’s waiver, the timing of his reinitiation is important—it indicates when defendant made the
decision to waive his previously invoked right. Here, the
timing of defendant’s reinitiation of contact with the detectives suggests that the violation influenced his decision to
waive his previously invoked right, particularly when considered in conjunction with the manner and substance of the
violation as we explained above. See State v. Hickman, 

, 

 (2017) (the defendant did not
waive his previously invoked right by reinitiating conversation with the officer where there was no change in time or
circumstance between the impermissible interrogation and
the defendant’s statement and the statement was “prompted
by [the officer’s] continued impermissible interrogation”).
         Additionally, defendant’s reinitiation was the catalyst for further contact between defendant and the detectives, which undermined the value that a break in questioning normally provides in overcoming the harm of an earlier
violation. Although approximately one hour elapsed between
the initial violation and defendant’s written waiver, defendant was in direct contact with the same detectives for the
majority of the hour long “break.” As noted, defendant reinitiated conversation with the detectives minutes after he was
placed in the holding cell. At that point, defendant was left in
his holding cell for another 18 minutes before he was taken
to the parking garage. The conversation in the parking
garage lasted between 20 and 30 minutes. Further, defendant made potentially incriminating statements throughout
that conversation, referring to at least one prior robbery and
another robbery he had planned for the following weekend.
Defendant also discussed his method for selecting locations
to target, his methodologies for carrying out the robberies,
and his financial difficulties at length. See Scott, 

 (incriminating statements are anything the prosecution
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may seek to introduce at trial). At the end of the conversation in the basement, defendant admitted to stealing $7,000
from a safe in Cannon Beach.
         Defendant’s contact with and admissions to the
detectives during the break in questioning did little to reduce
the coercive effect of the violation. That is particularly evident when compared to the amount of contact that occurred
during breaks in questioning in prior cases. See State v.
Jarnagin, 

, 

 (2012) (break in
time aided state in meeting its burden where the defendant
was at home for two to three hours and no officers were present); Acremant, 

 (break in time between violation and waiver aided state in meeting its burden where the
defendant was left alone in the interview room for one hour).
Thus, the events that took place between the violation and
the waiver undermined the value that a break in questioning would normally provide.
          Third, the detectives’ repeated assurances of defendant’s rights and defendant’s affirmative responses were
also insufficient to overcome the harm of the violation, when
viewed under the totality of the circumstances. In particular, the nature of the violation in this case undermined
Hawkinson’s repeated assurances that defendant had rights
and that Hawkinson respected those rights. That is, the
nature of Hawkinson’s unlawful interrogation created—at
the very least—confusion with respect to the significance
and substance of defendant’s right. Hawkinson’s restatement of the same rights he had violated a short time earlier
did little to dispel that confusion or clarify the treatment to
which defendant was entitled after invoking his Article I,
section 12, right to counsel.
         Considering all of the above circumstances—the
detectives’ initial failure to honor defendant’s invocation
and the manner of that unlawful interrogation, the nature
of the contact between defendant and the detectives in the
time between the first and second interview, and the timing
of defendant’s reinitiation—in totality, we conclude that the
state failed to prove that it obtained defendant’s knowing,
intelligent, and voluntary waiver of his Article I, section 12,
rights either before his conversation with detectives in the
266                                                            State v. Dean

parking garage or the second custodial interrogation in the
interview room.5
         We acknowledge that Hawkinson’s repeated administration of defendant’s Miranda rights—after the detectives’ initial violation of those rights—and defendant’s
signed Miranda form weigh in favor of a conclusion that
defendant’s waiver was voluntary. However, we do not consider those subsequent Miranda warnings in a vacuum but
consider the totality of the circumstances. See Ward, 

 (any “countervailing circumstances” are viewed in
context with all of the relevant circumstances). After defendant invoked his right to counsel, Hawkinson interrogated
defendant in great detail and continually instructed defendant not to respond to the evidence presented against him.
Hawkinson, despite his protestations that defendant not
respond, primed defendant with the detailed evidence and
left defendant in his cell to consider the evidence presented
against him. We cannot say under those circumstances
that defendant’s reinitiation with detectives and his written waiver a short time later were enough to overcome the
state’s heavy burden of demonstrating that the waiver was
voluntary in light of the Miranda violation that immediately
preceded those events.
         We also conclude that the trial court’s erroneous
admission of defendant’s statements was not harmless. We
affirm a trial court’s erroneous ruling if there was “little
likelihood that the error affected the jury’s verdict.” State
v. Davis, 

, 

 (2003). “Our analysis
turns on the possible influence that those statements had on
the verdict and not whether proof of defendant’s guilt was
compelling even without the statements.” State v. Sanelle,

, 

 (2017), rev den, 

 (2018). During the second interview, defendant made
various incriminating statements including confessing to

    5
      In light of our conclusion that the state failed to prove that defendant made
a knowing, intelligent, and voluntary waiver of his Article I, section 12, rights
prior to his conversation with the detectives in the parking garage or the second
interview, we need not reach defendant’s similar arguments in support of suppression under the Fifth Amendment. State v. Kennedy, 

, 

 (1983) (we consider and dispose of all questions of state law before considering federal constitutional claims).
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the crimes underlying his convictions in this case. “A defendant’s direct admission bears an important relationship to
a jury’s determination of its verdict.” State v. Shaff, 

, 

 (2006), rev’d on other grounds, 

, 

 (2007). Therefore, the court’s error was
not harmless.
         In summary, the trial court erred when it declined
to suppress defendant’s statements from the second interview in the interview room, because the state failed to meet
its burden of proving that defendant made a knowing, intelligent, and voluntary waiver of his Article I, section 12,
rights.
        Reversed and remanded.