54 February 20, 2025 No. 118
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
KENNETH CHARLES JUTTNER,
Defendant-Appellant.
Klamath County Circuit Court
20CR68560; A178271
Marci Warner Adkisson, Judge.
Argued and submitted January 22, 2024.
Anne Fujita Munsey, 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.
Erica L. Herb, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Powers, Presiding Judge, Hellman, Judge, and
Armstrong, Senior Judge.
POWERS, P. J.
Reversed and remanded.
Cite as 338 Or App 54 (2025) 55
POWERS, P. J.
In this criminal case, defendant appeals from a
judgment of conviction for four counts of first-degree sexual
abuse. Defendant challenges the trial court’s ruling that his
statements in an interview with military agents were admissible. Defendant contends that he unequivocally invoked his
right to silence and thus that all statements made after his
invocation should have been suppressed. In the alternative,
defendant argues that, even if his invocation was equivocal,
the agent’s follow-up statements were not permissible clarifying questions. As explained below, we agree with defendant’s alternative argument and conclude that the agent’s
statements following what we presume to be an equivocal
invocation were impermissible. Accordingly, we reverse.
The pertinent facts are undisputed and relatively
few. Defendant was identified in a child exploitation investigation in Pennsylvania, and he was taken into custody by
the Naval Criminal Investigative Service (NCIS). Special
Agents Garcia and Salis, who interviewed defendant,
advised him of his Miranda rights using a standard form.
Defendant told them that he understood his rights and initialed an enumeration of his rights listed on the form.
Garcia then asked defendant whether he agreed to
speak with the NCIS agents. Defendant responded by saying, “No, because I don’t even,” and then he gestured with his
hand toward a document detailing the allegations against
him. Garcia, who testified at the suppression hearing that
he thought that defendant did not understand the charges,
responded by telling defendant, “I can’t explain these allegations to you until you decide to speak to us. So, I am not
allowed to ask you any kind of questions or anything like
that. We can’t have a conversation about this until you agree
to waive your rights and speak to us.” Defendant was silent
for about a half a minute, and then Garcia said, “Tell you
what, we can have a conversation. You can terminate this
interview at any time you want. But until you waive your
rights, we can’t have a conversation about these allegations.”
Defendant then began to sign the form, and Garcia stopped
him and instructed defendant to read the last paragraph out
loud. Defendant read the last paragraph, which explained
56 State v. Juttner
that he was waiving his rights to silence and to an attorney.
Defendant then initialed and signed the waiver, and Garcia
and Salis proceeded to interview defendant about the substance of the allegations.
Ultimately, defendant was charged by a secret
indictment with counts of sodomy in the first degree and
sexual abuse in the first degree for conduct that occurred in
Oregon. As part of the criminal proceedings, the state moved
for a “Jackson/Denno” hearing to determine the admissibility of statements made by defendant to law enforcement
during the investigation. See Jackson v. Denno, 378 US 368,
376-77,
84 S Ct 1774,
12 L Ed 2d 908 (1964) (holding that,
where a criminal defendant challenges the voluntariness of
statements made to officials that the state seeks to admit at
trial, the Due Process Clause of the Fourteenth Amendment
to the United States Constitution requires the trial court
to hold “a fair hearing and a reliable determination on the
issue of voluntariness”). The trial court determined that
defendant initially indicated that he was not willing to talk
to Garcia because he did not understand the allegations
and that Garcia made clarifying statements to explain why
Garcia could not talk about the allegations unless defendant waived his rights. The court concluded that defendant
knowingly, intelligently, and voluntarily waived his rights,
and that all statements were admissible. The case proceeded to a jury trial. After the state called its first witness,
the parties settled: defendant agreed to enter into a conditional guilty plea to four counts of first-degree sexual abuse,
ORS 163.427, while preserving his right to appeal the ruling after the Jackson/Denno hearing.1 The court accepted
the plea and entered the judgment of conviction. This timely
appeal follows.
On appeal, defendant raises a single assignment of
error and contends that his statement, “No, because I don’t
even,” was an unequivocal invocation of his right to silence
and that all questioning should have ceased at that point.
Alternatively, defendant argues that his statement was at
least an equivocal invocation and that Garcia’s response
1
ORS 163.427 has been amended since the underlying conduct in this case.
Or Laws 2021, ch 82, § 7.
Cite as 338 Or App 54 (2025) 57
that he would like to talk to defendant about the allegations
was not the type of clarifying statement the law permits.
The state remonstrates that defendant’s “No, because I
don’t even” statement, along with his gesture, constituted
an equivocal invocation and argues that, given the totality
of the circumstances, Garcia’s responses properly clarified
defendant’s intent.
We review for legal error. State v. Roberts, 291 Or
App 124, 129,
418 P3d 41 (2018) (reviewing the invocation
question for legal error); State v. Acremant,
338 Or 302, 321-
22,
108 P3d 1139, cert den,
546 US 864 (2005) (reviewing a
trial court’s conclusions on the waiver of the right to counsel
for legal error).
If a defendant’s invocation is unequivocal, then the
interrogation must cease immediately; however, if the invocation is equivocal, an officer is permitted to either “(1) stop
the interrogation or (2) ask the defendant neutral follow-up
questions intended to clarify the equivocal nature of [the]
defendant’s statement.” State v. Joaquin, 307 Or App 314,
320-21,
476 P3d 1263 (2020) (internal quotation marks omitted; brackets in Joaquin). Moreover, “[a]ny questioning not
reasonably designed to clarify the equivocal nature of the
statement is impermissible.” State v. Schrepfer,
288 Or App
429, 436,
406 P3d 1098 (2017).
As an initial matter, we need not decide whether
defendant’s “No, because I don’t even” statement was
unequivocal because it was, at the very least, an equivocal
invocation of his right to silence. See Roberts, 291 Or App
at 132 (explaining that an invocation is equivocal “when
the suspect’s statement or request is subject to more than
one reasonable interpretation, one of which is that [he, she,
or they are] invoking the right” at issue). Thus, the issue
becomes whether Garcia’s further interview of defendant
was reasonably designed to clarify the equivocal nature of
defendant’s statement. As explained below, we agree with
defendant’s argument that Garcia’s responses went beyond
the permissible bounds of seeking clarification.
Here, Garcia’s two statements following defendant’s
“No, because I don’t even” statement do not constitute
58 State v. Juttner
clarifying statements or questions. That is, even if Garcia
was confused as to whether defendant wanted to waive his
rights, Garcia did not use neutral, clarifying questions to
clear up any confusion on Garcia’s part. Instead, Garcia
pressed defendant to speak about the allegations when he
told defendant, “I can’t explain these allegations to you
until you decide to speak to us,” and then interjected after a
short pause, “Tell you what, we can have a conversation. You
can terminate this interview at any time you want. ….”
Although it is arguable that Garcia’s statement informing
defendant that they could not “have a conversation about
this until” defendant agreed to waive his rights could be
considered clarifying, the context of Garcia’s response to
defendant’s equivocation is better viewed as encouraging or
pressuring defendant to rethink his invocation and to waive
his rights. See Joaquin, 307 Or App at 323 (explaining that
“police do not satisfy their obligations in the face of an equivocal invocation simply by repeating a suspect’s rights while
keeping the suspect talking” and that “continued questioning must clarify whether a suspect invoked” the right, “not
provide an opportunity to rethink it”). Therefore, we reverse
the trial court’s contrary conclusion and remand to allow
defendant to decide whether to withdraw his conditional
guilty plea. See State v. Leach,
294 Or App 639, 646,
432 P3d
310 (2018) (explaining that we have consistently declined to
engage in a harmless error analysis in appeals arising from
conditional pleas under ORS 135.335(3)).
Reversed and remanded.
