NEWMAN, J.
Reversed and remanded for new trial.
Van Hoomissen, J., specially concurring in part, dissenting in part.
NEWMAN, J.
Defendant appeals his convictions for rape in the first degree, sexual abuse in the second degree and burglary in the first degree. He assigns as errors that the trial court (1) provided written answers to jury questions in the absence of defendant and his counsel and without notice to them and (2) ruled that statements that defendant made to Detective Schultze of the Washington County Sheriff's Office were admissible at trial. Because we hold that the trial court erred in not suppressing statements defendant made to Schultze, we reverse and remand for a new trial and do not consider defendant's assignment of error regarding the court's answers to jury questions.
Defendant allegedly entered the home of the victim around 1 a.m. on April 8, 1981. In mid-morning she reported the incident to the police. She said that defendant had told her his name. Schultze knew defendant, whom he had previously hired to remodel his house. Schultze told defendant's wife that defendant was the prime suspect in a burglary-rape-sodomy investigation and that, if defendant did not contact Schultze by 4 p.m., he would seek a warrant for defendant's arrest. About 4 p.m., defendant's attorney telephoned Schultze and advised him that he was defendant's lawyer, that defendant would come to the police station by 5:15 p.m., that he had advised defendant not to talk to the police and that defendant would not make a statement.
About 5:20 p.m., defendant came to the police station without his counsel. Schultze took defendant into the interview room. He first asked defendant, "Other than this, how have things been going?" Defendant broke down and began to cry. He then asked, "Do I have a right to know what I'm being charged with?" Schultze responded, "Yes, rape, sodomy and burglary." Defendant then exclaimed, "I didn't steal anything!" Schultze then advised defendant of his Miranda rights. Defendant signed a waiver of rights card. Either just before or after Schultze gave the Miranda warnings, but following defendant's exclamation, "I didn't steal anything," Schultze said: "Harry, I'd like to help you if I can, but I've got to get your side of the story before I do." Defendant then made extensive incriminating statements to Schultze.
In a pretrial "Miranda" hearing to determine admissibility, the court ruled that defendant's statements to Schultze were admissible at trial. It found that defendant knew and understood his rights, that he was competent and adequately aware of the circumstances and that he knowingly and voluntarily waived his rights. Schultze's testimony as to defendant's statements to him became a significant part of the state's case. Defendant asserts that his statements to Schultze were obtained in violation of his right to remain silent under the Fifth Amendment to the United States Constitution. He also raises his right, under the Fifth Amendment, to the assistance of counsel at custodial interrogation, relying on Edwards v. Arizona, 451 U.S. 477, 101 S Ct 1880, 68 L Ed 2d 378 (1981).
The trial court's findings and order from the pretrial Miranda hearing provide:
"1. That the verbal statements made by defendant to Louis Schultze on April 8, 1981, were made freely and voluntarily, without promise of consideration or lenience, and without threat or coercion;
"2. That prior to being advised of his rights, the defendant volunteered the statement, 'I didn't steal anything';
"3. That prior to any interrogation by the police, defendant was advised of the following rights:
"a. the right to remain silent;
"b. That anything the defendant said could be used against the defendant in Court;
"c. The right to counsel prior to and during questioning;
"d. The right to Court-appointed counsel if the defendant is indigent;
"4. That defendant knew and understood these rights, and was competent and adequately aware of the circumstances, and knowingly and voluntarily waived these rights * * *
"* * * * *."
In his opening statement, the prosecutor described the testimony that Schultze would give:
"Put simply, he will describe to you — Detective Schultze will describe to you in detail what Mr. Barmon said, and, again, that will be very significant, but basically it is that he was lonely; he took some — he took a drug. His brain exploded. There are no statements about two eyes following him or bright lights; no Fourth of July effects. He got lonely and went to this house. He saw this woman. He went through a sliding-glass door. He put his shoulder to her bedroom door. He just wanted to talk to her. No gloves. He didn't put his hands around her throat; he put them on her shoulders. You will hear what I suggest to you are extremely mitigating or — well, mitigating factors from Mr. Barmon's version, and you will hear that he said, in effect, that this woman submitted or wanted to do these things, and she started kissing him. She wanted him to kiss her all over, and she participated, in effect, instigated these acts.
"That will be the testimony and the statement that Mr. Barmon, the Defendant, gave to Lou Schultze the next afternoon. Again, that will be significant, and I think in terms of what may have — may or may not have been said later and, certainly, in terms of the issue of credibility. Who are you going to believe in this particular situation and under these facts?
"So that's the State's case in chief * * *."
Schultze testified in the state's case in chief to the statements that defendant made to him. He also testified to defendant's statements in the state's rebuttal case. The prosecutor, in his closing argument to the jury, emphasized the differences between defendant's statements to Schultze and defendant's testimony at trial:
"Now, the fourth charge is burglary * * *. Is there any doubt about that?
"* * * [W]hen he entered, he did it knowingly. In other words, he was aware of what he was doing and he did it with the intent to commit a crime, either the crime of rape or the crime of sodomy, a sexual assault crime, and I submit then, what that gets us to in the State's case in chief — putting the defense aside for the moment — is based upon the facts that you heard both from the victim and from Detective Schultze through his interview with the Defendant — No. 1, a credibility issue exists because the Defendant admits being there, but to Detective Schultze — and there's some important things — he admits finding an unlocked sliding glass door and opening it. He admits going down the hall, putting his shoulder to a locked bedroom door * * *."
In addition to pleading not guilty, defendant had given written notice to the state of intent to rely on mental disease or defect excluding responsibility under ORS 161.295 and ORS 161.309(1), and also diminishing responsibility under ORS 161.300 and 161.309(2). Defendant's psychiatrist, as part of defendant's case, testified that in her opinion defendant was suffering from a mental disease or defect from ingesting LSD. In light of Schultze's testimony as to defendant's statements, the prosecutor, on cross-examination, asked her what effect it would have on her diagnosis "if the defendant was not being truthful with you in recounting what happened that evening?" The psychiatrist replied that she thought defendant was being truthful and later answered that in any event it would not change her diagnosis.
Defendant does not assert that his statements to Schultze were obtained in violation of his rights under Article I, section 12, of the Oregon Constitution, and so we do not consider the state constitutional question.
In his brief in this court, defendant argues Edwards extensively. At the pretrial Miranda hearing in September, 1981, held after Edwards was decided, the trial court specifically considered Edwards. Following the close of the evidence and the arguments of counsel, the court stated:
"The trouble I have here — and I have been, as counsel can see, I have been looking at some case law — and that is when an attorney tells the officer that his client is not going to make a statement, does that bring it within Edwards vs. State of Arizona. The U.S. Supreme Court this last Spring said that, 'When an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversation with the police.' So one issue we have is does that equate also with the fact situation where the officer is told by an attorney that, 'My client is not going to speak to you period. And if he tries to do so, you should call me.', or some words to that effect."
In Solem v. Stumes, ___ US ___, 104 S Ct 1338, 79 L Ed 2d 579 (1984), the United States Supreme Court declined to apply Edwards, decided May 18, 1981, retroactively in a collateral review on habeas corpus in the federal court to a final state court conviction rendered eight years before Edwards. Its opinion states that "[f]or purposes of this case, that is all we need decide about Edwards." ___ US at ___. We have held on direct review that Edwards applies in a direct appeal retroactively to rulings in the case that were made before Edwards was decided. State v. Taylor, 56 Or. App. 703, 708, 643 P.2d 379 (1982). We are free here to apply Edwards and Oregon v. Bradshaw, 462 U.S. 1039, 103 S Ct 2830, 77 L Ed 2d 405 (1983), which interpreted it.
The trial court, referring to Edwards v. Arizona, supra, commented at the pretrial hearing that "the accused himself has to initiate, has to actually begin the exchange with the officer." It concluded that "defendant himself did the initiating." The trial court's ruling, however, preceded the United States Supreme Court's analysis in Oregon v. Bradshaw, 462 U.S. 1039, 103 S Ct 2830, 77 L Ed 2d 405 (1983), of the constitutional standard to be applied to the facts to determine who initiated the dialogue. Moreover, although we are bound by the trial court's findings of historical facts, we are not bound by its constitutional conclusions. Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968); see also State v. Warner, 284 Or. 147, 585 P.2d 681 (1978); State v. Bishop, 49 Or. App. 1023, 621 P.2d 1196 (1980), rev den 290 Or. 727 (1981). Who "initiates" the exchange in light of the Fifth Amendment is not an historical fact but a conclusion of constitutional import. Oregon v. Bradshaw, supra, 462 US at 1045; see also Edwards v. Arizona, supra. As explained below, we conclude from the historical facts that Schultze, not defendant, "initiated" the dialogue.
First, it is clear that defendant was "in custody." He went to the police station at Schultze's demand and under threat of arrest. Defendant had told the victim his name. Schultze knew defendant was the man he wanted and had looked for defendant that afternoon. He had told defendant's wife to have defendant contact him by 4 p.m., or he would get a warrant for his arrest. In response to that demand, defendant's attorney called Schultze to tell him that defendant would come to the police station by 5:15 p.m., and defendant went to the station. When he asked Schultze, "Do I have a right to know what I am being charged with?", Schultze replied, "Yes, rape, sodomy and burglary." There is not the slightest doubt that Schultze intended to arrest defendant and that he was not free to leave. At the suppression hearing the court asked:
"When he had come in, meaning Mr. Barmon, I assumed that he was not going to be allowed to go — leave voluntarily; is that correct?"
Schultze replied, "That's correct." From the moment defendant met Schultze at the police station he was in custody. See State v. Roberti, 293 Or. 59, 644 P.2d 1104, 293 Or. 236, 646 P.2d 1341 (1982); State v. Paz, 31 Or. App. 851, 572 P.2d 1036 (1977), rev den 282 Or. 189 (1978).
Next, we conclude that defendant's counsel, by his telephone call at 4 p.m., in anticipation of defendant's meeting with Schultze, invoked defendant's rights to remain silent and to have the assistance of counsel at custodial interrogation. See State v. Sparklin, 296 Or. 85, 91, 672 P.2d 1182 (1983).
In State v. Sparklin, supra, 296 Or at 91, the court stated:
"Had Sparklin made a similar request in anticipation of, or during, interrogation he would have been entitled to the minimum protections afforded by the fifth amendment, the cessation of all interrogations until an attorney was made available to him." (Footnote omitted.)
Finally, defendant cannot be found to have waived his Fifth Amendment rights here unless he initiated the dialogue with the authorities. Oregon v. Bradshaw, supra; Edwards v. Arizona, supra. In Edwards, the court stated:
"* * * [W]e now hold that when an accused has invoked his right to have counsel present during custodial interrogation,
a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him,
unless the accused himself initiates further communication, exchanges or conversations with the police." 451 US at 484-85. (Emphasis supplied; footnote omitted.)
In Oregon v. Bradshaw, supra, the court discussed the meaning of the phrase "initiates further communication, exchanges or conversations with the police." There the police questioned the defendant at the police station about the death of a passenger in his pickup truck in a one-vehicle accident. The police gave Miranda warnings to the defendant. The defendant denied involvement in the traffic accident but admitted providing the victim, a minor, with liquor. He was arrested for that offense. An officer again questioned him about the traffic accident and the defendant requested an attorney. The conversation terminated. Later the police placed defendant in a patrol car to take him from the police station to the county jail, a distance of about 10 to 15 miles. On his own initiative, the defendant opened the conversation with the police by asking, "Well, what is going to happen to me now?" The officer reminded the defendant that he did not have to talk because he had requested an attorney. The defendant said that he understood, and a discussion ensued that led to his agreement to take a polygraph test and to the incriminating statements.
In Bradshaw the court ruled that the defendant's question, "Well, what is going to happen to me now?" evinced "a willingness and desire for a generalized discussion about the investigation." A plurality of the court stated:
"There are some inquiries, such as a request for a drink of water or a request to use a telephone that are so routine that they cannot be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation. Such inquiries or statements, by either an accused or a police officer, relating to routine incidents of the custodial relationship, will not generally 'initiate' a conversation in the sense in which that word was used in
Edwards.
"Although ambiguous, the respondent's question in this case as to what was going to happen to him
evinced a willingness and a desire for a generalized discussion about the investigation; it was not merely a necessary inquiry arising out of the incidents of the custodial relationship."
462 US at 1045-46. (Emphasis supplied.)
The issue here, therefore, is whether defendant or Schultze initiated the exchange by conveying a "willingness and desire for a generalized discussion about the investigation."
We conclude that Schultze initiated the exchange when he said, "Harry, I'd like to help you if I can, but I've got to get your side of the story before I do." That statement evinced Schultze's "desire for a generalized discussion about the investigation." The statement also constituted "words or actions on the part of police, other than those normally attendant on arrest and custody, that the police should know are reasonably likely to solicit an incriminating response from the suspect." State v. Fitzgerald, 60 Or. App. 466, 471, 653 P.2d 1289 (1982); Rhode Island v. Innis, 446 U.S. 291, 301-02, 100 S Ct 1682, 64 L Ed 2d 297 (1980); see also State v. Rodriguez, 37 Or. App. 355, 587 P.2d 487 (1978).
Moreover, contrary to the circumstances in Bradshaw, the setting, the sequence of events and the conversation with defendant were orchestrated by the police. Schultze sought out defendant and demanded that he come to the police station. When defendant arrived at the station, Schultze took him into the interview room and began the conversation by saying, "Other than this, how have things been going?" Despite his apparently neutral opening question, we can reasonably conclude that Schultze's intention in bringing defendant into the interview room was to initiate a dialogue with him about the criminal investigation.
Furthermore, defendant's question to Schultze, "Do I have a right to know what I'm being charged with?" is not a question that evinced "a desire for a generalized discussion about the investigation." Unlike the defendant's question in Bradshaw, defendant's inquiry here related more to a "routine" incident of the custodial relationship. Defendant wanted to know the charges against him. Moreover, his succeeding exclamation, "I didn't steal anything," in response to Schultze's recitation of the charges, also did not evince a desire to open a generalized discussion about the investigation. Schultze apparently realized the limiting nature of this response, because he then stated, "Harry, I'd like to help you if I can, but I've got to get your side of the story before I do." With this statement, Schultze turned the exchange into a generalized discussion of the criminal investigation and "initiated" the exchange within the meaning of Bradshaw.
In Bradshaw, the court stated that Edwards requires a two-step analysis under the Fifth Amendment. As the Court ruled in Bradshaw, after an accused has invoked his right to counsel the police may not conduct custodial interrogation unless, first, the accused initiates the communication, exchanges or conversation with the police and, second, the state shows that subsequent to the initiation the accused knowingly and intelligently waived the Fifth Amendment right to have counsel present during the interrogation. We do not reach the issue of waiver, however, because we conclude that the defendant did not initiate the dialogue with the police. Accordingly, defendant's statements which followed Schultze's statement, "Harry, I'd like to help you if I can, but I've got to get your side of the story before I do," should have been suppressed.
In State v. Sparklin, supra, the court stated:
"Once an attorney is appointed or retained, there can be no interrogation of a defendant concerning the events surrounding the crime charged unless the attorney representing the defendant on that charge is notified and afforded a reasonable opportunity to attend. No waiver of that right may occur until defendant has consulted with his attorney."
296 Or at 93.
"* * * * *
"Because defendant was represented by an attorney for the crimes against Steve Mansell, interrogation on this subject was improper and no waiver of this right can be given effect. However, with regard to the unrelated Davidson case, defendant's waiver is valid. * * *"
296 Or at 98.
The trial court's error was not harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 27, 87 S Ct 824, 17 L Ed 2d 705 (1967).
Reversed and remanded for a new trial.