State v. Rodriguez ( 2019 )

404
Argued and submitted January 17, reversed December 18, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
EDGAR RODRIGUEZ,
Defendant-Appellant.
Florence Municipal Court
1700033; A164217
456 P3d 312
Defendant appeals from a conviction for contempt of court entered fol-
lowing his refusal to testify, following his invocation of his right against self-
incrimination under Article I, section 12, of the Oregon Constitution, and the
Fifth and Fourteenth Amendments to the United States Constitution, in a mat-
ter resulting from a traffic accident. Defendant argues that the trial court erred
in concluding that he could be compelled to testify or be found in contempt for
refusing to do so. In response, the state argues that defendant’s blanket invo-
cation was improper, amounting to a refusal to take the witness stand at all.
Held: While a blanket invocation of self-incrimination is normally impermissi-
ble, here, because defendant’s refusal to testify came after the trial court had
ruled that defendant could not invoke his right against self-incrimination at all,
the trial court—not defendant—short-circuited the question-by-question process
that should have occurred. Accordingly, the trial court erred when it found defen-
dant in contempt of court.
Reversed.
Richard Brissenden, Judge.
Sara F. Werboff, 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.
E. Nani Apo, 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, and Egan, Chief Judge,
and James, Judge.
JAMES, J.
Reversed.
Cite as 301 Or App 404 (2019) 405
JAMES, J.
Defendant appeals a conviction for contempt of
court entered following his refusal to testify in the matter of
City of Florence v. Jordan Howell,1 despite an offer of immu-
nity by the state. We conclude that the immunity offered in
this case was insufficient to extinguish defendant’s rights
against compelled self-incrimination under Article I, section
12, of the Oregon Constitution. Accordingly, we reverse.
The facts are undisputed by the parties. Following
a traffic accident, the state charged defendant with refus-
ing a breath test, ORS 813.095; operating an unsafe vehi-
cle, ORS 815.020; driving under the influence of intoxicants,
ORS 813.010; driving while suspended, ORS 811.182; failing
to perform the duties of a driver, ORS 811.700; and initiat-
ing a false report, Florence City Code 6-1-1-B. During the
course of that prosecution, Jordan Howell, an associate of
defendant’s who was present during the accident, provided
an affidavit in which he averred that he was the driver of
the vehicle, not defendant, and that he had not observed
defendant intoxicated.
Defendant ultimately entered a plea of no contest
to driving while suspended, initiating a false police report,
and refusing a breath test. The remaining charges were dis-
missed pursuant to plea negotiations. Following defendant’s
conviction, the city charged Howell with false swearing and
subpoenaed defendant to testify in Howell’s prosecution—
the Howell matter. On the morning of trial on January 17,
2017, defendant, now represented by counsel, indicated
to the court that he anticipated the state’s questioning
would raise incrimination issues and that he would seek to
invoke his constitutional rights against self-incrimination.
It is apparent from the transcript that considerable dis-
cussions occurred between the parties and the trial court
off the record. The transcript reflects the parties’ efforts
to put those matters “on the record” after the chambers
conference.
1
Defendant’s conviction for contempt stemmed from his refusal to testify in
the related, yet separate, case heard in the municipal court of the City of Florence
on January 17, 2017, City of Florence v. Jordan Howell, Docket #160000316, here-
inafter referred to as the Howell matter.
406 State v. Rodriguez
Defendant, who at the time of the trial had pend-
ing charges both in the Florence municipal court and the
Lane County Circuit Court, indicated that he believed his
testimony could incriminate him in those pending matters.
In addition, as defendant articulated, he believed his testi-
mony was sought, in part, to build a conspiracy case for any
role he might have played in Howell’s false swearing charge:
“[DEFENSE COUNSEL]: As I stated in chambers, the
entire reason we’re here today is because the City doesn’t
believe the story that both Mr. Howell and [defendant] tell,
and he’s subjecting himself and—I understand that’s not
the only—you can’t take a Fifth Amendment right only to
protect yourself from perjury, but it’s apparently clear that
that is—he’s being subjected to potentially conspiracy to
commit perjury charge—a perjury charge and similar type
of conspiracy charge here[.]”
The court directly asked defendant to clarify whether
the assertions of his counsel were accurate, that he would, in
fact, invoke his rights against self-incrimination. Defendant
responded that he planned to invoke. In response, the city
indicated its intent in calling defendant:
“[PROSECUTOR]: Your Honor, this is a situation
where the defendant—the defendant in this matter gave a
false sworn statement. Our purpose of calling [defendant]
is to basically have him testify as to what he told the officer
in the case that involved him and the—setting the facts as
to what had occurred on that day in question.
“* * * * *
“Under the requirements, what we have the duty to do
and also the ability to do is demonstrate through the tes-
timony of the City witnesses, including [defendant], that
he—he provided information to the officer which was not
collaborated by the evidence that was gathered by the
officer[.]
“* * * * *
“[DEFENSE COUNSEL]: I’m under the impression
that, based on our conversation in chambers, the City
believes that they can question [defendant] about any of the
events that happened that day, and I believe he has a right
to invoke his Fifth Amendment right.
Cite as 301 Or App 404 (2019) 407
“If he’s simply going to question him about what he told
the officer that day, I may want to have a conversation with
my client before he takes the stand and we may want to
stop. * * *
“[PROSECUTOR]: Your Honor, that is not the intent
of the City to limit itself to just what he said to the officer—
“* * * * *
“[PROSECUTOR]: Well—and, Your Honor, the part
of it—there’s facts here. The fact[ ] is that this gentleman,
[defendant], pled no contest to various charges that were
faced out of this investigation that resulted in the affida-
vit coming from the current defendant, Mr. Howell. And
the City, does, in fact, plan on asking questions regard-
ing that because it does, in fact, show as a totality of the
circumstances for the jury as a trier of the fact to deter-
mine whether or not they find the testimony credible if
Mr. Howell takes the stand, and also on our proof as to the
officer’s observations, his documentation, and the corrobo-
rative evidence as required by the—by statute to come in.
So we’re not looking at just asking the question.”
In addition to stating its reasons for calling defen-
dant as a witness in the Howell matter, the city objected
to defendant’s blanket invocation of his right against
self-incrimination:
“[PROSECUTOR]: The blanket request—or the request
for a blanket Fifth Amendment invocation is not appro-
priate in this court or any court. Upon any question that
he believes is somehow going to prejudice him or incrimi-
nate him, then it would be on a case-by-case—question-by-
question basis.”
Finally, the city indicated that it was extending an
offer of immunity to defendant in exchange for his testimony:
“[PROSECUTOR]: * * * Your Honor, just to put it on
the record, and I apologize because we hadn’t gotten there
on this part, but I did say in chambers I did have a conver-
sation with Mr. Erik Hasselman, and Mr. Hasselman is
the deputy chief deputy for Lane County district attorney’s
office. He stated, I could represent to the Court, that his
office would not bring any charges resulting out of the driv-
ing, meaning any driving offenses, and we went through
408 State v. Rodriguez
as to what it was including, the DUII, the hit-and-run, and
the violation of operating an unsafe vehicle.”
Ultimately, the court concluded that either by vir-
tue of the plea of no contest previously entered, or by virtue
of the immunity offer, defendant was not entitled to assert
his rights against self-incrimination at all, regardless of the
specific questions:
“THE COURT: Well, I’ll tell you what—the Court has
familiarized itself with [defendant’s] file, and I feel that
I am pretty confident as far as what happened as far as
the record, and that [defendant] pled to certain charges,
two charges, and that it was clear on the record that the
other charges, the DUII, the hit-and-run, the operating
an unsafe vehicle, were being dismissed pursuant to plea
negotiations.
“I understand there was a box that was not checked on
the original judgment to that effect, but I’m confident that
that’s what happened and that was what was stated on
the record, and it was clear to the defendant at that time.
Okay.
“For that reason and based—so based on the inquiry as
I understand it to be contemplated today for [defendant]’s
testimony and the testimony here, I do not believe that that
will compel the witness to incriminate himself.
“[DEFENSE COUNSEL]: Your Honor, absent full
immunity, I don’t think that that’s a proper—excuse me,
but I don’t—absent full immunity, I don’t think he can be
compelled to testify.
“THE COURT: I’m saying it doesn’t—it doesn’t raise
that issue. Okay. Now, it’s a little difficult because, of
course, I am making a ruling sort of in blank because we’re
not actually in the middle of the testimony, but given the
situation, * * * I’m saying as far as the—the DUII and the
hit-and-run, you know, that that’s—it’s not going to incrim-
inate him.
“* * * * *
“[HOWELL’S COUNSEL]: And as I understand it, the
Court is making a ruling that there is no Fifth Amendment
privilege for the testimony regarding this—you know, that
incident that’s going to happen. That’s on the record.
Cite as 301 Or App 404 (2019) 409
“THE COURT: Correct.
“* * * * *
“THE COURT: Okay. [Defendant], do you—under-
standing that the Court is saying you do not have that—
the right to invoke the Fifth Amendment—that doesn’t
apply here. Okay.—do you intend—so that the Court will
direct you to testify. Do you intend to testify here today?
“[DEFENDANT]: I will not. If I may, Your Honor,
there’s too many unknowns that (inaudible)—
“THE COURT: Okay.”
At that point, the court asked the city if it wanted to
call defendant, outside the presence of the jury, to make an
“offer of proof.”
“THE COURT: * * * Question, does the City wish to
inquire of the defendant at this point? Or not the defen-
dant. I’m sorry. [Defendant]—
“[PROSECUTOR]: Right.
“THE COURT: —at this point on the subject of his not
[sic] refusing to testify?
“[PROSECUTOR]: Yes, I guess we need to proffer—
“THE COURT: An offer of proof—
“[PROSECUTOR]: —a record.”
The city then called defendant to the stand and made the
following inquiry:
“[PROSECUTOR]: [Defendant], isn’t it true that on
October 3rd of 2015 that you made a report to the Florence
Police Department reporting a hit-and-run accident?
“[DEFENDANT]: I believe it was around that day
(inaudible).
“[PROSECUTOR]: And about—that was in the morn-
ing. Call time was someplace around 6:35 or thereabouts?
“[DEFENDANT]: Again, that’s been so long, I don’t
know.
“[PROSECUTOR]: All right. And when you reported
this crime taking place, did you give your location of where
you—where this occurred?
410 State v. Rodriguez
“[DEFENDANT]: Again, I’m going to have to answer
that I don’t remember. It’s been so long.
“[PROSECUTOR]: Do you remember an officer com-
ing out and investigating after you reported the crime of
hit-and-run to your vehicle?
“[DEFENDANT]: I do.
“[PROSECUTOR]: And that was Officer Kyle Elliott,
who is sitting to my right. Is that correct?
“[DEFENDANT]: I remember Officer Leonard Larson
and then Elliott coming afterwards, but I might be wrong
on that also.
“[PROSECUTOR]: Do you remember telling Officer
Elliott that you had been in Salem the day before for a
class?
“[DEFENDANT]: I do not recall. Again, it’s been so
long. And as you all well know, I suffered multiple injuries
from gunshots and I was in a coma, so my memory is not as
well as it used to be, so I don’t know.”
At this point, Howell’s counsel objected to this line of
questioning. In aid of the objection, counsel asked defendant
to clarify whether he intended to invoke his right against
self-incrimination, and defendant indicated yes, that he
would not offer testimony. The court agreed that the “offer of
proof” had exceeded its scope and stopped the questioning:
“THE COURT: * * * It’s established that he is going
to refuse to testify even though he’s been told [he] doesn’t
have the right to do that. He’s been called and subpoenaed
and put on the stand and he’s saying I won’t testify in this
trial in front of the jury.”
Ultimately, defendant was convicted of criminal
contempt for his refusal to testify, and this appeal followed.
On appeal, defendant argues that the trial court erred in
concluding that defendant could be compelled to testify or
found in contempt for refusing to do so. The state argues
that defendant’s blanket invocation was improper. This
court reviews a trial court’s determination that a witness
may not invoke his right against self-incrimination for legal
error. Redwine v. Starboard, LLC, 240 Or App 673, 681, 251
P3d 192 (2011) (“We review the trial court’s conclusion as to
Cite as 301 Or App 404 (2019) 411
the applicability of a privilege in this context for errors of
law.”).
We begin by addressing an issue of preservation.
The state disputes that defendant can rely on Article I, sec-
tion 12, on appeal. The state is entirely justified in raising
that preservation argument, as all of the argument and dis-
cussion on the morning of trial referenced solely the Fifth
Amendment to the United States Constitution. It was only
upon further briefing that defendant raised Article I, sec-
tion 12. But, our reading of the proceedings below convinces
us of the appropriateness of a broader view.
Understandably, everything that transpired on the
morning of trial did so in a shorthand manner—a trial was
scheduled to commence imminently, and one witness was
indicating he would not testify. Neither side had prepared
briefing on that legal issue for the trial court. As is not
uncommon, when the parties became aware of the potential
stumbling block, conversations were had in chambers and
then quickly put on the record. The trial then moved for-
ward. After the court’s initial ruling, both sides submitted
lengthy memoranda of law. Those written materials relied
on both the state and federal constitutions. This resulted,
ultimately, in a thoughtful, written opinion from the trial
court that addressed both the state and federal constitutions.
Based on how this issue transpired, we view the
oral arguments and oral rulings made by the trial court
in the moment as preliminary rulings. The trial court was
faced with the challenge of reaching a decision and keeping
the scheduled trial on track. Sometimes the reality of trial
dictates that, in such situations, an initial ruling may be
given, and the parties and the court will revisit it in a more
thoughtful manner when time permits. Here, the written
arguments of the parties and the written ruling by the trial
court are not separate proceedings, but a continuation of the
pretrial discussions.
At its core, the rules of preservation are grounded
in practicalities, not technicalities. As the Oregon Supreme
Court has noted, preservation polices are “prudential” and
“pragmatic” in nature. Peeples v. Lampert, 345 Or 209, 220,
412 State v. Rodriguez
191 P3d 637 (2008). The sine qua non of preservation is pro-
cedural fairness to the parties and to the trial court. See
generally State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988)
(distinguishing requirements for “raising an issue at trial,
identifying a source for a claimed position, and making a
particular argument” (emphasis in original)).
In assessing whether the purposes of preservation
have been met, we can look generally to, first, whether the
arguments “[gave] a trial court the chance to consider and
rule on a contention, thereby possibly avoiding an error
altogether or correcting one already made, which in turn
may obviate the need for an appeal.” Peeples, 345 Or at 219.
Second, we look to whether the arguments “[permitted] the
opposing party to respond to a contention and by otherwise
not taking the opposing party by surprise.” Id. Finally, we
consider whether the arguments “[fostered] full development
of the record, which aids the trial court in making a decision
and the appellate court in reviewing it.” Id. at 219-20.
Our review of the record in this case convinces
us that all of the purposes of preservation were met.
Accordingly, we view the oral arguments and subsequent
written submissions as a continuous whole. We also view
the trial court’s oral rulings, as well as the court’s written
explanation, as a whole. Because the written memoranda
by the parties, as well as the trial court’s written ruling,
relied on the state constitution, we conclude that defendant’s
Article I, section 12, arguments are preserved. We turn now
to the merits.
The Fifth Amendment provides that “[n]o person
* * * shall be compelled in any criminal case to be a wit-
ness against himself.” The Fifth Amendment’s protections
against self-incrimination can be asserted in any proceed-
ing, be it civil, criminal, administrative, judicial, investiga-
tive, or adjudicatory. See Kastigar v. United States, 406 US
441, 444, 92 S Ct 1653, 32 L Ed 2d 212 (1972). However,
the privilege is not a right to refuse to honor a subpoena or
take the witness stand. Rather, barring exceptional circum-
stances, the only way a person can assert the privilege is
on a question-by-question basis. As to each question asked,
the party has to decide whether or not to raise his Fifth
Cite as 301 Or App 404 (2019) 413
Amendment right. Mitchell v. United States, 526 US 314,
321-22, 119 S Ct 1307, 143 L Ed 2d 424 (1999) (“The priv-
ilege is waived for the matters to which the witness testi-
fies, and the scope of the waiver is determined by the scope
of relevant cross-examination[.] The witness himself * * *
determines the area of disclosure and therefore of inquiry.”
(Internal citations and quotation marks omitted.)); see also
United States v. Bodwell, 66 F3d 1000, 1001 (9th Cir 1995)
(holding that Fifth Amendment invocation must occur on a
question-by-question basis).
Barring exceptional circumstances, the requirement
for a question-by-question invocation is necessary for the
court to determine whether the privilege applies, by evalu-
ating whether “the answer to that particular question would
subject the witness to a real danger of * * * crimination[,]” as
opposed to “a mere imaginary possibility of increasing the
danger of prosecution.” Rogers v. United States, 340 US 367,
374-75, 71 S Ct 438, 95 L Ed 344 (1951) (internal quotation
marks omitted). The witness claiming the privilege bears
the burden of establishing that an answer could be injuri-
ous, although the court must construe the privilege liberally
“in favor of the right it was intended to secure.” Hoffman v.
United States, 341 US 479, 486, 71 S Ct 814, 95 L Ed 1118(1951).2
2
We note that there are two statutory provisions that directly govern the
procedures for how an invocation of the right against self-incrimination should
procedurally be addressed in Oregon courts. The statutes were never addressed
at trial, nor by the parties on appeal. We include them for reference.
ORS 136.617 provides:
“In any criminal proceeding before a court of record or in any proceeding
before a grand jury, or in any proceeding before a court of record under ORS
646.760 [Civil penalties], or in any proceeding for the imposition of remedial
or punitive sanction for contempt, if a witness refuses to testify or produce
evidence of any kind on the ground that the witness may be incriminated
thereby, the prosecuting attorney may move the court to order the witness
to testify or produce evidence. The court shall forthwith hold a summary
hearing at which the prosecuting attorney shall show reasonable cause to
believe the witness possesses knowledge relevant to the proceeding, or that
no privilege protects the evidence sought to be produced. The witness may
show cause why the witness should not be compelled to testify or produce
evidence. The court shall order the witness to testify regarding the subject
matter under inquiry upon such showing of reasonable cause or shall order
the production of evidence upon a finding that no privilege protects the evi-
dence sought, unless the court finds that to do so would be clearly contrary
to the public interest. The court shall hold the summary hearing outside the
414 State v. Rodriguez
The privilege against self-incrimination covers both
answers that would support a conviction and answers
“which would furnish a link in the chain of evidence needed
to prosecute the claimant.” Hoffman, 341 US at 486. “To
sustain the privilege, it need only be evident from the impli-
cations of the question, in the setting in which it is asked,
that a responsive answer to the question or an explanation
of why it cannot be answered might be dangerous because
injurious disclosure could result.” Id. at 486-87. In assess-
ing a person’s claim of privilege, the trial court’s role is to
determine whether there is a risk of incrimination, and the
privilege must be sustained unless it is “perfectly clear, from
a careful consideration of all the circumstances in the case,
* * * that the answer[s] cannot possibly have such tendency
to incriminate.” Id. at 488 (internal quotation marks omit-
ted; emphasis in original).
Article I, section 12, provides a similar—yet analyt-
ically distinct—right that “[n]o person shall be put in jeop-
ardy twice for the same offence [sic], nor be compelled in any
criminal prosecution to testify against himself.” The right
against self-incrimination is “a personal privilege that may
be waived, and, if not claimed, is deemed waived.” State of
Oregon v. Hennessey, 195 Or 355, 366, 245 P2d 875 (1952).
Like the Fifth Amendment, one’s right under Article I, sec-
tion 12, is not a right against taking the witness stand.
presence of the jury and the public and may require the prosecuting attorney
to disclose the purpose of the testimony or evidence. The witness shall be
entitled to be represented by counsel at the summary hearing.”
ORS 136.619 provides:
“A witness who, in compliance with a court order issued under ORS 33.085
[Compelling testimony of witness] or 136.617 [Motion to compel witness who
may be incriminated to testify], testifies or produces evidence that the witness
would have been privileged to withhold but for the court order, may be pros-
ecuted or subjected to any penalty or forfeiture for any matter about which
the witness testified or produced evidence unless the prosecution, penalty or
forfeiture is prohibited by section 12, Article I of the Oregon Constitution.
The testimony of the witness or evidence produced or information derived
from the testimony or evidence may not be used against the witness in any
criminal prosecution. However, the witness may nevertheless be prosecuted
or subjected to penalty for any perjury, false swearing or contempt committed
in answering, or failing to answer, or in producing, or failing to produce, evi-
dence in accordance with the order. If a person refuses to testify after being
ordered to testify as provided in this section, the person shall be subject to
penalty for contempt of court for failure to comply with the order.”
Cite as 301 Or App 404 (2019) 415
Rather, it is invoked on a question-by-question basis. “[A]
person who wishes to avoid such self-incrimination ordi-
narily must invoke the protection of the privilege instead
of answering the posed questions.” State v. Tenbusch, 131
Or App 634, 640, 886 P2d 1077 (1994). Further, answering
a question does not foreclose one’s right to assert the privi-
lege as to other questions. State v. Kell, 303 Or 89, 99, 734
P2d 334 (1987) (In the context of custodial interrogation,
“[d]efendant was entitled to pick and choose what he wished
to talk about.”).
In State v. Soriano, 68 Or App 642, 684 P2d 1220,
aff’d, 298 Or 392, 693 P2d 26 (1984), we held that, distinct
from the Fifth Amendment, the state can only extinguish an
Oregonian’s right against self-incrimination under Article I,
section 12, if it provides a full and adequate substitute—i.e.,
transactional immunity:
“We hold that Article I, section 12, of the Oregon
Constitution requires transactional immunity as a substi-
tute for the right not to testify against oneself.
“* * * * *
“The citizens of Oregon are entitled, under their constitu-
tion, not merely to a ‘substantial’ substitute for their con-
stitutional rights, but to one which has ‘the same extent in
scope and effect.’ Mere use and derivative use immunity
falls short of that constitutionally-required minimum.
“* * * * *
“In contrast, a grant of testimonial immunity is a con-
scious prosecutorial choice, taken after careful consid-
eration and with full knowledge of its results. It is not a
violation of the witness’ constitutional right but a determi-
nation to substitute for that right another one granted by
the legislature and found by the courts to be an adequate
replacement. The constitutional right given up is not to
be compelled to testify against oneself. A witness granted
immunity and then required to testify has not received full
value for that lost right if there is any way the testimony
can cause harm to the witness in that prosecution.”
Id. at 662-64 (footnotes omitted).
The right against self-incrimination can be invoked,
as in this case, by a witness, not just a defendant. The right
416 State v. Rodriguez
of a witness to refuse to answer questions on the basis of
his constitutional right against self-incrimination is a per-
sonal privilege of the witness over which the defendant has
no control. State v. Harper, 33 Or 524, 528, 55 P 1075 (1899),
overruled on other grounds by State v. Abbott, 275 Or 611,
552 P2d 238 (1976). As such, the Oregon Supreme Court has
noted:
“Since the witness’s right is personal and beyond the
control of either the defendant or the state, it is quite clear
that the exercise of the right by the witness should be
treated as casting no inference either of guilt or innocence.”
State v. Johnson, 243 Or 532, 538, 413 P2d 383 (1966).
In that vein, it is error to call a witness to the
stand for the sole purpose of forcing that witness to invoke,
in the presence of the jury, his or her rights against self-
incrimination; it is likewise error to comment in argument
to the jury on the failure of a witness to testify who has val-
idly invoked that privilege. Abbott, 275 Or at 615; Johnson,
243 Or at 538; see also State v. Froats, 47 Or App 819, 821,
615 P2d 1078 (1980); State v. Sutterfield, 45 Or App 145,
607 P2d 789 (1980); State v. Shaw, 20 Or App 587, 532 P2d
1143 (1975). Rather, the proper procedure was set forth in
Johnson:
“If the state is at any time uncertain whether or not a wit-
ness will refuse to testify, this can be easily determined
before the trial court in the absence of the jury * * *.”
243 Or at 539.
With that framework in mind, we turn to its applica-
tion here. At the outset, it is critical to highlight what is not
at issue in this case. First, in briefing, and upon clarification
at oral argument, the state does not argue that the immu-
nity offered here for “driving crimes” qualifies as “transac-
tional immunity” as required under Article I, section 12,
and Soriano. See 68 Or App at 662. Without transactional
immunity, the state does not contest that—at a minimum—
some of the questions apparently contemplated by the city
prosecutor would have incriminated defendant. Accordingly,
the state concedes that defendant would have a right against
self-incrimination as to some questions. Having so distilled
Cite as 301 Or App 404 (2019) 417
the issue, this case turns on whether defendant could, and
in fact did, properly invoke his Article I, section 12, rights.
The state argues that defendant improperly asserted
a blanket invocation—in effect, refusing to take the stand at
all. We do not read the record in that manner. At the begin-
ning of discussions on the record, defense counsel indicated
to the court that defendant intended to invoke his right
against self-incrimination. The court inquired of defendant
as follows:
“THE COURT: And is that true, [defendant], that you
intend to invoke your Fifth Amendment rights for those
reasons?
“[DEFENDANT]: Yes, Your Honor.”
That exchange does not reflect an improper blanket invo-
cation. Rather, it was defendant alerting the court, and the
city prosecutor, that he would be invoking his rights if called
to testify. That was entirely proper under Johnson. 243 Or
at 538.
The second point in the exchange that might rep-
resent a “blanket invocation” came later, during the “offer
of proof.” There, defendant did, ultimately, declare that
he would not take the stand before the jury—a seemingly
impermissible blanket invocation. But that statement by
defendant cannot be divorced from the trial court’s ruling,
which came before, that defendant had no right against self-
incrimination at all.
“THE COURT: Okay. [Defendant], do you—under-
standing that the Court is saying you do not have that—
the right to invoke the Fifth Amendment—that doesn’t apply
here. Okay.—do you intend—so that the Court will direct
you to testify. Do you intend to testify here today?”
(Emphasis added.)
That ruling by the trial court, and its pronounce-
ment to defendant that he could not invoke his privilege
against self-incrimination at all, was error. Had the trial
court ruled that a blanket invocation would not be permissi-
ble and that defendant would need to invoke on a question-
by-question basis, and then defendant refused to take the
418 State v. Rodriguez
witness stand, it would be a different matter. But, instead,
defendant’s refusal to testify at all came only after the trial
court had ruled, without hearing the specific questions, that
no right against self-incrimination applied at all. But, as
acknowledged by the state on appeal, the prosecutor had, in
fact, entire lines of questioning that would have implicated
defendant and to which his right against self-incrimination
would apply. Thus, it was not defendant’s blanket invoca-
tion, but rather the court’s ruling, that short-circuited the
question-by-question process that should have occurred.
Accordingly, we conclude that the trial court erred
in entering a judgment of contempt.
Reversed.