*1 24, 1985, July July Argued In Banc reversed resubmitted and submitted 10,1986, petition March reconsideration denied for new trial December remanded 7,1987 (303 261) April Or for review allowed OREGON, OF STATE Respondent, v. FOSTER, E. KENNETH Appellant. A33631) (J84-1475; CA P2d 599 *2 Stephen Williams, J. Defender, Deputy Salem, Public argued the cause for appellant. him on With the brief was Gary Babcock, D. Defender, Public Salem.
Stephen Peifer, F. Attorney General, Salem, Assistant argued the cause for respondent. him on With the brief were Dave Frohnmayer, General, Attorney and James E. Moun- tain, Jr., General, Solicitor Salem.
NEWMAN, J.
Warden, J., dissenting.
Deits, J., did not participate this decision.
NEWMAN, J. felony for murder. appeals his conviction
Defendant the previous conviction for Supremе Court reversed offense, polygraph use of improper because of the state’s same Foster, P2d evidence. State v. erred in not
Here, primarily that the court defendant asserts police, which were suppressing that made to the statements at and reverse and remand. against agree used him trial. We body of discovered the August On County. He had been beaten Norwest in a field in Klamath Thereafter, seven times in head. shot men were indicating that four tips received a number of Snider, Walker, Jackson responsible for the murder: defendant. County 17, Klamath p.m.
At about a traffic accident investigating Jenson was Deputy Sheriffs chasing driving away, As he saw two men Chiloquin. he was frantically highway. Defendant waved along defendant help He asked Jenson got down the officer and into car. him, kill trying two men were him. He claimed that *3 Jenson killing because he had been involved the Norwest. defendant was talking whom he was and that realized with homicide. Defen- questioning wanted for about the Norwest Jenson turned and shirt were covered with blood. dant’s face attendants, to hospital, took him a him over to who ambulance knee, mouth and for to his injuries where he was treated ribs. the
Burkhart, investigator assigned to the sheriffs the homicide, shortly thereafter at met defendant Norwest and the ambulance attendants hospital. spoke He with the spoke He then with who was defendant. treating doctor Burkhart defendant, would talk him. who indicated that he at interview, subsequent which commenced tape recorded the p.m. August on 17. Burkhart, warnings, giving defendant Miranda After deputy a district officers and help with the of two other in the involvement attorney, defendant about his questioned being interview, defendant admitted During homicide. the they picked a when Walker, and Snider in van with Jackson denied day the he was killed. Defendant up Norwest on he knowing going got where the men were when into the van. initially seeing any denied that he did not guns He and said anyone. being Defendant admitted the van when shoot with Jackson. He also stated that fighting Norwest had ordered out of the van and that he then Jackson Norwest interview, gunshots heard from over a hill. Later in the said that had a rifle and picked up defendant he it had discharged into a in the speaker van. Burkhart concluded the forty interview at 1 a.m. on 18 and arrested defendant later kidnapping. minutes for
At 9 mоrning, a.m. that met with Burkhart Walker and attorney and obtained more information about homicide. He then to the hospital again returned inter- viewed defendant. He read defendant Miranda at warnings beginning of the gave interview. Defendant an account leading events to the homicide that to the one was similar given riding had He night before. admitted while victim, accidentally the van with the he had shot him in the interview, arm. p.m., felony After at 4 filed a Burkhart information that charged kidnapping. defendant with
On August after defendant been arraigned had the kidnapping court, and the charge apparently at his request, appointed him, had represent counsel Burkhart a telephone Crume, received call from friend defendant’s just who had visited Crume him. told Burkhart that defendant wanted to talk with him and tell everything he knew. Bur- phoned khart then jail requested that defendant be cell, to a brought holding where Burkhart asked him if he to talk. wanted Defendant said that he did. Burkhart had him taken to the for the again tape sheriffs office interview. He gave recorded interview and at warnings Miranda outset. Burkhart rights. asked defendant understood his The following then occurred:
“ rights does What exercise these mean? [Defendant:] *4 “ Okay, you your exercise сan means have [Burkhart:] anytime rights you stop talking you to. if want You can anymore, you your lawyer.Okay, want don’t to talk want do mind do you rights? Having rights understand those these you wish to talk to me about the case?
“ Yes. [Defendant:]
734 “ tape Okay, you I understand that am [Burkhart:] do
recording conversation? this
“ [Defendant:] Yes. “ right. All I from Colleen [Burkhart:] received call youmight just ago while and sheindicated Crume a little again. go Is that true? overthis with us a desire
“ I little bit more.” [Defendant:] Yesit is. havea greater
During admitted the interview defendant intentionally but still denied involvement in the homicide shooting claimed that the victim the victim in the van and still and Jackson. was killed Snider August supress Defendant moved to his statements motion, used 17,18 and the state and 20. The court denied assigns ruling the court’s at trial.1 Defendant the statements argues suppress he made the as error. He on the motion to knowingly involuntarily and intel and without statements accordingly, rights ligently waiving and, that the his Miranda I, 12, section the statements violated Article state’s use of Oregon Amendment. He also Constitution and the Fifth August respect 18 and claims, to the statements of with I, under Article violated his to counsel that the section 11.2 constitutional examine defendant’s state
We first
challenge
August
has
statement. The state
to the use of his
17
prove by
weight of the evidence that
the clear
the burden to
freely
voluntarily.
State
was made
defendant’s statement
(1982).
App
must
Burdick,
601, 605,
P2d 91
It
646
v.
57 Or
given “without inducement
the statement was
show
implied.”
promises,
through
v. Men
direct or
State
fear or
(Citation
(1980)
dacino,
231, 235,
P2d 1376
603
omitted).
evaluating voluntariness,
look at the
we must
In
totality
Cochran, 72 Or
State v.
of the circumstances.
(1985).
by the trial court’s
We are bound
696 P2d
findings
its
fact,
are not bound
but we
of historical
interview,
tapes
August
of the
Burkhart
testified to the contents of
played
jury.
August
were
to the
18 and
20 interviews
Jenson,
challenges
aрpeal
statements to
the state’s use of his
On
defendant also
hearing
the motion to
At the
the statements he made to Burkhart.
as well as
however,
suppress,
the statement
to Jenson
counsel admitted that
defense
admissibility
and, accordingly,
here.
the issue of its
defendant cannot raise
admissible
Hickmann,
358, 360,
At the time of his first interview with Burkhart during night 17-18, of August defendant was in the hospital. The following excerpts are indicative of the tenor of the questioning: “ cousin, I my never shot I’ve lived with [Defendant:] —now, long for a time Well, you’re up your this, involved neck “[Police:]
you’re pretty deep. into it you Do talking know what we’re thinking about? Start about the truth.
“Kenny, you do talking know what we’re about? We’re talking about murder. Uh huh. park Out in a little about ten miles out of Klamath. play games “So don’t try with us and don’t to lead us down path. We you know a lot more than think we know.
“ I nothing. don’t even know [Defendant:] “ truth, people Ken. Those We meant want the [Police:] tonight Kenny, you business and I think realize that.
<<* * * * * “ Look, Kenny, got guys telling we some us [Police:] pretty some you you serious stuff here about what did so telling your better start story. us help you side of the We can’t story, with this kind of a anything, investigate can’t do can’t anything you’re saying you’re telling because us the truth. “ nothing, I don’t know man. [Defendant:] “ Okay, carry you way, carry it with this it on [Police:] and your community have the whole Indian down shoulders you you’re enough because not man to tell us the truth.
“ Oh, me, kill let them I I don’t care. don’t [Defendant:] know nothin.
<i * * * * *
“ my I didn’t murder brothers. [Defendant:] “ you I you’re think telling know alot more than [Police:] Kenny you us. people know out there are more of a threat you you now than we are know it. “ I don’t care. ...I going don’t know what’s [Defendant:] I’m going on. to find out. “ probably you You’ll out when release [Police:] find
shortly you walk out here.
“ I can’t walk. [Defendant:] “ walk, they’ve You can us advised [Police:] your injuries anything going keep extent aren’t that’s you in here. okay, you your beginning,
“Let’s start from the were at Angle house on 2177 Street. “ my just That’s not house. I was down for [Defendant:]
a visit.
<<‡ [*] [*] [*] [*] *6 “ you’re sorry happened. I think for what [Police:] “ They’re going say kill if I to me who did it. [Defendant:] “ won’t, No, they No we won’t let them. we’re [Police:] going anything happen you. to let them. We won’t let to “ many There’s too that know. [Defendant:] “ Kenny, why you you get if do think that into [Police:] - uр Chiloquin you up hospital an accident in in wind - accidents. We there are three detectives here we don’t cover you going happen know what’s to to out there in the commu- nity. people We know how those feel. “ I don’t wanna be a snitch. [Defendant:] “ us, Just tell so we decide whether we need to [Police:] you give protection or not. We don’t you if know need it.
“ I do need it. [Defendant:] “ Well, why you don’t tell us a little bit of what [Police:] you go know so we can contact the DA and tell him about it.
“ my Do I have tell him to brother... [Defendant:] “ anything. You don’t have to tell him We’re... [Pоlice:] “ go I don’t want to have to to Court and [Defendant:] have him know that I told on him...
“ you only you’re Do think that one that’s [Police:] telling anything Kenny? you you us How do think we can tell things a few in that we’ve mentioned here... “ you guys I’ve never been in here like this [Defendant:]
and I’m scared... “ understand, too, I I would be I’d be scared to [Police:] death. “ citation, just All I had was a traffic ever [Defendant:] open just container. “ you guys, Okay, part a dumb on all it this was [Police:] do, thing understand that. But we can’t was a dumb to we you investigate anything tell us until we know we feel we’re you. getting most of the truth from
“ in ...sleep...I to be Plеase. don’t want [Defendant:] court...they’ve got plenty help too. there Salem
U * * * * [*] “ us, you go All I if I’ll can do level with to [Police:] you’re asking DA and talk to about what for. “ get I need out out this town and [Defendant:] - state, try this let me walk? I’ll DA talk to the now.
“ I talking don’t know what were [Defendant:] you guys talking about. Cause I don’t know what are about —, man, hey say don’t I’m I involved with this kind of shit. did, got along really my I guy, with that and now...even me, mother’s even down on even she threatened me.
“ say you? What did she [Police:] “ gonna Said she’s kill me. [Defendant:] “ you Well don’t think that with all these [Police:] you getting been threats on the outside that wе knew the probably whole truth that we keeping could do better as as far ” you you might jail, jail. be (Emphasis supplied.) safer
Burkhart was in questioning by assisted two other and, times, by deputy attorney. officers at a district Defen dant, treatment, who was in the hospital for was unassisted badly counsel or friends. He had been friends of the beaten victim, chasing two of whom were him at the time Jenson picked medication, him up. Although given he had been he was pain. still The trial court found that defendant was “extremely scared.” up by frightened just
“He was because he’d been beaten group people angry having him of with over been a [who were] participant equally fright- in the death of He was [Norwest]. allegedly ened are involved in the death.” of those who Furthermore, used defendant’s police the court found that make get incriminating fear him to talk to them and held, however, statements.3 It that defendant’s statements at voluntary, the interview were because the police did not create police the fear.4 That was error. The passive recip were not ients of defendant’s fear-induced They promised statements.
3The court stated: police interrogation repeatedly they “The in their refer to the fact that must they they say have the total facts as to the death. So have to have a clear
understanding true, they whether or not his assertions are do use this to be get able to his confession with him. hand, police nothing beating “On the other to do with the that took fact, place, they protected beating, him from that at least Lance did Jenson And, picked up. obviously, they nothing when he had to do with the fact that participants they he was fearful other and what would him if he do to did as says, ‘snitch.’ ‡ ‡ ‡ ‡ “* * * extremely Hоwever, police I think he was fearful for his life. had nothing They help confess, get they to do with that. did use it to him to but had nothing to do with it.” suppression hearing, At the defendant testified: Now, during questioning, you express you the course of the “Q. did that were afraid, you you hospital you that felt that if were turned loose out of the that would injury? suffer further “A. Yes. police you you cooperated you Did the if tell that would see “Q.
were made to be safe? “A. Yes. police you talking Attorney making Did the talk to about to a District “Q. Attorney?
kind a deal with the District “A. Yes.”
On cross examination he stated: you police protectiоn; So asked the for is that correct?
“Q. — “A. From them that was there at the at Melita’s. police you hospital. And the sent
“Q.
“A. Yes. you police? And were afraid of the
“Q.
“A. No. you? The never threatened
“Q.
“A. No. you up. never beat
“Q.
“A. No. community. You were afraid of elements
“Q.
“A. Yes. Melita’s, example, you you’d You understood for went back into “Q. probably big inbe trouble. “A. Yes.”
739 impliedly cooperate he only would protection if he community him into hostile threatened to release the for defen- responsible not Although the were refused. actual fear, fear constituted manipulation their of his dant’s 233, Gladden, 241, 425 P2d 246 Or coercion. See Dorsciak v. (1967). 177 because the victim compelled
“A
confession is offensive not
pоlice,
coerced state
grievance against
a
the
but because
has
ments
society
premises
will
are not
from which a civilized
Mendacino,
guilt.”
supra,
v.
failure to do so was prejudicial error which also requires reversal.
Defendant’s third statement
to Burkhart at the jail
on August 20 was sufficiently independent of the first so that
it was not
tainted. After talking
friend, Crume,
with his
defendant decided that he wanted to tell
story.”8
the “whole
Crume was not acting as an agent
police.
for the
She called
Burkhart and told him that defendant wished
speak
to
with
him and to tell him “everthing he
police
knew.” The
did not
press defendant during the ensuing conversation. The inter
view occurred 60 hours after defendant’s initial statement
in a
different
He
setting.
was under arrest and no longer faced the
threat
of imminent
release
into a hostile
community.
Although defendant’s decision to give
may
the statement
been
influenced
the fact
that he
previously
had
made
incriminating
police
statements
to the
and his belief that
those statements
him,
could be used against
the circum
stances
themselves do not taint his statement. See State ex
rel
Dept.
Juv.
McCluskey,
v.
59 Or
Defendant however, that, even if it is not tainted, the third statement should have been suppressed, because the obtained it in violation right of defendant’s I, counsel under Article section 11.10 agree. We At the time statement, when he made the in custody and had been suppression that, hearing Crume although testified at the Burkhart knew of her defendant, visit gave with Burkhart neither asked her to visit nor her instructions. When asked about her with discussion defendant she testified: you Kenny feelings community And doing after told about “Q in the time, fact, truth,
someone else’s he should tell the then what was his response to that? response going “A His was that he was to tell whoever he talked to what happened.” 9This is true under both the state and federal constitutions. I, 11, provides: Article section * * * prosecutions, right “In all criminal the accused shall have the to be heard * *
by himself and counsel
*.”
and counsel had been
arraigned
kidnapping
charge,
on the
However,
charge.
him оn that
he had
appointed
represent
attorney.
In State v.
yet
Sparklin,
talked to his
(1983),
Here, Burkhart contacted defendant after Crume had told him that defendant wished to speak to him. Burkhart knew at that time that arraigned defendant had beеn and that the court had appointed attorney an for He him. also knew speak that defendant wished to about the crime with which he charged. spoke him, After Crume Burkhart telephoned the jail arranged police for the to bring defendant from holding his cell to the cell. There he asked and, defendant if he wanted to talk to him when defendant answered affirmatively, Burkhart took defendant to the sher- iffs office and conducted the interview there. We read the language Sparklin to mean before he contacted defen- dant, Burkhart should attorney have notified defendant’s he intended to contact his client and should given attorney a opportunity reasonable to attend. The state did not Burkhart, any person show that or on other behalf of police, any had at attorney given time notified the him an opportunity Moreover, to attend the interview. the state did not show that defendant had in event consulted with his attorney before the interview. circumstances, therefore,
In these defendant could effectively waive his to the assistance of counsel. Accordingly, through even if defendant initiated the interview Crume, Burkhart dеfendant’s statements took violation I, suppressed Article section 11. The statements must be along with the earlier statements.
Defendant also
as error that
admit
assigns
the court
ted
photographs
body.
color
of the victim’s
Post mortem
photographs
are admissible if
are
probative of
fact
probative
outweighed by
issue and their
value is not
their
Flett,
prejudicial
impact.
124, 127,
State v.
234 Or
Reversed and remanded for a new trial.
WARDEN, J., dissenting. majority court,
The reverses the trial because it concludes that defendant’s statements made to 18, 1981, and, involuntary. disagree 17 and were I therefore, dissent. general rule is that is “[vjoluntariness deter circumstances;
mined
totality
police trickery
of the
statements,
alone,
false
may
sufficiently
not be
coercive to
Burdick,
result
in involuntаriness.” State v.
57 Or App
voluntary
Neither did the threaten to community cooperate],” him into the hostile if he refused [to majority as the states. Defendant had been advisеd of his and not in rights, Miranda but he had not been arrested was 17; police custody August hospital. police on he was in a The power had no either to hold him or to release him on that date. police guard It is not a normal function to house or an able- simply individual who is not under arrest because the bodied safety imagined individual is for his for some real or afraid police provide reason. The lack the resources to that kind of every They for citizen had protection might request who it. a right, duty, a perhaps inquire into causes of fears, defendant’s for he requesting police protec- which was tion.
The trial court correctly found that defendant’s statements both August before and after his arrest on 18 were voluntary, considering “totality of the circumstances.” The questioning did not occur in the coercive environment of police hospital station but at the and was not of unreasona- bly long duration. The trial defendant court found that not impaired physically mentally or so that he was unable to make a voluntary taped, confession. The interviews were allowing the trial court to hear the manner and tone of thе questions Finally, defendant had properly answers. been (He rights. advised of his Miranda does not claim otherwise on appeal.) He questioning could have broken off at time exercising his to remain an requesting silent attorney. He did neither. fact, did not create defendant’s fear. In on protected people had him from whom
feared, him for people sought get because those even with fear from the part the Norwest murder. Part of his arose in the if he possible retaliation of the others involved murder them; protect “snitched” offered to him from *12 744 feared, he
thosе if he would discuss the murder. That is impermissible police activity and does not render defendant’s 1 statements August involuntary. of 17 and 18
I have 91 pages single-spaced reviewed the of tran- script questions taped of the and answers in defendant’s 17, police, began p.m. statement to which at 10:11 on August 1981, and ended at 12:55 a.m. 18. From those 91 the pages, majority gleaned phrases has a few that it relies on police as coercive conduct. The essence of the conversation between defendant police they and the officers was that believed that defendant knew more about Norwest’s murder them, than he telling that both defendant and the officers believed defendant to be in some danger from others because part murder, of his in the that defendant police wanted protection, the they officers told defendant could probably that, protect jail him best if he were in and if he was sentenced to a term imprisonment part for his in the murder, they help could to see to it that he was encarcerated in another state. custody. Defendant was not in He had been advised of his Miranda rights and had neither asserted the to rеmain right silent nor the to the aid of counsel. 136.425(1) provides,
ORS
in part:
defendant,
“A confession or
in
admission of a
whether
the
otherwise,
judicial proceedings
given
course of
or
cannot be
in
against
evidence
the defendant when it was made under the
* *
produced by
influence of fear
*.”
threats
I would hold that
the reference to “threats” has to be to
by police
police
threats
or those
as
That a
acting
agents.
Gladden,
majority,
Dorsciak v.
1 The cases cited
the
P2d
Or
Cochran,
(1967);
supra;
Capwell,
State v.
and State v.
The rules relevant
admission of confessions
Smith,
Supreme
were discussed
in State v.
Court
promise
I with the majority that statements made to 20, however, police August suppressed, should have been as I, 11, violative of his counsel under Article section the Oregon However, Constitution. I would still affirm the conviction, because the error was harmless when viewed in the light of all Const, (amended), 3; of the evidence. Or Art VII § Olds, 305, 313, 118, State v. 35 Or 581 P2d rev den 284 Or (1978). 20, 80a On August greater defendant admittеd involve ment in the homicide than previously, he had but even statement, without guilt, the admissible evidence of which testimony co-defendant, included the of a was so substantial and convincing suppression its would not Hooser, changed the trial result.2 State v. Van Mains, (1973); 511 P2d P2d see State v. (1983). harmless beyond Their admission a reason 824, 17 Chapman California, able doubt. v. 386 US 87 S Ct Therefore, L Ed 2d 705 I would affirm the trial court. I dissent. my record, I evidence of 2From examination of the am satisfied that guilt overwhelming, the same
defendant’s was so that the trial result would have been 17,18 if more of defendant’s statements made to Burkhart on and 20 had been admitted in evidence.
Warren, Rossman, JJ., Van Hoomissen and join this dissent.