Defendant and another man engaged in a fight while waiting in line at a grocery store. During the fight, defendant shot the victim in the leg, which ultimately led to defendant’s conviction for second-degree assault with a firearm, ORS 163.175; ORS 161.610. On appeal, defendant raises three assignments of error; we reject the third without discussion. In his other assignments of error, defendant argues, first, that the trial court erred by denying his motion to suppress statements that defendant made to police while defendant was being treated for his injuries. Second, defendant assigns error to the trial court’s failure to give his proposed jury instruction regarding his theory of self-defense. For the reasons that follow, we affirm.
The relevant facts are as follows. The victim and his wife were in the process of paying for their groceries; defendant was waiting directly behind the victim’s wife. When she had some difficulty completing the transaction, defendant moved closer to her and placed his arm on the checkout counter. The victim told defendant to “back up” or “back [his] ass up.” Following a verbal exchange between the two men, the victim ran through an adjacent checkout aisle to confront defendant. By some accounts, defendant pushed a shopping cart into the victim; by other accounts, the victim pushed a cart out of his way as he approached defendant. Several eyewitnesses testified that defendant warned the victim that he had a gun. A physical fight ensued, during which both defendant and the victim threw punches and wrestled. Witnesses described the men as approximately evenly matched in size and physical ability. Defendant then pulled out a handgun and fired it once; the bullet hit the victim in his leg. The two men continued to struggle until defendant was subdued with the help of other customers and store employees.
Before police arrived, defendant was restrained by the store’s loss-prevention personnel, who placed him in handcuffs. Defendant was transported by ambulance to a hospital to receive treatment for minor injuries that he sustained during the fight. Sergeant Krummenacker had responded to the scene and rode in the ambulance with defendant for purposes of obtaining a recorded statement. Krummenacker later testified that, at the time of the ambulance ride, police had limited information about a “chaotic” situation at the store and knew only that defendant had been “involved” in a shooting incident.
Upon arrival at the hospital, Krummenacker concluded the first recording. Detective Copenhaver joined the scene and initiated a second recording. Neither that recording nor a transcript of it is part of the record on appeal, but it is undisputed that the Miranda warnings were given to defendant two more times, and that, in response, defendant said, “I’ll do that” but also the word “lawyer.” Krummenacker continued questioning defendant. At one point, Krummenacker mistakenly told defendant that he had shot someone in the head. Defendant became emotional and denied having shot anybody in the head. Eventually, at the request of hospital personnel, Krummenacker removed defendant’s handcuffs. Krummenacker later testified that that was the first time that defendant appeared to show any awareness that he had been handcuffed; he asked if he was handcuffed and whether he was under arrest. After some additional questioning by the officers, defendant requested an attorney, at which point both the questioning and recording ceased. Several hours later, defendant was placed under arrest.
Defendant moved to suppress all of his statements to the police during the ambulance ride and at the hospital. After a hearing, the trial court denied the motion as to the first recording—the one made during the ambulance ride—on the ground that defendant was neither in custody nor under compelling circumstances at that time. As to the second recording, made at the hospital, the court initially ruled that any statements made by defendant after he first said the word “lawyer” were required to be suppressed because Krummenacker had failed to clarify whether defendant was invoking his right to counsel. However, after additional discussion and post-hearing briefing, the court, in a letter opinion, concluded that compelling circumstances arose only after defendant was questioned specifically about his involvement in the shooting. Thus, the trial court suppressed some, but not all, of the statements made by defendant on the second recording.
At trial, defendant’s theory of the case was that he acted in self-defense when he shot the victim in the leg. In support of that claim, defendant presented eyewitness testimony that the victim was the initial aggressor and continued his aggressive behavior
At the close of the evidence, the trial court heard argument on the parties’ proposed jury instructions. The state requested that the court give Uniform Criminal Jury Instruction (UCrJI) 1107 (Defense—Physical Force— Defense of Person) and UCrJI 1108 (Limitations—Defense of Person—Deadly Physical Force).
“There are certain limitations on the use of deadly force. The defendant is not justified in using deadly force on another person unless he reasonably believed that the other person was:
“1. Committing or attempting to commit a felony involving the use or threatened imminent use of physical force against the person. (The possible applicable felonies will be enumerated later by the court.)
“or
“2. Using or about to use unlawful deadly physical force against defendant.
“It is not necessary for the defendant to actually wait for the assault to be committed before acting in self defense. Defendant is also not required to retreat before using deadly force against what he believed to be the imminent use of force to cause serious physical injury.
“Reasonable belief is that of an ordinary person standing in the shoes of the defendant, i.e. in the defendant’s position.
“Even if you find that the introduction of a firearm by defendant into the altercation unwise, that act does not deprive defendant of the right to claim self-defense as to those matters which occur subsequently.
“The burden of proof is on the state to prove beyond a reasonable doubt that the defense of person does not apply.”
(Emphasis added.) The court rejected defendant’s instruction, concluding that this was “not a unique case” that warranted modification of the uniform instructions. Instead, the trial court gave UCrJI 1107 and UCrJI 1108. Defendant was convicted of second-degree assault with a firearm.
On appeal, defendant reprises his argument that all of his statements to police in the ambulance and at the hospital should have been suppressed and that their admission violated his rights under Article I, section 12, of the Oregon Constitution, as well as the Fifth and Fourteenth Amendments to the United States Constitution. Moreover, the evidence was harmful, according to defendant, because it allowed the jury to conclude that he was “mentally unstable,” that he should not have had access to weapons, and that he “did not shoot [the victim] based on self-defense, but rather because he suffered from a psychiatric condition.” Defendant acknowledges that he received Miranda warnings prior to questioning by the police. Defendant’s contention, as we understand it, is that he did not understand the warnings that were given, and that his subsequent statements to the police were, therefore, involuntary and subject to suppression. See State v. Finonen,
We begin by observing that, at trial, notwithstanding the court’s ruling that some of defendant’s statements at the hospital could be admitted, the state introduced only the first recording, made during the ambulance ride. Although Krummenacker’s testimony briefly alluded to his later conversation with defendant at the hospital, that recording was never offered into evidence. Moreover, on appeal, although defendant takes the position that all of his statements in the ambulance and at the hospital should have been suppressed, his developed argument is limited to the ambulance ride. That is, defendant makes no alternative argument as to why he was either in custody or under compelling circumstances at the hospital at any point before the trial court concluded that circumstances turned compelling. Defendant also does not identify any specific statement after the ambulance ride that he contends was admitted in error, nor how any such statement was used or how it prejudiced him. In short, because the recording at the hospital was never offered at trial and is not part of the record on appeal, and because defendant’s arguments all rest on the premise that his rights were violated beginning with the ambulance ride, we focus our analysis on whether the trial court erred in admitting the evidence of what defendant told police in the ambulance.
Article I, section 12, provides, in part, that “[n]o person shall be * * * compelled in any criminal prosecution to testify against himself.” To protect that right, Oregon courts have held that, prior to questioning, “police must give Miranda warnings to a person who is in ‘full custody’ or in circumstances that ‘create a setting which judges would and officers should recognize to be ‘compelling.’” State v. Roble-Baker,
“The concept obviously includes extended official detention in a cell or another enclosure, with or without booking or deprivation of personal belongings. But an enclosure is not essential; one would hardly dispute that a person handcuffed on the street or in his own home is in ‘full custody.’”
In this case, at the suppression hearing, Krummenacker testified that defendant was not placed under arrest until several hours after the conclusion of his interviews with the police. And, although defendant was restrained from virtually the moment of the shooting, there is no evidence to suggest that he was restrained by the police or that his restraints served law enforcement purposes. To the contrary, the record reflects that defendant was handcuffed by store loss-prevention personnel for safety reasons pending the arrival of the police, and then, immobilized by emergency responders for medical purposes.
We next consider whether the circumstances were nevertheless sufficiently compelling as to require the administration of Miranda warnings. In making that determination, the relevant question is “how a reasonable person in the suspect’s position would have understood his or her situation” based on the totality of the circumstances. State v. Shaff,
Defendant contends that the following facts illustrate that he was questioned under “compelling circumstances”: Defendant had recently sustained multiple blows to his head in a physical altercation. He was then questioned as a potential shooting suspect while handcuffed, strapped to a spine immobilization board, and in close proximity to an armed police officer. Moreover, defendant was not free to leave. According to defendant, those circumstances were sufficiently compelling as to require the administration of Miranda warnings.
We disagree, for a number of reasons. First, “the fact that police question a person as a suspect in a crime ‘does not inherently create a “compelling” setting for Oregon constitutional purposes.’” State v. Carlson,
In his second assignment of error, defendant contends that the trial court was required to give his proposed jury instruction on self-defense. As noted, defendant requested that the trial court instruct the jury using a modified version of UCrJI 1108, including the following language:
“It is not necessary for the defendant to actually wait for the assault to be committed before acting in self-defense. Defendant is also not required to retreat before using deadly force against what he believed to be the imminent use of force to cause serious physical injury.
“Reasonable belief is that of an ordinary person standing in the shoes of the defendant, i.e. in the defendant’s position.
“Even if you find that the introduction of a firearm by defendant into the altercation unwise, that act does not deprive defendant of the right to claim self-defense as to those matters which occur subsequently.”
We review for legal error. State v. Strye,
When instructing jurors, the trial court’s obligation is to “state to them all matters of law necessary for their information in giving their verdict.” ORCP 59 B.
In addition to the duty to instruct on applicable principles of law raised by the evidence, a trial court also has a duty to refrain from instructing the jury on irrelevant matters, or those that may have the effect of confusing the jury. See Williams et al. v. Portland Gen. Elec.,
On appeal, the state does not take issue with defendant’s entitlement to have the jury instructed on the applicable legal principles governing self-defense. Rather, the issue reduces to whether the trial court erred by declining to instruct the jury using defendant’s modified version of UCrJI 1108. We conclude that it did not.
First, the uniform instruction that the court gave accurately covered the subject matter. An individual’s right to self-defense is governed by ORS 161.209, which states, in part, that “a person is justified in using physical force upon another person for self-defense or to defend a third person from what the person reasonably believes to be the use or imminent use of unlawful physical force, and the person may use a degree of force which the person reasonably believes to be necessary for the purpose.” The right to use deadly physical force is limited by ORS 161.219, which states, in relevant part, that a person is not justified in using deadly physical force in self-defense unless he reasonably believes that the other person is either (1) committing or attempting to commit a felony involving the use or threatened imminent use of physical force against a person, or (2) using or about to use unlawful deadly physical force against a person. The uniform jury instructions given by the trial court in this case closely tracked the relevant statutory language, and thus, correctly described the applicable principles of self-defense. See generally State v. Keffer,
Second, certain aspects of defendant’s requested instruction risked confusing the jury. Specifically, we take issue with the portion of defendant’s proposed instruction that reads, “Even if you find that the introduction of a firearm by defendant into the altercation unwise, that act does not deprive defendant of the right to claim self-defense as to those matters which occur subsequently.” Defendant’s instruction is phrased in language taken from our opinion in State v. Burns,
“The defendant’s act of producing the firearm and threatening to use it, on the one hand, and his actually using it, are separate acts with distinct legal significance. *** Deadly physical force was not used until defendant actually fired the gun, and the justification for that action must be assessed in light of the circumstances at the precise moment in which defendant acted. While the introduction of a firearm into the altercation may have been unwise, that act does not deprive a person of the right to claim self-defense as to those matters which occur subsequently.”
Id.
Although defendant’s quote from Burns is accurate, it does not follow that the trial court was required to instruct the jury using language from that opinion. See State v. Nefstad,
Accordingly, the trial court did not err when it declined to give defendant’s requested instruction.
Affirmed.
Notes
Krummenacker testified that handcuffs have a “universal key” and that he used such a key to loosen defendant’s handcuffs. However, it appears that defendant did not realize that he was handcuffed until later, when Krummenacker removed the handcuffs at the hospital at the request of medical personnel.
Those statements included the following: (1) “We got overrun, didn’t we?”; (2) “A lot of people got hit”; (3) “Are you the 88th or the 9th?”; and, (4) “I’m in the States?”
Those instructions are as follows:
“The defense of self-defense has been raised.
“A person is justified in using physical force on another person to defend himself from what he reasonably believes to be the use or imminent use of unlawful physical force. In defending, a person may only use that degree of force which he reasonably believes to be necessary.
“The burden of proof is on the state to prove beyond a reasonable doubt that the defense does not apply.”
UCrJI 1107.
“There are certain limitations on the use of deadly physical force. The defendant is not justified in using deadly physical force on another person unless he reasonably believed that the other person was:
“(1) Committing or attempting to commit a felony involving the use or threatened imminent use of physical force against a person; or
“(2) Using or about to use unlawful deadly physical force against defendant.”
UCrJI 1108.
Article I, section 12, is “an independent source for warnings similar to those required under the Fifth Amendment to the United States Constitution, as described in Miranda v. Arizona,
We do not mean to suggest that there is no scenario in which an individual who was initially restrained by somebody other than a police officer can be in custody for the purposes of Miranda. In this case, however, there are simply no facts suggesting that defendant, who was initially restrained by the store’s loss-prevention personnel and further restrained for medical purposes while in the ambulance, came within police custody during that time period.
Defendant also contends that the admission of his statements to the police violated his rights under the Fifth and Fourteenth Amendments to the federal constitution. Defendant, however, makes only a cursory reference to those rights. In any event, defendant’s arguments under the federal constitution fail for reasons already discussed. See State v. Bush,
ORS 136.330(1) makes ORCP 59 B applicable to criminal trials.
Defendant contends that a statement made by the prosecutor during closing arguments raised questions as to whether defendant had a “duty to retreat” prior to using deadly force. That statement noted both parties’ failure to de-escalate the conflict, and specifically, defendant’s failure to move away from the victim’s wife when asked. We, however, are not persuaded that the prosecutor’s remark, made in reference to events leading up to the fight in question, interjected the issue of whether there existed a “duty to retreat” in the altercation that followed.