*1 30,1990, Argued April and submitted affirmed reconsideration November denied (313 627) July 21, petition June for review denied Or OREGON, STATE OF Respondent, QUINN, STEVEN JOHN Appellant. CA A62439)
(8900210CR;
Steven argued respondent. the cause for With him on brief was Sally Avera, Defender, Salem. L. Public
Cynthia Attorney Carter, General, Salem, A. Assistant appellant. argued cause With her on the brief were for Attorney Prohnmayer, Virginia General, Linder, Dave L. General, Solicitor Salem. Presiding Judge, Buttler, Rossman and
Before Judges. Muniz, De MUNIZ,
De J. dissenting. J.,
Buttler, P.
609-b *4 MUNIZ, J. De criminally neg- his conviction for
Defendant appeals 163.145(1), two homicide, assignments and raises ORS ligent by trial court erred First, he contends that the error. of he made to statements that suppress his motion to denying the second, he contends that arrest; his the after police legal that his acts were the insufficient to prove was evidence by the court erred death and that the victim’s cause of affirm. of We acquittal. for judgment his motion denying These facts jury to a trial. Defendant waived The victim emerged trial court’s findings. from the are taken was intoxicated. beer. He after purchasing from a store outside, around “messing were and two friends Defendant victim, a The noises.” making “gun were They the street.” Words were their conduct. veteran, by was offended Nam Viet started It is unclear who ensued. fight and exchanged, in a tourna- pool had victim, just participated who fight. was cue. There pool in the with his leg defendant ment, struck defendant to remove for action, long enough lull in the a chunk Instead, up defendant picked fray. from the himself street, with it. He fell to the victim and struck of asphalt who snowing. Riley, fled. It was and his friends defendant victim, because street, did not see the down driving over him. Riley road. She drove oh the snow and slush emergency victim received sure that and made stopped victim’s that stipulated Defendant medical attention. car. by over being run by caused death was findings the court’s taken from These facts are on findings those supports record that in the the evidence he made statements to suppress motion defendant’s Stevens, 311 Or State v. arrested. See after being (1991);Ball Gladden, 485, 487, 443 P2d P2d 92 six defendant arrested Hannigan Sheriff Deputy hand the victim. Hannigan with altercation after the days patrol seat of the him in the back and placed cuffed that he sure” “fairly he was testified Hannigan car. defendant: advised rights. you your advise officer to as a duty my “It’s say can and silent, anythingyou right to remain have the
You You have the of law. you in a court against be used will to an one will attorney, hire an If can’t afford attorney. you
611 appointed be If represent you. you give do a statement at time, any you can stop you at time wish. you Do under- rights?” stand these
Defendant indicated that he understood. asked Hannigan defendant about his involvement in the victim’s death. Defen- dant denied that he had murdered anyone. told Hannigan two witnesses had said that defendant was involved. Defendant began to and then cry explained his office, involvement. On the to the way sheriffs he elaborated on that they station, involvement. When reached the another officer removed the handcuffs. read Hannigan defendant his rights from a standard Miranda card.1 Hannigan Detec- defendant, tive Awmiller then interviewed who reiterated the statements that he had made in the car.
The court denied defendant’s motion to suppress his statements, and defendant then waived his to a jury. After a bench trial, the court found him of guilty criminally homicide. negligent error,
In his first assignment of defendant contends that the him Hannigan gave in the car did not satisfy requirements I, 12, of Article section or the Fifth He Amendment. contends that they defective, were because they did not inform him that he could consult with an attorney before and that he questioning could have his lawyer present during He also that the interrogation. argues state- the standard Miranda ments he made after receiving warn- ings the station should have been suppressed, because they were the tainted fruit statements that he made in the car.
1 County Rights The Klamath Sheriffs Advice of Statement reads: my duty you your rights.
“It is as a officer to inform “I. You have the to remain silent. Anything you say against you
“2. can and will be used in a court of law. present you “3. You have the to talk to a and have him with you being questioned. are while you lawyer, represent will “4. If cannot afford to hire a one you being questioned, you if before wish one. you statement, you stop talking any you give “5. If do can time wish. you rights? “6. Do understand these mind, you Having rights
“7. in do wish to talk to us now?” these 612 claims,
In reviewing defendant’s constitutional
we
Hicks,
v.
first
309 Or
Constitution. Sealy
Oregon
look
cert
393,
387,
(1990),
den_US_,
P2d 435
111 S
788
Ct
Kennedy,
(1991);
260, 262,
State
295 Or
P2d 1316
65
666
“full
when
custody”
Defendant
he was hand
the police
cuffed and
the back seat of
car.
placed
Any
State v. Magee,
is
coercive.
304
setting
inherently
custodial
Sparklin,
State v.
(1987);
P2d
296 Or
261, 265,
85,
Or
744
250
(1983). Therefore,
89,
Oregon
precisely
I,
12,
who is in
requires police
person
cle
section
to tell
Sparklin, supra,
v.
State
Supreme
In
Court said:
custody.
interrogations is one
presence
“An
at custodial
attorney’s
compelled
to be free from
self incrimi-
way to secure the
require
we
to inform
nation. For this reason
at
may
questioning
that he
terminate
person
detained
may
to advise him before
and that he
have
time
speaks.”
296 Or
89.
I,
12,
proscribe
the Fifth Amendment each
Article
section
We
observed
previously
incrimination.
have
self
compelled
self incrimination
right against
Oregon
“the
constitutional
warnings which
the same
by
is presently protected
under the Fifth
requires
Supreme
United States
Court
* *
Rowe,
State v.
App
79 Or
Amendments
Fourteenth
(1986).
rev den
801,
302
86
804,
765,
P2d
Or
720
12, we con-
of Article
section
the contours
In evaluating
merely for the sake of
different
being
to see “no value
tinue
Kell,
89, 95,
P2d
State v.
difference.” See
(1987).
Fifth Amendment
under the
analyses
Accordingly,
12,
I, section
what Article
determining
persuasive
are
similarly persuaded.
has been
Court
Supreme
Our
requires.
v. Sparklin, supra,
it said:
In State
Miranda
of the federal
the text
long as
“[A]s
single
aof
law, we
that the convenience
think
remains the
text
any gain
exceeds
from improving that text.”
In Court held: “[A]n individual held interrogation for must be clearly informed that he has the to lawyer consult with a and to ** * lawyer have the with him during interrogation. [T]his * * * is an warning absolute prerequisite interrogation. to
C($
:jc ?}:
if:
íJí
is necessary
“[I]t
to warn him
only
not
that he has the
attorney,
consult with an
but also that if
indigent
he is
will be
represent
him.”
What told defendant in the car is quoted above. Defendant indicated that he understood those rights. warnings effectively The issue is whether those informed defendant that he was entitled to consult with an questioning present during and to have one interrogation. *7 Prysock, supra, In v. the defendant was California expressly right
not advised that he had the to have an attor- ney appointed questioning. Supreme before further The Court observed that
“[inquiries into] whether a criminal defendant was ade- quately informed of his right to the presence appointed counsel prior during to and interrogation [have focussed on right appointed whether] to counsel was linked with ’’ some point future in time police interrogation. after the 453 US at 360. warnings given
The Court found that the the defendant were adequate, because in
“nothing warnings given respondent suggests any right limitation on the to the presence appointed counsel 614 clearly conveyed lawyer different from the to rights * * *.” US at
general
(Emphasis supplied.)
453
360.
Similarly,
gave
Hannigan
that
defen-
suggest any
right
dant
not
limitation whatsoever on
to
did
his
present.
right
have
He
told that he had a
to
counsel
lawyer,
be
counsel and
if he could not afford a
one would
expressly
appointed. He
told that he could consult a
was not
questioning
lawyer
lawyer
he
have
before
or that
could
present during questioning. Nonetheless,
the standard
Prysock, supra,
warning
was met. The
that
v.
California
right
suggest
not
limitation on his
defendant received did
during interrogation,
present
or that the
to have counsel
appointment
event.
of counsel was conditioned on future
right
Hannigan
defendant,
have
to an attor-
told
“You
ney.” (Emphasis supplied.)
apprised
That advice
right
right
counsel,
then. It
not
that
had the
to
could
believing
right to
him into
that he would have the
mislead
suggest
did
that defen-
time,
counsel at some future
nor
it
right
upon any event.
dant’s
to counsel was conditioned
effectively
warning
defendant that his
Instead, the
informed
unconditionally.
immediately
counsel attached
and
police give
The
arises when
evil to
avoided
contradictory,
intertwining,
“pretzel-like warnings [that are]
Eagan, supra,
ambiguous.”
at
v.
492 US
See Duckworth
(Marshall,
dissenting) (quoting
J.,
216
Commonwealth
(1979)).
A2d 111
The thread
Johnson,
Pa
inadequate warnings
connecting
warn
is
cases on
suspect
believing
ings
into
that his
cannot mislead
not
future event or that it does
counsel is
on some
conditioned
immediately. Duckworth,
was told
In
the defendant
accrue
go
appointed
you
“if
and when
that a
would be
Eagan, supra,
492 US
198.
Duckworth v.
court.”
pro
provision accurately stated the
that that
Court held
appointing
law2and did
counsel under Indiana
cedure for
adequate
set of
invalidate an otherwise
he had
to counsel
informed the defendant that
during questioning.
In 429 F2d 373, cert den (2d 1970), US 907 Cir the defendant was given warnings similar to those that this defendant received the patrol car. arrest, After Lamia’s FBI an him agent told that he was not required make a statement and “he had a to an right if attorney, he wasn’t able to afford an attorney, an would be appointed by court.” 429 F2d at 374. He argued that that warning did not inform him that he had a right to have his lawyer present during interrogation. The Second Circuit concluded:
“Lamia had been told without qualification that he had the
to an
and that one would be appointed if he
could not afford one.” 429 F2d at 376. (Emphasis supplied.)
The defendant was informed that his
right to
attorney was
unconditional. He was effectively informed that he had the
lawyer
have his
present during interrogation. See
(2d
also United States v.
Floyd,
Cir), cert den sub
496 F2d 982
(1974).
States,
nom Miller v. United
“[T]he
which defendant was informed adequately
him
apprised
of his
prior
counsel
to and during
interrogation.”
Lowry cites no authority conclusion, for its and it was tried Arizona, before Miranda v. supra, was decided. However, Miranda, Lowry after argued and the briefs in that case discuss Miranda. Lowry
The timing does not diminish the of value its holding. Whether the court construed the defendant’s Miranda, from its rights interpretation or divined them source, from some other is irrelevant. What is relevant is that the court that a properly recognized rights suspect must warned about concluded that of the language effectively conveyed necessary given that were meaningful distinction between the
information. There is no adequacy *9 Lowry warnings received and the warn- of the that ings Hannigan gave cases, defendant. In both warn- that the ings apprised suspects their to counsel was the a event and that it attached not conditioned future on immediately. warnings, words, the of the not exact
The substance warnings adequate. v. are State determines whether (1982). App 500, 505, 655P2d We conclude Corona, 60 216 Or immediately warning counsel accrues that a that the suspect unconditionally a that he has a does inform Hannigan’s during interrogation. counsel before and believing into not have misled defendant could provided [would] until some indetermi “that a questioning” v. in the future Duckworth nate time after (Marshall, dissenting). Eagan, supra, J., US at 214 492 (Emphasis original.) in he made that the statements that
Defendant claims by police the statements that he were tainted at the station original “[o]nce [he] police car, because, in made made ” bag.’ 16 Garrison, v. statement, the ‘catwas out of the State (1974); App 1295, rev den see also 588, 602, 519 P2d Or Bayer, 540, 1394, L 532, US 67 S Ct 91 v. 331 United States (1947). Hannigan gave Because the Ed 1654 12, Article section in the car satisfied subsequent could not Amendment, confession Fifth the have been tainted by made the statements that defendant the car. assignment error, defendant con
In his second finding support a evidence was insufficient that the tends that was reviewing legal In death. cause of the victim’s he sufficiency challenge evidence, we view of the to the light v. State to the state. See most favorable in the evidence (1989). King, We will reverse P2d 391 332, 339, 768 acquittal judgment of motion for denial of a the trial court’s beyond found, only have fact could if no rational trier of legal cause of was the the defendant doubt, that reasonable King, supra, 339; Or at State victim’s death. State the v. P2d 798 Harris, 288 Or 163.145(1) provides: ORS
“A person criminally negligent commits the crime of when, negligence, homicide with criminal the person causes person.” death of another negligence” “Criminal means that
“a person unjustifiable fails to be aware of a substantial and risk that the result will occur or that the circumstance exists. degree The risk must be of such nature and that the failure to gross be aware of it constitutes a deviation from the standard of care that a reasonable person would observe the situa- 161.085(10). tion.” ORS adequate oppor- The trial court found that defendant had an tunity picked up to withdraw from the Instead, fracas. asphalt chunk of and struck the victim with it. He used against lying unlawful force the victim and left him in the street. *10 argues
Defendant
that the victim’s death “was the
[Riley’s]
driving
[him].”
result of
conduct of
over
The fact
that defendant’s conduct was not the immediate
of the
cause
responsibility.
victim’s death does not relieve him of
Defen
responsible
consequences
dant is
for the foreseeable
of the
App
unlawful force
he
Baker,
that
used. State v.
285,
87 Or
(1987).
289,
P2d 633,
rev den
BUTTLER, J.,P. majority that, I, 12, holds under Article section person custody Amendment, the Fifth in full need questioned be advised before he is that he has the questioning begins consult an and to have the before attorney present during questioning. I that Because believe questioning begins that advice before custodial fundamen- is protection person’s rights tal to the of a I, under both Article 12, section even if it is not under Fifth I Amendment, dissent.
I I, with the agree majority under Article sec- 12, tion before police, interrogating person custody, must the same give person advice or that are warnings Arizona, Amendment under Miranda v. the Fifth required by 384 US 86 S Ct 16 L 2d However, Ed on to hold that that fall majority goes short of warnings Miranda’s mandate are sufficient. This case is the first one to decide what are exactly warnings under the required Oregon Constitution before can I questioning custodial begin, believe that the majority gets start, us off to a bad as well very Miranda and its as misinterprets progeny.
In State v. 85, 672 Sparklin, (1983), P2d 1182 more detailed the court refused to require than warnings Miranda requires police questioning, before but no Oregon held, less detailed does, case has as the now majority are acceptable under Article section 12. That is say not to must be in the exact words of Miranda, but their substance require must meet its basic arrested, ments. When defendant was Officer Hannigan advised him: my duty you your rights.
“It’s as a officer to advise silent, anythingyou say Youhave the to remain can and against you will be used in a court of law. You have the attorney. you to an If can’t afford to hire an one will attorney, you. If do a statement represent you give at time, you stop anytime you you can wish. Do under- rights?” stand these
Defendant was not told that he was entitled to con- sult with an and to have one questioning present during interrogation until he had arrived at the *11 station, read rights when he was from a standard Miranda card. time, that he had incriminated By already n He then response gave tape- himself to a questions. statement what he had said The reiterating recorded earlier. that it is sufficient that he was told that he had majority says one, the to an and if he could not afford right attorney Miranda However, one would be for him. appointed requires that he be advised of both of those After the rights. discussing of in the face of inter- of the assistance counsel importance in Miranda: the Court said rogation,
619
an individual held for inter-
“Accordingly we hold that
to
clearly
right
that he has the
rogation must
informed
during
with him
lawyer
lawyer
with a
and to have the
consult
system protecting
privilege
under the
for
the
interrogation
right
As with the
of the
to
today.
we delineate
can
in evi-
anything
remain silent and that
stated
be used
him,
an absolute
to
warning
prerequisite
dence
this
is
against
that
amount of circumstantial evidence
interrogation. No
right will
to
may have been aware of this
suffice
person
the
Only
warning
is there
through
in its stead.
such
stand
that the accused was aware
this
ascertainable assurance
right.”
(Emphasis supplied.)
Inexplicably, the United relies on two Supreme Prysock, decisions, States Court California (1981), 355, 101 S 2806, 69L Ed US v. Ct 2d 696 and Duckworth (1989), Eagan, 195, 109 2875, 106 492 US S Ct L Ed 2d 166 support Miranda, in decided after of its contention that warnings given adequate. here were Even if we were to controlling post-Miranda as under Article consider decisions they require Prysock, would reversal here. In section respondent right lawyer present was advised of his to have a interrogation lawyer appoin during and to have a before and if he could not afford one. The California Court ted at no cost expressly Appeals held because he had not been of had right appointed he had the to have an advised that questioning, inadequate. were before further conveyed Supreme to Court held: “These The right lawyer appointed respondent if he could to have a prior during interrogation,” not afford one to and 453 US they, complied requirements of therefore, with the That is not this case. Miranda. majority’s is even more reliance on Duckworth
perplexing. before The defendant there was read this advice initially by police: being questioned any you must understand you questions, “Before we ask Anything right You have the to remain silent. your rights. right You have you say against you can be used in court. any questions, lawyer you advice weask talk to a for during questioning. you and to havehim with this You.have if you of a even cannot presence to the adviceand you lawyer, but way giving Wehave no afford to hire one. wish, go if you, you you for if and when one will be answer now without you questions to court. If lawyer wish to answering ques- you stop have the present, answering at stop any tions at time. You also have 198. lawyer.” talked to a 492 US at you’ve time until original.) (Emphasis for explanation gave exculpatory the form signed
He and about 29 hours later He was then locked up, his activities. began, that questioning Before again. he was questioned read this advice: statement, that I I was advised making Before this “1. anything might say I remain silent and that right to have the me in a court of law. against be used may or will with an right to consult That I have the “2. *13 attorney and that an saying anything,
my own choicebefore through- or making any I am statement be while may present if I any police with officer any the course of conversation out so choose. time attorney any and an at stop request That I can “3. any during or taking course of the statement
during the any such conversation. the course I can refuse any course of conversation “4. That silent, thereby and remain questions answer further terminating the conversation. willbe attorney, provided ifl not hire an one That do
“5. US at 199. for me.” 492 it, signed to the officers and defendant read the form back
The then confessed. that would whether the advice counsel
The issue was court,” which you go “if and when be appointed was. defective, advice, the advice first rendered included in the linked his the defendant to have it have caused might because a future with interrogation counsel before right appointed had been that, the defendant held because event. The court to the advice of he had the right that expressly advised during have him present and to before attorney questioning were It of Miranda fulfilled. the requirements questioning, said: on attorneys producible be require not that “Miranda does here, that he has informed, as call, suspect be only but during questioning, attorney to an before could not him he appointed would that an if for it was not emphasized in Miranda one. The Court afford a ‘station must have station police that ‘each suggesting prisoners.’ all to advise at 694, 86 times lawyer’ present
house
9, 1602, 10 Ohio Misc.
S
US, 474, 16 L Ed 2d
Ct
provide
cannot
237, 10
If the
ALR3d 974.
2dOps
Ohio
counsel,
appointed
Miranda requires only that the police not
question a suspect
unless he waives his
to counsel. Ibid.
Here,
just
did
that.”
respondent
ond Circuit Court of
is anomalous.
They fly
face of Miranda and do not
us,
if
bind
even we were resolving
defendant’s Fifth Amendment
rights,
just
rather
than
rights under Article
section 12. Other federal circuit courts
However,
have
to the other extreme.4
if
gone
even the United
-Miranda,
Court,
States Supreme
has
post
changed
Miranda,
rules,
has
ground
Oregon
adopted
necessarily
its
a United States
Court
progeny. By adopting
Supreme
*14
the United
Constitution,
under
States
we do not
analysis
decide, or even
that all future elaborations or
imply,
changes
the
will
analysis by
apply
of
that court
also
to a claim under
Kell,
Oregon Constitution. State
89,
Or
P2d
303
734
(1987).
334
defendant’s confession while he was
Accordingly,
in the
car must be
suppressed.
3
(2nd Cir),
(1974);
Floyd,
United States v.
496 F2d 982
cert den
United States v.
429 F2d 373
Cir
cert den
you against you will be used in a court of law. Do do make can and rights?” understand each of these warnings inadequate, were because the defendant was not The court held that the during questioning. present In could be Windsor v. United told that his (5th 1968), “merely telling States, [a held F2d Cir the court * ** informing speak defendant] with an is not the same as that he could * * attorney during interrogation presence of an him that he is entitled to the (Emphasis supplied.) question remains whether the later confessions made at the police station must also be suppressed, even defendant was his though properly advised of rights that questioning began. Defendant was arrested a little after 5:00 In the after Miranda police car, p.m. being given at issue, defendant, to response questions, had explained Hannigan happened what the night of the He fight. that, admitted at one point, fighting stopped for him to walk long enough over to the street corner and pick “some up that he used to type object” strike the victim on chest, or head on his he was not certain which. The victim down, fell friends, and and two named, whom he ran one of the friends’ mother’s house.
It is unclear what happened the hour during half following defendant’s arrival at the police station at about 5:15 Hannigan testified p.m. that they discussed with the witnesses “and that type of In thing.” event, 6:38 p.m., was determined Hannigan defen- get dant’s statement on On the tape. tape, stated, Hannigan “We’ve been oh, for the hour talking and, and half like past, I said, we’re it gonna go again on through tape, o.k.?” Defen- dant was advised of his Miranda properly rights from card, standard and the officers then recorded a statement to, very than, similar but more detailed the statement defendant had made earlier the police car. Defendant that, stated after with striking the victim a chunk asphalt, the victim “hit the ground just rolled over and then back onto his back.” He did not remember whether the victim moved after that and claimed that he was not close enough to see whether the victim was breathing.
A third and final was tape statement recorded the a.m., at 9:15 following morning of which purpose was “just his statement from the clearing up preceding evening, detail getting more as to what That statement happened.” Miranda was also taken after adequate given. were argue The state does not even if the first state- admissible, were; subsequent ment statements *15 its only contention is that defendant’s state- subsequent are statement fruits, ments not tainted because first When, the first poisoned. during interrogation, admitted he with object had struck the victim after which defendant fell the street pavement,
the victim friends, the “cat was out the scene with two named ran from The clarified details. merely later statements bag.” of the to dissipate was insufficient change place in time and delay “let of his Once had rights. of the earlier violation taint later confessions were bag,” out of the defendant’s cat State v. Garri- similarly poisoned. the first and were fruits of son, P2d 1295 588, 602, 519 App under Article section rights defendant’s Because I would reverse violated, were the Fifth Amendment a new trial. and remand for I dissent.
Accordingly,