State v. Paz

• Decision Date: 05 December 1977
• Citation: 31 Or.App. 851,572 P.2d 1036
• Parties: STATE of Oregon, Appellant, v. Federico PAZ, Respondent. . *
• Court: Oregon Court of Appeals

Page 1036

572 P.2d 1036

31 Or.App. 851

STATE of Oregon, Appellant, v. Federico PAZ, Respondent.

Court of Appeals of Oregon, In Banc. ^*

Argued and Submitted Aug. 24, 1977.

Decided Dec. 5, 1977.

Robert C. Gorham, Asst. Dist. Atty., and David M. Nissman, Certified Law Student, Eugene, argued the cause for appellant. With them on the brief was J. Pat Horton, Dist. Atty., Eugene

Donald D. Diment, Jr., Eugene, argued the cause for respondent. With him on the brief were Jack A. Billings, and Diment, Jagger & Billings, Eugene.

SCHWAB, Chief Judge.

The state appeals from an order suppressing inculpatory statements made by the defendant. It contests the findings that (1) the defendant was "in custody" when he initially confessed to the police; (2) the defendant should not have been questioned after he requested an attorney; and (3) the defendant's incriminating telephone conversation with his family was the "fruit" of his illegally obtained initial confession.

FACTS OF THE CASE

On February 12, 1977, Ricardo Villalodos was murdered at approximately 4 a. m. The defendant's college dormitory roommate told police that the defendant was near the decedent with a knife at the time of the murder. The roommate also told police that defendant had threatened him with a knife.

The police, Officers Heide and Van Horn, waited for defendant to return to his dormitory room. The defendant returned at 8 a. m. He was handcuffed at gunpoint, given Miranda warnings, and taken to the police station. Defendant was seated in the back of the police car next to one officer. At the police station he was questioned and also asked if he wished to take a polygraph test. The defendant asked if he could speak with a lawyer. The police allowed him to contact a lawyer who soon arrived at the police station. The lawyer spoke to the defendant and then told the police that the defendant wanted to go home for the day because he was tired. He also stated that the defendant would return February 13 to take a polygraph test. The lawyer also gave police permission to continue questioning the defendant the following day. The police agreed to this arrangement and allowed defendant to go home.

On February 13, 1977, at 9 a. m., Officers Heide and Van Horn arrived at the defendant's dormitory room in order to transport him to the police station for a polygraph test. The police pickup of the defendant had been arranged the day before. Before defendant left the dormitory, he was accompanied by both officers to the basement of the dormitory when he went to pick up some clothes that he had been washing there.

Subsequently, defendant was taken to the police car. He was seated in the back seat with one officer. On the way to the police station, defendant indicated he wanted to take a polygraph test, but wanted to talk to his attorney first.

On arrival at the police station, the defendant and the officers entered through a "combination lock"-type of door. The defendant was interviewed in an 8-by-10-foot windowless room with the door closed at all times. The defendant attempted to contact several lawyers whom the lawyer he had obtained the previous day had recommended. None was available. The defendant then called his first lawyer and, after a brief conversation, the defendant indicated to police that he would take the polygraph test on February 14.

The police, at this point, no longer asked defendant if he wanted to take a polygraph test. Instead, they asked the defendant if he were willing to discuss the homicide. Officers Heide and Van Horn pointed out to the defendant the inconsistencies in defendant's statements to police on February 12. At this point, the defendant volunteered to take the polygraph test immediately. When questioned by the police about his decision, the defendant indicated that he wanted to take the test without a lawyer present.

Defendant, at 10 a. m., was introduced to Officer Mitchell, the polygraph examiner. The defendant signed a consent form before taking the test which indicated that he was a "suspect" in the present case. At 10:05 a. m. the polygraph test began. After the test was completed, the defendant was told by Mitchell that it was obvious that the defendant had not told the truth about his involvement in the case and that Mitchell knew that the defendant had been in a room where a man was stabbed. The defendant then said, "I better talk to my attorney before I say anything or I answer any questions." Mitchell then again stated that he thought that defendant had not told the truth.

Mitchell then turned the defendant back over to Heide and Van Horn. The defendant, Heide and Van Horn were standing in a hallway. Mitchell told them that the defendant was "more involved in this incident than he is telling you, but how much he is involved, I do not know." Mitchell did not mention the defendant's request to speak to an attorney.

The record is unclear as to what transpired at this point. Heide testified that he asked the defendant if he was willing to talk to the police further and stated that defendant said "yes." Van Horn testified that defendant was never asked if he wished to go on speaking with the police.

Defendant was then returned to the original interview room and told by Heide and Van Horn that they believed he was involved in the homicide. They also stated that they did not know if he was a witness or a suspect. Heide and Van Horn then asked defendant (1) if he would be willing to tell police just what his involvement in the homicide was; (2) if he had stabbed the decedent; and (3) if he saw who had killed the decedent.

After a pause of 30 seconds, defendant told police he was willing to cooperate, but wished to return the next day, at which time he would explain his involvement in the homicide. The defendant also stated that he wanted to go home to talk to his parents before telling Heide and Van Horn about his involvement in the homicide. Heide and Van Horn responded that they were in the middle of a homicide investigation and that if the defendant had valuable information, he should give it to them immediately.

The defendant then twice asked Heide and Van Horn if he could speak to his parents if he first told the police what had happened. Heide and Van Horn stated that he could, and also told defendant he was not under arrest. Defendant then asked the police if he would be able to leave if he described the nature of his involvement in the homicide. Heide and Van Horn said "yes." Defendant paused briefly and, at 11 a. m., told police that he had killed "Ricky." Heide and Van Horn were surprised at defendant's confession. They had expected defendant to implicate his roommate, since they had just discovered evidence implicating his roommate.

After defendant confessed, Heide and Van Horn asked him if they could tape his confession. The defendant agreed, but then changed his mind. Defendant was then asked if he knew he did not have to talk to police and if he knew he had the right to have an attorney present. The police then asked defendant why he had confessed and he replied, "(b)ecause of the pressure of the investigation and the pressure from within me."

Defendant was then arrested, advised of his Miranda rights, taken from the interview room and then escorted to another room where he was permitted to call his parents. He spoke to them over the phone in Spanish. An interpreter was called into the room and took notes of the conversation.

I. Was the Defendant "In Custody" When He Initially Confessed to the Police?

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), the United States Supreme Court held that a specific warning is required when a defendant is subjected to a "custodial interrogation," defined as

" * * * questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way * * *." 384 U.S. at 444, 86 S.Ct. at 1612.

Most of the case law arising in this area after Miranda centers on the question of whether a defendant was "in custody" at the time the statements in question were made. However, before we consider that problem, it should be noted that a Miranda warning is required only when a defendant is subject to a "custodial interrogation." In this case, neither the state nor the defendant disputes that he was interrogated by the police during his two days in the police station. Consequently, we need only discuss whether the defendant was "in custody" at the time he was questioned by the police.

A. "In Custody" Defined.

As noted above, "custodial interrogation" is defined in Miranda as occurring when a person has been taken into custody "or otherwise deprived of his freedom of action in any significant way." 384 U.S. at 444, 86 S.Ct. at 1612. The question of how great a restriction may be placed on an individual's freedom without invoking the protections of Miranda must be decided on the facts of each case. In order to decide the more difficult cases, courts have attempted to devise tests to determine what constitutes "custody" and what constitutes deprivation "of * * * freedom of action in any significant way."

When Miranda was decided, courts had become familiar with the "focus test" of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). Escobedo held that certain rights of the accused arise when the "investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect." 378 U.S. at 490, 84 S.Ct. at 1765. Some courts, accustomed to this test, began to apply it to cases arising under Miranda. See, e. g., Brown v. Beto, 468 F.2d 1284 (5th Cir. 1972); Windsor v. United States, 389 F.2d 530 (5th Cir. 1968). However, the great majority of courts, including Oregon's, have rejected the focus test. Smith, The Threshold Question In Applying Miranda: What Constitutes Custodial Interrogation?, 25...