709 P.2d 225 (Or. 1985), SC S30798, State v. Miller
| Citation | 709 P.2d 225, 300 Or. 203 |
| Opinion Judge | CARSON, J. |
| Party Name | STATE of Oregon, Respondent on Review, v. Jerry Lee MILLER, Petitioner on Review. |
| Attorney | Stephen A. Houze, Portland, argued the cause for petitioner on review. With him on the petition was Birkland, Koch & Houze, Portland. Stephen F. Peifer, Assistant Attorney General, Salem, argued the cause for respondent on review. A brief of the American Psychological Association and Oregon Psych... |
| Case Date | November 05, 1985 |
| Court | Oregon Supreme Court |
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Argued and Submitted Oct. 8, 1984.
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[300 Or. 204] Stephen A. Houze, Portland, argued the cause for petitioner on review. With him on the petition was Birkland, Koch & Houze, Portland.
Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent on review.
A brief of the American Psychological Ass'n and Oregon Psychological Ass'n as amici curiae in support of petitioner was filed by Kit Kinports, Donald N. Bersoff and Ennis, Friedman, Bersoff & Ewing, Washington, D.C., and Jonathan A. Ater
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and Lindsay, Hart, Neil & Weigler, Portland.
Before PETERSON, C.J., and LENT, LINDE, CAMPBELL, ROBERTS and CARSON, Justices.
[300 Or. 205] CARSON, Justice.
This case involves the scope of the psychotherapist-patient privilege in Oregon, under OEC 504. Also at issue is the propriety of police conduct with respect to defendant and whether evidence seized from warrantless searches of defendant's person and his residential hotel room was properly admitted at trial. The evidence was admitted on three grounds: as obtained pursuant to a search incident to arrest, as an emergency exception to the warrant requirement, and under the doctrine of inevitable discovery.
FACTS
Defendant's case was tried to the court on stipulated facts. What follows is a summary of those facts.
Just before midnight on August 6, 1982, defendant telephoned his brother in California and told him that he had just "strangled a kid." Defendant's brother advised him to call a mental hospital or talk to someone who could help him with his problem. Minutes later, defendant telephoned Dammasch State Hospital and asked to speak to a doctor, giving a false name to the secretary-receptionist, Ms. Smith. When Ms. Smith asked him "what the problem [was]," he replied, "Murder. I just killed a man." Ms. Smith then said she would let him speak to a psychiatrist. She asked defendant for the telephone number from which he was calling; he told her the number, stating it was in a public telephone booth.
Ms. Smith telephoned the Clackamas County Sheriff's office, explained the situation, and gave them defendant's telephone number. Then Ms. Smith called Dr. Wendy Saville, the psychiatrist on duty that night at the hospital, and asked her to keep defendant on the line so that the Sheriff's office could "trace the call."
Dr. Saville talked to defendant for 10 or 15 minutes, asking him for background information, similar to what she usually obtained from a patient in a psychiatric interview. At trial, however, she testified that she was only talking to defendant so that the police could find him and that she only asked him about his background because it seemed the "safest" thing to talk about. When she questioned defendant about his name, he asked whether their conversation was confidential. Dr. Saville assured defendant that she would not [300 Or. 206] disclose his confidences; only then did he give her his true name. During the conversation, defendant made a number of incriminating statements about his homosexual encounter with the victim, his fantasies and his role in the victim's death.
While defendant conversed with Dr. Saville, the Sheriff's office contacted the Portland Police Bureau, which located the telephone booth and sent a uniformed officer to investigate. When the officer arrived at the telephone booth and determined that defendant was the person talking to the state hospital, he physically removed defendant from the telephone booth, patted him down for weapons, found none, removed defendant's wallet and placed him in the locked rear passenger area of his patrol car.
The officer returned to the telephone booth to talk to Dr. Saville. She initially declined to give him any information about what defendant had told her because she believed it was a confidential communication protected by the psychotherapist-patient privilege. When the officer became "angry" and "pushed" her to tell him what happened, she told him that defendant told her he murdered someone.
The officer returned to the patrol car and questioned defendant, without advising him of his Miranda rights. 1 Defendant responded that he wanted to speak to a lawyer, but the officer continued to ask him
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several times whether he had hurt someone and where the person was. During this questioning, defendant admitted that he had "hurt someone," that he "couldn't wake him up," and indicated that the person was in defendant's room in a residential hotel. Defendant then pulled his room keys out of his pocket and the officer took them.
The officer called for an ambulance, drove to the hotel one block away, entered the locked room using defendant's keys, and discovered the deceased victim's body. The officer returned to the car and for the first time advised defendant of his Miranda rights. Defendant did not respond to further police questioning.
Defendant's room was searched, and the victim's body and other evidence was removed. The next day, a search [300 Or. 207] warrant was sought and issued, authorizing a search of defendant's room, from which other evidence was removed.
Defendant was charged with murder. ORS 163.115. He moved to suppress (1) his statements to Ms. Smith; (2) his statements to Dr. Saville; (3) his statements to the police officer; (4) evidence seized from his person; (5) evidence obtained during the warrantless entry and search of his room; and (6) all derivative evidence from the alleged illegalities. The trial court suppressed only his statements to the police officer, made during custodial interrogation without advice of Miranda rights and after he asserted his right to counsel. After a trial to the court, defendant was convicted of first degree manslaughter. ORS 163.118.
Defendant appealed to the Court of Appeals, 67 Or.App. 637, 680 P.2d 676, which considered the case in banc and wrote four separate opinions. In the lead opinion, four members of the court relied upon the psychiatrist's statement that she was not diagnosing or treating defendant to conclude that no psychotherapist-patient relationship had been established and defendant could not claim the psychotherapist-patient privilege under OEC 504. The lead opinion also determined that even if defendant's communication to Dr. Saville was privileged, any error in admitting it was harmless because the statements were merely cumulative of the testimony of defendant's brother and the receptionist. The lead opinion held that the police officer had probable cause to arrest defendant outside the telephone booth and to search him incident to that arrest. Finally, the lead opinion held that the evidence seized during the warrantless search of defendant's room was admissible under the "inevitable discovery" doctrine.
Four judges dissented, three believing that defendant's statements to both the psychiatrist and the receptionist were privileged, and one judge determining that only defendant's statements to the psychiatrist were inadmissible. Two other judges specially concurred, agreeing with the dissenters that defendant's statements to the psychiatrist were privileged communications, but also agreeing with the lead opinion that the error in this case was harmless.
Defendant petitioned for review raising the same issues to this court. We will consider separately defendant's [300 Or. 208] contentions that the following evidence should have been excluded at trial: (1) his statements to Dr. Saville and Ms. Smith; (2) evidence seized from the warrantless searches of defendant's person and room; and (3) evidence derived from his statements to the police officer and from the above-alleged illegalities. For the reasons discussed below, we affirm the Court of Appeals.
DISCUSSION
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PSYCHOTHERAPIST-PATIENT PRIVILEGE
The psychotherapist-patient privilege in Oregon is governed by OEC 504. The purpose of this privilege is to foster a relationship that is deemed important to society and one whose success is dependent upon full and free communication. Rule 504 combines the privileges for psychologists and psychiatrists, which were recognized separately under prior law, into a psychotherapist-patient privilege, which applies in
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both civil and criminal cases. 2 Kirkpatrick, Oregon Evidence 160 (1982) (hereinafter cited as Kirkpatrick).
OEC 504(2) provides:
"A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purposes of diagnosis or treatment of the patient's mental or emotional condition among the patient, the patient's psychotherapist or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient's family."
"Patient" is defined as "a person who consults or is examined or interviewed by a psychotherapist." OEC 504(1)(b).
"Psychotherapist" is defined as:
" * * * a person who is licensed, registered, certified or otherwise authorized under the laws of any state to engage in the diagnosis or treatment of a mental or emotional condition, or reasonably believed by the patient so to be, while so engaged." OEC 504(1)(c).
"Confidential communication" is defined as:
[300 Or. 209] " * * * a communication not intended to be disclosed to third persons except: Persons present to further the interest of the patient in the consultation, examination or interview; persons reasonably necessary for the transmission of the communication; or persons who are participating in the diagnosis and treatment under the direction of the psychotherapist, including members of...
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