924 F.2d 813 (9th Cir. 1990), 89-35374, Derrick v. Peterson

Docket Nº:89-35374.
Citation:924 F.2d 813
Party Name:Robert L. DERRICK, Petitioner-Appellant, v. R.S. PETERSON, Superintendent, Oregon State Correctional Institution, Respondent-Appellee.
Case Date:August 28, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 813

924 F.2d 813 (9th Cir. 1990)

Robert L. DERRICK, Petitioner-Appellant,


R.S. PETERSON, Superintendent, Oregon State Correctional

Institution, Respondent-Appellee.

No. 89-35374.

United States Court of Appeals, Ninth Circuit

August 28, 1990

Argued and Submitted March 5, 1990.

Amended Jan. 24, 1991.

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Stephen R. Sady, Asst. Federal Public Defender, Portland, Or., for petitioner-appellant.

Michael C. Livingston, Asst. Atty. Gen., Salem, Or., for respondent-appellee.

Appeal from the United States District Court for the District of Oregon.

Before WALLACE, SKOPIL and BRUNETTI, Circuit Judges.

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WALLACE, Circuit Judge:

Oregon state prisoner Derrick appeals from the denial by the district court of his petition for habeas corpus. In his petition, Derrick contends that his convictions for murder and first-degree manslaughter are invalid because statements he made to the police, which were introduced at his trial, allegedly were made involuntarily under the fourteenth amendment's due process clause and without a knowing, intelligent, and voluntary waiver of his Miranda rights. The district court exercised jurisdiction pursuant to 28 U.S.C. Secs. 2241 and 2254. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. Sec. 2253. We affirm.


Approximately 6:30 a.m. on December 26, 1981, Derrick, a 16 year old, came to the home of his aunt and uncle who lived across the street from the mobile home in which Derrick and his parents lived. Derrick told his uncle that Derrick's parents had been murdered during the night and that there was blood all over the mobile home. Derrick's uncle asked him where he had been the night before and Derrick responded that he had been in the mobile home but that he had not heard any shooting or struggling. Derrick's uncle then called a couple more of Derrick's relatives and together they went over to the mobile home. Upon seeing a pool of blood near where a pickup truck had been parked and drag marks across the lawn, they decided to forego any search of the mobile home and instead immediately contacted the sheriff.

Shortly after 8:00 a.m., Johannessen, a Tillamook County deputy sheriff, arrived to investigate the reported homicides. Johannessen spoke briefly with Derrick and several of his relatives. Derrick told Johannessen that he had arisen in the morning, had taken a shower, and that, upon coming out of the bathroom, he had seen the blood around the house. He had then come to his uncle's house to report that something had happened.

Johannessen then crossed the road to examine the scene. Upon entering the mobile home, he observed blood splatter marks, bone, tissue, and shotgun pellets in the area of Derrick's bedroom and the bedroom of his father and step-mother, which were joined by a hallway. After his initial inspection, Johannessen again spoke briefly with Derrick concerning how Derrick had originally found the scene. Derrick stated that when he had gone to bed the previous night, he had left his radio on at half volume and had not heard any gun blasts. He repeated that it was only after he finished his shower that he noticed the blood.

Shortly thereafter, two other deputies arrived and Johannessen learned that Derrick was a runaway from a juvenile group home. Approximately 9:20 a.m., Johannessen told Derrick that he was in custody because of his runaway status. He then handcuffed Derrick and placed him in the patrol vehicle. Johannessen also read Derrick his Miranda rights from a card and asked Derrick whether he understood that he did not have to talk to Johannessen. Derrick responded that he understood his rights and that he was willing to talk because he wanted Johannessen to "find out who did this thing." In response to Johannessen's questioning, Derrick reiterated his prior statement that he had not heard any shots fired because his radio had been on at half volume.

Johannessen then left Derrick in the patrol vehicle, where he remained until about 1:30 p.m., while Johannessen and other law enforcement officials conducted a more thorough investigation of the scene. Johannessen then transported Derrick to the Tillamook County sheriff's office, where Johannessen and Stephenson, a criminal investigator for the Oregon state police, interviewed Derrick from about 2:00 p.m. until about 5:00 p.m. Prior to this interrogation, Derrick's handcuffs were removed and Stephenson readvised Derrick of his Miranda rights. Stephenson used an Oregon state police "Advice of Rights" form which contains a seven-item checklist. Stephenson read through each item on the form, inquired whether Derrick understood that particular item, and received an affirmative

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response from Derrick each time. Derrick then signed a written waiver of those rights and then talked with the officers.

Stephenson and Johannessen questioned Derrick about some inconsistencies in his story. Among other things, they asked him why he had stated that he heard dogs barking and his parents truck leave when he had not heard a shotgun blast right outside his bedroom door. Finally, soon after hearing a radio dispatch announcing that his parent's bodies had been found, Derrick admitted that he had heard the shots. He further stated that upon hearing the shots he had barricaded himself in his bedroom. For the remainder of this interview, the officers questioned Derrick about inconsistent or unbelievable elements of his story. About 5:00 p.m., Derrick was taken to juvenile detention.

Approximately 9:50 p.m. Derrick was returned to the sheriff's office for further questioning. Prior to this additional questioning, Stephenson again explained to Derrick his Miranda rights. Stephenson testified that Derrick stated "that he understood his rights, that he had been advised of them numerous times, ... and was quite well aware of what that procedure was and his right to counsel." Stephenson and Johannessen then confronted Derrick with more inconsistencies in his story. Sometime prior to 11:30 p.m., Stephenson showed Derrick a picture of his father and stepmother's bodies and asked if Derrick could identify them. Upon viewing the pictures, Derrick became tearful. After a few moments of silence, Derrick admitted shooting both his father and his stepmother with a shotgun at close range. He also described his efforts at cleaning up the scene and concealing the evidence. Derrick was again advised of and waived his Miranda rights, and then repeated his confession which was recorded. This last interview concluded about 11:50 p.m. Derrick was then placed under arrest for these crimes, taken to the hospital for a blood test, and booked in Tillamook County jail about 12:30 a.m. on December 27.

At the hearing on Derrick's motion to suppress his confession, Johannessen and Stephenson both testified that Derrick was calm, alert, responsive, and cooperative at all times. Stephenson stated that Derrick showed emotion only twice during their conversations--once when he heard the radio dispatch that his parents' bodies had been found and a second time when he was shown the pictures of his parents. In both instances, Derrick regained his composure after a minute or two and proceeded with his story.

Judge Mayer, a Tillamook County judge before whom Derrick had previously appeared on a number of juvenile matters, testified that he had fully explained the Miranda rights to Derrick one year before the homicides and that Derrick's responses indicated that he understood those rights.

Two clinical psychologists, Dr. Lazere and Dr. DeCourcy, also testified at the hearing. Dr. Lazere had evaluated Derrick in March of 1981 in connection with a juvenile case and again in January 1982 after Derrick's arrest for his parents' murder. He testified that on the Slaussen intelligence test which he had administered in March 1981, Derrick achieved a mental age of nine years, ten months, which yielded an I.Q. of 62, placing him in the mildly delayed range of intellectual ability. When he was questioned regarding Derrick's ability to understand his Miranda rights, Dr. Lazere opined:

I think he would be able to understand the words themselves. I think he would be able to understand the concepts that the combined weight of the words was meant to convey, but whether he could understand the import of testifying, of talking about what had happened, and its relationship to his well-being in the future, of that I have serious doubts.

On cross-examination, however, Dr. Lazere stated that he was unaware of Derrick's previous arrests or that Derrick had received a careful explanation of his Miranda rights from Judge Mayer. He stated that these prior encounters with the Miranda warnings would make a "substantial

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difference" in Derrick's ability to understand and assert his Miranda rights.

Dr. DeCourcy's testimony was similar to Dr. Lazere's. He stated that Derrick's score on a different I.Q. scale--the Wexler Adult Intelligence Scale--was 74, placing him in the borderline range of mental retardation falling between dull-normal and the mild retardation range. He also related that when he had interviewed Derrick, Derrick had stated that because he had been arrested so many times, he understood what his rights were but felt that the police would assume his guilt if he refused to talk. Dr. DeCourcy opined that based upon his interview of Derrick he believed that Derrick could indeed understand his rights--i.e. that he could understand that he could ask to have an attorney present and did not have to answer questions--but that he could not adequately foresee the...

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