State ex rel Juv. Dept. v. Deford

• Decision Date: 31 October 2001
• Citation: 34 P.3d 673,177 Or. App. 555
• Parties: In the Matter of Ray Martin Deford, a Minor Child. STATE ex rel JUVENILE DEPARTMENT OF WASHINGTON COUNTY, Respondent, v. Ray Martin DEFORD, Appellant.
• Court: Oregon Court of Appeals

34 P.3d 673

177 Or. App. 555

In the Matter of Ray Martin Deford, a Minor Child.

STATE ex rel JUVENILE DEPARTMENT OF WASHINGTON COUNTY, Respondent, v. Ray Martin DEFORD, Appellant.

J96-0379; A99706

Court of Appeals of Oregon.

Argued and Submitted March 8, 2000.

Decided October 31, 2001.

David E. Groom, Public Defender, argued the cause for appellant. With him on the brief was Jennifer Harrington, Hillsboro.

Ann Kelley, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.

LINDER, J.

Youth appeals from a juvenile court judgment finding him within the jurisdiction of the court for acts that, if committed by an adult, would constitute first-degree arson, felony murder, and criminally negligent homicide. Youth, who was 11 years old at the time of the incident, confessed to starting a fire in which eight people died. We write to address only two assignments of error. First, youth challenges the admissibility of his inculpatory statements to police, arguing that his statements and his Miranda waiver were involuntary. Second, youth challenges the denial of his motion to dismiss, arguing that the state failed to demonstrate that he burned property of "value," as required to prove the charges of first-degree arson and felony murder. For the reasons that follow, we affirm in part, reverse in part, and remand for entry of an amended order of commitment.

I. BACKGROUND

Eight residents of the Oakwood Park Apartment complex in Aloha died on June 28, 1996, when an early morning fire destroyed a portion of the complex. Fire investigators determined that the fire originated in the stairwell near the laundry room and that it was intentionally set using some type of accelerant.

Based on several contacts with youth, officers began to suspect that youth started the fire. Youth was first interviewed by Detective O'Connell on the morning after the fire, as part of the initial investigation into the fire's cause. Youth said that the smell of smoke woke him, and he escaped. Youth told O'Connell that he believed that the fire was intentionally set, that whoever started the fire had probably destroyed any evidence, and that the person may have used rubbing alcohol or lighter fluid.

O'Connell interviewed youth again the next day, while youth sat in the back seat of an unmarked police car. At the outset of the interview, O'Connell explained to youth that they were just there to "chat" and emphasized that youth was not under arrest and that he could leave at any time. O'Connell did not give youth Miranda warnings at that time. During that interview, youth reiterated his earlier description of the night of the fire and continued to present various theories about the fire's cause. Specifically, youth told O'Connell that he thought the fire was started by some "kids" who lived in the apartment complex. Youth again speculated that whoever started the fire could have used any number of flammable materials, including car oil, kitchen oil, and rubbing alcohol. O'Connell and youth engaged in a short colloquy during which O'Connell asked youth whether it would be "better" for whoever started the fire to confess. Youth told O'Connell that it would be "better" for the person to admit starting the fire "because they wouldn't get in a lot of trouble if they admit it, but if they don't admit it they're gonna get in a lot of trouble." Youth then expressed that he was bored with the questions, and he asked to leave. O'Connell asked youth if they could talk again later, youth agreed, and the interview ended.

The next day, Deputy Fire Marshal Kellas responded to a fire alarm at the hotel in which youth and his parents were staying. The hotel manager reported that youth had pulled the fire alarm, and Kellas interviewed youth about the incident. Youth told Kellas that he had accidentally triggered the alarm. Kellas asked youth about the apartment complex fire. Youth told Kellas that someone had set two fires in the stairwell of the complex using rubbing alcohol.

Police searched youth's apartment that same day. Among the items found were a burned portion of a sheet from youth's bed, two lighters, rubbing alcohol, and a squirt gun containing a liquid that smelled like alcohol.

The next morning, O'Connell and Officer Garrett located youth in his grandmother's apartment and obtained the permission of youth's mother to question him in the apartment manager's office. In a prior discussion, youth had disclosed to O'Connell that his favorite television show was "Cops" and that he watched it almost every night. O'Connell began by asking youth if he had ever seen the officers on "Cops" advise people of their Miranda rights. Youth indicated that he had and that he "sort of" knew what they were. O'Connell then advised youth of his rights by reading each of the four Miranda rights, one at a time, stopping after each one and asking youth to define it. Youth explained that the right to remain silent meant that he did not have to talk. O'Connell asked youth to explain the meaning of the statement: "Anything you say can and will be used against you in a court of law." Youth described it to mean that "you could be judged." When O'Connell stated: "You have a right to talk to a lawyer and to have him or her present with you while you are being questioned," youth explained that a lawyer is someone who knows the law. Finally, O'Connell read the fourth right — "If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish." Youth said that it meant that, "if you cannot afford a lawyer, you get one." Youth indicated that he understood each of those rights. O'Connell asked youth to read a written statement listing the Miranda rights and to sign it. Youth read it out loud and had trouble reading some of the words. Youth signed the form, after which O'Connell asked youth if they could continue to talk, and youth agreed.

O'Connell continued where they had left off in the prior interview by asking youth whether he felt that it would be "worse" if someone had started the fire on purpose or if it were an accident. O'Connell described the extent of the investigation and reminded youth that the fire department, the police, and the ATF had expended a tremendous amount of resources to investigate the fire. He then told youth that he believed that youth had started the fire.

Youth initially responded by denying any involvement in the fire. Eventually, however, youth made several inculpatory statements. When O'Connell asked youth who should be responsible for telling his parents, youth said, "I'll tell them." O'Connell asked youth if he meant to hurt anybody, and youth replied, "No." Youth complained that he was hungry and that he had a headache. They ordered pizza.

While they were waiting for the pizza to arrive, O'Connell asked youth if he used matches or a lighter to set the fire. Youth replied, "Why don't you just guess?" O'Connell declined to do so. Youth then went into what O'Connell described as a "false whimpering stage," during which he made strange noises. Several minutes later, he "suddenly and instantly" snapped out of it and said, "Okay, I'll level with you." Youth explained that he could not use a lighter or a match because they were too noisy. Youth offered to describe the fire if O'Connell promised to keep it secret. O'Connell explained that he could not make that promise. Youth asked if he would be allowed to leave if he answered three questions. O'Connell told youth that he could not leave because he already had implicated himself.

Youth eventually began to "loosen up a bit" and related that he had started the fire as an "experiment." He explained that he used matches that he had found in the stairwell of the apartment complex, took a one-half- to three-quarter-inch stack of newspapers from the laundry room, placed them in the middle of the carpet near the door to his apartment, placed a match on the newspapers, lit another match, and placed it on top of the first match. Youth denied using any type of fuel in starting the fire. He explained that the fire quickly grew out of control and that, after trying but failing to extinguish it, he went back to his apartment, lay down on the living room floor, and hoped that the wind eventually would blow the fire out. Instead, it grew. Within a few minutes, the smell of smoke began to penetrate the apartment, and youth woke his parents. When youth finished describing those events, O'Connell acknowledged that it must have been difficult for youth to talk about the incident and told youth that he would do his best to help him. Youth replied, "You are already helping me as best you can." That portion of the interview lasted less than an hour. Youth did not, at any time, specifically state that he did not want to talk to O'Connell.

O'Connell next asked youth if he would give a recorded statement. Youth agreed. O'Connell began recording the interview at that point and read the Miranda warnings again. Youth proceeded again to describe how he had started the fire. Several minutes into the recorded statement, O'Connell asked youth what he (O'Connell) was forgetting to ask, and youth replied, "Nothing. We're done." O'Connell then said, "No. Sit down. We're not done. It's not that simple, son. What else happened that night? Anything else?" The interview continued for several more minutes.¹

O'Connell informed youth that he would be taken into custody, at which point youth asked to speak to his father. When his father confronted him, youth initially denied starting the fire, but he eventually confessed again. Youth was transported to the sheriff's office where he confessed a fourth time, revealing that he had used rubbing alcohol to accelerate the fire and that he had started the fire by placing the...