State ex rel. Juvenile Dept. for Lane County v. Brown

• Decision Date: 21 January 1975
• Parties: In the Matter of Arnold Roy Brown, a child. STATE of Oregon ex rel. JUVENILE DEPARTMENT FOR LANE COUNTY, Respondent, v. Arnold Roy BROWN, Appellant.
• Court: Oregon Court of Appeals

Page 569

528 P.2d 569

19 Or.App. 427

In the Matter of Arnold Roy Brown, a child.

STATE of Oregon ex rel. JUVENILE DEPARTMENT FOR LANE COUNTY, Respondent, v. Arnold Roy BROWN, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Sept. 17, 1974.

Decided Nov. 18, 1974.

Rehearing Denied Dec. 11, 1974.

Review Denied Jan. 21, 1975.

J. Fred Brandenfels, Eugene, argued the cause and filed the brief for appellant.

Timothy Wood, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and THORNTON and TANZER, JJ.

THORNTON, Judge.

This is an appeal from a final order and judgment entered in a juvenile court proceeding. The defendant, Arnold Ray Brown, a child, age 16, appeals from the order and finding entered by the Lane County Juvenile Court after an extended trial that the defendant had committed an assault by stabbing upon two other children.

Defendant contends that the trial court erred:

(1) in admitting testimony concerning defendant's 'oral confession,' because he was in custody and not advised of his constitutional rights; that even if not in custody defendant's 'confession' was not voluntary;

(2) in failing to sustain defendant's objection to certain testimony elicited by the district attorney from defendant's psychiatrist, which testimony related to statements made by defendant to his psychiatrist concerning the assaults; and

(3) in denying defendant's motion for a new hearing based on errors of the court and newly discovered evidence, and a motion to reopen the hearing on the same grounds.

The two victims of the assault, Rose Welch, age 13, and Robert Welch, age 8, testified that they were walking along a secluded trail in dense undergrowth near the Willamette River in the northern part of Eugene at about 6 p.m., on June 6, 1973, when an unidentified young male stabbed them in the back and fled.

The essential facts are as follows:

In the process of checking out various investigative leads, the officers learned that defendant, among several others, had been in the vicinity about the time of the attack. The officers first interviewed defendant at his home on June 14. The following day the officers returned and asked defendant to accompany them to the river for the purpose of ascertaining where the defendant was at the time of the attack, and whom he may have observed near the scene. The officers testified that at this time they considered another boy the focal suspect. Defendant accompanied the officers voluntarily. He rode to the area in the back seat of the officers' unmarked police car. When they arrived at the river, the officers and the defendant discussed the assault. Officer DeForest testified that in the course of the conversation he said:

'* * * Arnold and I were talking about the person that would have stabbed the children. And I was telling Arnold to the effect that I can't quite understand the mood or the thinking of a fifteen, fourteen--fifteen or sixteen year old boy. And I asked other boys similar to this, you know, what would your thinking be? What would your reaction be. And I flat told Arnold it would be hard for me, if I was that age, or any age, to say that I did something like this. And I said to Arnold to the effect, 'It would be hard for you too, wouldn't it?'

'And he says, 'Yes.'

'Q (By Defense Counsel) And then on the sawdust pile did he say something to the effect, 'I did it'?

'At your suggestion that it's not hard to do?

'A It was kind of spontaneous. I said that: 'I did it. I did it. That's kind of hard for me. Be hard for you too?

'He said, 'Yeah. I did it. Yes, that would be hard.'

'And it was just kind of a conversation back and forth.

'Q And you also repeated the words to show him how easy it was to say, 'I did it'?

'A I said the words. But I can't respond to your motivation for why I said it.

'Q But you repeated the words? You said it and then Arnold simply repeated your words, is that correct?

'A Yes, he did. Yes.'

Immediately after the above conversation they returned to the police car. Officer DeForest then turned to defendant and asked: 'Arnold, I want you to answer me honestly and sincerely if you can * * *. Did you stab the kids?' Defendant answered, 'Yes, I did.' The officers testified that on the basis of this admission they then took defendant into custody and brought him to the police station for further questioning. At trial defendant testified that in making the 'I did it' statements, he was merely repeating the words the police asked him to say.

Defendant contends that his admission of guilt should not have been received because he was not first advised of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). We cannot agree.

Having reviewed the record we conclude first, that defendant was not in custody at the time of the above admissions of guilt. Therefore the requirements of Miranda and State v. Neely, 239 Or. 487, 395 P.2d 557, 398 P.2d 482 (1965), do not apply. See also, State v. Keiper, 8 Or.App. 354, 493 P.2d 750, Sup.Ct. review denied (1972). The officers questioned defendant in the regular course of their investigation as they had a right and duty to do. Defendant was never restrained. He testified that he felt that he voluntarily accompanied the officers to the scene of the assault, and that he felt that he was free to go at any time until he was arrested. Secondly, on the question of the voluntariness of the defendant's 'confession,' the trial judge heard the testimony and concluded that the atmosphere had not been such as to make defendant's admission of guilt involuntary and coerced. The rule of Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968), applies. Nor do we find that the interrogator's questions, considered in context, were impermissibly suggestive. We are satisfied that defendant's admission of guilt was voluntarily made and not impermissibly tainted. State v. Crossen, 10 Or.App. 442, 499 P.2d 1357, Sup.Ct. review denied (1972); State v. Raiford, 7 Or.App. 202, 206, 488 P.2d 295, 490 P.2d 206, Sup.Ct. review denied (1971).

Defendant's second assignment is that the trial court erred in failing to sustain defendant's objection to testimony elicited by the district attorney during his examination of defendant's psychiatrist, Dr. Bassford. The challenged testimony concerned allegedly privileged communications between defendant and his psychiatrist regarding the assaults.

To understand defendant's contention it should be explained that defendant's counsel had employed Dr. Bassford, a psychiatrist, through power of attorney from defendant's parents, to examine defendant for the purpose of testifying and possibly later treating defendant, and that Dr. Bassford was called as a witness by defendant in the remand hearing as well as at the trial. We do not find in the record transmitted any transcript of the testimony given at the remand hearing. The court file shows, however, that at the conclusion of that hearing the court denied the state's motion to remand defendant to adult court for trial. Thereafter the court, sitting as a juvenile court judge, commenced the instant trial on the stabbing charges. Dr. Bassford again testified for the defense. Near the conclusion of the trial Dr. Bassford was called by the district attorney as a witness for the state. It was during this examination that the challenged testimony was elicited by the district attorney. The trial court ruled against defendant's claim of privilege, apparently on the basis that the instant proceeding was quasi-criminal in nature.

Defendant, in addition to relying on the above section, also relies on the attorney-client privilege provided in ORS 44.040(1)(b), citing Brink et ux. Multnomah County, 224 Or. 507, 356 P.2d 536 (1960), and the patient-psychologist privilege provided in ORS 44.040(1)(h). The attorney-client contention was not raised during the trial below. Therefore it will not be considered for the first time on appeal. State v. Jorgensen, 8 Or.App. 1, 492 P.2d 312 (1971), Sup.Ct. review denied (1972). Defendant's contention that the patient-psychologist privilege applies is refuted by the record. ORS 44.040(1)(h) limits this privilege to licensed psychologists. Dr. Bassford testified that he was a licensed physician and surgeon practicing psychiatry, not a licensed psychologist. See, Triplett v. Bd. of Social Protection, Or.App., 99 Adv.Sh. 2446, 528 P.2d 563 (1974).

The state argues that defendant waived any privilege he may have had by calling Dr. Bassford as his own witness.

A person who seeks to invoke a privilege as to a confidential communication has the burden to show both that the person asserting the privilege and the nature of the testimony are within the ambit of the statute according the privilege asserted. Groff v. S.I.A.C., 246 Or. 557, 426 P.2d 738 (1967).

Under ORS 44.040(1)(d) ¹ '* * * information acquired in attending the patient, which was necessary to enable him (the physician) to prescribe or act for the patient * * *' is privileged and need not be divulged in civil proceedings, as distinguished from criminal proceedings. State v. Betts, 235 Or. 127, 384 P.2d 198 (1963).

Is a juvenile proceeding civil or criminal within the meaning of the physician-patient privilege granted under the above statute?

Turning to the Oregon cases dealing with this issue, in State v. Jamison, 251 Or. 114, 444 P.2d 15, 444 P.2d 1005 (1968), our Supreme Court held that in a juvenile court proceeding to terminate the parental rights of an indigent mother of several illegitimate children, failure of the state to inform the mother of her right to court-appointed counsel and to appoint such counsel constituted a violation of her right to due process of law. In reaching its decision the court relied on the rationale of In re Gault, 387 U.S. 1, 87 S.Ct....