State ex rel. Juvenile Dept. of Lane County v. Charles
| Decision Date | 13 September 1989 |
| Citation | 779 P.2d 1075,98 Or.App. 436 |
| Parties | In the Matter of Lindsen Lee Charles, a male child. STATE of Oregon ex rel JUVENILE DEPARTMENT OF LANE COUNTY, Respondent, v. Lindsen Lee CHARLES, Appellant. 80-434; CA A46410. |
| Court | Oregon Court of Appeals |
John I. Mehringer, Eugene, argued the cause and filed the brief for appellant.
Frank Gruber, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
The child, age 13, appeals an order of the juvenile court that he is within its jurisdiction because of conduct that, if done by an adult, would constitute intentional murder. He assigns as error that the court denied his motion to suppress a confession that he made after the police gave him Miranda warnings. He argues that he did not make a knowing, intelligent and voluntary waiver of his rights before he confessed. He also assigns as error that, at the suppression hearing, the court admitted testimony by police about previous encounters with the child. We review de novo. ORS 419.561(4); State ex rel Juv. Dept. v. Gray, 79 Or.App. 216, 218, 718 P.2d 773 (1986); State ex rel. Juv. Dept. v. Qutub, 75 Or.App. 298, 300, 706 P.2d 962, rev. den. 300 Or. 332, 710 P.2d 147 (1985). We affirm.
On June 3, 1987, after the victim's body was found in the Sycan Ford area, police arrested the child and took him to the Klamath County Sheriff's office. An officer explained to the child that he wanted to question him about "the event" at Sycan Ford. Without giving Miranda warnings, the officer began to interrogate him. About fifteen minutes later, a second officer arrived. The first officer testified that the child appeared frightened and appeared to believe that one of the officers would hit him when he arrived at the sheriff's office. The officer testified that, shortly after the second officer arrived, they drove the child to a park about one mile from the sheriff's office to calm him and walked to a spot hidden from the road. The officers kept other people away while they questioned the child for another 45 minutes, again without giving him Miranda warnings. They testified that the child seemed to calm down at the park. During that questioning, the child confessed for the first time to the killing. He then became upset and asked to return to the sheriff's office. The officers drove him back to the office.
At the sheriff's office, the officers asked the child if he would make a taped statement, and he agreed. While the two officers taped the interrogation, the child sat between them. The officers testified that the child became relaxed and put his feet up on the desk during the interrogation, that they made no threats toward or promises to him and did not deny him food or drink and that he did not appear to be under the influence of drugs or alcohol. The interrogation lasted about 40 minutes. Without receiving Miranda warnings, the child confessed for the second time.
The police then asked the child to make diagrams of the death site, and he did so. The record does not disclose how much time the child took to make the drawings. While he drew the diagrams or shortly thereafter, the officers realized that neither of them had given him Miranda warnings. Within an hour after the conclusion of the first taped interrogation, the officers started a second taped interrogation. They first read Miranda warnings to the child:
After the officers recommenced questioning the child, one of them stopped to have him sign the advice of rights card. The card contained the same warnings that the officer had just read to him. It also contained the question, "Do you understand these rights?" The child answered, "Yes." The card also contained the question, "Having these rights in mind, do you wish to talk to us?" The child answered, "Yes, ah, ya." The child and the officer then both signed the card. During the subsequent interrogation of about a half an hour, the child confessed the third time.
The child moved to suppress the evidence of any statements that he had made to the police, asserting that the state obtained them in violation of his Fifth and Sixth Amendment rights. The controversy centers on the third confession. At the suppression hearing, over the child's objection, the court admitted testimony of several police officers who had a connection with this case to show, as the state argued below, that the child "has had multiple encounters with the police and * * * previously had his Miranda rights explained to him and he has previously made choices necessary with regard to whether he was going to exercise his Miranda rights or not." During some, but not all, of the encounters, the police had given him Miranda warnings. During one encounter, when he did receive warnings, he asked for an attorney, and the officer ceased to question him.
The court denied the motion to suppress. It reasoned that it must look at the totality of the circumstances, including whether the unwarned confessions were voluntarily given, to determine whether the child knowingly, intelligently and voluntarily waived his rights when he gave his third confession. It ruled that the child's first two confessions, although unwarned, were voluntary. It also found that, before the third confession, the police gave Miranda warnings and asked him if he understood them and that he replied that he did. It found that the child had exercised his Miranda rights in the past and had then understood the warnings. It found:
It concluded:
"So I find that, considering the total circumstances, that the waiver was knowing, was intelligent and it was voluntary and with respect to the tape number 2 [the third confession], the Motion to Suppress is denied."
The child assigns as error that, at the suppression hearing, the court admitted the police officers' testimony about his previous encounters with the police. He asserts that the ruling violates OEC 404(3). That rule, however, does not apply to
"[t]he determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under [OEC 104]." OEC 101(4)(a).
The evidence that the state presented of the child's earlier encounters with the police when he did receive Miranda warnings was relevant to the issue of the child's knowing, intelligent and voluntary waiver of his Miranda rights before the third confession, and the court could admit it. Evidence of previous interrogations during which the child did not receive Miranda warnings was irrelevant. On de novo review, we disregard that evidence.
On the merits of the denial of the suppression motion, the child argues, as he did below, that, under the Fifth Amendment, considering the totality of the circumstances, he did not knowingly, intelligently and voluntarily waive his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966); see also Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Although he based his motion to suppress on the Fifth and Sixth Amendments, he does not raise the Sixth Amendment on appeal. He also does not argue that, under the Fifth Amendment, the failure of the police to give him Miranda warnings before the first two confessions made his third confession inadmissible as a matter of law or that the first two confessions or his drawings were involuntarily made. The issue is whether, under the Fifth Amendment, the state proved that, when he gave his third confession, he waived his Miranda rights knowingly, intelligently and voluntarily.
On the other hand, that the police warned the child before the third confession does not mean that his waiver of rights was knowing, intelligent and voluntary as a matter of law. Rather, we must examine the totality of the circumstances, including the entire course of police conduct. See Oregon v. Elstad, supra, 470 U.S. at 318, 105 S.Ct. at 1297; Schneckloth v....
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State ex rel. Juvenile Dept. of Lane County v. Charles
...Reconsideration Dec. 18, 1989. Decided Feb. 14, 1990. John Mehringer, Eugene, for appellant. NEWMAN, Judge. In our opinion, 98 Or.App. 436, 779 P.2d 1075 (1989), we held that the court did not err when it denied the child's motion to suppress a confession made after the police gave him Mira......