State v. Armstrong

• Citation: 38 Or.App. 219,589 P.2d 1174
• Decision Date: 29 January 1979
• Docket Number: No. 76-3725,76-3725
• Parties: STATE of Oregon, Respondent, v. Robert Alan ARMSTRONG, Appellant. ; CA 7612.
• Court: Court of Appeals of Oregon

Page 1174

589 P.2d 1174

38 Or.App. 219

STATE of Oregon, Respondent, v. Robert Alan ARMSTRONG, Appellant.

No. 76-3725; CA 7612.

Court of Appeals of Oregon.

Argued and Submitted Feb. 22, 1978.

Decided Jan. 29, 1979.

Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Donald L. Paillette, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Al J. Laue, Sol. Gen., Salem.

Before SCHWAB, C. J., and LEE, RICHARDSON and JOSEPH, JJ.

JOSEPH, Judge.

Defendant was charged with murder, the indictment alleging that he

"did intentionally and unlawfully cause the death of * * * a human being, by shooting him with a .38 caliber handgun; and, in the alternative, while engaged in the course of and in furtherance of attempting to commit robbery, and while in immediate flight therefrom, the said (defendant) did cause the death of * * * a human being, who was not then and there a participant, by shooting him with a .38 caliber handgun * * *."

Defendant was convicted of murder after a jury trial. He appeals.

Motion to Suppress

Defendant first argues that the trial court erred in denying a motion to suppress statements he made to police prior to receiving Miranda warnings. He contends that the statements were made in response to "custodial interrogation," I. e.,

"questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966).

That the comments were in response to interrogation is not disputed. The sole issue is whether the trial court erred in concluding that the interrogation was not "custodial."

The pertinent facts are as follows: At approximately 10:15 p. m. on July 10, 1976, a grocery store clerk was shot and killed. Several police officers arrived at the store at about 10:30 p. m. and began an investigation. Witnesses reported hearing gunshots and seeing a man run from the store toward an apartment complex. One witness said the man was carrying a handgun as he fled. Descriptions of the man differed markedly. For example, one witness said he was black; another said he was white. Apparently no cash had been taken from the store's register.

At about 1:15 the following morning a man who lived in an apartment house near the store reported to the investigating officers that a woman who lived in the building had come to his apartment and said that the person who was responsible for the killing was in her apartment. Officers accompanied the man to his apartment and found the woman (McDaniel) talking on the telephone. She denied that she knew anything about the killing. The man who had been drinking with defendant in McDaniel's apartment earlier in the evening and who apparently assumed that defendant was the person to whom McDaniel had attributed the killing agreed to take the police to McDaniel's apartment and to help lure the purported killer out.

Several police officers and district attorney's office personnel went with the man to McDaniel's apartment. He knocked, and a voice from inside asked who was there. The man identified himself. The door opened and defendant walked out. The man nodded toward defendant as if to indicate he was the one the police wanted.

As defendant stepped out into the hallway, the detective in charge of the investigation told Detective Van Horn to "keep an eye on him; he is a possible suspect." Most of the officers entered the apartment, where they found another man and a woman. Defendant, Van Horn and other officers remained in the hallway. An officer asked defendant for identification. He had none. The officer asked defendant if he lived in the apartment. He replied that he did not live there and was a hitchhiker.

Detective Van Horn identified himself as a police officer. He asked if defendant had a hitchhiker's backpack. Defendant said he did not. Van Horn asked defendant's name. He replied truthfully. Van Horn then asked defendant to accompany him to the end of the hallway to get away from the activity at the door of the apartment. When they reached the end of the hallway, Van Horn frisked defendant. He found five rounds of .38 caliber ammunition in defendant's shirt pocket. (Van Horn knew at that time that an investigator at the scene of the homicide had estimated that a cartridge he saw on the floor was .44 caliber.) Another police officer was standing with Van Horn and defendant during the frisk and throughout most of the interrogation which followed.

After Van Horn found the ammunition, he told defendant he was investigating a robbery-homicide and that the police had been told the person responsible for the killing was in the apartment where he had been found. Van Horn also told defendant that things were confusing at that time and that the police were still trying to find out what had happened. He asked for defendant's full name and date of birth. Defendant answered. He asked if defendant had a gun. Defendant said "No." He inquired where defendant had got the ammunition. Defendant explained that a black man riding a bicycle had handed it to him as he walked down a nearby street sometime after 11:00 p. m. Van Horn remarked that that seemed unusual. He then asked defendant if he was employed, and they discussed at length defendant's service in the Marines and the circumstances of his discharge. Van Horn asked if defendant had "ever been arrested before."

In response to further questioning defendant admitted that he had been at the market earlier in the evening but denied that he had attempted to rob the store or that he had killed the clerk. When asked if he had fired a gun recently, defendant replied that he had not.

The district attorney approached defendant and Van Horn and asked to see the ammunition taken from defendant. He told defendant (truthfully) that a gun had been found in the apartment and that the ammunition found on defendant fit the gun. He stated (falsely) that defendant's fingerprints had been found on the gun. He also stated (whether truthfully or falsely is not disclosed in the record) that McDaniel had identified him as the person who shot the clerk. He said that he knew defendant was lying about getting the ammunition from a black man on a bicycle. Defendant then admitted handling the gun found in the apartment. He said he fired it early the previous morning outside the city. He recanted his story about the black man and said the ammunition probably went with the gun found in the apartment.

When the district attorney attempted further questioning, defendant demanded that he be allowed to leave, be placed under arrest or be provided with an attorney. The questioning was discontinued. Van Horn estimated that the events described occupied 45 minutes.

Shortly after the interrogation ended, defendant asked if he could go to the police station to talk with McDaniel. She refused to speak with him. After almost two hours at the station, defendant was read the Miranda warnings and interrogation was resumed. The police had by then determined the gun found in McDaniel's apartment was the one used to kill the clerk.

The question presented is whether, when faced with the circumstances in which defendant found himself while being interrogated at the apartment building, a reasonable person would have concluded that his freedom was restrained in any significant way. State v. Paz, 31 Or.App. 851, 572 P.2d 1036 (1977), Rev. den. 282 Or. 189 (1978). If so, the interrogation was "custodial," and Miranda warnings were required.

Defendant was not told that he was in custody. No physical restraints were employed, nor were police weapons drawn. He was not removed to a police vehicle for questioning. When asked at the omnibus hearing if defendant would have been free to leave at any point during the interrogation, Detective Van Horn replied that he did not feel that he had probable cause to arrest defendant at that time. It is doubtful, however, that a person in defendant's position would have felt that his freedom was not significantly restrained. When defendant stepped out of the apartment into the hallway, he was faced with numerous law enforcement officers. The man who had led the police there indicated defendant with a nod. The detective in charge said to Detective Van Horn, "Keep an eye on him; he's a possible suspect." Defendant was asked to step to the end of the hallway and was frisked by Van Horn as another officer stood by. Defendant was then questioned for 45 minutes by Van Horn and the district attorney. We conclude that the interrogation was "custodial" and that Miranda warnings should have been given.

Reversal of the conviction is not warranted unless we find prejudice resulting from the admission of the statements in violation of defendant's constitutional rights. There is very little likelihood that the statements made at the apartment building were of any significance to the jury in concluding that defendant shot and killed the clerk, either intentionally or in attempting robbery. The evidence against defendant on those issues was overwhelming.

McDaniel testified that defendant left her apartment on the evening in question carrying the loaded gun and wearing a hat and a scarf to cover his face. He was intending to rob the store, where he had seen cash during visits earlier that day. When defendant returned, McDaniel testified, he was upset and told her

"I shot a guy. He didn't believe this was a real gun. I shot him in the ear to prove it. * * * I think I killed a guy."

Another woman who was at McDaniel's apartment late on the evening in question testified that defendant told her he had shot and killed a man. Another witness testified that defendant had solicited his help to commit a robbery on...