State v. Capwell, 136,657
Decision Date | 28 September 1983 |
Docket Number | No. 136,657,136,657 |
Parties | STATE of Oregon, Appellant, v. Gary Weston CAPWELL, Respondent. ; A27187. |
Court | Oregon Court of Appeals |
Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.
Carla D. Thompson, Salem, argued the cause and filed the brief for respondent. With her on the brief was Gary D. Babcock, Public Defender, Salem.
Before RICHARDSON, P.J., JOSEPH, C.J., and NEWMAN, J.
Defendant was indicted for sexual abuse in the first degree. ORS 163.425. Prior to trial, he moved to suppress a confession he made at the time of his arrest on the ground that it was made involuntarily. After a hearing, the trial court granted defendant's motion. The state appeals under ORS 138.060(3). We affirm.
On September 9, 1982, at approximately 9:30 a.m., State Troopers Reed and Glover went to defendant's home to investigate a charge of sex abuse made by defendant's two minor daughters. Reed introduced himself to defendant and explained why the troopers were there. Defendant was not placed under arrest, and his girlfriend was present throughout most of the subsequent questioning. Reed explained that defendant's daughters had complained that defendant had shown them his erect penis, had the children touch it and had masturbated in front of them, and that those acts constituted a criminal offense. Reed also told defendant that treatment programs were available and that a court would have the option of permitting defendant to participate in treatment rather than incarcerating him. Reed described the conversation as follows:
The officers were polite and put no pressure on defendant, who seemed sober and to understand what was happening. After the conversation described above, Reed advised defendant of his Miranda rights, which defendant acknowledged indicating that he understood. Defendant then confessed to Reed, who reduced defendant's statements to writing. As Reed was leaving, he told defendant that the statement would be submitted to the grand jury and that an arrest warrant would follow.
The trial court made the following findings of fact and conclusion of law:
The findings of fact are supported by substantial evidence in the record, and we are bound by them. We must determine whether the court's conclusion that defendant's confession was involuntary is constitutionally correct. State v. Warner, 284 Or. 147, 156-57, 585 P.2d 681 (1978); Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968).
Defendant asserts that his confession was induced by Reed's implied promise that, if he admitted the charges, he would not face criminal prosecution. Defendant argues that his confession, therefore, was given involuntarily under both the state and the federal constitutions. Art I, § 12 of the Oregon Constitution reads in pertinent part as follows:
"No person shall be * * * compelled in any criminal prosecution to testify against himself.--"
Because we find that defendant's confession was obtained in violation of the Oregon Constitution, we do not reach the federal constitutional question. See State v. Kennedy, 295 Or. 260, 262, 666 P.2d 1316 (1983).
Article I, section 12 prohibits the use of a confession which has been induced by a direct or implied promise. State v. Mendacino, 288 Or. 231, 239 n. 6, 603 P.2d 1376 (1979); State v. Wintzingerode, 9 Or. 153, 163 (1881). The issue before us, therefore, is whether Reed's statements reasonably can be construed as impliedly promising that defendant would get treatment instead of incarceration if he admitted the criminal charges.
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