State v. Carlson

• Decision Date: 21 March 1991
• Parties: STATE of Oregon, Respondent on Review, v. John Howard CARLSON, Petitioner on Review. TC 10-88-07520; CA A51225; SC S36928.
• Court: Oregon Supreme Court

Page 1002

808 P.2d 1002

311 Or. 201

STATE of Oregon, Respondent on Review, v. John Howard CARLSON, Petitioner on Review.

TC 10-88-07520; CA A51225; SC S36928.

Supreme Court of Oregon,

In Banc.

Argued and Submitted Sept. 5, 1990.

Decided March 21, 1991.

[311 Or. 202] Robert C. Homan, Staff Atty., Public Defender Services of Lane County, Inc., Eugene, argued the cause and filed the petition for petitioner on review.

Janet A. Klapstein, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With her on the [311 Or. 202-A] response were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

UNIS, Justice.

Defendant appeals from his convictions for unlawful possession of a controlled substance, methamphetamine, ORS 475.992(4), and endangering the welfare of a minor, ORS 163.575. The Court of Appeals affirmed without opinion. State v. Carlson, 100 Or.App. 261, 786 P.2d 229 (1990). We affirm the decision of the Court of Appeals and the judgment of the Lane County Circuit Court.

FACTS

On August 3, 1988, Officer Lewis was dispatched to an apartment in response to a report of a domestic dispute between defendant and his wife, Lisa. On his arrival, Lewis was met by Lisa, whom he later described as having a "very white" complexion, looking tired, "fairly depressed," "distraught," and "at her wit's end," being occasionally tearful, and "coming down off of methamphetamine." Also present were the minor daughter of Lisa and defendant, and Lisa's sister and her minor daughter. Defendant was not in the apartment at that time.

Lewis asked Lisa if there were any methamphetamine in the apartment. She responded by saying that "he probably took it all, but go ahead and look around; I don't care anymore." During his search of the apartment, Lewis found traces of methamphetamine on a mirror in the master bedroom that defendant and Lisa shared.

About 15 to 20 minutes later, Lewis, accompanied by a second police officer, met defendant in the parking lot of the apartment complex. Lewis noticed what appeared to be needle marks on defendant's arms. Without first advising defendant of his constitutional rights, Lewis asked defendant about the needle marks. Defendant Defendant was not placed under arrest at that time, although he was cited for endangering the welfare of a minor. Defendant eventually was indicted for unlawful possession of a controlled substance and endangering the welfare of a minor.

                initially responded, "Yeah, I got a few tracks," and then said that the marks were injuries that he had received from working on a car.  Lisa, who was present during the exchange and close enough to hear what was being said, broke in by yelling:  "You liar, you got them from shooting up in the bedroom with all your stupid friends."   Defendant "hung his head and shook his head back and forth."
                

Before trial, defendant moved to suppress the statements that he made about the marks on his arms, arguing that he was in custody when he spoke with the police and was not advised of his constitutional rights. The trial court denied the motion, ruling that the interview was a "noncustodial interrogation" and admitted defendant's statements. At trial, over defendant's timely hearsay objection, the court also permitted Lewis to testify about Lisa's statement, "You liar, you got [the marks on your arms] from shooting up in the bedroom [where the methamphetamine was found] with all your stupid friends" and defendant's nonverbal reaction thereto.

SELF-INCRIMINATION ISSUE

Defendant claims that the admission of his statements to the police officer about marks on his arms violated his right against self-incrimination under Article I, section 12, of the Oregon Constitution, ¹ and the Fifth Amendment to the United States Constitution. ² He argues that he was "in custody" when the police officer questioned him about the marks on his arm and that, therefore, he was entitled to receive Miranda-like warnings. ³ The admissibility of the statements requires separate inquiries under the Oregon and the United States Constitutions.

This court has stated that, "[i]n determining whether Miranda-like warnings were required by the Oregon Constitution, we must assess the extent to which defendant was 'in custody.' " State v. Smith, 310 Or. 1, 7, 791 P.2d 836 (1990). A person who is in "full custody" must be given Miranda-like warnings before being questioned, and "such warnings may be required in circumstances that, although they do not rise to the level of full custody, create a 'setting [that is] "compelling." ' " Id. (citing State v. Magee, 304 Or. 261, 265, 744 P.2d 250 (1987)).

Defendant was questioned in the parking lot of his apartment, a familiar setting. He was not under arrest and was free to refuse to answer questions. The record does not demonstrate that the police coerced or pressured defendant to answer questions. Although he was being questioned because the police suspected that he had possessed the methamphetamine found in the apartment, the fact that police question a person as a suspect in a crime "does not inherently create a 'compelling' setting for Oregon constitutional purposes." State v. Smith, supra, 310 Or. at 11, 791 P.2d 836. The circumstances of this case do not rise to the level of custody or compulsion that require Miranda-like warnings. Accordingly, the admission of defendant's statements did not violate defendant's rights under Article I, section 12, of the Oregon Constitution.

Federal law requires Miranda warnings when a person is subjected to

"custodial interrogation." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). As we have noted, defendant was questioned in the presence of his wife at a familiar public location, was not under arrest, and was free to refuse to answer questions. We agree with the trial court's conclusion that defendant was not subject to custodial interrogation under federal standards. See Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (defendant who voluntarily went to police station and was questioned by police held not to be "in custody"). See also Berkemer v. McCarty, 468 U.S. 420, 441-42, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984) (motorist detained by a police officer pursuant to a routine traffic stop and subjected to roadside questioning and field sobriety tests was not taken into custody for purposes of the Miranda doctrine); Pennsylvania v. Bruder, 488 U.S. 9, 11, 109 S.Ct. 205, 207, 102 L.Ed.2d 172 (1988) ("Berkemer 's rule, that ordinary traffic stops do not involve custody for purposes of Miranda," applied).

EVIDENTIARY ISSUES

A. Adoptive Admission ⁴

The state first contends that Lewis' testimony about Lisa's accusatory statement ("[y]ou liar, you got [the marks on your arms] from shooting up in the bedroom [where the methamphetamine was found] with all your stupid friends") and defendant's nonverbal reaction thereto ("hung his head and shook his head back and forth") was properly admitted in evidence as an "adoptive admission" under OEC 801(4)(b)(B). Defendant responds that Lewis' testimony is inadmissible hearsay. ⁵ See OEC 802 (rule against admission of hearsay). He argues, in essence, that his head shaking manifested his rejection, rather than his adoption, of his wife's accusation.

OEC 801(4)(b)(B) recognizes that a party may make an admission by adopting the statement of another person:

"A statement is not hearsay if:

" * * * * *

"(b) The statement is offered against a party and is:

" * * * * *

"(B) A statement of which the party has manifested the party's adoption or belief in its truth[.]"

In other words, a statement made by another person is not hearsay if the statement is offered against a party who has manifested an adoption of the statement or a belief in its truth. State v. Severson, 298 Or. 652, 656, 696 P.2d 521 (1985); Kirkpatrick, Oregon Evidence 507 (2d ed 1989). If a party manifests an adoption of a statement of another, the party is in the same position as if the party had personally made the statement. The party becomes the declarant, ⁶ and the statement of the other person becomes the party's. Thus, the receipt in evidence of an adoptive admission involves (1) another person's hearsay statement ⁷ and (2) a party's own manifested adoption of the statement.

If a party manifests a belief in the truth of another's statement, the party is, in effect, expressing the belief that what the person said is true. Thus, the receipt in evidence of a party's manifested belief in the truth of another's statement involves (1) another person's hearsay statement and (2) a party's own manifested belief in the truth of the statement.

Manifestation of an adoption or belief in the truth of a hearsay statement of another may occur "expressly, impliedly, by conduct or, in a civil case, by silence." State v. Severson, supra, 298 Or. at 657, 696 P.2d 521. A party adopts the proffered statement of another person when that party's words or conduct "indicate that [he or she] 'intended' to adopt the statement." Id. at 660, 696 P.2d 521. A party manifests a belief in the truth of another's statement when the party intends to embrace the truth of the statement, i.e., intends to agree with or approve the contents of the statement. Id. at 658, 696 P.2d 521. If a party never intended to adopt, agree with or approve of the contents of a hearsay statement of another person, the party has neither manifested an adoption of it or a belief in its truth. Id. at 658-59, 696 P.2d 521. A mere listening presence does not indicate that a party has manifested an adoption of or a belief in the truth of another person's statement. Louisell & Mueller, 4 Federal Evidence 265, § 524.

When a party unambiguously manifests, by words or conduct, an adoption of or belief in the truth of another's statement, little difficulty arises in the application of OEC 801(4)(b)(B). When it is claimed, however, that a party-litigant has...