State v. Center
| Decision Date | 29 September 2021 |
| Docket Number | A166777 |
| Citation | 499 P.3d 63,314 Or.App. 813 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. David Leroy CENTER, Jr., Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Morgen E. Daniels, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, filed the brief for respondent.
Before Egan, Chief Judge, and Armstrong, Ortega, DeVore, Tookey, DeHoog, Shorr, James, Aoyagi, Powers, Mooney, and Kamins, Judges.
Defendant appeals a judgment convicting him of attempting to elude a police officer, ORS 811.540(1)(b)(B). In three assignments of error, defendant contends that the trial court erred in denying his motions to suppress (1) his confession to being the driver of the pursued vehicle; (2) an eyewitness's out-of-court identification of defendant as the driver of the pursued vehicle; and (3) the same witness's in-court identification of defendant. We do not address the merits of defendant's second and third assignments of error relating to defendant's identification as the driver.1 However, we conclude that the trial court erred in denying defendant's motion to suppress his confession and that the error was harmful. Accordingly, we reverse and remand.
The material facts, most of which are taken from the suppression hearing, are undisputed for purposes of appeal. On the evening of July 27, 2017, Trooper Schmidt of the Oregon State Police (OSP) was on duty and conducting traffic patrol in the area of 82nd Avenue in Portland. At approximately 10:50 p.m., as Schmidt was concluding an unrelated traffic stop, he saw a white Honda hatchback drive by at a "visually high rate." Schmidt immediately followed the Honda and, after unsuccessfully attempting to stop it, he found the car in a parking lot located behind a business and adjoining an apartment complex. Two occupants were seated in the Honda, but neither was in the driver's seat. Riviere, who lived in one of the nearby apartment units, approached Schmidt and gave him a description of another person who, according to Riviere, had walked away from the car and approached his apartment. Schmidt later showed Riviere a DMV photograph of defendant, who was the registered owner of the Honda, and Riviere told him that he was 80 to 85 percent certain that the person he had seen was the person in the photo. Based on Riviere's identification and defendant's status as the registered owner of the Honda, Schmidt believed that he had "enough information for an arrest."
The following afternoon, defendant went to the OSP office in Milwaukie in an effort to retrieve the Honda, which had been towed there as evidence of a crime. At Schmidt's request, defendant agreed to a tape-recorded interview.2 After being advised of his Miranda rights, defendant denied that he had driven the Honda the night before, when the suspected attempt to elude had taken place, and said that he had been at a party from about 10:00 p.m. until 3:30 a.m. Schmidt, who did not believe defendant's denial, recontacted Riviere, who had been sent newer photographs taken of defendant upon his arrival at the OSP office. Based on the new photographs, Riviere told Schmidt that he now was 100 percent certain that defendant had been the driver.3 At that point, Schmidt believed that he had probable cause to arrest defendant for reckless driving, reckless endangerment, and attempting to elude a police officer.
On the recording, defendant can be heard telling Schmidt that he was at a party the night before, when a "buddy" had asked to borrow his car. Defendant expresses difficulty remembering the details of the party, including whom he was with or who else was there. Defendant tells Schmidt that he did not leave the party until early morning, when he walked home, in part because his buddy "Junior" never returned with his car. Defendant says that he learned only third hand that his car had been impounded the night before. Schmidt, having by this time in the interview recontacted Riviere, tells defendant that he does not believe him, in part because he has an eyewitness who has positively identified defendant as the driver based on the photographs taken earlier that afternoon. Initially undeterred, defendant maintains his denial at that point.
At the suppression hearing, Schmidt testified that, despite his certainty that defendant was lying, he had not threatened defendant to get him to tell the truth—that he had not "h[e]ld a gun to his head." Schmidt did, however, give defendant an ultimatum based on whether "he wanted to tell [Schmidt] what really happened," meaning, in Schmidt's view, that defendant had been the driver of the Honda. The recorded interview includes the following exchange:
(Emphases added.) Still, defendant did not immediately acknowledge his guilt. He told Schmidt that he was "just a little scared," adding, "I don't even want—I have to do this, you know[?]" Schmidt turned his focus to defendant's car:
Finally, after again saying, "I'm just scared," defendant chose to avoid going to jail and potentially losing his car and admitted that he had been the suspect driver the night before.
At the conclusion of the suppression hearing, defendant argued that his statements had been involuntary. He noted that he had maintained his innocence for 20-25 minutes, that Schmidt had engaged in a "two, two-and-a-half minute speech" about the need for defendant to "tell him the truth," and that Schmidt's express or implied promises of leniency regarding jail and the recovery of his prized vehicle rendered his confession involuntary as a matter of law. Defendant alternatively characterized Schmidt's promises of leniency as "corresponding * * * threats if he did not confess * * * ‘you're gonna go to jail and your car might get a lien on it.’ " The state did not dispute that Schmidt's statements had prompted defendant's confession. However, citing State v. Landers , 101 Or. App. 293, 790 P.2d 1161, rev. den. , 310 Or. 205, 795 P.2d 555 (1990), the state argued that, because Schmidt had probable cause to arrest defendant and therefore could lawfully have carried out his threat of jail, defendant's statement was not the product of unlawful inducement.
In the course of the parties’ arguments, the trial court expressed uncertainty whether the statements that Schmidt had made were the sort of promises of leniency that could render defendant's statement involuntary. The court observed that, in its view, a promise of leniency is typically a promise in regard to the crime being investigated. The court noted that Schmidt had made no promises of leniency as to the offenses he was investigating; rather, "[i]t was more, ‘we're just not gonna take you into custody right now.’ " That, at a minimum, the court reasoned, indicated that defendant's statements were not unlawfully induced as a matter of law .
Ultimately, the trial court orally ruled that Schmidt had not unlawfully induced defendant's confession. The court found that Schmidt had given defendant the option of (A) telling him the truth, thereby avoiding jail and gaining Schmidt's help with recovering his vehicle, or (B) maintaining his story, which would result in his arrest and at least a couple of days in jail. Faced with those options, the court found, defendant had confessed to having been the driver the night before. The court reasoned that, because Schmidt had probable cause to arrest defendant and take him into custody, giving defendant that ultimatum was not, in light of Landers , sufficient to render defendant's statement involuntary as a matter of law.
The trial court then proceeded to consider whether, in light of Schmidt's additional comments regarding defendant's car, the totality of the circumstances rendered his confession involuntary. After finding that Schmidt's statements about the car were truthful and that "all he [had] said was that he would work with him and help him get [the] vehicle back if he could do that," the court concluded that Schmidt's playing on defendant's "emotional attachment to his car" had not been a threat or a promise of leniency.
In light of those findings and conclusions, the...
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