State v. Codon
| Citation | 282 Or.App. 165,386 P.3d 45 |
| Decision Date | 09 November 2016 |
| Docket Number | A153009 |
| Parties | State of Oregon, Plaintiff–Respondent, v. Rand Maurice Codon, Defendant–Appellant. |
| Court | Court of Appeals of Oregon |
282 Or.App. 165
386 P.3d 45
State of Oregon, Plaintiff–Respondent,
v.
Rand Maurice Codon, Defendant–Appellant.
A153009
Court of Appeals of Oregon.
Argued and submitted February 25, 2015.
November 9, 2016
Joshua B. Crowther, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Ryan Kahn, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
GARRETT, J.
Defendant was convicted of two counts of first-degree rape, ORS 163.375. On appeal, defendant raises two issues.1 First, he argues that the trial court erred by admitting into evidence parts of his recorded interrogation in which the interrogating detective expressed doubts that defendant was telling the truth. According to defendant, admission of those statements violated the prohibition on "vouching" evidence. Second, defendant challenges the denial of his motion to suppress statements that he made to a Department of Human Services (DHS) caseworker based on her failure to re–Mirandize defendant before questioning him. We conclude that the trial court did not err in either respect, and, accordingly, we affirm.
The relevant facts are largely procedural and undisputed. The victim, defendant's stepdaughter, sent a message to a friend stating that defendant had raped her. The friend's mother saw the message and reported it to the Oregon State Police. Detective Cuevas contacted Spitz, a DHS caseworker; Spitz interviewed the victim, who confirmed that defendant had raped her both in Oregon and in California. Cuevas and Spitz also spoke with the victim's mother, who agreed to call defendant and confront him regarding the victim's statements. During that telephone call, defendant told the mother that he could not remember whether he had had sexual relations with the victim.
Later, at Cuevas's request, defendant agreed to submit to a recorded interview at the sheriff's office. Defendant was read his Miranda rights at approximately 5:00 p.m. and advised that he was free to leave at any time. When confronted with the allegations against him, defendant initially denied having sexual intercourse with the victim. Cuevas explained to defendant that his denials were not believable
generally or not believable
by a jury.2 Defendant first replied that it was possible that he had had sexual intercourse with the victim and eventually admitted that he had sexual intercourse with the victim once in Oregon and on four occasions in California. In response, Cuevas thanked defendant for telling him the "truth" and for "being honest with [him]." Defendant was placed under arrest at the conclusion of that interview. Later that evening, Cuevas telephoned Spitz at home to tell her that defendant had been arrested after having confessed.
At approximately 9:00 a.m. the following morning, Spitz made contact with defendant at the jail pursuant to a DHS policy that required her to perform a Child Protective Services assessment. Spitz introduced herself as a child-welfare worker and explained that she was "doing an investigation." Spitz also informed defendant that, in light
of the pending criminal case against him, he did not have to speak with her. Defendant replied that he had already shared everything with the police. Spitz then asked, "why [the victim]," to which defendant replied that the victim had "come on to him" when he was drinking. In response to Spitz's follow-up question, "how many times," defendant told her that he had sexual intercourse with the victim four times in California and once in Oregon.
Before trial, defendant moved to exclude numerous statements made by Cuevas during the recorded interrogation, arguing, among other things, that they amounted to impermissible "vouching." Specifically, defendant objected to Cuevas's statements that: (1) "kids don't make up this kind of stuff," and, if they do, their stories typically unravel rather quickly, and (2) defendant was being only about "70 percent" honest and needed "to come all the way with [Cuevas] and tell [Cuevas] what happened." As for the latter statement, defendant cited other, similar comments by Cuevas during the interrogation in which Cuevas "repeatedly told defendant that he needed to tell the truth," asked defendant "to be honest with him," and said that, "if [defendant] told [Cuevas] the truth, [Cuevas] would put that in his report, [and] not that story defendant had told him previously." The state responded that Cuevas's statements were relevant context to explain defendant's responses to the accusations, and to describe the progression of the interrogation. The trial court granted defendant's motion as to the first statement but not the second group of statements:
"[The second statement] is a closer case. The detective tells the defendant that he needs to be honest with him. * * *
"The, when the officer says he thinks the defendant's being 70 percent honest and to
come clean with the rest of it, I, I don't think that's tantamount to calling the defendant a liar. It's, number one, it's part of his conversation that the officer's having with him, and the officer's saying ‘I think there's more .’
"He's not accusing the defendant of being a liar. He's accusing the defendant of not telling him everything. And that's a distinction with a difference. * * * [T]he officer is not saying the 70 percent you told him was a lie. The officer
is saying ‘I think you told me about 70 percent of the stuff,’ and ‘tell me what, the rest of what happened.’
"And the, the officer said ‘if you want to stick with the story that you're giving me, that's fine.’ And then he said * * * what the officer would do with the statements. The officer did as defense points out in his brief repeatedly—by that I mean more than once because I didn't count it, but it was more than once—told defendant that he should be honest with him, he should tell the truth.
"But I, I don't believe that the officer ever questioned * * * the defendant's credibility or integrity to the point that it would get us into trouble with Milbradt or the other cases, Lupoli and some of the other, or even McQuiston and some of the others.
"So I think, although that's a close case, I'm going to deny the motion as to [the second statement]."
(Emphasis added.) At trial, the state played a redacted recording of defendant's interrogation. The trial court also gave a limiting instruction, advising the jury that Cuevas's statements and questions during the interview "shall not be heard as substantive evidence."
Defendant also moved to suppress his statements to Spitz made on the morning following his arrest. Defendant argued that, at the time of the interview, Spitz was acting as a law enforcement agent and was therefore required to provide defendant with a new set of Miranda warnings before questioning him. The trial court denied the motion, explaining that there was "no direct evidence * * * of an agency" between Spitz and the police that would have required Spitz to Mirandize defendant. Alternatively, the trial court reasoned that, even if Spitz was an agent of the police, the warnings administered by Cuevas the previous evening were sufficient to allow Spitz to question defendant the following morning:
"[W]hen you take into account the short time frame of less than 16 hours and the fact that [Spitz] reminded [defendant] that he did not have to make a statement because he was being charged criminally, I believe that the combination of the * * * close time frame and the reminder of part of the Miranda rights was sufficient to allow a police
agent to continue the questioning of * * * defendant while in custody."
After a jury trial, defendant was convicted of two counts of first-degree rape.
On appeal, in eight assignments of error, defendant challenges the trial court's rulings regarding both the Cuevas "vouching" statements and defendant's statements to Spitz. We address those issues in turn.
According to defendant, the trial court's admission of Cuevas's statements regarding defendant's honesty ran afoul of the general rule that a witness may not comment on the credibility of another witness. See, e.g. , State v. Middleton , 294 Or. 427, 438, 657 P.2d 1215 (1983) (under Oregon law, "a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth"); State v. Milbradt , 305 Or. 621, 629, 756 P.2d 620 (1988) ("The assessment of credibility is for the trier of fact[.]"). The state argues that none of the statements constitutes impermissible vouching because they were offered to provide context for defendant's responses during the interview, and not for the truth of the credibility opinions...
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