State v. Earp

• Decision Date: 01 May 1968
• Parties: STATE of Oregon, Respondent, v. Leroy Wayne EARP, Appellant.
• Court: Oregon Supreme Court

Page 214

440 P.2d 214

250 Or. 19

STATE of Oregon, Respondent, v. Leroy Wayne EARP, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Oct. 5, 1967.

Decided May 1, 1968.

Garry P. McMurry, Portland, argued the cause for appellant. On the briefs were McMurry & Packwood, Portland.

Jacob B. Tanzer, Deputy Dist. Atty., Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty., Portland.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

PERRY, Chief Justice.

The defendant Leroy Wayne Earp was convicted of murder in the first degree and appeals.

The defendant primarily contends that the trial court committed error in permitting detective Thompson of the Portland Police Department to testify as to statements made by the defendant in a four hour trip from Pendleton, Oregon (where the defendant had been apprehended and arrested) to Portland, Oregon. Further, that the trial court committed error in permitting the police officers to testify regarding admissions made by the defendant while with the officers near the scene of the crime.

The undisputed facts insofar as they apply to the above questions are that the murder of which defendant was convicted was committed in Portland. The offense occurred sometime early on the morning of August 3, 1965. The defendant arrived home early that morning and his wife learned of the body in his car. He and his wife drove to defendant's sister's house where he asked for money and when asked why he wanted the money he stated he 'had killed a girl last night' and 'with these,' indicating his hands. He then took a cab to the bus station and purchased a ticket for Laramie, Wyoming. He left the bus at Pendleton and registered at a motel as 'Lee Wharfield.'

The defendant's step-father apprised himself of the body in defendant's automobile and called the police. A warrant for murder was then issued and defendant was arrested at his motel room in Pendleton at 8:20 p.m. by a Pendleton police officer. He was taken to the Umatilla County jail and booked. Defendant asked to make a telephone call and was permitted to do so.

At approximately 12:20 a.m. Wednesday, August 4th, 1965, two Portland detectives, Thompson and Thomine, arrived at the Pendleton jail for the purpose of transporting defendant to Portland.

Defendant was informed of the charge against him and of his constitutional rights, including a statement that he did not have to answer questions until such time as he had talked to an attorney. He informed the detectives that he wanted an attorney, but did not wish to call one at this time. His wife and sister had arrived in Pendleton and he was permitted to visit with them. After eating a sandwich and drinking coffee he left with the officers at about 2:00 a.m. Detective Thompson and defendant were seated in the back seat of the automobile and Sergeant Thomine drove. On the way to Portland the defendant described his activities on the night leading up to the death of the girl to detective Thompson and asked if his car had been towed in. The officer told him he didn't know, then recalled that it must have been towed in as he 'had heard someone ask about the spare tire and wheel from the trunk.' Detective Thompson then testified 'At that he told me that he had thrown it out up in Washington Park and he couldn't tell anyone exactly where it was, but that he could show someone, he thought, where it was thrown.' 'He stated numerous times * * * that he was sorry.'

Detective Thompson testified that no threats or promises were made and they only talked 'whenever he wanted to talk about it.' He also testified the defendant seemed mentally alert. The defendant did not testify.

The above evidence was elicited before the judge, in the absence of the jury, and the trial court found beyond a reasonable doubt that the defendant's statements were voluntary and free from improper coercion. Subsequently the officer testified before the jury as to the conversation.

The officers and the defendant arrived in Portland about 6:00 a.m. the morning of August 4, 1965, and defendant was taken to a Portland police station. He there told a deputy district attorney that he did not wish to make a statement and that he wanted an attorney. At 9:00 a.m. the defendant was taken before a magistrate and again advised of all his constitutional rights.

After having been again advised of his rights, the defendant told the officers if they would take him to Washington Park he would show them where he had thrown the tire. The officers then took him to the park but the tire was not then discovered. Later it was discovered that the tire had rolled down an incline and was concealed by the undergrowth. On this trip the defendant again told the officers of what transpired on that night the crime was committed. At approximately 2:00 p.m. while the defendant was talking with his relatives an officer brought in a spare tire and asked him if this was his tire and he said it was.

Another hearing as to the voluntariness of these statements was heard by the judge in the absence of the jury, and the trial court again found beyond a reasonable doubt that the statements were voluntary. The defendant did not testify at this hearing.

The defendant on the 4th day of August executed an affidavit that he was an indigent and filed a request for counsel. On the 5th day of August the trial court appointed an attorney to represent him.

The defendant's contention as to statements made to the officers by him on the return from Pendleton to Portland and while looking for the tire is that, since the defendant stated at Pendleton at the time he was advised of his rights and again when taken before the magistrate in Portland, that he wanted an attorney, ipso facto any statements made by him thereafter are inadmissible.

The record discloses that there was no attempt on the part of the officers to question the defendant on the return trip from Pendleton, but that his statements were of his own desire. After his arrival in Portland, police officers questioned defendant only concerning the lost spare tire and 'asked if he would show us where he had thrown the spare wheel and he agreed to.'

The contention of the defendant was settled adversely to his position in State v. Atherton, 242 Or. 621, 410 P.2d 208.

The defendant relies upon Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, but it is to be remembered that this case was tried before the Miranda decision was rendered. Miranda is not applied retroactively. Dorsciak v. Gladden (Or.1967), 425 P.2d 177; State v. Dills (State v. Stice), 244 Or. 188, 416 P.2d 651; Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.

However, if Miranda applied, there was no violation of the import of that decision which is summarized by the Court as follows:

'To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege and unless fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.'

Miranda v. State of Arizona, supra, 384 U.S. 436, 473, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694, 726.

The prior statement of the United States Supreme Court summarized above is found on pages 706 and 707, 16 L.Ed.2d, 384 U.S 444--445, 86 S.Ct. 1612, where the court stated:

'* * * (T)he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean 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. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the...