State v. Gable, 90C-20442

• Decision Date: 21 June 1994
• Docket Number: No. 90C-20442,90C-20442
• Citation: 127 Or.App. 320,873 P.2d 351
• Parties: STATE of Oregon, Respondent, v. Frank Edward GABLE, Appellant. ; CA A71159.
• Court: Oregon Court of Appeals

Page 351

873 P.2d 351

127 Or.App. 320

STATE of Oregon, Respondent, v. Frank Edward GABLE, Appellant.

No. 90C-20442; CA A71159.

Court of Appeals of Oregon.

Argued and Submitted Sept. 30, 1993.

Decided April 20, 1994.

Review Denied June 21, 1994.

[127 Or.App. 321-A] John P. Daugirda, Eugene, argued the cause for appellant. With him on the briefs was Roost & Daugirda.

Rives Kistler, Asst. Atty. Gen., argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.

Before DEITS, P.J., and RIGGS and HASELTON, ^* JJ.

DEITS, Presiding Judge.

Defendant appeals his conviction on six counts of aggravated murder, ORS 163.095(2)(a)(B) and ORS 163.095(2)(e), and one count of murder, ORS 163.115(1)(a), assigning as error the denial of his motion to suppress statements allegedly obtained in violation of his right against compelled self-incrimination under Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the United States Constitution. He also assigns as error his sentence of life imprisonment without the possibility of parole or release as a violation of the ex post facto clauses of the state and federal constitutions. We affirm.

On January 17, 1989, Michael Francke was fatally stabbed in the parking lot of the Dome Building located in Salem, Oregon. The police received a tip that defendant may have information about Francke's murder. Subsequently, the police spoke with defendant on several different occasions. They learned that he was familiar with the Dome Building and the surrounding area, because he had worked in the area, and that his wife worked at the state hospital located next to the Dome Building. He became a suspect after the police learned that he had made incriminating admissions to five of his friends. During questioning by the police, defendant gave inconsistent alibis and made potentially incriminating statements.

At trial, defendant moved to suppress the statements that he made to the police between November 3, 1989, and the date of his arraignment, April 9, 1990. He argued that they were obtained in violation of his right against compelled self-incrimination. The trial court denied his motion, finding that defendant did not assert his right to remain silent nor did he invoke his right to counsel and that, even if he had, he subsequently reinitiated conversation with the police. Defendant assigns as error the trial court's denial of his motion.

As a threshold matter, the state argues that the trial court properly denied defendant's motion to suppress because it was untimely. The state argues that ORS 135.037 required defendant to raise any constitutional objections to the admission of his statements at the pretrial omnibus hearing. Defendant argues that his motion to suppress was timely, because the purpose of the omnibus hearing was limited to a determination of whether the state could meet its preliminary obligation to show that his statements were not coerced. According to defendant, the trial court reserved for trial its rulings on potential Miranda violations, which would include whether the police continued to interrogate him after he invoked his right to counsel and, in his view, it was within the trial court's discretion to consider the motion at trial.

ORS 135.037 provides:

"(1) At any time after the filing of the accusatory instrument in circuit court and before the commencement of trial thereon, the court upon motion of any party shall, and upon its own motion may, order an omnibus hearing.

"(2) The purpose of an omnibus hearing shall be to rule on all pretrial motions and requests, including but not limited to the following issues:

"(a) Suppression of evidence;

" * * * * *

"(c) Challenges to the voluntariness of admissions or confession[.]"

As the state concedes, the statute contains permissive, not mandatory, language regarding whether a pretrial hearing must be requested. The statute provides that either party may request a pretrial omnibus hearing, that the court shall grant such a request, and that the court, on its own motion, may order an omnibus hearing.

The state first argues that, because an omnibus hearing was held, defendant was required to raise all possible constitutional challenges to the admission of his statements then. We disagree. The state moved for a pretrial omnibus hearing in order to make a preliminary showing that defendant's admissions were voluntary, as required by State v. Brewton, 238 Or. 590, 395 P.2d 874 (1964). ¹ As the prosecutor explained at the beginning of the omnibus hearing:

"[The state] is relying on State v. Brewton, [supra], State v. Davis, [98 Or.App. 752, 780 P.2d 807 (1989), rev. den. 309 Or. [127 Or.App. 324] 333, 787 P.2d 888 (1990),] and then there is a recent death penalty case, it's State v. Stevens, [311 Or. 119, 806 P.2d 92 (1991) ].

"Basically, I think the rule in Oregon is that the state has to show to the Court's satisfaction, pretrial or before that statement is submitted to the jury, that the statement was voluntary."

In State v. Brewton, supra, the court held that, before a defendant's admission may be submitted to the jury, the trial court must make a preliminary determination that the admission was voluntary.

A defendant's admissions may be suppressed as involuntary either because they were the product of coercion or because the defendant's Miranda rights were violated. Admissions that are the product of coercion are inherently unreliable and, therefore, not admissible for any purpose. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). However, an admission obtained in violation of Miranda may be admitted for impeachment purposes. Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182, (1974). Miranda rights are procedural safeguards designed to protect a defendant's Fifth Amendment right against self-incrimination, but they are not coextensive with the Fifth Amendment. As the court explained in Michigan v. Tucker, supra:

"The Court [in Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),] recognized that these procedural safeguards [Miranda-like warnings] were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected." 417 U.S. at 444, 94 S.Ct. at 2364.

As noted earlier, the state requested a pretrial hearing on the basis of the court's holding in State v. Brewton, supra. Brewton was decided before Miranda v. Arizona, supra, and, therefore, did not involve a determination of whether the police failed to comply with the procedural safeguards for custodial interrogation announced in Miranda. Likewise, the two additional cases referred to by the prosecutor, State v. Davis, supra, and State v. Stevens, supra, involved, respectively, whether the defendant's admissions were the product of coercion and whether the defendant was incapable of giving a voluntary statement due to drug intoxication. Although the state could have requested a pretrial hearing to determine whether defendant's statements were obtained consistent with his Miranda rights, its initial request for an omnibus hearing did not encompass that issue. ² We conclude that ORS 135.037 did not require defendant to present evidence or argument on an issue that was not raised in the state's initial request for an omnibus hearing.

Next, the state argues that defendant was precluded from raising the Miranda issues at trial because they were in fact fully litigated at the omnibus hearing and the court made a dispositive ruling on those issues. The state contends that because this issue was litigated in the pretrial hearing, it was not within the trial court's discretion to reconsider the issue at trial. It is unnecessary to decide whether the court had such discretion because we conclude that this issue was not fully litigated, nor did the trial court make a dispositive ruling on the issue. It is unclear from the record whether Miranda issues were actually litigated and a dispositive ruling was issued at the omnibus hearing. During the pretrial hearing, defendant objected to the admission of certain of his statements on the basis that he had not received Miranda-like warnings. The state responded that Miranda-like warnings were not required, because defendant either was not in custody or was not being interrogated. The trial court noted that it could not resolve the Miranda issues raised by defendant without knowing the substance of his statements. The court then overruled defendant's objections, but specifically informed defense counsel that the objections could be renewed at trial.

The record is confusing, however, as to whether the court did make a dispositive ruling on the Miranda issues because, at the conclusion of the hearing, the prosecutor explicitly asked the court to find that defendant's statements were obtained consistent with his Miranda rights and the court purported to make that finding:

"[Prosecutor]: Your honor, if you're finding that every statement testified to by the officers are--is admissible or is voluntary and not in violation of Miranda rights, that would be sufficient. We can frame an order which reflects that.

"[Court]: I find that. I mean, certainly in the situation there are--if you want to use the magic words, I guess Dr. Cochran suggested to us that you want to prepare him psychologically to answer questions. I guess you could find a case where they used some magic words that that's somehow, you could call that psychological manipulation or whatever, but I don't find that it existed here. * * * So, I certainly don't find that under the totality of the circumstances here that his will was overborne."

However, in the light of the court's previous statement to defense counsel that objections on the basis of Miranda violations could be raised at trial and that the state's initial...