State v. Hudson

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Frank Gronross HUDSON, aka Frank G. Hudson, Defendant–Appellant.
• Citation: 290 P.3d 868,253 Or.App. 327
• Docket Number: A140356.,061136452
• Court: Oregon Court of Appeals
• Decision Date: 07 November 2012

253 Or.App. 327

290 P.3d 868

STATE of Oregon, Plaintiff–Respondent,

v.Frank Gronross HUDSON, aka Frank G. Hudson, Defendant–Appellant.

061136452; A140356.

Court of Appeals of Oregon.

Argued and Submitted Aug. 31, 2011.

Decided Nov. 7, 2012.

Ryan T. O'Connor, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services. Frank G. Hudson filed the supplemental brief pro se.

Susan G. Howe, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before ORTEGA, Presiding Judge, and BREWER, Judge, and SERCOMBE, Judge.^*

ORTEGA, P.J.

After a jury trial, the trial court entered a judgment convicting defendant of two counts of aggravated murder, ORS 163.095, and two counts of first-degree abuse of a corpse, ORS 166.087.¹ On appeal from those convictions, defendant asserts, in three assignments of error, that the trial court erred in denying his motions to suppress.² Specifically, defendant argues that the trial court should have suppressed evidence that, in his view, was obtained as a result of the police illegally seizing him, violating his right to counsel, and improperly failing to provide him with Miranda warnings. Finding no merit to those arguments, we affirm.

We recount the facts consistently with the trial court's factual findings. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993) (appellate courts are bound by a trial court's findings of historical fact relating to a defendant's motion to suppress, to the extent that those findings are supported by evidence in the record). On a Sunday morning in November 2006, Washington County law enforcement received reports of a potential homicide scene on Highway 26. Upon arriving at the scene officers found two male bodies in a driveway about 20 feet off the highway. One of the bodies had been dismembered and was missing its limbs and lower torso; much of the skin had also been removed from the upper torso. The other body had not been dismembered but appeared to law enforcement to have been dragged to the location where it was found. An identification card found on the latter victim identified him as David Copeland. A medical examiner at the scene determined that the victims had been shot, stabbed, and also subjected to blunt force trauma. Based on the lack of blood and the position of the bodies, law enforcement believed that the homicides had been committed elsewhere and the bodies dumped. Officers also located other evidence, mostly items of clothing, which appeared to have been thrown from a moving vehicle headed east toward Portland on Highway 26.

Based on the identification of Copeland, detectives contacted his ex-wife in Astoria. She, in turn, directed them to Littrell, who had been Copeland's close friend. Littell informed officers that Copeland had rented a room from a man named Francis and that there was another roommate—a 62–year–old man named Frank—who lived with Copeland and Francis and with whom Copeland did not get along. According to Littrell, Francis owned a maroon van. Littrell drove detectives to a particular address on 62nd Street in Portland and identified it as the house where Copeland, Francis, and Frank lived. The maroon van was not in the driveway, and only a dim light could be seen coming from the kitchen.

Two Washington County detectives stationed themselves in a police car directly across the street from the house. Although it was not a marked police car, it had indicia of being a law enforcement vehicle, including a spotlight and the fact that two officers were sitting in the car using a cell phone and a laptop. The detectives were able to learn through computer research that the owner of the house was Francis Weber. They obtained Weber's driver's license photo and thereby identified Weber as the dismembered homicide victim. Given all the information they had, officers believed that the residence would contain evidence relating to the murders and, in fact, might well be the location where the victims were killed.

While detectives were watching the house, it was dark, windy, and raining hard. After they had been stationed in front of the house for some time, a person walked by the police car and attracted the officers' attention. The individual, who had a slender build and wore a black hooded sweatshirt, did not look at the officers as he passed the police car. Although they could not see his face, based on his gait, demeanor, and build, the individual appeared to the officers to be in his thirties or forties, unlike the 62–year–old roommate identified by Littrell. The detectives momentarily lost sight of the person as he approached the house, but immediately thereafter lights were turned on upstairs and a television set appeared to have been turned on. It also appeared to the detectives that the person was moving about inside the house.

Officers from the Portland Police Bureau arrived and, while the person was inside the house, positioned themselves in locations around the house to ensure that no one else could enter or leave it without being seen. In addition, police set up a command post and officers gathered in a community center nearby. At that point, officers were aware that two of the three residents of the house had apparently been murdered, that the whereabouts of the third resident were unknown, and that a person who did not appear to be the third resident was inside the house.

Believing that there was evidence relating to the murders inside the house and concerned that that evidence was being destroyed and that the third resident might be dead or injured inside, officers determined that they needed to attempt to contact the person inside the house. However, given the brutal violence of the murders, they agreed that it would be unsafe to send officers to the door to attempt the contact. Police investigators had gathered information about telephone numbers that were associated with the house and, at about 11 p.m., a detective called the first of those numbers. Although the telephone rang for some time, the call went unanswered. The result was the same when a detective called the second number: Although the telephone rang for some time, no one answered the call. A call to the third number associated with the house was answered by a man who identified himself as Sproul. He informed the detective who called him that he used to live at the house but had moved away.

Concerned that calls to the house had gone unanswered, officers decided that an officer, Defrain, would attempt to contact the person inside the house by performing a “loud hail” over the public address system in a police car. At the same time a detective, Steed, was assigned to begin an application for a search warrant which police were concerned would take some time to obtain. Steed went downtown to begin work on the warrant affidavit. At approximately 11:45 p.m., Defrain gave the hail which was repeated over a period of several minutes: “The occupants of 6738 SE 62nd, this is Portland Police. We need you to come to the front door with your hands up.” Defrain observed the person inside the house put his head out of an upstairs window and then go back inside the house. Over the next minute and 20 seconds, Defrain repeated the hail in different ways and added statements indicating that he had seen the person inside the house. During that time, the person again opened and closed the window.

Ultimately, the person, later identified as defendant, opened the front door. Ignoring Defrain's continued instruction to keep his hands up and walk towards police, he instead reached into his pockets and turned back and fumbled with the front door of the house. Eventually, defendant turned from the door and walked toward the officers with his hands up. As defendant walked toward him, Defrain observed and alerted officers around him to a bloodstain on defendant's pants.

At 11:54 p.m., after he walked to Defrain as directed, officers placed handcuffs on defendant. In a casual conversational style, Defrain asked defendant his name and defendant identified himself as “Frank” and asked what was going on. Defrain informed defendant that he was not under arrest, but detectives needed to speak with him. Defendant informed Defrain that he had two roommates, but that there was no one else in the house at that time. Defendant also explained, in response to an inquiry by Defrain regarding what he had done at the front door of the house, that he had gone back to lock the door because “Francis would kill him if he did not lock up the house.” Defendant was then asked if he would sit in the patrol car to get out of the rain while waiting for detectives to speak with him and defendant responded that he would not mind doing so. He was then placed inside a patrol car while still wearing handcuffs. Officers then performed a safety check of the house. No observations of any evidence were made at that time, but they were able to confirm that there was no one else inside.

At the same time, another group of police officers had been unsuccessfully searching the area for the maroon van. While heading toward a fast food restaurant for a late dinner at about 12:05 a.m., they happened to drive by a maroon van parked about one mile from the 62nd Street house. They stopped and looked through the windows of the van, observed what appeared to be human remains inside, and immediately notified the lead investigators regarding their discovery.

Just before 12:30 a.m., after the discovery of the maroon van and while it was still raining heavily, the detectives assigned to speak with defendant arrived in front of the 62nd Street house in a police van. The officers, who were in plain clothes and not showing any weapons, instructed defendant to step out of the police car, took him to the police van, and removed the...