State v. Hurtado-Navarrete

• Jurisdiction: Oregon
• Decision Date: 11 September 2013
• Docket Number: C090781CR; A144965.
• Citation: State v. Hurtado-Navarrete, 258 Or.App. 503, 309 P.3d 1128 (Or. App. 2013)
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Delfino HURTADO–NAVARRETE, Defendant–Appellant.
• Court: Oregon Court of Appeals

258 Or.App. 503

309 P.3d 1128

STATE of Oregon, Plaintiff–Respondent,

v.Delfino HURTADO–NAVARRETE, Defendant–Appellant.

C090781CR; A144965.

Court of Appeals of Oregon.

Submitted Nov. 27, 2012.

Decided Sept. 11, 2013.

Peter Gartlan, Chief Defender, and Ryan T. O'Connor, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Janet A. Klapstein, Senior Assistant Attorney General, filed the brief for respondent.

Before ORTEGA, Presiding Judge, and HASELTON, Chief Judge, and SERCOMBE, Judge.

SERCOMBE, J.

Defendant appeals a judgment of conviction for murder, ORS 163.115, abuse of a corpse in the second degree, ORS 166.085, and unlawful use of a weapon, ORS 166.220, all relating to the murder of his girlfriend. He raises four assignments of error, three of which we reject without discussion. We write only to address defendant's contention that the trial court erred in denying his motion to suppress statements that he made to police regarding the murder. Specifically, he argues that police violated his state and federal constitutional rights against compelled self-incrimination by failing to advise him of his Miranda rights before questioning him. The state responds that the circumstances in which defendant made the statements were not custodial or compelling in nature and that, in any event, police had advised defendant of his Miranda rights three times prior to the interrogation—including twice the day before—and nothing had occurred in the interim that could have caused a reasonable person to believe that his rights had changed. We conclude that the prior Miranda warnings remained valid and, accordingly, affirm.

In reviewing a denial of a motion to suppress, we are bound by the trial court's findings of historical fact when there is constitutionally sufficient evidence in the record to support them. State v. Ehly, 317 Or. 66, 74–75, 854 P.2d 421 (1993). We state the facts consistently with that standard. On March 10, 2009, defendant reported to the Hillsboro Police Department that his girlfriend and her vehicle were missing, and police began an investigation. From that time until April 3, 2009, when defendant made the statements at issue, defendant had at least 15 contacts with police, the majority of which he initiated in an effort to monitor the investigation and provide police with additional information. Defendant most often interacted with Hillsboro Detective Brady.

Defendant agreed to take a polygraph test on March 23. Before the test, defendant was formally advised of his Miranda rights, and he signed a form indicating that he understood them. However, the test was cancelled and ultimately rescheduled for April 2. On that day, at approximately 2:30 p.m., defendant was again formally advised of his Miranda rights, and he signed another form indicating that he understood them. Defendant then took the polygraph test. After the test, defendant agreed to speak with Brady and another detective, Ganete, in the interview room at the Hillsboro Police Department. There, at about 6:35 p.m., Ganete read defendant his Miranda rights, and defendant orally indicated that he understood them.

During the interview, Brady and Ganete suggested that defendant was lying because he had failed the polygraph test and because information from his phone records contradicted his version of events. At approximately 9:00 p.m., defendant asked for a lawyer. Brady and Ganete then terminated the interview and told defendant that he was free to leave. Two hours later, Brady and Ganete drove defendant to his residence. Upon arriving, defendant invited the detectives inside and asked them for police protection. Brady reminded defendant that he had asked for a lawyer and explained that they had to allow him the opportunity to seek legal counsel before speaking with him. Brady also told defendant that he was “a free man” and “not in custody.” Defendant indicated that he understood and reiterated that he did not wish to speak to the detectives without a lawyer present. Brady and Ganete then left the residence.

The next morning, April 3, police found a body that was believed to be that of defendant's girlfriend. Shortly thereafter, defendant called Brady's cell phone and asked to speak with Ganete. Ganete asked if he could call defendant back on a land-line telephone, and defendant agreed. Upon answering Ganete's call, defendant asked if Ganete and Brady could come to his residence and talk. Ganete responded:

“I can go to your house * * * the problem you have to understand that you are a free man and if you want an attorney you have the right to find an attorney on your own * * * you are completely free to do that. And if you want to talk to us of your own free will * * * there is no problem.”

Defendant replied, “[C]ome here to my house.” Shortly thereafter, defendant reiterated, “I don't want to wait for the attorney, because if I wait longer I know you guys will probably not find me * * *, you won't find me here well.”

Brady and Ganete traveled to defendant's residence, and defendant invited them inside. A woman was also present; the detectives asked her to leave, and Ganete searched the interior of the residence to confirm that no one else was there. Before beginning the interview, Brady asked defendant multiple times whether he wanted to speak with the detectives. Brady also informed defendant that he was “free,” “not in custody, or under arrest,” and that he could ask them to leave at any point. Defendant said that he understood and that he wanted to speak with them.

Brady then asked defendant what he wanted to say. Defendant explained that people involved with guns and drugs had kidnapped his girlfriend. When defendant then began to make crying sounds, Brady said, “I don't believe you, and your cries look fake, and there's no tears, and I believe you're lying to me.” Shortly thereafter, Brady suggested that defendant had found out that another person was “fucking his wife” and that defendant was “pissed * * * off” and hurt her. Brady then pointed his finger at defendant, chuckled, and, in a “friend[ly]” tone, said, “You're an evil motherfucker. * * * You're an evil son of a bitch, with all your fake crying, and your fake lying. * * * You're the devil. I think you hurt her.” (Internal quotation marks omitted.) Defendant, who did not appear angry or afraid, replied, “No.”

Brady then suggested that they “start over” and “forget all the lies,” and he reintroduced himself to defendant. At that point, defendant told the detectives that he would take them to his girlfriend and asked if he could first take a shower. Brady said, “Can you not take a shower? Just * * * tell us where she's at.” Defendant explained that he had “beat her up.” Defendant then commented that “he probably would not be free to go.” Brady replied, “no,” because, as he explained at the hearing, “[he] didn't know about that, because [he] didn't know what happened yet.” Defendant then confessed to the murder, and he was placed under arrest at approximately 11:00 a.m.

Defendant was ultimately charged with murder, second-degree abuse of a corpse, and unlawful use of a weapon. Before trial, defendant moved to suppress the statements that he had made to the detectives at his residence on April 3. He argued that he had made those statements while in custody or under compelling circumstances and that he was therefore entitled to Miranda warnings before being questioned by the detectives. The state responded that the circumstances were not custodial or compelling in nature and that, even if they were, defendant, having been formally advised of his Miranda rights at least three times prior to April 3, understood his rights.

The trial court denied defendant's motion to suppress. It concluded that “[a]t no time during defendant's multiple contacts with police between March 10, 2009 and April 3, 2009, was defendant in police custody, nor were the circumstances compelling such as would require a Miranda-type warning, until the time he was placed under arrest on April 3, 2009.” In any event, the court found, “defendant was advised of [his Miranda ] rights on three separate occasions during his contacts with the police”: (1) before the cancelled polygraph test on March 23; (2) before the polygraph test on April 2; and (3) before the interrogation at the Hillsboro Police Department on April 2. In the court's view, defendant “knew and understood [those] rights [,]” and “police made contact with defendant on April 3, 2009, at his residence at his request. During [that] contact defendant knew [that] he did not have to speak with the police and that the police would leave his house if he asked them to do so.” A jury found defendant guilty as charged.

On appeal, defendant largely reiterates his arguments before the trial court. Specifically, he argues that he was either in custody or under compelling circumstances when the detectives questioned him on April 3 and that, accordingly, the detectives violated his rights under Article I, section 12, of the Oregon Constitution, and under the Fifth Amendment to the United States Constitution, when they failed to advise him of his Miranda rights. Defendant acknowledges that he “had been provided with full Miranda warnings at least three times in the month since [his girlfriend] disappeared[,]” but, in his view, those warnings were “stale” and the detectives “were required to fully advise defendant with Miranda warnings when circumstances became compelling on April 3 at his apartment.” The state responds that the circumstances were not custodial or compelling and that, in any event, nothing had occurred since the prior warnings that could have caused a reasonable person to believe that his rights had changed.

Article I, section 12, provides that “[n]o person shall be * * * compelled in any criminal prosecution to testify...