State v. Keiper

• Decision Date: 18 April 1972
• Citation: 493 P.2d 750,8 Or.App. 354
• Parties: STATE of Oregon, Respondent, v. Randolph Daniel KEIPER, Appellant. STATE of Oregon, Respondent, v. Wallace Lee MOODY, Appellant.
• Court: Oregon Court of Appeals

Page 750

493 P.2d 750

8 Or.App. 354

STATE of Oregon, Respondent, v. Randolph Daniel KEIPER, Appellant.

STATE of Oregon, Respondent, v. Wallace Lee MOODY, Appellant.

Court of Appeals of Oregon, Department 2.

Argued and Submitted Jan. 19, 1972.

Decided Feb. 10, 1972.

Rehearing Denied March 7, 1972.

Review Denied April 18, 1972.

F. E. Glenn, Deputy Public Defender, Salem, argued the cause for appellants. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Robert E. Brasch, Dist. Atty., Coquille, argued the cause for respondent. With him on the brief was Richard L. Barron, Asst. Dist. Atty., Coquille.

Before SCHWAB, C.J., and LANGTRY and FORT, JJ.

FORT, Judge.

Defendants were jointly indicted for the first degree murder by drowning of Sarah E. Smith. They were tried separately. The jury in each case found the defendant therein guilty of second degree murder. Each has appealed from the resulting judgment. By agreement the appeals were consolidated, both for briefing and for argument. There are three identical assignments of error, namely: admission of a post-polygraph confession, denial of motion for judgment of acquittal, and acceptance of less than a unanimous verdict. The last assignment has been decided adversely to defendants in State v. Gann, 254 Or. 549, 463 P.2d 570 (1969).

In the course of the investigation into the death of Sarah Smith each defendant made both statements and a confession. The admission of the last of these, the 'post-polygraph confession,' constitutes the principal assignment of error in each case. The basis of this contention is set forth in appellants' brief as follows:

'After both defendants Keiper and Moody had given statements, they were subjected to polygraph tests, advised of the 'gross deceptive patterns' and encouraged to now tell the truth. Because of the psychological coercion inherent in being caught in a lie, neither defendant was able to freely exercise his constitutional right to remain silent and therefore their post-polygraph confessions should not have been received in evidence.'

Thus the coercion relied upon is that resulting from each defendant learning that his previous voluntary statements, when measured against his answers to a polygraph test, showed 'gross deceptive patterns.' Following the receipt of this information, each defendant made a statement to the police acknowledging substantial elements of his participation and that of the other in the murder, although the two confessions differed in many particulars.

A brief summary of matters relevant to this contention follows. From appellants' brief we learn:

'In the late evening of Thanksgiving Day, Thursday, November 26, 1970, one James Trumblin walked into the Portland Police Station and wanted confirmation that the body of a Sarah Smith had been found in Coos Bay. Portland Police telephoned Coos Bay Police who confirmed the death of Miss Smith and Trumblin was so informed. Trumblin made a phone call and then took Portland Detectives Todd and Cunningham to a Portland hotel where defendant Moody was staying.

'Defendant Moody agreed to go to the Portland Police Station and discuss Sarah's death. Moody, in the company of detectives Todd and Cunningham and Trumblin arrived at the Portland Police Station at about 12:20 a.m., Friday morning, November 27, and Moody was immediately advised of his constitutional privilege against self-incrimination. Thereafter Moody gave a tape-recorded statement which in essence accused defendant Keiper of drowning Sarah Smith in Coos Bay.'

Thereafter Keiper, who was also in Portland, was in due course arrested for the murder and Moody was held as a material witness. Keiper initially denied any knowledge of, or involvement in, the girl's death.

During the course of the investigation both defendants gave a number of statements to the police. The statements of each were not only contradictory with those of the other but in significant particulars inconsistent with their own previous statements. No Miranda ¹ challenge to any of these statements is presented.

After the defendants had been taken back to Coos Bay and Keiper had been arraigned, each was asked whether he would submit to a polygraph test. Both voluntarily agreed to do so, knowing that the police did not accept their prior statements as true. Subsequently each was subjected separately and a day apart to the test. Following its conclusion each was told that the test revealed gross deceptive patterns. Each then acknowledged he had been lying and agreed to give a correct statement. A statement was then given by each defendant. Prior to both the polygraph test and the subsequent statement each was again fully advised of his rights. Indeed, Moody, though still held only as a material witness,...