State v. Lea

• Decision Date: 19 February 1997
• Citation: 934 P.2d 460,146 Or.App. 473
• Parties: STATE of Oregon, Respondent, v. Michael Alan LEA, Appellant. C8803-32590 and C9409-35604; CA A90541 (Control) and CA A90723.
• Court: Oregon Court of Appeals

Page 460

934 P.2d 460

146 Or.App. 473

STATE of Oregon, Respondent, v. Michael Alan LEA, Appellant.

C8803-32590 and C9409-35604; CA A90541 (Control) and CA A90723.

Court of Appeals of Oregon.

Argued and Submitted Oct. 31, 1996.

Decided Feb. 19, 1997.

Steven V. Humber, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.

Janet A. Klapstein, Assistant Attorney General, argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Before DEITS, P.J., and De MUNIZ and HASELTON, JJ.

HASELTON, Judge.

Defendant, in consolidated appeals, seeks reversal of convictions for rape in the first degree and sodomy in the first degree, ORS 163.375; ORS 163.405, and also seeks reversal of a consequent revocation of probation on a separate matter. He argues, inter alia, that the trial court erred in striking his testimony in a suppression hearing after he invoked the right against self-incrimination during the state's cross-examination. We conclude that the trial court did not err and affirm.

On August 24, 1994, Oregon State Police Detective Vicki Roberts and Portland Police Bureau Detective Mike Barnes went to defendant's residence, Madison House, a group home, to investigate an incident of sexual abuse involving a four-year-old girl. The manager of the home led the detectives downstairs to her office in the basement and brought defendant down to speak with them. The office was small and crowded.

The detectives, who were armed but dressed in plain clothes, introduced themselves as police officers. They told defendant that they were investigating a case involving sexual abuse of a child. They also told him that he need not speak with them and that he was free to go if he wanted. The detectives promised defendant that they would not arrest him that day, regardless of what the investigation disclosed.

The detectives interviewed defendant for about three hours, beginning at approximately 5:25 in the afternoon. Defendant, who appeared to be nervous at the beginning of the interview, gradually appeared to be more and more relaxed. Although he initially denied having any involvement in the incident, defendant admitted more and more involvement as the interview proceeded. Eventually, defendant confessed to actively participating, with another man, in the sexual abuse. After that confession, detective Roberts wrote out a description of the events as defendant had recounted them. Defendant read, corrected in part, and signed that statement.

Defendant has been diagnosed as having schizophrenia, a life-long psychiatric disorder, with paranoid features. Defendant's condition is intermittently symptomatic. At the time of the interview with the detectives, defendant was not overtly symptomatic and was not taking any medication relating to his schizophrenia.

On December 6, 1994, defendant was indicted on four counts of rape in the first degree, twelve counts of sodomy in the first degree, and four counts of using a child in the display of sexually explicit conduct. All charges related to the alleged incident involving the four-year-old girl.

Defendant moved to suppress inculpatory statements, including his confession, made during the interview. Defendant asserted, inter alia, that those statements were involuntary:

"The defendant in this case contends that the evidence will show that any statement made or allegedly made by him was the product of official psychological pressure, trickery or false and misleading promises. Additionally or in the alternative, the defendant asserts that his mental state was such at the time of any such statement(s) that he could not 'knowingly, intelligently and voluntarily' waive any of his rights." ¹

The state responded that defendant's inculpatory statements were voluntary in that they were not the product of impermissible coercion or inducement.

The trial court held an omnibus evidentiary hearing on the motion to suppress. ORS 135.037(1), (2). That hearing, and particularly the trial court's decision to strike all of defendant's testimony on direct examination during that hearing, is the focus of this appeal. At the hearing, after detectives Roberts and Barnes testified, the defense presented the testimony of Dr. Jerry Larson, a psychiatrist who had evaluated defendant. Larson diagnosed defendant as a person with chronic schizophrenic illness and testified that some persons with that illness can, when symptomatic, "shut down" and become incapable of exercising free choice when faced with authority. On cross-examination, Larson acknowledged that he could not "say that [defendant] wasn't capable of making a voluntary statement" at the time of the interview.

Defendant then testified. On direct examination, he related descriptions and observations about characteristics of the room in which the interview took place, the detectives' demeanor and tone of voice, and statements and suggestions the detectives made to him. Defendant also testified regarding his subjective "state of mind" during that interview:

"Q. Did you feel that you could get up and leave?

"A. No.

"Q. How did you feel?

"A. I felt like I was trapped.

"Q. Why did you feel trapped?

"A. Because they were on either side of me and I would have to go by one of them to get through.

"Q. And did you believe you had any choice in talking to them?

"A. Not really, no."

After a few preliminary questions on cross-examination, the following colloquy occurred:

"Q. [By the prosecutor] And then you started to talk to [the detectives] and you were nervous; right?

"A. [By defendant] Yeah.

"Q. And it's a fact that you were nervous because you weren't being truthful at the beginning; right?"

At that point, defense counsel objected, asserting that the cross-examination exceeded the scope of the direct examination, in that the former went to "the substance of [defendant's] statements," while the latter pertained only to "whether or not the statements were voluntary and whether [defendant] perceived that he could leave or not." The court overruled the "outside the scope" objection, and the cross-examination continued:

"Q. [By the prosecutor] And then you started to relax as you talked to the detectives more; right?

"A. [By defendant] I started feeling like I was--I mean, giving up, more than relax.

" * * * * *

"Q. All right. So, you're saying you weren't relaxed?

"A. Right.

"Q. All right. But it's true, isn't it, you started out telling them something that was false and you denied going into the house on the day that you were there with Mr. Neff; right?

"[DEFENSE COUNSEL]: For the record, I would object to this, which is we are not getting into the substance of the statements. By taking the stand, [defendant] doesn't waive his right against self-incrimination under U.S. v. Simmons."

The court overruled the objection and stated, "If you wish to talk with your client about his asserting his right against self-incrimination, you may have an opportunity to do that." Again, cross-examination resumed:

"Q. [By the prosecutor] [Defendant], I'll ask you that question again, one more time. The nervousness you were feeling at the beginning was, at least in part, due to the fact that what you were telling the detectives about not being inside the house, where you said you stayed out in the car, that was a lie; right?

"A. I don't know. I don't know what to say.

"Q. Well, just answer the question.

"A. I mean, it would incriminate myself.

"Q. Okay.

"THE COURT: I'm going to interpret that response as an exercise of the defendant's right against self-incrimination. He needs not be required to answer that question."

The state then moved to strike all of defendant's direct testimony, arguing that, because of defendant's exercise of the right against self-incrimination, it had been denied the opportunity to conduct meaningful cross-examination. The court observed:

"When the defendant testified that he felt trapped, that he did not feel free to leave, he put in issue his mental state at the time of the interview by the police. That entire mental state is now subject to cross-examination. If the defendant wishes to exercise his right against self-incrimination in response to a question about his mental state and what motivated his mental state, which was exactly the character of [the prosecutor's] question, then the direct testimony will be stricken.

" * * * * *

"Your client is asserting his right against self-incrimination. * * * I respect that. But he can't have it both ways. He can't tell me on direct that he felt trapped and he felt like he was not free to leave and then decline to answer a question about what provoked his apparent nervous state. He can't have it both ways. It's one or the other. And the receipt of the evidence would be for a limited purpose, not for the truth of an admission, but for the truth of what his mental state was and why he was nervous. I can't make it any clearer than that. So, if he chooses to exercise his rights, that's fine."

At that point, defendant adhered to his invocation of the privilege and refused to testify further. The court struck defendant's direct testimony in its entirety, and the parties elicited no further testimony.

The trial court subsequently determined that defendant's inculpatory statements were voluntary. The court mentioned, particularly, defendant's participation and cooperation in reviewing and correcting the written statement that Roberts had prepared as evincing voluntariness. Following a stipulated facts trial, defendant was convicted in September 1995 of two counts of rape in the first degree and four counts of sodomy in the first degree.

Thereafter, the second matter at issue in the consolidated appeal occurred. At the time the detectives interviewed defendant in August 1994, he was on probation from convictions in 1988 for sexual...