State v. Lerch

• Citation: 63 Or.App. 707,666 P.2d 840
• Decision Date: 27 September 1983
• Docket Number: No. C81-09-34281,C81-09-34281
• Parties: STATE of Oregon, Respondent, v. Larry Lee LERCH, Appellant. ; CA A24731.
• Court: Court of Appeals of Oregon

Page 840

666 P.2d 840

63 Or.App. 707

STATE of Oregon, Respondent, v. Larry Lee LERCH, Appellant.

No. C81-09-34281; CA A24731.

Court of Appeals of Oregon.

Argued and Submitted April 27, 1983.

Decided July 6, 1983.

Reconsideration Denied Aug. 26, 1983.

Review Allowed Sept. 27, 1983.

Stephen A. Houze, Portland, argued the cause and filed the brief for appellant.

Robert E. Barton, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Before RICHARDSON, P.J., and VAN HOOMISSEN and NEWMAN, JJ.

RICHARDSON, Presiding Judge.

Defendant appeals his conviction for intentional murder, assigning as errors (1) denial of his motion to suppress evidence seized during a warrantless search of his apartment; (2) denial of his motion to suppress statements to police; (3) admission of a photograph of him; (4) admission of certain lay opinion testimony; (5) admission of hair comparison testimony; (6) denial of his requested jury instruction; and (7) denial of his motions for judgment of acquittal and directed verdict.

On Monday, July 27, 1981, seven-year-old Michael Hanset disappeared from his home near Colonel Summers Park in Portland. Sandra Hanset, Michael's mother, testified that she last saw Michael between 5 and 6 p.m. and that he was going to a nearby friend's house to play. When Michael failed to return, the Hansets began searching the neighborhood for him and contacted the police later that evening. The police began an extensive search, including public appeals over the next several days.

On Wednesday, July 29, 1981, defendant, who lived in an apartment near the park, told his sister that he had seen a small foot sticking out of a canvas laundry bag ¹ in a dumpster near a fish market after the boy's disappearance. On Friday, July 31, 1981, defendant told another sister and her husband a similar story. That day, defendant's family contacted the police with this information. Because defendant was an escapee from the Oregon State Penitentiary, police arrested him at his apartment on escape charges at 5 p.m. on Friday, July 31. He was taken to the Portland police station and placed in a holding cell.

At approximately 7 p.m. on that night, defendant was interviewed by Detectives Taylor and Newberg. He was read his Miranda rights and waived them. He signed a Miranda waiver form and also a form consenting to a search of his apartment. During the interview, which lasted until approximately 11 p.m., defendant stated that he had seen Michael in the park on July 27, that Michael had been collecting empty bottles to return for deposit, that defendant had given Michael some change and that he had not seen Michael again. He also told the detectives about seeing a foot sticking out of a laundry bag in a dumpster after Michael's disappearance. During the interview, defendant consented to take a polygraph examination the following morning. Only the last 30 minutes of the interview were recorded.

Following that interview, Detectives Taylor and Newberg contacted Officer Hinckley and Sergeant Matsuda of the Crime Detection Laboratory of the State Police, and the four of them conducted a search and crime scene processing of defendant's apartment at 1 a.m. on August 1. ² Several stains on the kitchen floor were tested for blood with negative results. Vacuum sweepings were taken from the living room and kitchen floors.

At 8:30 a.m. on August 1, 1981, defendant was interviewed by Detective Bell, the polygraph examiner, and again informed of his Miranda rights. After signing a Miranda waiver form, defendant was given a polygraph examination concerning the missing child. Following that examination, Detective Bell told defendant that he knew he was not being truthful about the boy and urged defendant to tell him the truth. Defendant then confessed, stating that he had taken Michael to his apartment at around noon on July 27 to give him some empty bottles and that, because defendant had taken "acid" (LSD) earlier, he took a quantity of "valium 5's" on reaching the apartment "to come down more." Defendant stated that the next thing he remembers is that his hand was around the child's throat and that the child was dead. Defendant stated that he put the child on the living room floor and was unable to "function" until around 5 a.m. on the following morning. Defendant stated that at that time he put the child's body in a laundry bag, tied it shut with a rawhide string and carried it to the dumpster next to the fish market, where he disposed of it.

At 1 p.m., defendant was interviewed again by Detectives Taylor and Newberg. He was read his Miranda rights and signed another Miranda waiver at that time. Defendant repeated his confession. The entire interview was recorded.

The contents of the dumpster identified by defendant as containing the boy's body had been picked up on Thursday, July 30, and taken to a landfill. An extensive and detailed search of the landfill was begun by police and landfill employes on August 4, 1981, and continued through August 10. The child's body was not found.

Defendant first assigns error to the warrantless search of his apartment based on his consent. He contends that his consent was involuntary, that, even if consent was voluntary, the search exceeded the scope of his consent and that items seized were not properly discoverable under the "plain view" exception to the warrant requirement.

In determining the validity of a consent search, the totality of the facts and circumstances must be examined to see whether defendant's consent was given by his free will or rather was the result of either express or implied coercion. Schneckloth v. Bustamonte, 412 U.S. 218, 226-27, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854 (1973); State v. Kennedy, 290 Or. 493, 502, 624 P.2d 99 (1981). Defendant argues that his consent was coerced on the basis of the following factors: (1) he was subjected to custodial interrogation ultimately lasting four hours; (2) he has a low intelligence, having dropped out of school after failing the 10th grade; (3) he was without food or rest; (4) he had consumed large quantities of drugs and alcohol during the preceding week, which impaired his mental faculties; and (5) Detectives Taylor and Newberg deceived him into believing that they would search his apartment only for property or belongings of the missing child.

Lawful custody does not render an otherwise voluntary consent involuntary but rather is simply a relevant factor to be considered in the totality of the circumstances. State v. Quinn, 290 Or. 383, 394, 623 P.2d 630 (1981). Here defendant's arrest on escape charges was lawful, he was given repeated Miranda warnings and was specifically advised that he need not consent to the search but could require the officers to secure a warrant. Although the entire custodial interrogation lasted four hours, defendant consented to the search of his apartment within the first hour of the interview. During the last half hour, in which the interview was recorded, defendant acknowledged that his consent to the search was of his own free will. Detective Newberg's unrebutted testimony was that defendant was given liquid refreshment at the beginning of the interview and was permitted cigarette breaks. During the recorded interview, defendant did not appear confused or intoxicated and stated that he "sobered up" that morning. Additionally, even assuming defendant has a "low" intelligence, ³ he has had prior contacts with police, which should have given him a reasonable appreciation of the consequences of his actions. Finally, for the reasons stated below, defendant was not deceived as to the scope of the search to be conducted by the detectives. We find no evidence in the record to suggest that defendant's will was overborn.

Neither are we persuaded that the scope of the search exceeded defendant's consent. When police rely on consent as a basis for a search, they have no more authority to search than they are given by the consent. Thus, a consent to search may be confined in scope to specified items, restricted to certain areas or limited in purpose or time. United States v. Dichiarinte, 445 F.2d 126 (7th Cir.1971).

Defendant contends that he consented to a search of his apartment only for belongings or clothing of the missing child and that the items ultimately seized, vacuum sweepings, were beyond the scope of consent. The consent form signed by defendant, however, provided in part:

" * * *

"(2) If you consent to a search, anything of value as evidence seized in the course of the search can be used in court against you.

" * * *

"I hereby authorize these officers to seize any article which they consider to be of value as evidence.

" * * * " (Emphasis supplied.)

Additionally, during the recorded interview, defendant was asked if he consented to "checking your apartment for any evidence or belongings or property that might have to do with this case concerning Michael Hanset." Defendant agreed. There is simply no evidence that he limited his consent to specific items of clothing or belongings of the child.

Defendant next argues that the search exceeded the scope of consent, because the consent form he signed authorized only Detectives Taylor and Newberg to search and not additional personnel from the state crime lab. The form completed by Taylor and signed by defendant lists Taylor and Newberg as police officers authorized to search. Although a space is provided for listing persons outside the police bureau authorized to search, Taylor drew a line through that space. As noted earlier, the search of defendant's apartment on August 1 was performed by two employes of the state crime lab as well as by the detectives designated on the consent form. Whether Taylor's failure to include on the consent form all persons who would participate in the search confined defendant's consent to a search conducted only...