State v. Lewis

• Decision Date: 07 May 1970
• Citation: 2 Or.App. 378,468 P.2d 899
• Parties: STATE of Oregon, Respondent, v. Ricky Vernon LEWIS, Appellant.
• Court: Oregon Court of Appeals

Page 899

468 P.2d 899

2 Or.App. 378

STATE of Oregon, Respondent, v. Ricky Vernon LEWIS, Appellant.

Court of Appeals of Oregon, Department 1.

Argued and Submitted April 29, 1970.

Decided May 7, 1970.

James H. Lewelling, Newport, argued the cause and filed the brief for appellant.

Jacob B. Tanzer, Sol. Gen., Salem, argued the cause for respondent. With him on the brief was Lee Johnson, Atty. Gen., Salem.

Before SCHWAB, C.J., and FOLEY and BRANCHFIELD, JJ.

PER CURIAM.

The defendant, who was a juvenile at the time of his conviction on a charge of burglary, makes two assignments of error on appeal.

The first question presented is whether a confession given by one who is a juvenile can be used against the juvenile in a criminal proceeding on remand from juvenile court when the juvenile and his parents have not been first advised that his case might be remanded from juvenile court to adult court where he would stand trial in a criminal proceeding.

A city policeman was approached by the distressed mother of the defendant who told him that the defendant was becoming very difficult to control. She asked him to find her son and bring him to the police station which he did within minutes, the defendant coming voluntarily. During a discussion (among the three of them) in the police station, the defendant's mother said that there were some matters which the defendant should 'clear up.' The officer then advised the defendant of his Miranda rights by reading to him a 'rights card' which included the following: 'Your answers can and may be used against you in a criminal proceeding.' The defendant then waived his rights. The officer was clearly not a juvenile court counselor, he was a policeman in uniform at the police station. State v. Gullings, 244 Or. 173, 416 P.2d 311 (1966), holds that a statement by a juvenile made during custodial interrogation, which is preceded by Miranda advice and waiver of rights, is admissible in evidence in an adult criminal trial upon remand where it is made clear to the juvenile by the advice rendered or by the nature of the situation that the police officer is not acting In loco parentis, but rather in his capacity as a police officer. Here the police-citizen relationship was clear to all concerned. Thus the statement taken from defendant was admissible and the trial court committed no error in receiving it. Cf. State v. Phillips, 245 Or. 466, 422 P.2d 670 (1967).

The remaining assignment of error, the contention that a...