State v. Little

• Citation: 431 P.2d 810,249 Or. 297
• Parties: STATE of Oregon, Respondent, v. Dwain Lee LITTLE, also known as Dwain Lee Harden, Appellant.
• Decision Date: 20 September 1967
• Court: Supreme Court of Oregon

Page 810

431 P.2d 810

249 Or. 297

STATE of Oregon, Respondent, v. Dwain Lee LITTLE, also known as Dwain Lee Harden, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted April 4, 1967.

Decided Sept. 20, 1967.

Otto R. Skopil and Bruce W. Williams, Salem, argued the cause for appellant. On the briefs were Williams, Skopil & Miller and Harry C. Coolidge, Salem.

William F. Frye, Dist. Atty., at Trial, Eugene, argued the cause for respondent. With him on the brief were Donald L. Paillette, Dist. Atty., and Francis W. Linklater, Deputy Dist. Atty., Eugene.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and LUSK, JJ.

DENECKE, Justice.

The defendant, who was 15 at the time of the charged offense, was found guilty of first-degree murder.

I

Defendant contends that certain evidence was obtained by an illegal search and seizure. The evidence was blood, head and pubic hair, and saliva of the defendant. The defendant raised the issue by a timely motion to suppress.

The state seems to argue that the question is solely a fifth-amendment problem, the right against self-incrimination, and not a fourth-amendment issue, the right to be free from unreasonable search and seizure. It relies upon Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), for its position. We read Schmerber v. California as clearly requiring blood taking to be accomplished in conformity with fourth-amendment standards, as well as with fifth-amendment standards. Those standards were met in that case because the seizure, the blood taking, was incident to a lawful arrest.

We conclude that the fourth-amendment standards were met in this case because the seizure was made with the consent of the defendant.

The evidence about the seizure was sharply divergent. The trial court made detailed findings of fact and found that the defendant consented. There is ample evidence to support its findings. The court also stated the constitutional standards it deemed applicable in passing upon this issue. We are in agreement with those expressed standards, and the defendant does not contend they are incorrect.

The murder victim was a girl who lived in defendant's rural neighborhood. The defendant was not a prime suspect during the time here relevant. The defendant, along with others in the neighborhood, had been questioned by the state police and he had said that he saw a hunter in the vicinity about the time of the murder. The defendant's family had retained an attorney after the initial questioning. The police asked the attorney if they might go to the defendant's house and take some clothing and personal effects for examination. After the attorney agreed and so informed the Little family, the police picked up this property. Apparently, after this, the defendant was away on a hunting trip and the police asked his mother to call when he returned. They explained that they wanted to show the defendant some photographs to see if he could identify the hunter he said he saw.

Later, the defendant's mother called the officer and told him her son had returned. The officer went to the house with the photographs. While there, the defendant's mother, in the defendant's presence, told the officer she had heard that various body samples were being taken from other boys in the neighborhood and asked if they were going to take some from her son. The officer said they would if it was agreeable. The mother responded that although she would like him to give the samples, because he had a cold she did not want him to go into town. Accordingly, it was arranged for a doctor to come out and the officer and a doctor came out that same day. The accused pulled his sleeve up and the physician took the blood. He also cut head and pubic hairs.

The officer later learned that the crime detection laboratory wanted saliva; therefore, the next day an officer went out with a vial. At the officer's request the defendant spat into the vial.

The trial court found that all this was conducted in a congenial atmosphere. There was no testimony, however, that the defendant expressly consented to any of the takings.

At some stage of the taking of the body substances defendant's attorney was called by defendant's motion in defendant's presence, and he approved the taking of the blood and hair, which he believed to be head hair. He was not asked about the pubic hair or saliva.

The state has the burden of establishing that the defendant consented to the seizure. State v. Marshall, 234 Or. 183, 184, 380 P.2d 799 (1963). Mere acquiescence to lawful authority is not consent. We do not need to decide whether a mother of a 15-year-old son can consent to a search and seizure of her son against his consent. ¹ There was ample evidence to support the trial court's findings of fact that the son consented, in addition to his mother's consent. We also agree with the trial court's conclusion of law that the facts, as it found them, amounted to the requisite consent.

II

After the trial court had made its ruling denying the motion to suppress, the defendant filed a motion for a change of judge. The motion stated, among other things, that the judge was prejudiced and, therefore, disqualified under ORS 14.250.

The basis for the charge of prejudice was the trial court's written opinion on the motion to suppress. In effect that court stated that it did not believe the testimony of defendant's mother and father.

The defendant was not entitled to have his motion granted as a matter of course under ORS 14.250--14.270 because the court had already ruled on a matter in issue in the case, the motion to suppress, and the motion to disqualify, therefore, was not timely. Taylor v. Gladden, 232 Or. 599, 602--603, 377 P.2d 14 (1962). We do not need here to decide whether the statutory time limitations are applicable to motions to disqualify based upon specific charges of prejudice rather than 'statutory prejudice' (as it was labeled in Taylor v. Gladden, supra, 232 Or. at 603, 377 P.2d 14, or 'imputation of prejudice' (as it was labeled in State ex rel. Lovell v. Weiss, Or., 430 P.2d 357 (1967). The opinion of the trial judge, after hearing the testimony, that the testimony of witnesses favorable to the defendant was not worthy of belief is not evidence of prejudice.

'The unfavorable opinion of a party or witness which a hearing officer or a trial judge may entertain as a result of evidence received in a prior and connected hearing involving that individual is not 'bias' in the invidious sense. It is in effect a judicially-determined finding which may properly influence such officer or judge in a supplemental proceeding involving the penalty or punishment to be assessed, or the grace to be extended.' MacKay v. McAlexander, 268 F.2d 35, 39 (9th Cir. 1959). Accord, Huntingdon v. Crowley, 64 Cal.2d 647, 51 Cal.Rptr. 254, 414 P.2d 382, 393 (1966).

III

Defendant moved for an order requiring the state to produce for defendant's inspection and copying or photographing the following:

(1) Personal property taken from the defendant or defendant's parents;

(2) Bodily substances taken from the defendant;

(3) Personal property taken from third persons;

(4) Bodily substances taken from third persons;

(5) (a) Notes of conversations with defendant or written statements taken from defendant;

(b) The same as (a) in regard to third persons and made in the investigation;

(c)-(f) Reports regarding tests made of items in (1), (2), (3), (4).

The court allowed item (1), inspection and photographing of personal property of defendant, and a portion of item (5), the inspection and copying of any written or recorded statements taken from defendant. The court also granted defendant the right to inspect and copy and autopsy reports made upon the victim's body. The remainder of the motion was denied and defendant assigns such denial as error.

Oregon has statutes concerning discovery in both criminal and civil proceedings. ORS 41.615 provides:

'(1) Upon motion of any party showing good cause therefor, and upon notice to all other parties, and subject to the provisions of ORS 45.181, the court in which a proceeding is pending may:

'(a) Order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by ORS 45.151 and which are in his possession, custody or control; or

'* * *.'

ORS 136.510 provides:

'The law of evidence in civil actions is also the law of evidence in criminal actions and proceedings, except as otherwise specially provided in the statutes relating to crimes and criminal procedure.'

In State v. Leland, 190 Or. 598, 615, 227 P.2d 785, affm'd 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302, rehr den 344 U.S. 848, 73 S.Ct. 4, 97 L.Ed. 659 (1951), we held that the predecessor statute of ORS 41.615, quoted above, was a part of the law of evidence and, unless otherwise specially provided, is by reason of ORS 136.510, also above quoted, applicable to criminal actions.

In 1961 the legislature enacted ORS 133.755, entitled 'relating to discovery and inspection in criminal actions':

'(1) Upon motion of a defendant, at any time after the filing of the indictment or information, and upon a showing that the items sought are material to the preparation of his defense and that the request is reasonable, the court may order the district attorney to permit the defendant to inspect and copy or photograph designated books, papers, documents or tangible objects, obtained from or belonging to the defendant, including written statements or confessions made by the defendant. The order shall specify the time, place and manner of making the inspection and of taking copies or photographs and may prescribe...