State v. Lloyd

• Decision Date: 11 August 1975
• Parties: STATE of Oregon, Respondent, v. Mitchell LLOYD, Appellant.
• Court: Oregon Court of Appeals

Page 1278

538 P.2d 1278

22 Or.App. 254

STATE of Oregon, Respondent, v. Mitchell LLOYD, Appellant.

Court of Appeals of Oregon.

Argued and Submitted June 18, 1975.

Decided Aug. 11, 1975.

Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.

Donald L. Paillette, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

William C. Snouffer, Portland, filed a brief amicus curiae on behalf of American Civil Liberties Foundation of Oregon, Inc.

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

LANGTRY, Judge.

Defendant appeals from convictions on two counts of manslaughter (ORS 163.125) and one count of reckless burning (ORS 164.335), arguing that the circuit court erred in refusing to exclude from evidence testimony about, and recordings of, statements elicited from him by police during a period of alleged illegal detention extending over some four-and-one-half days prior to his arrest on May 29, 1974.

Having responded to a report of a residential fire during the early morning hours of May 25, 1974, Pendleton City Police Officers Anderson and Moore discovered defendant, in an extremely intoxicated state, 'passed out' in a nearby parking lot. Aroused and directed to 'go home,' defendant made an attempt to enter the burning house located across the street. The officers then decided it would be necessary to take the defendant into custody for detoxification, pursuant to ORS 426.460. ¹

Following a delay of over two hours, while the detaining officers assisted in traffic and crowd control at the scene of the fire, defendant was transported to the Umatilla County Jail and 'booked' as a 'friendly drunk' at approximately 6 a.m. No criminal charges were filed at that time, and defendant was told he would be released within six hours or as soon as he was 'sober.' Defendant, however, was questioned at that time about how and why he had come to be in the vicinity of the fire in an apparent attempt to determine whether others might also have been in the area. During the course of this initial interrogation, in which defendant admitted having been inside the house and having lit at least one match therein sometime before the outbreak of the fire, defendant was found to be in possession of a considerable amount of money; additional questioning directed at ascertaining the source of these funds followed a 'Miranda warning' ² by Officer Anderson.

Defendant was next questioned by Officer Walker of the Pendleton police at approximately 8:30 a.m., subsequent to the discovery that the morning's fire had caused the deaths of two unidentified persons. Apparently, due to defendant's continued intoxication, this questioning, which followed a second Miranda warning, yielded little additional information about events surrounding the fire although defendant unequivocally denied that he had started the fire.

Shortly after the conclusion of officer Walker's interview Pendleton Police Chief Gallaher contacted a deputy district attorney for the purpose of securing authorization to detain the defendant as a 'material witness.' Based upon information that the defendant had been picked up near the fire on a detoxification 'charge,' had been in the house or close to it at the time of the fire's outbreak, and was both in possession of a large sum of money and a stranger to the area, Deputy District Attorney Swint concluded that such a hold would be warranted ³ and at approximately 9 a.m. May 25 defendant's custody report classification was altered from 'detox' to 'material witness.'

Later that same day an attorney retained by defendant's aunt for the purpose of determining the reason or reasons for his incarceration met with State Officer Howland at the scene of the fire and was informed of the 'material witness' hold. Officer Howland also indicated to the attorney that the defendant was not a suspect in the arson investigation then underway and volunteered to provide notice of any change in his status should it occur. Some 90 minutes after this exchange--at approximately 2:30 p.m.--Howland himself had an opportunity to speak with the defendant and was told 'somewhat the same' story previously given to the Pendleton police.

No further questioning of the defendant took place until the following afternoon when, because his previous statements had been found to be not entirely consistent with physical evidence then available, Officer Howland returned with Detective Carey of the Umatilla County Sheriff's Office in an attempt to 'fill in' defendant's narrative of the events leading up to the fire and his actions after its outbreak. In this interview, Not preceded by any Miranda warning, defendant reiterated that while he had been present inside the house prior to the fire and had lit at least one match during that time, he had subsequently fallen asleep in the living room and remained unaware of the presence of any fire until being waked by a 'slamming door' at a time when the house was already smoke filled.

Two days later, May 28, 1974, defendant was interviewed for the fifth time, the questioning being conducted by Officer Howland together with Officers Ritter and Mink of the Oregon State Police. In the course of this interrogation--initiated by a review of defendant's Miranda rights--defendant conceded that he had not previously been entirely candid and that the fire might have inadvertently been started by any one of several matches he had discarded while in the house.

Two separate interrogations followed on the 29th. The first, conducted by Officers Mink and Ritter at 10:01 a.m., was preceded by another Miranda warning and resulted in an admission by the defendant that after discovering the fire he had, while attempting to put it out, mistakenly poured some kind of an accelerant onto the flames.

At approximately 4:15 that afternoon Officer Howland once again encountered the attorney retained by defendant's aunt. At that time he apparently informed the attorney that defendant had, in fact, become a 'focal suspect,' but that he would be released from custody within a matter of hours. Immediately thereafter, Howland--along with Officer Mink and Detective Carey--proceeded to interrogate the defendant for another 90 minutes, during which time defendant admitted that he had been present in the house prior to the fire, had used lighted matches to make his way around in the dark, had dropped what he believed to be a 'burned out' book of matches on the floor; that within a matter of minutes of dropping those matches he left the premises, walked across the street, looked back to see flames inside the home, returned to the site, grabbed a can from the porch with intent of using its contents to extinguish the fire, And that he had continued to apply liquid from that can even after discovering it to be an accelerant rather than water. At the conclusion of this interview defendant was arrested and charged.

On August 2, 1974 a motion to suppress '(a)ny fact, matter or thing whatsoever arising from, discovered or derived by reason of the defendant's illegal incarceration during the period of May 25, 1974, through and including May 29, 1974'--including all statements elicited by police during that prearrest interval--was filed in the Circuit Court for Umatilla County.

Defendant there argued (1) that because the first two interrogations of early May 25 were conducted while he was 'extremely under the influence of intoxicating liquor' they were carried out in violation of the Fifth and Fourteenth Amendments of the U.S. Constitution and Art. I, § 12 of the Oregon Constitution, and (2) that the following five interrogations were also conducted without due process in violation of those constitutional provisions protecting him from self-incrimination in that they

'* * * were conducted * * * while defendant was illegally incarcerated as a material witness, having not been advised of the statutory rights of an individual incarcerated as a material witness, and further that the self incriminating statements obtained as a result of said interrogations were induced through suggestion and promises of help of interrogating officers, mental and physical coercion through repeated sessions of interrogation, confrontation of a polygraph examination and the threat of continued illegal incommunicado incarceration, and not pursuant to a free, voluntary and knowledgeable waiver of such rights.'

An order denying defendant's motion 'in its entirety' was entered by the circuit court on September 10, 1974; accompanying that order were specific findings of fact and conclusions of law which included the following:

'FINDINGS OF FACT:

'* * *

'4. The defendant was taken into custody for detoxification purposes, ultimately lodged in the Umatilla County Jail. At the time of booking in the Umatilla County Jail and considering his presence at the scene of the fire the defendant was interrogated by City Police officers as to any knowledge which he may have had concerning the fire. At these questionings, 'Miranda' warnings were given to the defendant, the defendant understood those rights, freely and voluntarily waived those rights, freely and voluntarily conversed with the police officers involved.

'* * *

'6. At approximately 9:00 a.m. on May 25, 1974, the defendant's status of being held for detoxification was changed to being held as a 'material witness', which was within two to three hours after being booked on the detoxification hold. This 'material witness' status was relative to the investigation of a possible arson and the death of two persons at the above described residence.

'* * *

'9. There is no 'treatment facility' in Umatilla County as provided in ORS 426.460 and the defendant was therefore lodged in the Umatilla County Jail in lieu thereof.

'* * *

'13. The defendant was not a suspect of any criminal activity while he was being...