State v. McKendall

• Decision Date: 18 September 1978
• Docket Number: No. 17-179C,17-179C
• Citation: 36 Or.App. 187,584 P.2d 316
• Parties: STATE of Oregon, Respondent, v. Kerry Suzanne McKENDALL, Appellant. ; CA 8833.
• Court: Oregon Court of Appeals

Page 316

584 P.2d 316

36 Or.App. 187

STATE of Oregon, Respondent, v. Kerry Suzanne McKENDALL, Appellant.

No. 17-179C; CA 8833.

Court of Appeals of Oregon.

Argued and Submitted April 25, 1978.

Decided Sept. 18, 1978.

Desmond Connall, Portland, argued the cause for appellant. With him on the brief were James E. Mountain, Jr., and Connall & Spies, P. C., Portland.

Jan P. Londahl, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Al J. Laue, Sol. Gen., Salem.

Before SCHWAB, C. J., and THORNTON, TANZER and BUTTLER, JJ.

THORNTON, Judge.

Defendant appeals from her conviction after a jury trial for murder. ORS 163.115. She makes several assignments of error, all of which are discussed below.

In the early morning hours of Saturday, September 18, 1976, Robert Firth was found shot to death in the cooler area of a 7-Eleven Food Store he operated in Aloha, Oregon. Early the next morning, September 19, 1976, a suspect, Michael Lynn Umscheid, was arrested on outstanding warrants for unrelated crimes. ¹

On Sunday, September 19, 1976, Beth Bates, an employe at the Firth 7-Eleven store, contacted police and related information regarding the alleged involvement of the victim's wife Donna Firth, Bette Carter and the defendant in the shooting. Based on his discussion with Bates, the district attorney ordered the arrest of defendant as a material witness. Prior to ordering defendant's seizure as a material witness, the district attorney did not seek judicial authorization.

On September 20, 1976, shortly before midnight, the police went to defendant's home and took her into custody as a material witness. In the early morning hours of September 21, 1976, immediately after arriving at the detective's office, defendant was interrogated by Detective Juul. Prior to questioning defendant, Juul orally advised her of her Miranda ² rights which defendant indicated she understood. During this initial interview defendant implicated Donna Firth, Bette Carter, Michael Umscheid and herself in the murder of Robert Firth. Detective Juul then left defendant and conferred with the district attorney who advised Juul to place defendant under arrest for murder. Juul returned to defendant and prior to placing her under arrest obtained a taped statement basically the same as defendant's first unrecorded statement. The detective then advised defendant that she was under arrest for murder.

I

Defendant's first assignment of error claims the trial court erred in denying defendant's motion to suppress evidence of her statements made to Detective Juul prior to her arrest. Defendant claims that her arrest as a material witness did not comport with the requirements of ORS 136.607 through 136.615, because the order for her arrest did not originate with a magistrate or judge. She argues that her statements were the product of this unlawful arrest.

In State v. Lloyd, 22 Or.App. 254, 538 P.2d 1278 (1975), we held that material witness commitment orders must originate with a magistrate or judge. Specifically we said:

"* * * Absent the specific grant of authority embodied in ORS 136.607 through 136.615 the state lacks the power to infringe upon the rights of an individual by 'detaining' him as a material witness; strict compliance with the limited procedure provided for in those statutes is, as noted above, required. Because that procedure was not, in fact, followed in this case, defendant's detention as a material witness was 'illegal.' " 22 Or.App. at 276, 538 P.2d at 1289. ³

The arrest of defendant in this case was therefore improper.

Having concluded that the arrest was "illegal," we must next determine whether the statements given by defendant to the police should be suppressed. The state argues that: (1) under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the taint of defendant's statements by the illegal arrest was sufficiently attenuated; (2) evidence of the events recounted in the statement would inevitably have been discovered; and (3) the error, if any, was harmless or waived.

Fruit of the Poisonous Tree

In Wong Sun v. United States, Supra, the Supreme Court held that statements made following an illegal arrest may nonetheless be admissible if the evidence to which objection is made " '* * * has been come at by means sufficiently distinguishable to be purged of the primary taint.' " 371 U.S. at 488, 83 S.Ct. at 417, citing Maguire, Evidence of Guilt, at 221 (1959).

Two goals are to be effectuated by the "poisonous fruit" doctrine:

" * * * (P)reventing the admission into evidence of statements made under the 'oppressive circumstances' surrounding an illegal arrest which are likely to overcome the arrestee's 'free will' (371 U.S. at 486 n. 12, 83 S.Ct. 407), and * * * curtailing arrests found to be in violation of the Fourth Amendment by denying the officers the fruits thereof * * *." Allen v. Cupp, 426 F.2d 756, 758 (9th Cir. 1970).

This is not a Fifth Amendment inquiry, but, rather, is an inquiry under the Fourth Amendment to insure that the policies and interests of that amendment are considered and protected.

In Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), the Supreme Court identified four factors that are determinative of whether statements should be excluded:

" * * * The question whether a confession is the product of a free will under Wong Sun must be answered on the facts of each case. No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to turn on such a talismanic test. The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances * * * and, particularly, the purpose and flagrancy of the official misconduct are all relevant. * * * " (Footnotes omitted.) 422 U.S. at 603-04 95 S.Ct. at 2261. See also, State v. Lloyd, supra.

In this case the trial court found both that the arrest was legal and that the statements thereby obtained were voluntarily made. However, as noted in State v. Lloyd, supra, 22 Or.App. at 278, 538 P.2d at 1290:

" * * * Although the circuit court concluded that defendant had 'freely and voluntarily' conversed with officers while held as a material witness, that court obviously did not having held as a preliminary matter that defendant's detention as a material witness was legal specifically consider whether the connection between what we have found to be an illegal detention and the statements sought to be suppressed had ' "become so attenuated as to dissipate the taint. " ' Wong Sun v. United States, supra, 371 U.S. at 491, 83 S.Ct. 407. * * * "

Furthermore, like State v. Lloyd, supra, this case involves a flagrant violation of the material witness statute, not a mere technical violation (such as arresting in good faith reliance on an invalidly issued warrant). Hence, the burden is upon the state to show by clear and convincing evidence that the taint from the illegal detention was dissipated by the time the statement was made. State v. Lloyd, supra, at 278-79, 538 P.2d 1278. The fact that Miranda rights were given and understood does not suffice and, since there is no other evidence of events or circumstances which could have dissipated the taint, the trial court could not have found the taint purged. Therefore, the motion to suppress should have been granted.

Inevitable Discovery ⁴

The state also argues that the facts contained within defendant's statement to the police would have been inevitably discovered during the subsequent investigation independent of defendant's illegally obtained confession; therefore, the confession itself is not rendered inadmissible by the taint of the illegal arrest.

However, that facts contained within the statement would have been discovered independently of defendant's illegally obtained confession does not render the statement itself admissible under the inevitable discovery exception to the exclusionary rule. It is the statement, not the facts contained therein, which should have been suppressed. Since the record does not support a finding that defendant's statement inevitably would have been made, the statement does not qualify for the exception. ⁵

The illegal arrest of defendant in this case resulted in the state's obtaining incriminating statements. By suppressing the statements the police would be deterred from making illegal arrests. The state may still prove the facts contained Within the statement (but not the statement itself) if it establishes that its evidence of those facts was obtained from independent sources or would have been inevitably discovered. This issue will require an appropriate preliminary finding by the trial court.

Waiver

The state argues that defendant waived her constitutional claim that her pretrial statements were the product of the illegal arrest by taking the stand and admitting the truth of the statements. See, State v. Frazier, 245 Or. 4, 418 P.2d 841 (1966); State v. Unsworth, 240 Or. 453, 402 P.2d 507 (1965), Cert. den. 382 U.S. 1014, 86 S.Ct. 626, 15 L.Ed.2d 529 (1966).

Frazier and Unsworth dealt with situations where the defendant asserted a constitutional right on appeal that was not defined at the time of trial and therefore not raised at that level. See, State v. Poole 31 Or.App. 925, 931 at n. 2, 572 P.2d 320 (1977). Those cases are distinguishable from the present case where defendant moved prior to trial to exclude the evidence on the same grounds raised on appeal and, after denial of her motion, testified as to the statements and her involvement in the crime. This case is analogous to State v. Poole, supra (not involving a constitutional...