State v. Mills

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Respondent, v. Frank Duane MILLS, Appellant. 10-84-00949; CA A33723.
• Citation: State v. Mills, 710 P.2d 148, 76 Or.App. 301 (Or. App. 1985)
• Court: Oregon Court of Appeals
• Decision Date: 14 November 1985

Page 148

710 P.2d 148

76 Or.App. 301

STATE of Oregon, Respondent, v. Frank Duane MILLS, Appellant.

10-84-00949; CA A33723.

Court of Appeals of Oregon In Banc.

Argued and Submitted June 21, 1985.

Resubmitted in banc Oct. 9, 1985.

Decided Nov. 14, 1985.

Stephen J. Williams, Deputy Public Defender, Salem, argued the cause for appellant. With him on brief was Gary D. Babcock, Public Defender, Salem.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

GILLETTE, Judge.

Defendant appeals his convictions for sodomy in the first degree, ORS 163.405, ¹ and sexual abuse in the first degree. ORS 163.425. ² He argues that the trial court erred in its partial denial of his motion to suppress statements which, although ruled inadmissible for use by the state in its case-in-chief, were allowed for use as impeachment evidence. We affirm.

In January, 1984, the Eugene Police Department received a report that defendant was allegedly engaging in sexual contact with a six-year-old boy. During the ensuing investigation, defendant was interviewed by two members of the Eugene Police Department, Officer Harada and Detective Poppe. On four different occasions, defendant allegedly made incriminating statements: (1) in a telephone call he made to Harada on January 15, 1984; (2) in two telephone calls to Poppe on January 16, 1984; and (3) during an interview with Poppe at the Linn County Jail on February 8, 1984, where defendant was being held on an unrelated charge.

At a pretrial hearing, defendant moved to suppress the three sets of statements. The trial court held the two sets taken over the telephone admissible, ruling that they were noncustodial and voluntarily given. However, the statements taken at the Linn County jail were ruled inadmissible on the court's finding that Poppe had continued to question defendant after he had requested an attorney. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Defendant's statements made at the jail were accordingly suppressed from use by the state in its case-in-chief; the state did not appeal that decision.

However, the trial court went on to state:

"It will be the further ruling of the Court they [the statements taken at Linn County Jail] will be admissible on rebuttal for impeachment if the defendant should take the stand and testify and in that testimony testify to the area or subject matter of the interview, and thus make those statements available for impeachment."

This ruling is the sole issue on appeal. Defendant argues that, under the Oregon Constitution, it was error for the trial court to refuse to extend suppression of the statements to include any potential impeachment use by the state. By his argument, he asks for a rule excluding Miranda-violative statements for all purposes, based on Article I, section 12, of the Oregon Constitution. Before we can reach the merits of defendant's argument, however, we must address a contention of the state on a procedural point.

The state argues that defendant failed to make a sufficient record for this court to review the ruling of the trial court. It relies on State v. McClure, 298 Or. 336, 692 P.2d 579 (1984). The Supreme Court there discussed how counsel can preserve evidentiary claims involving potential, but unrealized, impeachment evidence concerning a defendant. The court adopted the procedure enunciated in a federal case that held that the record is sufficiently protected in a case involving the admission of evidence for impeachment purposes if a defendant, through an offer of proof, "[e]stablish[es] on the record that he will in fact take the stand and testify * * *and * * * [s]ufficiently outline[s] the nature of his testimony." State v. McClure, supra, 298 Or. at 341, 692 P.2d 579 (citing United States v. Cook, 608 F.2d 1175, 1186 (9th Cir.1979), cert. den. 444 U.S. 1034, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980)). (Emphasis supplied.)

The impeachment evidence in McClure and in Cook, the federal case on which it relied, involved the use of prior convictions under OEC 609(1)(a) and its federal counterpart. OEC 609(1)(a) specifically requires a balancing test in a criminal case, under which the court decides the admissibility of a prior conviction by weighing the probative value of admitting evidence of the conviction against its prejudicial effect to the defendant should he testify.

The same cannot be said for statements of a defendant. The only requirements under OEC 613--the rule of evidence pertinent to this case--for the introduction of a prior inconsistent statement are that the defendant be "afforded an opportunity to explain or deny the same and [that] the opposite party is afforded an opportunity to interrogate the witness thereon." See State v. Brown, 299 Or. 143, 150, 699 P.2d 1122 (1985). As such, determining the admissibility of a defendant's prior inconsistent statement does not involve a balancing under OEC 609(1) and, therefore, the need does not exist for the record to reflect the factors discussed in State v. McClure, supra, in order to preserve the record for review. Because an inconsistent statement may only be introduced if a defendant chooses to testify and does so contrary to the prior statement and because, once it is introduced, the defendant can explain or deny the statement, the considerations expressed in State v. McClure, supra, do not apply to the facts of this case. It follows that even less of an offer of proof than that found adequate in McClure is sufficient here. Defendant's claim is preserved. We now address his argument on the merits.

Although we may interpret our own state constitution to provide greater protection to our citizens than United States Supreme Court interpretations of the federal constitution provide, see Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975); State v. Caraher, 293 Or. 741, 750, 653 P.2d 942 (1982); State v. Soriano, 68 Or.App. 642, 684 P.2d 1220, adopted 298 Or. 392, 693 P.2d 26 (1984), steps to adopt a stricter standard should be taken cautiously and be supported by reasoned analysis and sound policy considerations. For example, the Oregon Supreme Court's rejection of the federal Fourth Amendment approach to search and seizure law in State v. Caraher, supra, occurred only after an exhaustive analysis had satisfied the court that the desired need for clarification and uniformity in that area of the law was not being achieved by the federal courts and that, at least arguably, an adequate body of state law was available as a substitute source of precedent. State v. Caraher, supra, 293 Or. at 749, 653 P.2d 942. Unlike the law of search and seizure, however, the law in Oregon on Miranda-violative statements and their use for impeachment purposes has been exclusively based in federal constitutional principles.

Defendant argues that we should adopt the rationale of State v. Brewton, 247 Or. 241, 422 P.2d 581, cert. den. 387 U.S. 943, 87 S.Ct. 2074, 18 L.Ed.2d 1328 (1967), as the Oregon rule. In Brewton, the Oregon Supreme Court held that the failure of the police to warn the defendant of his Fifth and Sixth Amendment rights, which rendered his statements inadmissible in the state's case-in-chief, also precluded the use of the statements as impeachment evidence. We do not find Brewton to be a particularly useful precedent.

The court in Brewton attempted to decide the case consistently with the then recent case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its own decision in State v. Neely, 239 Or. 487, 395 P.2d 557, 398 P.2d 482 (1965), the latter a case in which the court adopted the federal exclusionary rule analysis as "a necessary procedural device to implement the substantive rights written into the Fourth, Fifth and Sixth Amendments." State v. Brewton, supra, 247 Or. at 244-45, 422 P.2d 581. The court's holding in Brewton was thought--and intended--to be consistent with the federal line of analysis. Four years later, however, the United States Supreme Court reached a contrary result in a case with similar facts.

In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the Court specifically held that statements which would otherwise be inadmissible in a prosecution's case-in-chief under Miranda may be admitted for impeachment purposes as prior inconsistent statements to rebut a defendant's direct testimony. The court warned:

"Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury * * *.

"The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances." 401 U.S. at 225, 91 S.Ct. at 645. (Citations omitted.)

The court expressed its conviction that the impeachment process serves as a valuable safeguard against perjury and an important technique to assist the trier of fact in the assessment of a witness' credibility. This point was reemphasized by the court in its later decision in Oregon v. Hass, supra.

In Hass, as in Harris, the defendant's inculpatory statements had been ruled inadmissible by the trial court in the prosecution's case-in-chief. The trial court admitted the statements in rebuttal, however, to impeach the defendant's direct testimony. This court reversed, relying on State v. Brewton, supra. ³ The Oregon Supreme Court took review for the purpose of deciding whether to overrule Brewton but concluded:

"[W]e now find that it is not necessary to make this determination in deciding this case because whether the reasoning of Brewton or of Harris is used, the opinion of the Court of Appeals must be affirmed." State v. Hass, 267 Or. 489, 492, 517 P.2d 671 (1973).

On certiorari, the United...