State v. Neely
| Decision Date | 14 October 1987 |
| Citation | 87 Or.App. 706,743 P.2d 1141 |
| Parties | STATE of Oregon, Respondent, v. Willis Trenton NEELY, Appellant. 36281; CA A35044. Court of Appeals of Oregon, In Banc |
| Court | Oregon Court of Appeals |
Gary D. Babcock, Public Defender, and Diane L. Alessi, Deputy Public Defender, Salem, filed the brief for appellant.
Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen., and Terry Ann Leggert, Asst. Atty. Gen., Salem, filed the brief for respondent.
Defendant appeals his conviction for robbery in the second degree. He assigns as errors the trial court's refusal to suppress a gun surrendered by him to his probation officer, the denial of his motion for judgment of acquittal of robbery in the second degree and the court's refusal to instruct the jury on robbery in the third degree. We affirm.
On March 25, 1984, a convenience store in Bend was robbed by a man who threatened the clerk by lifting his jacket to display the grip of a pistol that was thrust into his belt. Earlier that day, there had been a residential burglary in Bend in which a .357 Magnum pistol had been stolen. Defendant was on probation, under the supervision of probation officer Murray. On March 26, 1984, the Bend city police asked Murray for a photograph of defendant, who was a suspect in the robbery and the burglary. Murray tried to contact defendant to question him about the crimes and also about his absence from work and possible use of alcohol. He was unable to contact defendant but left messages with his wife and at his work.
On March 27, defendant stopped Murray in the parking lot at Murray's office and asked to speak to him. They went to the office, where Murray informed him that the police were looking for him in connection with the robbery. Murray asked defendant if he had done it; he said that he had not. Murray then telephoned the police to have them come to the office to question defendant about the robbery. He did not tell Murray whom he was calling. As Murray was identifying himself to the dispatcher, defendant suddenly blurted out, He lifted up his shirt, displaying a pistol and handed it to Murray, who inspected the pistol and determined that it was unloaded. Murray asked him several more questions about the robbery. He generally refused to answer, but did say, "The clerk can I.D. me," and, in response to Murray's question about what happened to the money, "I gave it to some bums."
Murray did not give defendant Miranda warnings, nor did he tell him that he was not free to leave. Murray later testified that he would not have allowed him to leave if he had tried to do so before the police arrived. When the police arrived, Murray gave them the weapon. Defendant and Murray spoke alone for several moments. The police then re-entered the office, arrested defendant for unauthorized use of a motor vehicle and advised him of his Miranda rights.
Defendant was indicted for robbery in the first degree. ORS 164.415. In response to defendant's motion, the court concluded that he was in custody when he spoke to Murray, and it suppressed his three incriminating statements. However, the court refused to suppress the gun. At the close of the state's case, the court granted defendant's motion for acquittal of robbery in the first degree, because the state failed to prove that he was armed with a deadly weapon. However, the court denied his motion for acquittal of robbery in the second degree, and the jury found him guilty of the charge. Defendant appeals.
He argues that, because the gun was the direct product of his statements, which were suppressed because they were elicited before he was given Miranda warnings, it should have been suppressed under State v. White, 59 Or.App. 61, 650 P.2d 184 (1982), modified 297 Or. 302, 685 P.2d 983 (1984). The state argues that Miranda warnings were not required because, when the statements were made and the gun was surrendered, he was not in custody, 1 his statements were volunteered and, even if he was in custody, probation officers are not required to give Miranda warnings.
The present state of the law is that the Oregon Constitution does not require Miranda -type warnings if a person is not in "full custody." State v. Smith, 301 Or. 681, 725 P.2d 894 (1986). Because defendant was not in "full custody," as that term appears to have been used by Judge Jones' concurrence in Smith, we decide the constitutional issues raised by defendant only under the federal constitution. 2
An individual must be given Miranda warnings when subjected to "custodial interrogation." Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). When determining whether questioning is "custodial interrogation," "the ultimate inquiry is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983). When defendant made the statements, he was not under arrest, nor was his freedom of movement restrained. He freely went to meet Murray, Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); State v. Hickam, 71 Or.App. 471, 692 P.2d 672 (1984), and voluntarily entered Murray's office. Murray sat at his desk, and defendant sat in a chair adjacent to Murray's desk. There is no evidence that he was physically restrained in any way. He was not told that he was not free to leave.
The questioning of defendant as a suspect does not itself mean that he was in custody. Oregon v. Mathiason, supra; State v. Fields, 291 Or. 872, 635 P.2d 376 (1981). The fact that he did not freely leave is not relevant in determining whether custody existed when the gun was relinquished. State v. Fields, supra. Murray's testimony that he would not have allowed defendant to leave before the police arrived does not compel the conclusion that he was in custody. An officer's uncommunicated intention not to allow a person being questioned to freely leave at any time is not an independent basis for determining custody. 3 See State v. Roberti, 298 Or. 412, 426 [87 Or.App. 711] n. 4, 693 P.2d 27 (1984) (Lent, J., dissenting); State v. Hickam, supra. As the United States Supreme Court concluded in Berkemer v. McCarthy, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984):
"A policeman's unarticulated plan has no bearing on the question whether a suspect was 'in custody' at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." 468 U.S. at 442, 104 S. Ct. at 3151. (Footnote omitted.)
We hold that, under the totality of the circumstances, when defendant made the statements and surrendered the weapon, he was not in custody. 4 Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984).
Defendant next contends that the court erred in denying his motion for judgment of acquittal on the charge of robbery in the second degree. Robbery in the second degree is committed when a person "represents by word or conduct that the person is armed with what purports to be a dangerous or deadly weapon." ORS 164.405(1)(a). The evidence indicates that, during the armed robbery, while lifting his jacket to expose the grip of a pistol that was thrust in his belt, defendant ordered the clerk to give him money. His conduct clearly comes within the language of the statute defining second degree robbery and, thus, the court properly denied defendant's motion.
Defendant, relying on the concurring opinion in State v. Vance, 285 Or. 383, 591 P.2d 355 (1979), argues that the legislature did not intend robbery in the second degree to encompass robberies committed with real, but unloaded, weapons. In Vance, the issue was whether pointing an unloaded real gun at another person constituted robbery in the first degree. 5 The defendant's argument was that, because the definition of second degree robbery included such conduct, the legislature did not intend the conduct to constitute first degree robbery. The court concluded that the legislature did not intend the adoption of the criminal code to abrogate the common law inference that a gun used in a robbery and pointed at a victim within firing range is loaded. Thus that conduct could be first degree robbery.
In the concurring opinion in State v. Vance, supra, on which defendant here relies, Judge Linde pointed out that, by concluding that the conduct in question may be first degree robbery, it follows that the legislature could not have intended the same conduct to be second degree robbery. Judge Linde explained:
The court's decision in State v. Vance, supra, does not compel the conclusion that a threat with a real, but unloaded, gun may never be second degree robbery. The court did not hold that it may be inferred that a gun is loaded every time the state offers proof that a defendant represented being armed with a gun. Rather, the court held that the inference was permissible from the additional fact in that case that it was "pointed at" the victim. Thus, under facts which differ from Vance, such as in this case, a threat with a real, but unloaded, gun may be second degree robbery. In addition, as Judge Linde recognized in his concurring opinion in State v. Vance, supra, accepting the conclusion that a robbery involving a threat with a real, but unloaded, gun can never be second degree robbery creates...
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State v. Riehl
...of this result as a matter of policy is open to question." Id. at 397-98, 591 P.2d 355 (Linde, J., concurring). In State v. Neely, 87 Or.App. 706, 743 P.2d 1141 (1987), this court directly addressed the anomaly that Justice Linde had noted in Vance. In that case, the defendant had been char......