State v. Pollard

• Citation: 888 P.2d 1054,132 Or.App. 538
• Parties: STATE of Oregon, Respondent, v. Raymond Gilbert POLLARD, Appellant. C920219CR; CA A77376.
• Decision Date: 25 January 1995
• Court: Court of Appeals of Oregon

Page 1054

888 P.2d 1054

132 Or.App. 538

STATE of Oregon, Respondent, v. Raymond Gilbert POLLARD, Appellant.

C920219CR; CA A77376.

Court of Appeals of Oregon.

Argued and Submitted April 28, 1994.

Resubmitted In Banc Nov. 9, 1994.

Decided Jan. 25, 1995.

Mary M. Reese, Deputy Public Defender, argued the cause for appellant. With her on the brief was Sally L. Avera, Public Defender.

Janie M. Burcart, Asst. Atty. Gen., argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.

HASELTON, Judge.

Defendant appeals his conviction for murder by abuse. ORS 163.115(1)(c). He argues that the trial court erred in denying his demurrer to the indictment and in denying his motion to suppress inculpatory statements he made during a police interview. Because defendant's statements were improperly induced by implied promises of leniency, we conclude that those statements should have been suppressed. We reverse and remand for a new trial.

On June 19, 1991, defendant was taking care of his six-month-old baby, Joshua, when the baby stopped breathing. After Joshua was rushed to the hospital, an examination revealed that he had two subdural hematomas ¹ that were two to three weeks old, an acute subdural hematoma that was a few hours to five days old, and retinal hemorrhages. X-rays indicated that the baby also had a broken leg and a broken arm, each at different stages of healing. Joshua's examining and treating doctors concluded that he suffered from "shaken baby syndrome." ²

Joshua was hospitalized until July 15, 1991, and then released to a foster home. Because of the brain damage, Joshua's brain atrophied to half of its normal size, which, in turn, weakened his reflex systems. The baby showed little improvement and, despite medication, suffered from recurring seizures. On February 9, 1992, Joshua died. An autopsy revealed that he died of head injuries, terminal seizures, and aspiration of stomach contents. Joshua's death was a direct result of the injuries that had occurred on or before June 19, 1991. After Joshua's death, defendant was convicted of murder by abuse. ORS 163.115(1)(c).

Defendant assigns error to the trial court's denial of his demurrer to the indictment for murder by abuse, arguing that the indictment was deficient in three respects. First, defendant argues that the terms "assault" and "pattern or practice" used in ORS 163.115(1)(c) ³ render the statute unconstitutionally vague under both Article I, sections 20 and 21, of the Oregon Constitution, and the Fourteenth Amendment to the United States Constitution. In considering a vagueness challenge to a statute that does not implicate free expression, we consider only whether "application of the contested statute to the defendant's conduct violates the 'void for vagueness' doctrine." State v. Butterfield, 128 Or.App. 1, 7, 874 P.2d 1339, rev. den. 319 Or. 625, 879 P.2d 1287 (1994). (Emphasis supplied.) Here, defendant does not assert that he was unable to determine that his conduct was prohibited by ORS 163.115(1)(c). See State v. Butterfield, supra, 128 Or.App. at 8, 874 P.2d 1339. Rather, he presents an abstract challenge based on factual contexts other than his own. That is insufficient to support a vagueness challenge. State v. Zelinka, 130 Or.App. 464, 469, 882 P.2d 624 (1994).

Defendant next contends that the murder by abuse statute is unconstitutionally overbroad in that, as written, the statute "encompasses potential defendants who were not intended to be within the reach of the statute." A statute is overbroad

"to the extent that it announces a prohibition that reaches conduct which may not be prohibited. A legislature may make a law as 'broad' and inclusive as it chooses unless it reaches into constitutionally protected ground." State v. Blocker, 291 Or. 255, 261, 630 P.2d 824 (1981).

Defendant does not argue that ORS 163.115(1)(c) is overbroad as applied to him; therefore, to successfully assert a facial overbreadth challenge, he must demonstrate that the murder by abuse statute infringes on constitutionally protected conduct. State v. Albee, 118 Or.App. 212, 217, 847 P.2d 858, rev. den. 316 Or. 528, 854 P.2d 940 (1993). Because defendant does not do so, his overbreadth claim fails.

Finally, defendant argues that the indictment violates ORS 132.550(7), because it fails to allege the specific incidents of abuse that the state intended to prove to show that he engaged in a "pattern or practice of assault or torture." ⁴ ORS 132.550(7) requires that an indictment set forth "a statement of the acts constituting the offense * * * in such manner as to enable a person of common understanding to know what is intended[.]" The functions of an indictment are:

" '(1) to inform the defendant of the nature of the crime with sufficient particularity to enable him to make his defense, (2) to identify the offense so as to enable the defendant to avail himself of his conviction or acquittal thereof if he should be prosecuted further for the same cause, and (3) to inform the court of the facts charged so that it may determine whether or not they are sufficient to support a conviction.' " State v. Montez, 309 Or. 564, 596-97, 789 P.2d 1352 (1990) (quoting State v. Cohen, 289 Or. 525, 529, 614 P.2d 1156 (1980)).

An indictment that tracks the statutory language of the crime charged is generally considered sufficient to fulfill those functions. State v. Montez, supra, 309 Or. at 597, 789 P.2d 1352. Greater specificity may be required if the statutory language is not sufficiently clear to apprise defendants of the particular circumstances that make their conduct criminal and if discovery is not likely to cure the defect. State v. Kincaid, 78 Or.App. 23, 29-30, 714 P.2d 624 (1986). Here, unlike in Kincaid, the statutory language, coupled with identification of the victim and his injuries, sufficiently notified defendant of the conduct the state intended to prove. Moreover, requiring the indictment to allege the specific dates that the incidents of assault and torture occurred would be unworkable, because the victim's young age made it impossible to identify those dates. See State v. Zelinka, supra, 130 Or.App. at 471, 882 P.2d 624. Thus, the trial court properly denied defendant's demurrer.

Defendant next assigns error to the trial court's denial of his motion to suppress certain inculpatory statements he made to a police detective. Defendant asserts that those statements were induced by the detective's implied promises of treatment instead of criminal prosecution. He contends, therefore, that their admission at trial violated his constitutionally and statutorily protected right against compelled self-incrimination. U.S. Const.Amend. V; Or. Const. Art. I, § 12; ORS 136.425(1). The state maintains that, even if the detective promised defendant treatment, that promise was not connected with any offer, either express or implied, to forgo prosecution.

In reviewing the voluntariness of a defendant's statements, we are bound by the trial court's findings of historical fact if evidence supports them, but decide the ultimate legal question of voluntariness anew. State v. Stevens, 311 Or. 119, 135, 806 P.2d 92 (1991); State v. Davis, 98 Or.App. 752, 754, 780 P.2d 807 (1989), rev. den. 309 Or. 333, 787 P.2d 888 (1990), cert. den. sub nom. Davis v. Oregon, 498 U.S. 827, 111 S.Ct. 82, 112 L.Ed.2d 55 (1990). A confession or admission is deemed to be involuntary unless the state affirmatively shows that it was voluntarily made. State v. Mendacino, 288 Or. 231, 235, 603 P.2d 1376 (1980); State v. Ely, 237 Or. 329, 332, 390 P.2d 348 (1964). The state must prove voluntariness by a preponderance of the evidence. State v. Stevens, supra, 311 Or. at 137, 806 P.2d 92; State v. Davis, supra, 98 Or.App. at 754, 780 P.2d 807.

Admissions obtained by an express or implied promise of immunity or leniency are involuntary as a matter of law under the Oregon Constitution, Article I, section 12. State v. Ely, supra, 237 Or. at 334, 390 P.2d 348; State v. Linn, 179 Or. 499, 507, 173 P.2d 305 (1946); State v. Kahut, 71 Or.App. 243, 247, 692 P.2d 138, rev. den. 299 Or. 31, 698 P.2d 964 (1985). ⁵ A simple promise of treatment does not, by itself, render an admission involuntary. See State v. Neblock, 75 Or.App. 587, 590, 706 P.2d 1020 (1985); State v. Bounds, 71 Or.App. 744, 746-48, 694 P.2d 566, rev. den. 299 Or. 732, 705 P.2d 1157 (1985). However, an admission is considered involuntary if it was induced by a promise of treatment instead of prosecution. State v. Neblock, supra, 75 Or.App. at 590, 706 P.2d 1020; State v. Capwell, 64 Or.App. 710, 716, 669 P.2d 808 (1983); State ex rel. Juv. Dept. v. S.C.G., 77 Or.App. 543, 713 P.2d 689 (1986).

Such a promise need not be express. An implied promise of immunity from prosecution is sufficient to compel suppression of a confession:

"The precise form of words in which the inducement is presented to the prisoner's mind is immaterial. It is sufficient if they convey to him the idea of temporal benefit or disadvantage, and his confession follows in consequence of the hopes thereby excited." State v. Wintzingerode, 9 Or. 153, 163 (1881).

Accord State v. Ely, supra, 237 Or. at 334, 390 P.2d 348; State v. Linn, supra, 179 Or. at 510-14, 173 P.2d 305.

Here, defendant sought to suppress statements he made during a 40-minute interview with Hillsboro Police Detective Gossman on June 20, 1991. Defendant, who was not in custody, submitted to the interview voluntarily. During the interview, the following exchange occurred:

"[DETECTIVE]: Okay, Ray, what I'm doing is investigating a problem with a small child. That child happens to be your child, apparently.

"[DEFENDANT]: Okay.

" * * * * *

"[DETECTIVE]: Okay. How did this happen, Ray? Do you have any idea?

"[DEFENDANT]: I have no idea whatsoever, Sir.

"[DETECTIVE]: Okay. What I understand is, that at times you do have a temper.

...