State v. Quinn

• Decision Date: 20 January 1981
• Citation: 290 Or. 383,50 Or.App. 383,623 P.2d 630
• Parties: STATE of Oregon, Respondent, v. John Wayne QUINN, Appellant. TC C 7902 30576; SC 27194. *
• Court: Oregon Supreme Court

Page 630

623 P.2d 630

290 Or. 383

STATE of Oregon, Respondent, v. John Wayne QUINN, Appellant.

TC C 7902 30576; SC 27194.

Supreme Court of Oregon, In Banc ^*.

Argued and Submitted Oct. 16, 1980.

Decided Jan. 20, 1981.

[290 Or. 384-A] Gary D. Babcock, Public Defender, Salem, and Thomas J. Crabtree, Deputy Public Defender, Salem, argued the cause for appellant. With them on the brief were J. Marvin Kuhn, Chief Deputy Public Defender, and Diane L. Alessi, Marianne Bottini, John Daugirda, Ernest E. Estes, David E. Groom, and Marilyn C. McManus, Deputy Public Defenders, Salem.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem.

Stephen Kanter, Cooperating Atty., Oregon ACLU Foundation, Portland, argued the cause and filed a brief as amicus curiae.

TANZER, Justice.

This is direct review pursuant to ORS 163.116(5). Defendant was charged in the alternative with intentional murder and felony murder, ORS 163.115(1)(a) and (b), and convicted of the former. He was also charged with and convicted of burglary. Defendant assigns as error the denial of his motions to suppress evidence found and seized during a warrantless search of his automobile. He also challenges the refusal to suppress his confession which he contends was involuntary and the result of the wrongful search. He also assigns as error the imposition of a sentence of death on the murder conviction.

I. SUPPRESSION

The evidence relevant to suppression was voluminous. Defendant offered evidence, but did not testify. We summarize it consistently with the trial court's findings.

Matilda Strong, an elderly crippled woman, was strangled to death and sexually abused in her apartment in southeast Portland during the night of January 16-17, 1979. Defendant was known to have spent a silver certificate for one dollar and two "wheat-back" pennies at a neighborhood grocery. These were collectors' items which police believed might have belonged to the victim. When questioned during a police canvas of the neighborhood on January 25, defendant denied any knowledge of the murder.

On February 8, a sales office in Clackamas County near southeast Portland was burglarized. Downy feathers were found on the broken window and lug sole boot prints were found below it. Two key rings and radio/stereo equipment were reported stolen. The next day, a neighbor informed the investigating officer that a green "ratty looking" car, Oregon license number LJJ 545, driven by a person named John, had been stuck in the mud on the morning of the burglary. The driver wore lug sole boots and a ripped quilted jacket which leaked feathers. The driver had left the car for about 45 minutes. Tracks existed between the broken window and the place the neighbor said the car had been.

On the afternoon of February 10 in southeast Portland, the Oregon State police officer who had investigated the burglary saw defendant driving an automobile, licensed LJJ 545, and stopped him ostensibly for a traffic violation, failing to signal before turning. Defendant had no operator's license and admitted that it was suspended (although, in fact, it was not). The officer arrested defendant for driving while his license was suspended. Standing outside the car and looking through its open doorway, the officer observed in defendant's car a radio/stereo combination which matched the description of the one stolen in the burglary two days earlier. It was jerry-rigged under the dashboard. He also saw that defendant wore lug sole boots of a size similar to the prints at the burglary.

The officer directed defendant to the police car, advised him of his constitutional rights to silence and counsel, and informed him of the evidence of burglary against him including the similarity of the radio/stereo in the car and that taken in the burglary. Defendant confessed immediately and the officer arrested him for burglary. The officer arranged for defendant's car to be towed for these reasons: 1) the police were responsible for the contents of the car, which he believed to include stolen property; 2) the car was believed to have been used in the commission of a felony; 3) the car was partially blocking the street; and 4) defendant did not object.

The officer took defendant to the Clackamas County jail where he was booked on the burglary charge. Defendant was then taken to a small room and again advised of his rights, which he said he understood. Defendant signed a card acknowledging that he understood his rights and agreed to discuss the burglary. He gave an oral statement which the officer reduced to writing. As the officer read the statement, defendant corrected several of the officer's intentional errors of detail (e. g. a reference to defendant's 1968 Plymouth was changed to 1969) and he signed the statement. In it, defendant admitted taking the radio/stereo and attaching it to his car.

During this period, the officer called a Clackamas County deputy district attorney, informed him of the facts and of his intention to search defendant's car that day or the following day, and asked if a warrant should be obtained. The deputy district attorney advised the officer that a warrant was not necessary in the circumstances.

The officer's work shift had ended and he was on overtime. His police car had been assigned to another officer. He called the owner of the stolen property to arrange for him to identify it. The owner said that it would be most convenient for him to meet the officer at the auto storage lot the next afternoon. The officer then went off duty.

The following afternoon, February 12, 22 hours after the seizure, the arresting officer met the owner of the stolen property at the lot. No warrant had been obtained. The officer entered the automobile. The owner identified the radio/stereo equipment and three key rings (one unreported). One key ring was in plain view, another in the rubble on the floor and the third in the glove compartment. The officer seized the stolen items.

The officer continued to search because he believed there might be more unreported stolen property in the car. He found several brassieres and a partly opened drawstring bank bag under the front seat. (He testified it was "part way" open; the trial court found it was "open".) Reaching in the bag, he found several pairs of women's panties. He left these items in the car because they were unrelated to the burglary. He continued to search the passenger compartment and then, by going through the back seat, the trunk. He found nothing else of note and nothing more was seized.

On February 12, defendant made his initial appearance on the burglary charge in the District Court for Clackamas County. Upon his request, counsel was appointed. The lawyer inquired of various sources and learned that defendant's preliminary hearing was scheduled for February 20, but that the case was also scheduled to go to the grand jury on February 16. He first spoke with defendant by telephone on February 14 or 15 and he first met with defendant in person at his circuit court arraignment on February 22.

On February 13, Multnomah County homicide detectives were apprised of the discovery of female undergarments in defendant's car. Defendant was second on their list of suspects because he lived near the victim, had a history of burglary and had spent the silver certificate and pennies believed to have belonged to the victim.

The next day, February 14, the arresting officer and another met again with defendant in jail. The interview was tape recorded. The arresting officer advised defendant of his rights to silence and counsel. Defendant acknowledged that he understood them and was willing to talk. The officer told defendant that the radio/stereo equipment had been removed from his car. The officers also questioned defendant about several other thefts, regarding which defendant made denials and some minor admissions. They then asked his consent to search his car. After being advised that he need not do so and that anything found could be used as evidence against him, defendant signed a consent form for the search. At no time during the interview were the underwear or the homicide mentioned.

Later that afternoon, the Multnomah County homicide detectives searched the car and seized the underwear. They then met with defendant at the jail. Defendant recognized them as the police who had previously questioned him in the neighborhood about the murder. Defendant was relieved to get out of an isolation cell in which he had been kept because he had trenchmouth, a communicable disease. The detectives took him across the street to the sheriff's office and they engaged in banter along the way. Defendant was in a jovial mood. After he was advised of his rights and agreed to talk, defendant was asked if he knew the reason for the visit and defendant supposed "it has something to do with January 16th." The detectives asked him about his last five burglaries. After defendant recounted four of them, one of the detectives said that defendant had omitted the Matilda Strong burglary. Defendant denied having committed it.

Defendant was then asked about the women's underclothes found in his car. He hung his head, slumped in his chair and appeared almost to cry. After not responding to the comments of the detectives for a few minutes, defendant admitted to stealing the underclothes and masturbating into them. He admitted to having been distressed and embarrassed by a sex problem, masturbation, since he was 14, particularly while at MacLaren School. He began to sob quietly.

One of the officers asked defendant if he would like some psychiatric counseling. Defendant was dubious because of an embarrassing experience at MacLaren, but said that he would like counseling. ¹ He then told the detectives from where or whom he had obtained each...