State v. Quinn

• Decision Date: 21 July 1992
• Citation: 112 Or.App. 608,831 P.2d 48
• Parties: STATE of Oregon, Respondent, v. Steven John QUINN, Appellant. 8900210CR; CA A62439.
• Court: Oregon Court of Appeals

Page 48

831 P.2d 48

112 Or.App. 608

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

8900210CR; CA A62439.

Court of Appeals of Oregon.

Argued and Submitted Nov. 30, 1990.

Decided April 22, 1992.

Reconsideration Denied June 17, 1992.

Review Denied July 21, 1992.

Steven V. Humber, Deputy Public Defender, Salem, argued the cause for respondent. With him on the brief was Sally L. Avera, Public Defender, Salem.

Cynthia A. Carter, Asst. Atty. Gen., Salem, argued the cause for appellant. With her on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before BUTTLER, P.J., and ROSSMAN and DE MUNIZ, JJ.

DE MUNIZ, Judge.

Defendant appeals his conviction for criminally negligent homicide, ORS 163.145(1), and raises two assignments of error. First, he contends that the trial court erred by denying his motion to suppress statements that he made to the police after his arrest; second, he contends that the evidence was insufficient to prove that his acts were the legal cause of the victim's death and that the court erred by denying his motion for judgment of acquittal. We affirm.

Defendant waived his right to a jury trial. These facts are taken from the trial court's findings. The victim emerged from a store after purchasing beer. He was intoxicated. Defendant and two friends were outside, "messing around in the street." They were making "gun noises." The victim, a Viet Nam veteran, was offended by their conduct. Words were exchanged, and a fight ensued. It is unclear who started the fight. The victim, who had just participated in a pool tournament, struck defendant in the leg with his pool cue. There was a lull in the action, long enough for defendant to remove himself from the fray. Instead, defendant picked up a chunk of asphalt and struck the victim with it. He fell to the street, and defendant and his friends fled. It was snowing. Riley, who was driving down the street, did not see the victim, because of the snow and slush on the road. She drove over him. Riley stopped and made sure that the victim received emergency medical attention. Defendant stipulated that the victim's death was caused by being run over by a car.

These facts are taken from the court's findings and the evidence in the record that supports those findings on defendant's motion to suppress statements that he made after being arrested. See State v. Stevens, 311 Or. 119, 126, 806 P.2d 92 (1991); Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968). Deputy Sheriff Hannigan arrested defendant six days after the altercation with the victim. Hannigan handcuffed defendant and placed him in the back seat of the patrol car. Hannigan testified that he was "fairly sure" that he advised defendant:

"It's my duty as a police officer to advise you of your rights. You have the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney. If you can't afford to hire an attorney, one will be appointed to represent you. If you do give a statement at any time, you can stop at any time you wish. Do you understand these rights?"

Defendant indicated that he understood. Hannigan asked defendant about his involvement in the victim's death. Defendant denied that he had murdered anyone. Hannigan told defendant that two witnesses had said that defendant was involved. Defendant began to cry and then explained his involvement. On the way to the sheriff's office, he elaborated on that involvement. When they reached the station, another officer removed the handcuffs. Hannigan read defendant his rights from a standard Miranda card. ¹ Hannigan and Detective Awmiller then interviewed defendant, who reiterated the statements that he had made in the car.

The court denied defendant's motion to suppress his statements, and defendant then waived his right to a jury. After a bench trial, the court found him guilty of criminally negligent homicide.

In his first assignment of error, defendant contends that the warnings that Hannigan gave him in the car did not satisfy the requirements of Article I, section 12, or the Fifth Amendment. He contends that they were defective, because they did not inform him that he could consult with an attorney before questioning and that he could have his lawyer present during interrogation. He also argues that the statements he made after receiving the standard Miranda warnings at the station should have been suppressed, because they were the tainted fruit of the statements that he made in the car.

In reviewing defendant's constitutional claims, we look first to the Oregon Constitution. Sealey v. Hicks, 309 Or. 387, 393, 788 P.2d 435 (1990), cert. den. 498 U.S. 819, 111 S.Ct. 65, 112 L.Ed.2d 39 (1991); State v. Kennedy, 295 Or. 260, 262, 666 P.2d 1316 (1983). Defendant was in "full custody" when he was handcuffed and placed in the back seat of the police car. Any custodial setting is inherently coercive. State v. Magee, 304 Or. 261, 265, 744 P.2d 250 (1987); State v. Sparklin, 296 Or. 85, 89, 672 P.2d 1182 (1983). Therefore, defendant was entitled to "Miranda-like" warnings under Article I, section 12, before being interrogated. State v. Carlson, 311 Or. 201, 204, 808 P.2d 1002 (1991); State v. Smith, 310 Or. 1, 7, 791 P.2d 836 (1990); see Miranda v. Arizona, 384 U.S. 436, 458, 86 S.Ct. 1602, 1619, 16 L.Ed.2d 694 (1966).

Oregon courts have not declared precisely what Article I, section 12, requires police to tell a person who is in custody. In State v. Sparklin, supra, the Supreme Court said:

"An attorney's presence at custodial interrogations is one way to secure the right to be free from compelled self incrimination. For this reason we require the police to inform a detained person that he may terminate questioning at any time and that he may have an attorney to advise him before he speaks." 296 Or. at 89, 672 P.2d 1182.

Article I, section 12, and the Fifth Amendment each proscribe compelled self incrimination. We have previously observed that

"the Oregon constitutional right against self incrimination is presently protected by the same warnings which the United States Supreme Court requires under the Fifth and Fourteenth Amendments * * *." State v. Rowe, 79 Or.App. 801, 804, 720 P.2d 765, rev. den. 302 Or. 86, 726 P.2d 1185 (1986).

In evaluating the contours of Article I, section 12, we continue to see "no value in being different merely for the sake of the difference." See State v. Kell, 303 Or. 89, 95, 734 P.2d 334 (1987). Accordingly, analyses under the Fifth Amendment are persuasive in determining what Article I, section 12 requires. Our Supreme Court has been similarly persuaded. In State v. Sparklin, supra, it said:

"[A]s long as the text of the federal Miranda warnings remains the law, we think that the convenience of a single text exceeds any gain from improving that text." 296 Or. at 89, 672 P.2d 1182.

In Miranda, supra, the Supreme Court held:

"[A]n individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation. * * * [T]his warning is an absolute prerequisite to interrogation. * * *

" * * * * *

"[I]t is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him." 384 U.S. at 473, 86 S.Ct. at 1627.

Although the Oregon Supreme Court found the "text" of the federal Miranda warnings convenient, Miranda itself does not require any particular language. Indeed, "no talismanic incantation [is] required to satisfy its strictures." California v. Prysock, 453 U.S. 355, 359, 101 S.Ct. 2806, 2809, 69 L.Ed.2d 696 (1981). An "effective equivalent" is satisfactory. Duckworth v. Eagan, 492 U.S. 195, 202, 109 S.Ct. 2875, 2879, 106 L.Ed.2d 166 (1989); (quoting Miranda v. Arizona, supra, 384 U.S. at 476, 86 S.Ct. at 1629).

What Hannigan told defendant in the patrol car is quoted above. Defendant indicated that he understood those rights. The issue is whether those warnings effectively informed defendant that he was entitled to consult with an attorney before questioning and to have one present during interrogation.

In California v. Prysock, supra, the defendant was not expressly advised that he had the right to have an attorney appointed before further questioning. The Supreme Court observed that

"[inquiries into] whether a criminal defendant was adequately informed of his right to the presence of appointed counsel prior to and during interrogation [have focussed on whether] the right to appointed counsel was linked with some future point in time after the police interrogation." 453 U.S. at 360, 101 S.Ct. at 2810.

The Court found that the warnings given the defendant were adequate, because

"nothing in the warnings given respondent suggests any limitation on the right to the presence of appointed counsel different from the clearly conveyed rights to a lawyer in general * * *." 453 U.S. at 360, 101 S.Ct. at 2810. (Emphasis supplied.)

Similarly, the warnings that Hannigan gave defendant did not suggest any limitation whatsoever on his right to have counsel present. He was told that he had a right to counsel and that, if he could not afford a lawyer, one would be appointed. He was not expressly told that he could consult a lawyer before questioning or that he could have his lawyer present during questioning. Nonetheless, the standard in California v. Prysock, supra, was met. The warning that defendant received did not suggest any limitation on his right to have counsel present during interrogation, or that the appointment of counsel was conditioned on a future event. Hannigan told defendant, "You have the right to an attorney." (Emphasis supplied.) That advice apprised defendant that he had the right to counsel, right then. It could not mislead him into believing that he would have the right to counsel at some future time, nor did...