State v. Reynolds, 78-6-284

Decision Date10 December 1979
Docket NumberNo. 78-6-284,78-6-284
Citation603 P.2d 1223,43 Or.App. 619
PartiesSTATE of Oregon, Respondent, v. Jake Clarence REYNOLDS, aka Kenneth Eugene Moss, Appellant. ; CA 12621.
CourtOregon Court of Appeals

Marianne O. Bottini, Deputy Public Defender, Salem, argued the cause for appellant. With her on the briefs was Gary D. Babcock, Public Defender, Salem.

James M. Brown, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., Salem, and Walter L. Barrie, Sol. Gen., Salem.

Before JOSEPH, P. J., and LEE and RICHARDSON, JJ.

JOSEPH, Presiding Judge.

Defendant appeals from the judgment entered on convictions by a jury for aggravated felony murder, robbery in the first degree, and manslaughter in the first degree. First assigned as error is the denial of defendant's motion to suppress evidence obtained in a search consented to by defendant's wife. Defendant argues that his wife's consent was involuntary. Eight other assignments concerning procedural errors at trial will be discussed seriatim below. 1 The facts of the underlying crimes are therefore unnecessary to be detailed here.

At about 8:30 in the morning, defendant was inside his trailer house residence with his wife and child when he was instructed to emerge by police officers using a bullhorn. He did so and was arrested. His wife and four-year old son followed defendant outside the house. The police took defendant away for booking. Immediately after the arrest, police secured the trailer house by posting officers at the doors.

Defendant's wife testified that during the arrest no one would tell her what was happening, that officers kept asking her in different ways to consent to a search of the house, that she would not consent to it and that she wanted more information which she knew they would have to give her if they got a search warrant. She testified she was told she had been implicated and could be arrested as an accomplice if she really had been involved, that the district attorney was considering arresting her as a material witness and that if she were held, her son would be made a ward of the court because she had no relatives in the area. She was not allowed to re-enter her home or to leave the vicinity. She testified she signed a consent form because she could not take the chance that her boy would be taken. She also testified that she realized once the police obtained a search warrant they would search no matter what she said, and she noted that her boy was cold and hungry at the time.

A police officer testified that the wife was informed of the charges against her husband right after her husband's arrest by another officer, that the witness explained to her the police thought there was a gun in the house and wanted her consent to search for it and that when she did not assent to a search, he told her "Fine." He then left to telephone the district attorney to initiate a search warrant proceeding. In that discussion the wife's possible role as a material witness or an accomplice was broached. The officer returned to the wife and informed her that a search warrant was in the process of being obtained, that the district attorney saw no problem in obtaining it, that the process would take from two to four hours, and that it would expedite matters if she would consent to a search of the house. The officer also testified that the wife asked what would happen, and he told her there was a possibility that she would be considered a material witness in the case and that some arrangement would have to be made for her son's care if she were held and had no relatives in the area. He denied mentioning anything to her about her being considered an accomplice.

When that officer was then called away, a second officer continued to talk to defendant's wife. He testified that he told her that if they waited for a search warrant, she would have to remain there with police until the search warrant arrived. She then agreed to the search. He read her the consent form, and she signed it.

On defendant's motion to suppress evidence obtained in the search, the court ruled that while there may have been an implied threat that she could be taken into custody as a material witness, the police statements were accurate and within the bounds of fairness. The court noted there was no evidence that defendant's wife was told she could be taken into custody at that time. He ruled the consent voluntary and the search valid. He denied the motion to suppress.

The question of whether consent to search is voluntarily given is a question of fact to be determined by the totality of the attendant circumstances. State v. Ragsdale, 34 Or.App. 549, 554, 579 P.2d 286, Rev. den. 283 Or. 503 (1978). Defendant's wife understood that she could refuse to consent to the search. She did so initially, and her testimony indicated she knew she had that right. The possibility of her being held as a material witness or accomplice, if that were stated by the police, was accurate; those acts could lawfully have been authorized. Cf. State v. Bopp, 16 Or.App. 604, 611-12, 519 P.2d 1277 (1974). It is true that defendant's wife was herself in a sort of detention, 2 but voluntary consent to a search may be given by a person even under arrest. United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); State v. Flores, 280 Or. 273, 278, 570 P.2d 965 (1977). The "most reasonable construction" to be given the facts under those circumstances, State v. Ward, 37 Or.App. 591, 600, 588 P.2d 72 (1978) (dissent), Vacated and dissent adopted as opinion of the majority, 38 Or.App. 425, 590 P.2d 296, Rev. allowed 287 Or. 123 (1979), is that defendant's wife voluntarily consented to a search of the residence. The motion to suppress evidence was properly denied. Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968).

The second assigned error is the court's admission of statements which defendant asserts were made in the context of plea bargaining and were therefore inadmissible under ORS 135.435(1)(c). Assuming defendant was at this point effectively acting as his own counsel, 3 we think that his offer to "tell the complete story" did not necessarily imply that defendant was offering either to incriminate himself or to plead guilty to any of the charges; defendant was not bargaining a guilty plea for specific concessions. See, e. g., ORS 135.405(3)(a-c); 4 Cf. United States v. Levy, 578 F.2d 896,901 (2d Cir. 1978) (defendant's statements held admissible since no request made for consideration from prosecutor for defendant's cooperation); United States v. Smith, 525 F.2d 1017, 1018 (10th Cir. 1975) (defendant's statements inadmissible where predicated on an offer to plead guilty to all pending offenses in exchange for being sent to a federal institution). The obvious expectation on defendant's part that his statements would somehow benefit him does not render them inadmissible. State v. Evans,1 Or.App. 489, 494-95, 463 P.2d 378, Rev. den. (1970). Defendant's additional contention that he was not effectively advised of his rights immediately prior to making some of the statements is not correct. The evidence shows that on the previous day defendant had been so advised, and he had acknowledged that he understood his rights. The statements were properly admitted.

The third designated error is the court's direction to defendant to say to a witness, for purposes of voice identification, the words used in the robbery, to wit: "Don't anyone move, everybody lie down on the floor." Such evidence, not being testimonial in nature, does not violate the privilege against self-incrimination. United States v. Wade, 388 U.S. 218, 222-23, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The evidence was admissible.

The fourth claimed error is the admission of testimony of a police officer who had been present in the courtroom that defendant altered his voice during the voice demonstration. Defendant asserts error in that the parties had moved for the exclusion of witnesses to the voice demonstration pursuant to ORS 45.510. 5 After the demonstration, the judge noted out of the presence of the jury that he could tell defendant was altering his voice, and he admitted the officer's testimony. The court also allowed defendant to rebut the officer's testimony with the testimony of defendant's father. The court did not err in admitting the officer's testimony.

The fifth error is said to have been the entering of a judgment of conviction for aggravated felony murder, on the theory that there is no distinction between aggravated felony murder and felony murder, 6 and so the higher statutory sentence imposed here for conviction of aggravated felony murder violates equal protection. We recently held in State v. Cohen, 42 Or.App. 297, 600 P.2d 892 (1979), that the elements of aggravated murder and felony murder are the same, except that aggravated murder requires that the homicide be personally committed. The sentence for aggravated felony murder, permitted by statute and prescribed in this case, was not error.

The sixth error claimed is the court's denial of defendant's motion to participate as co-counsel in his own defense. In State v. Easton, 35 Or.App. 603, 606, 582 P.2d 37, Rev. den. 284 Or. 521 (1978), this court said that the constitutional rights to represent oneself without counsel and to have counsel in any criminal proceeding "cannot be simultaneously exercised." Defendant argues that the Oregon Constitution allows both by its terms: "In all criminal prosecutions, the accused shall have the right * * * to be heard by himself and counse...

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12 cases
  • Lackey v. State
    • United States
    • Texas Court of Criminal Appeals
    • April 7, 1982
    ...held, and that a search warrant was being procured, and who then consented to a search, consented voluntarily. State v. Reynolds, 43 Or.App. 619, 603 P.2d 1223 (Or.App.1979), aff'd 289 Or. 533, 614 P.2d 1158 In contrast to these cases, the dissent would find the State failed to prove the vo......
  • People v. Davis
    • United States
    • United States Appellate Court of Illinois
    • December 31, 1986
    ...be a distinction without a difference and find support for that conclusion in cases from other jurisdictions. See State v. Reynolds (1979), 43 Or.App. 619, 603 P.2d 1223, 1227 (defendant required to repeat words of robber in court); Lusk v. State (Fla.App.1979), 367 So.2d 1088, 1089 (prosec......
  • State v. Stevens
    • United States
    • Oregon Supreme Court
    • February 7, 1991
    ...of Appeals) that trial courts have discretion to allow, as well as todeny, hybrid representation. Examples are State v. Reynolds, 43 Or.App. 619, 625-26, 603 P.2d 1223 (1979), aff'd on other grounds, 289 Or. 533, 614 P.2d 1158 (1980); State v. Easton, 35 Or.App. 603, 606, 582 P.2d 37, rev. ......
  • U.S. v. Williams
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • April 8, 1983
    ...to determine if the voice on the telephone was the same voice as defendants. 2 The Court of Appeals of Oregon, in State of Oregon v. Reynolds, 603 P.2d 1223, 43 Or.App. 619, aff'd, 614 P.2d 1158, 289 Or. 533 (1979) upheld as "testimonial in nature" the trial court's requirement that the def......
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