State v. Roberti
| Decision Date | 04 May 1982 |
| Citation | 293 Or. 59,644 P.2d 1104 |
| Parties | STATE of Oregon, Petitioner on Review, v. Gary Patrick ROBERTI, Respondent on Review. TC T79-12-0348, CA 18838; SC 27840. . * |
| Court | Oregon Supreme Court |
Virginia L. Linder, Asst. Atty. Gen., Salem, argued and reargued the cause for petitioner on review. With her on the petition were David B. Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem. With her on the brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem.
Sid Brockley, Oregon City, argued and reargued the cause and filed the brief for respondent on review.
Defendant appeals his conviction of the crime of driving under the influence of intoxicants. He assigns as error the admission into evidence, over objection, of a statement he made in response to police questioning after the officer had pulled over his car. The case was tried to the court and the judge relied upon defendant's statements in coming to its finding of guilt. The Court of Appeals reversed, 51 Or.App. 783, 627 P.2d 28, holding that the statement made after the officer had formed, but not communicated, his intention to arrest defendant was the product of custodial interrogation and should have been suppressed. We reverse and uphold the trial court.
Defendant was driving his car at 2:10 a. m. on a major highway in a rural area. The officer paced defendant's car at about 80 miles per hour and observed it weaving in the right hand lane, crossing over the fogline several times, and traveling at times close to the guardrail. The officer turned on the overhead lights on his police patrol car, and defendant brought his car to a stop at the side of the road, apparently in response to the officer's signal given by the overhead lights.
Defendant stepped out of his car and began to walk toward the rear of the car, where he was met by the officer. The officer detected an odor of alcoholic beverage on defendant's breath. He also noticed that defendant's eyes were watery and bloodshot and his face was flushed.
The officer told defendant of the officer's observations concerning defendant's operation of the vehicle. Defendant answered that he knew he had been going too fast, that he had had "fight" with his wife, a passenger in the vehicle, and that he had had three drinks over the course of the preceding six hours, the last two after 11:00 p. m. Defendant swayed back and forth while talking to the officer.
Before administering the field sobriety tests, the officer asked defendant how much education he had, and defendant replied, "You name it, I've got it." The officer then asked defendant to say the alphabet, and defendant did so very well. Defendant was unable, however, correctly to count backward from 100 to 85. Next, the "heel-to-toe" test was conducted on an asphalt-paved portion of the roadway with a slight uphill grade, the area being illuminated by the police car's "rear lights" and the officer's flashlight. Defendant did not maintain his balance well and staggered several times. When asked to stand on one leg, defendant lost his balance immediately, and on a second try maintained balance for about four seconds. Defendant did well on the "finger-to-nose" test, but when asked to say the months of the year, he so slurred his words as to be barely understandable.
At that point the officer had determined that he was going to arrest defendant for driving while under the influence of intoxicants. He did not communicate that determination to defendant or utter any words of arrest to defendant. Rather, the officer then asked defendant to rate himself on a scale of intoxication of zero to ten, zero "being like he hadn't had anything to drink" and ten being falling-down drunk. Defendant responded that he was a "low five" and that he should not have been driving and should have let another passenger drive. It is this statement which is in issue.
The officer "then placed the defendant under arrest for DUII and read the defendant his rights at 2:20 A.M."
Upon trial the defendant was successful in excluding from evidence a tape recording made by the officer on the scene after defendant stopped his car. Moreover, test results of a chemical analysis of defendant's breath and related testimony were stricken because the test was found to have been improperly conducted. These rulings are not in issue.
Defendant objected to the reception of the officer's testimony concerning the defendant's response to the officer's invitation to rate himself on the scale of intoxication:
At the time of making his decision as fact finder, the trial judge stated:
Upon appeal the sole assignment of error was the failure to sustain the objection to the testimony of the officer as to defendant's response to the invitation to rate himself. In his brief, defendant made it clear that he was relying on the failure of the officer to advise defendant of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and several decisions of the Court of Appeals of Oregon 1 pertaining to the issue of when custody has obtained. The state joined legal issue on whether defendant was in custody when the question was put to him.
The Court of Appeals held that at the time the question was asked and answered, the encounter had become a custodial interrogation, that the trial court erred in not sustaining the objection, and that the error was not harmless beyond a reasonable doubt. We allowed the state's petition for review, in which the state urged:
" * * * A decision by this Court is needed to bring Oregon law into conformity with the decisions of the United States Supreme Court, and to clarify the analysis of what constitutes 'custodial' interrogation, especially in the context of on-the-scene questioning."
Defendant has not contended that any right guaranteed to him by either the constitution or the statutes of this state has been violated. His sole claim is that his rights under the Fifth and Fourteenth Amendments to the United States Constitution have been invaded. We do not approach the case therefore upon any independent state ground; rather, we seek to divine what the United States Supreme Court should do if it had this case.
Defendant makes no assertion that his statements were involuntary in the sense that his will was overborne. His contention is only that the evidentiary use of his statement was improper because it was the product of custodial interrogation as that term is used in Miranda v. Arizona, supra, and it was not preceded by advice and waiver of rights as required in that case.
The simple answer is that defendant was not yet in custody when the challenged statement was made and Miranda procedures were not applicable. Justice Lent, in dissent, however, would hold as did the Court of Appeals that once the officer decided to arrest defendant, defendant was not actually free to leave and was in custody even though the officer had not so informed him. Justice Linde, in dissent, would hold that whenever an officer investigating a crime, whether a traffic crime or not, stops a car and asks questions, that is sufficient detention to be deemed custody for purposes of triggering Miranda requirements. To fully examine these views, we must more closely inquire into the meaning of "custody" as used in Miranda.
Miranda is a Fifth Amendment case dealing with voluntariness. The issue of voluntariness put the defendant's subjective state in issue, not the officer's. The historical setting and the text of Miranda indicates that its purpose was to simplify judicial determinations of voluntariness of statements made in custody. Miranda was preceded by a generation of cases in which the court made case-by-case determinations of voluntariness from the "totality of the circumstances," e.g., defendant's age, education and intelligence, the length of interrogation, access to family or counsel, etc., as to whether defendant's will was overborne. 2 An obvious intended effect of laying out specific procedures for advice and waiver of rights prior to custodial interrogation in Miranda was to eliminate the necessity of making circumstantial determinations about the subjective state of each defendant and to substitute a simple advice-and-waiver procedure to be followed whenever a readily discernible objective fact exists, i.e., custody. If those procedures are followed, voluntariness may generally be inferred. 3 Absent custody, as here, the law of the pre-Miranda totality-of-circumstances cases continues to apply. Were we to decide that the officer's subjective state (i.e., his uncommunicated intention to arrest) triggered Miranda procedures, that holding would be exactly contrary to the purpose of the Miranda opinion: Instead of looking to an objective event, i.e., custody, we would look...
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