State v. Robinson

• Citation: 3 Or.App. 200,473 P.2d 152,90 Adv.Sh. 1991
• Parties: STATE of Oregon, Appellant, v. Bobby Ray ROBINSON, Respondent-Cross-Appellant.
• Decision Date: 30 July 1970
• Court: Court of Appeals of Oregon

Page 152

473 P.2d 152

3 Or.App. 200

STATE of Oregon, Appellant, v. Bobby Ray ROBINSON, Respondent-Cross-Appellant.

Court of Appeals of Oregon, Department 2.

Argued and Submitted June 16, 1970.

Decided July 30, 1970.

Gary D. Gortmaker, Dist. Atty., Salem, argued the cause and filed the brief for appellant.

Elton T. Lafky, Salem, argued the cause and filed the brief for respondent-cross-appellant.

Before SCHWAB, C.J., and LANGTRY and FORT, JJ.

LANGTRY, Judge.

Defendant was indicted for first degree murder. He had previously been hospitalized for alcoholism, and at the time of the crime was working at a general hospital and living in Salem. Several days after the slaying, two sergeant detectives of the Salem Police Department visited defendant at his apartment shortly after his working hours. The upshot of their visit was a series of oral admissions made by defendant. After the case had been set for trial and continued several times, on the day it was to commence, and before calling a jury, defendant moved to suppress use of the statements as evidence. After extensive testimony (this testimony covers over 500 pages of transcript), the trial court allowed the motion to suppress. It is from this order that the state has appealed under authority of ORS 138.060(4), which provides:

'The state may take an appeal to the Court of Appeals from:

'* * *

'(4) An order made prior to trial suppressing evidence.'

ORS 138.160 requires that the order from which the appeal was taken be stayed. It was necessary to resolve the appeal before the trial could proceed if the district attorney was unwilling to abandon his asserted right to use the admissions in evidence.

Pursuant to a search warrant body hairs were taken from defendant for crime laboratory tests. Defendant's counsel moved to suppress evidence deriving therefrom because he had demanded the right to be present at the time of taking the hairs, but they were taken without his presence. This motion was denied and defendant has appealed from the order of denial.

Defendant moved for immediate resumption of trial or dismissal of the indictment when the prosecution elected to appeal the suppression of the admissions because he claimed (1) ORS 138.060(4) was inapplicable, and (2) failure to proceed would violate his right to a speedy trial under federal and state constitutions and ORS 134.120. The motion was denied and defendant has appealed from the order of denial.

THE STATE'S APPEAL OF THE RULING ON VOLUNTARINESS OF THE ADMISSIONS

The detectives testified that they gave Miranda, infra, warnings to defendant when they first went to his apartment at about 4:00 p.m., but they were in sharp conflict on whether they warned him that he was a focal suspect. One said he was so warned; the other said that he was told they were just seeking background information. They agreed that defendant told them he had an attorney, whom he named, and that he stated several times that he wanted to call the attorney. There was no phone in the apartment, but it was known there was a public phone across the street. One detective knocked at the door of two other apartments in an effort to get to a phone without success, but did not go across the street to the one he knew he could use or offer to take the defendant or let him go to a phone. They testified defendant was not restrained from calling his attorney, but that he himself kept putting it off.

More importantly, all of the time they talked with him defendant kept sipping at a bottle of vodka and a can of beer. The detectives knew that he had been hospitalized for alcoholism. They said he consumed up to one-third of a bottle (about eight ounces) of vodka. After about one and three-quarters of an hour defendant commenced making incriminating admissions and the detectives arrested him for murder and took him to the police station. They testified that at the point when they arrested him defendant seized two boxes of pills sitting beside the vodka bottle, knocked them to the floor, and took at least one pill, washing it down with vodka. One detective said he didn't know what the pill was; the other said defendant described it as 'A 400-gram Thorazine,' and a doctor who saw defendant over an hour later said they were described to him only as sleeping pills. The detectives said they did not look at the pill boxes to see what they were. Strangely, although it was stipulated that if defendant's landlord and relatives were called as witnesses they would testify that they visited the apartment a few days later, and that it was locked from the time of defendant's arrest and no one was in it until they went through it, that when they went through it the boxes of pills and the liquor containers were not there. The detectives testified they left the pills and containers in the apartment when they removed the defendant, and that they were not there when they went back with a search warrant several days later. At the police station within a very short time after leaving the apartment, defendant was seen to be so incoherent and violent that he could not be booked or arraigned.

The trial court concluded: 'I am not satisfied that at 6:00 o'clock, totality of circumstances indicates a completely voluntary act.' The state must prove, at least to the 'satisfaction' of the court in an In camera hearing that the admission was voluntary. State v. Brewton, 238 Or. 590, 603, 395 P.2d 874 (1964).

Standing alone, voluntary intoxication of a suspect at the time he makes admissions or a confession usually is not a reason to exclude them from evidence. It is a factor to consider with other circumstances.

'The general rule applicable to confessions obtained from persons under intoxication has been well stated to the effect that 'proof that the accused was intoxicated at the time he confessed * * * will not, Without more, bar the * * * confession in evidence * * *. '' (Emphasis supplied.) People v. Schompert, 19 N.Y.2d 300, 305, 279 N.Y.S.2d 515, 519, 226 N.E.2d 305, 308 (1967).

Here, there was more than voluntary intoxication. The defendant wanted to confer with his attorney and was given little or no opportunity to do so; he was a known alcoholic whose weakness was played upon by the detectives and it was claimed that taking drugs after giving the admissions was the final reason for his incoherence at the police station, but the proof was questionable, to say the least. See State v. Shannon, 241 Or. 450, 405 P.2d 837 (1965); Frye v. Gladden, Or.App., 90 Adv.Sh. 497, 465 P.2d 716 (1970); State v. Williams, 89 Adv.Sh. 199, 458 P.2d 699 (1969); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966); Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 (1964); and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

Our discussion of the state's appeal disposes of all assignments of error made

thereunder. As to that appeal, the trial court's ruling is

affirmed. THE DEFENDANT'S CROSS APPEAL OF THE

RULING DENYING THE MOTION TO SUPPRESS

THE TAKING OF BODY HAIR

The facts upon which this cross-appeal is based are stated in a stipulation in a colloquy between counsel and the court:

'MR. LAFKY: * * * And so the other matter boils down to the situation of hair taken pursuant to an Order and the search warrant by the Court and I think the facts can be relatively stipulated to.

'* * *

'MR. LAFKY: And that issue was basically only this: I'll submit to the Court that I forced the State to obtain a seach warrant in order to obtain those hair samples. And my objection was the fact that I advised the District Attorney or the State, prior to the taking of the hair, that I wanted to be present when it was taken. And my client objected to the taking of the hair in the Marion County Jail unless I was present. And it was obtained without my presence; and that's the gist of the argument with respect to that suppression.

'MR. GORTMAKER: * * * (T)he fact that it was taken by a medical doctor in the jail under the supervision--or by the doctor and with the crime detection laboratory technician present. And we attempted to find Mr. Lafky so that he could be present. We couldn't find him and so we went ahead and took the hair samples.

'MR. LAFKY: * * * (T)his was done during the noon hour, your Honor, and it would have been a little difficult to have found me.

'MR. GORTMAKER: You were in Judge Sloper's chambers. I found you right afterwards.

'MR. LAFKY: And Mr. Gortmaker was advised in Judge Sloper's chambers about--when the issue came up prior to taking it, 'I understand your client is going to resist taking the hair.' I said, 'No, he's not going to resist unless I'm not allowed to be present. That's my only concern: that I want to be present when the hair is taken to see what is done.'

'* * *

'THE COURT: Well, are you willing to stipulate, both of you, that those are the facts on which the motion to suppress lies?

'MR. GORTMAKER: Yes, sir.

'MR. LAFKY: Yes, sir.'

The state may take specimens of body substances for criminal detective work. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Schmerber quotes from Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 51 L.Ed. 1021 (1910):

'* * * '(T)he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material * * *."

The district attorney was aware that defendant's counsel had demanded that he be present and the defendant demanded counsel's presence. The stipulation indicates nothing less than a tacit agreement to that effect. Little inconvenience would have been occasioned in making a previous appointment to have defendant's counsel present.

We view failure to abide by this...