State v. Rowe
| Decision Date | 11 June 1986 |
| Citation | 720 P.2d 765,79 Or.App. 801 |
| Parties | STATE of Oregon, Respondent, v. Charles Shawn ROWE, Appellant. 37584; CA A35240. |
| Court | Oregon Court of Appeals |
Ernest E. Estes, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.
Before GILLETTE, P.J., Pro Tem., and VAN HOOMISSEN and YOUNG, JJ.
Defendant appeals his conviction for burglary in the first degree, assigning as error the admission of statements which he made to a police officer who questioned him several hours after he had asserted his right to silence during questioning by a different officer. Defendant challenges the admissibility of the statements under both the federal and state constitutions. We affirm. 1
Defendant was a suspect in a burglary in Bend. Officer Points of the Bend Police Department asked Klamath County Deputy Sheriff Schrieber to arrest defendant on a burglary charge at his parents' home in Klamath Falls, where he was staying. Schrieber did so at 10:30 a.m., on August 1, 1984, and gave defendant Miranda warnings at that time. Defendant, after answering a few questions related to the burglary, told Schrieber that he did not want to answer any more questions on the matter; he did not invoke his right to counsel. Schrieber then stopped the questioning and took defendant to jail. Defendant did not initiate any further discussion of the burglary with Schrieber or, so far as the record shows, with anyone else.
Points arrived at the Klamath County Jail that afternoon. Schrieber told him that, after denying the burglary, defendant had said that he did not want to talk about the crime any more. Points then went to see defendant at 3:20 p.m. He found him talking to his parole officer. Points, who assumed that defendant objected only to talking with Schrieber about the crime, again gave him Miranda warnings. He did not ask him whether he was willing to talk despite his refusal to talk to Schrieber, nor did he otherwise refer to defendant's assertion of his right to silence. Defendant did not reassert his right to silence and made the statements which are in issue here.
In State v. Kell, 77 Or.App. 199, 712 P.2d 827, rev. pending (1986), we held that Miranda warnings are required under the Oregon Constitution before custodial interrogation. We did so because of the requirement in State v. Sparklin, 296 Or. 85, 89, 672 P.2d 1182 (1983), that the police "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" and because of the Supreme Court's statement, in that case, that it would not require warnings in addition to the Miranda warnings "[a]t least as long as the text of the federal Miranda warnings remains the law * * *." 2 The Supreme Court held that those federal warnings are an adequate method of protecting the state constitutional right against compelled self-incrimination, although they are not necessarily the only way to effectuate that right. Or. Const., Art. I, § 12; see State v. Mains, 295 Or. 640, 669 P.2d 1112 (1983). The court indicated in Sparklin that it requires the specific Miranda warnings instead of others primarily for reasons of convenience, so that police officers need not give two different sets of warnings to the same suspect.
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 does not mean that the reasons for requiring the warnings are the same or that the same consequences flow from an assertion of constitutional rights. When it adopted the warnings rule, the United States Supreme Court was impressed by evidence of extensive police abuses of suspects' constitutional rights in order to extract confessions and by the difficulties of protecting against those abuses by after the fact determinations of voluntariness. Miranda v. Arizona, 384 U.S. 436, 445-456, 86 S.Ct. 1602, 1612-1618, 16 L.Ed.2d 694 (1966). Although the Oregon Supreme Court has also been concerned with custodial interrogation practices since at least 1881, see State v. Witzingerode, 9 Or. 153 (1881), Oregon cases do not reveal the extensive abuses which the federal cases showed. The police in this state have not always fully respected suspects' rights but, so far as Oregon appellate cases show, the "third degree" and kindred behavior have not flourished here. See cases cited in State v. Kell, supra, 77 Or.App.[79 Or.App. 805] at 204 n. 3, 712 P.2d 827; see also State v. Cochran, 72 Or.App. 499, 696 P.2d 1114 (1985).
Because the need to control police misconduct appears perhaps less pressing in Oregon than elsewhere, it is not the primary reason for requiring warnings before custodial interrogation. Rather, the primary reason is to allow suspects to choose freely what course to pursue. The Oregon Supreme Court is not so much concerned to put an end to known abuses as to restore the balance which would otherwise weigh against the suspect. Whether or not a custodial interrogation is actually abusive, that interrogation, as Sparklin recognized, is inherently coercive. A person who is in custody is not the master of the situation; the police are. Article I, section 12, provides a way for a suspect to assert some control over the situation so that whatever he does will be the result of a knowing and voluntary choice.
The Oregon Constitution allows a suspect to assert control either by asking for an attorney's advice before speaking or by refusing to speak altogether. Under Sparklin the police must advise the suspect of those rights before questioning. "When the police honor these rights if defendant chooses to assert them, the coercive atmosphere of police interrogation is to some degree dispelled." State v. Sparklin, supra, 296 Or. at 89, 672 P.2d 1182. The purpose of the warnings is, thus, to alert the suspect to the adversarial nature of the situation and to give him the chance to decide whether to withdraw from the contest, to seek the help of counsel or to...
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