State v. Smith

• Decision Date: 16 September 1986
• Citation: 725 P.2d 894,301 Or. 681
• Court: Oregon Supreme Court
• Parties: STATE of Oregon, Respondent on Review, v. Grant SMITH, Petitioner on Review. DC M3-44; CA A29648; SC S31395. *

Page 894

725 P.2d 894

301 Or. 681

STATE of Oregon, Respondent on Review, v. Grant SMITH, Petitioner on Review.

DC M3-44; CA A29648; SC S31395.

Supreme Court of Oregon In Banc ^*.

Argued and Submitted March 7, 1985.

Reassigned March 4, 1986.

Decided Sept. 16, 1986.

Thomas J. Crabtree, Bend, argued the cause, for petitioner [301 Or. 682-A] on review. With him on the petition was Crabtree & Rahmsdorff, Bend.

James E. Mountain, Jr., Sol. Gen., Salem, argued the cause, for respondent on review. With him on the response were Dave Frohnmayer, Atty. Gen., Thomas H. Denney, Asst. Atty. Gen., Stephen F. Peifer, Asst. Atty. Gen., and Ann F. Kelley, Asst. Atty. Gen., Salem.

John Daugirda, Deputy Public Defender, Salem, filed an amicus curiae brief on behalf of Oregon Public Defender.

John Henry Hingson, III, Oregon City, filed an amicus curiae brief on behalf of Oregon Criminal Defense Lawyers Ass'n.

CAMPBELL, Justice.

The question is whether Article I, section 12, of the Oregon Constitution ¹ requires that persons detained for questioning by law enforcement officers be given warnings similar to those required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), under the federal Fifth Amendment. ² We hold that it does not.

Two deputy sheriffs responding to a report of a vehicle off the road observed defendant about 150 yards from the disabled vehicle. When defendant saw the deputies he began to run, but stumbled and fell. The deputies approached defendant and assisted him back to their patrol car. The deputies suspected that defendant had been drinking, but at that time did not connect him with the disabled vehicle or suspect him of any crime. Defendant denied owning the vehicle. He told the police that he and another person had been drinking behind a nearby warehouse.

The officers learned from their dispatcher that defendant owned the car. Defendant then admitted that he owned the car and that he had been driving it when it went off the road. He was then arrested, given Miranda warnings, and later made further incriminating statements.

At trial on the charge of driving while under the influence of intoxicants, defendant moved to suppress his statements to the officers, relying on both the federal and state constitutions. The motion to suppress was denied. The trial court found that defendant's initial responses were obtained Defendant was convicted. He appealed, relying on both the Fifth Amendment and Article I, section 12, of the Oregon Constitution. The Court of Appeals affirmed the trial court. 70 Or.App. 675, 691 P.2d 484 (1985). In his petition for review to this court defendant relied solely on Article I, section 12, saying that it requires a Miranda -type warning to be given earlier in point of time than does the federal Fifth Amendment under Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). ³

during a field interrogation and that he was not "in custody" for the purposes of Miranda v. Arizona until he was arrested. The trial judge further found that defendant's incriminating statements were made voluntarily.

THE RIGHT TO REMAIN SILENT IN OREGON

The State of Oregon has recognized that its citizens have the right to remain silent in various circumstances by virtue of two statutory schemes, the adoption of common-law rules, and a constitutional provision. That right is spelled out in the following:

(1) ORS 135.070(1) provides that in a preliminary hearing the magistrate shall inform the defendant that he is not required to make a statement.

(2) ORS 136.425(1) provides that a confession or admission of a defendant "cannot be given in evidence against the defendant when it was made under the influence of fear produced by threats."

(3) State v. Wintzingerode, 9 Or. 153, 163 (1881), held that the common-law rules governing the admissibility of confessions are in force in Oregon, including the rule that "confessions made by a prisoner while in custody, and induced by the influence of hope or fear, applied by a public officer having the prisoner in his charge" are not admissible in evidence.

(4) Article I, section 12, of the Oregon Constitution provides in part: "No person shall * * * be compelled in any criminal prosecution to testify against himself."

One of the issues in this case is whether the Oregon Constitution requires warnings similar to those specified in Miranda v. Arizona. In Miranda the Court required that "[p]rior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." 384 U.S. at 444, 86 S.Ct. at 1612. In our review of the Oregon law, in addition to the right to remain silent, it will be necessary for us to examine defendant's related right to an attorney and defendant's right to know that any statement he or she makes may be used in evidence.

(1) The magistrate is required to inform the defendant at the preliminary hearing.

ORS 135.070(1) provides:

"When the defendant against whom an information has been filed in a preliminary proceeding appears before a magistrate on a charge of having committed a crime punishable as a felony, before any further proceedings are had the magistrate shall read to the defendant the information and shall inform the defendant:

(1) Of the defendant's right to the aid of counsel, that the defendant is not required to make a statement and that any statement made by the defendant The following statutes are part of the statutory scheme: ORS 135.095:

may be used against the defendant." (Emphasis added.) ⁴

"When the examination of the witnesses on the part of the state is closed, the magistrate shall inform the defendant that it is the right of the defendant to make a statement in relation to the charge against the defendant; that the statement is designed to enable the defendant, if the defendant sees fit, to answer the charge and explain the facts alleged against the defendant; that the defendant is at liberty to waive making a statement; and that the waiver of the defendant cannot be used against the defendant on the trial."

ORS 135.100(3)(a):

"The statement of the defendant shall be reduced to writing by the magistrate or under the direction of the magistrate and authenticated in the following form:

(a) It shall set forth that the defendant was informed of the rights of the defendant, as provided in ORS 135.095, and that after being so informed the defendant made the statement."

ORS 135.115:

"If the defendant waives the right of the defendant to make a statement, the magistrate shall make a memorandum thereof in the proceedings; but the fact of the waiver cannot be used against the defendant on the trial."

ORS 136.435:

"Evidence obtained directly or indirectly as a result of failure of a magistrate to comply with ORS 135.070 shall not be admissible, over the objection of the defendant, in any court." ⁵

To the best of our knowledge, this court has never interpreted or applied ORS 135.070(1) or ORS 136.435 in a context that would be relevant to the issue in this case.

In State v. Hatcher, 29 Or. 309, 44 P. 584 (1896), overruled on other grounds by State v. McLean, 255 Or. 464, 476, 468 P.2d 521 (1970), the defendant was convicted of the crime of manslaughter. The defendant contended that the trial court committed error in admitting into evidence a written statement made by the defendant at the preliminary hearing. This court considered Hill's Code section 1594 (now ORS 135.095) and reversed the conviction:

" * * * The introductory statement by the magistrate that 'Defendant was informed of his right to make a statement, and proceeded as follows,' would seem to imply that he was not informed of his right to waive making a statement, and that such waiver could not be used against him. The statute, (Hill's Code, § 1594,) provides that 'When the examination of the witnesses on the part of the state is closed, the magistrate must inform the defendant that it is his right to make a statement in relation to the charge against him; that the statement is designed to enable him, if he sees fit, to answer the charge, and explain the facts alleged against him; that he is at liberty to waive making a statement, and that his waiver cannot be used against him on the trial.' The defendant not having been notified of this last clause by the magistrate, may have understood, when informed of his right to make a statement, that it was incumbent on him to make one, and that in doing so he was obeying a legal mandate, and not making a voluntary statement. The right to waive making such a statement implies In State v. Andrews, 35 Or. 388, 58 P. 765 (1899), the defendant was convicted of exhibiting obscene pictures. This court reversed the conviction because the names of the witnesses examined before the grand jury were not endorsed on the indictment. This court by way of dictum said:

                that if one be made it is voluntary, and, therefore, admissible in evidence, but it cannot be regarded as being voluntarily made unless it appears that the accused was informed by the magistrate of his right to waive it, for if he made the statement under the belief that it was required of him by the magistrate it is inadmissible against him:  State v. O'Brien (  Mont.   ), 43 Pac. 1091 [ (1896) ].  There is nothing in the record to show that the statement was voluntarily made by the defendant, and hence it could not be admitted in evidence over his objection."  29 Or. at 311-12, 44 P. 584
                

"In view of another trial, it becomes important to consider some of the alleged errors which may be avoided thereat. Evidence was introduced at the trial which tended to show that the pictures alleged to have been exhibited by the defendant were contained in a nickel-in-the-slot machine. The court, over defendant's objection and exception, permitted evidence to...