State v. Smith

• Decision Date: 16 November 1970
• Citation: 4 Or.App. 130,91 Adv.Sh. 791,476 P.2d 802
• Parties: STATE of Oregon, Respondent, v. William D. SMITH, Appellant.
• Court: Oregon Court of Appeals

Page 802

476 P.2d 802

4 Or.App. 130

STATE of Oregon, Respondent, v. William D. SMITH, Appellant.

Court of Appeals of Oregon, Department 2.

Argued and Submitted Sept. 28, 1970.

Decided Nov. 16, 1970.

Adelbert G. Clostermann, Portland, argued the cause and filed the brief for appellant.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.

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

SCHWAB, Chief Judge.

Upon trial by jury defendant was convicted of driving while under the influence of intoxicating liquor. ORS 483.992(2). At the trial the defendant admitted that he was drunk at the time in question, but claimed that he was a passenger, and not the driver of the automobile. Over his objection, his admission (made to the arresting officer immediately following the arrest) that he was, in fact, driving, was admitted into evidence. His objection, in essence, was that he was too drunk to understand the Miranda advice given him by the arresting officer and that, therefore, his waiver of his Miranda rights by answering the officer's questions was not a voluntary, knowing and intelligent waiver. This is the principal issue on appeal.

Shortly before 9 p.m. on August 28, 1969, the Multnomah County sheriff's office was notified that an automobile had crashed into a utility pole. Sheriff's officers responded to the call, and arriving at the scene found the defendant stretched across the front seat of the automobile. After ascertaining that the defendant was intoxicated, but not seriously injured, deputy sheriff LaBerge assisted the defendant to the prowl car, placed him under arrest, advised him, in the now traditional form, of his right to counsel and right to remain silent, and then questioned him.

At trial the defendant's position was that he had not been driving; that because he knew he was drunk he had asked an acquaintance to drive the automobile; that the acquaintance was driving the vehicle at the time of the crash; and that the reason the driver was not at the scene at the time the officers arrived was that he had gone for help. The evidence produced in support of defendant's position was strongly controverted by other evidence. Nevertheless, the evidence was sufficient to make a jury question as to who was driving.

While Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), deals with a custodial, station-house interrogation, it has been construed to govern all custodial interrogation by police and, in effect, renders admissions and confessions of criminal defendants inadmissible in the absence of proof, not only that the appropriate advice of rights was given, but that the advice was understood and the waiver of the rights embodied in the advice was voluntary, knowing and intelligent. 384 U.S., supra, at 444, 86 S.Ct. 1602. ¹

When the defendant objected to the introduction into evidence of his admission to deputy LaBerge that he had been driving his automobile, the trial court conducted a hearing out of the presence of the jury in the form prescribed by State v. Brewton, 238 Or. 590, 395 P.2d 874 (1964). The hearing consisted of testimony from deputy LaBerge. Deputy LaBerge was asked by the court whether or not the defendant was so intoxicated that he could not have understood what was being read to him (the Miranda advice). Deputy LaBerge candidly replied that it was a difficult question to answer, but, that in his opinion, although the defendant Smith was intoxicated, he understood what was going on.

The record is not clear as to whether the alcoholic report prepared by the officer shortly after the arrest was read by the trial judge in the course of the hearing on admissibility. This report, signed by deputy LaBerge, which was later introduced into evidence, contains the following information relevant to objective indications of the degree of intoxication:

BREATH: Odor of alcoholic liquor: strong.

CLOTHES: Mussed, Soiled, urine on trousers.

EYES: Watery, Bloodshot.

PUPILS: Dilated.

WALK & TURNING: Staggering.

SPEECH: Slurred, Incoherent.

Choice of words and correctness of speech: poor.

Effects of alcohol: Extreme.

The fact that an individual has been drinking, or even the fact that he has been drinking to the extent that he is under the influence of intoxicants, does not necessarily mean that he cannot understand advice and cannot be bound by his subsequent conduct in electing to waive the rights of which he is advised. However, if by reason of Extreme intoxication a confession cannot be said to be the product of a rational intellect and a free will, it is not admissible. State v. Lowry, 245 Or. 565, 423 P.2d 172 (1967); Collins v. Sullivan, 319 F.Supp. 184 (D.Or., filed Oct. 15, 1970); Gladden v. Unsworth, 396 F.2d 373, 380 (9th Cir. 1968). Here the trial judge recognized the problem, saying in the course of the hearing:

'* * * The question that disturbs me is * * *. Whether or not he was in the position then to understand his Miranda rights * * *.'

Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968), tells us that whether the historical facts as found are sufficient to sustain a finding of voluntariness which meets state and federal constitutional concepts of due process is a question which falls within the scope of appellate review. As is pointed out in Childs IV, Intoxicated Confessions: A New Haven in Miranda?, 20 Stan.L.Rev. 1269, 1278--79 (1968):

'* * * (T)he most certain inference that can be drawn from the available types of evidence is whether the defendant was heavily under the influence of alcohol or some other drug at the time he waived his rights and confessed; it is impossible to determine whether the state of intoxication was in fact a but-for cause of the confession, or whether some other standard of subjective mental capacity to incriminate oneself has been met * * *. (T)he difficulty of determining, apart from evidence of serious intoxication, whether the defendant did in fact have sufficient mental capacity to make a binding confession may render an objective standard the only workable test. A test of subjective capacity would make legal consequences of confession turn on highly dubious and difficult to determine facts; the results would be a partial return to the burdensome case-by-case adjudications that Miranda was intended to end.'

See also State v. McFall, 5 Ariz.App. 539, 544, 428 P.2d 1013, 1018 (1967), vacated 103 Ariz. 234, 439 P.2d 805 (1968), a case in which a confession was made under the influence of drugs. The court was concerned with the kind of investigation of the defendant's mental state that should have been made by the trial court to determine whether the confession satisfied constitutional requirements. The court said:

'There...