State v. Smith

• Decision Date: 10 May 1990
• Docket Number: No. 87CR-0038,87CR-0038
• Citation: 310 Or. 1,791 P.2d 836
• Parties: STATE of Oregon, Respondent, v. Charles Franklin SMITH, Appellant. TC; SC S34322.
• Court: Oregon Supreme Court

Page 836

791 P.2d 836

310 Or. 1

STATE of Oregon, Respondent, v. Charles Franklin SMITH, Appellant.

TC No. 87CR-0038; SC S34322.

Supreme Court of Oregon.

Argued and Submitted March 8, 1989.

Reargued Aug. 14, 1989.

Decided May 10, 1990.

Stephen J. Williams, Deputy Public Defender, Salem, [310 Or. 3-A] argued and reargued the cause for appellant. With him on the brief were Gary D. Babcock, Public Defender, and John P. Daugirda, Deputy 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., Virginia L. Linder, Sol. Gen., and Ann Kelley and Brenda J. Peterson, Asst. Attys. Gen., Salem. Timothy A. Sylwester, Asst. Atty. Gen., Salem, reargued the cause for respondent.

Before PETERSON, C.J., and LINDE ^*, CARSON, JONES ^**, GILLETTE, VAN HOOMISSEN and FADELEY, JJ.

CARSON, Justice.

Defendant, Charles Franklin Smith, was convicted of aggravated felony murder under ORS 163.095(2). ¹ After the jury made the requisite findings, he was sentenced to death under ORS 163.150(1)(a). ² By appeal under ORS 163.150(1)(f), ³ he seeks reversal of his conviction or, alternatively, of his sentence. For the reasons set forth below, we affirm defendant's conviction. However, our decision in State v. Wagner, 305 Or. 5, 786 P.2d 93 (1990), requires that defendant's case be remanded to the circuit court for a new sentencing phase. We have reviewed all of defendant's assignments of error and each argument related thereto, and we address each separately. Any specific argument that we have not addressed we have determined to be entirely devoid of merit or to be moot.

THE GUILT PHASE

Summary of Facts

The murder victim, 27-year-old Alice Smith, disappeared on November 22, 1986. Her body was found December 20, 1986, near an abandoned dump site.

Defendant, Charles Franklin Smith, the victim's husband of 10 years, lived and was undergoing alcohol therapy at the Coos County Correctional Treatment Facility (the Center) as a condition of his probation for a previous assault conviction. On November 22, 1986, the victim and her sister drove to the Center to pick up defendant. Defendant carried a length of electrical wire, which he said he was going to use to fix the muffler on the victim's car. The victim said there was no need to fix the muffler but defendant insisted, saying that he had planned to fix the muffler and would do so.

From the Center, the three went to the victim's mother's house, where the victim had been living. While there, defendant exchanged words with Stephen Maugh over an alleged affair between Maugh and the victim. After defendant repaired a tire on his step-daughter's bicycle, defendant and the victim drove to the residence of Bob Tavernier where defendant said he wanted to store his tools and fix the muffler. Defendant did unload his tools, but did not fix the muffler. The victim and defendant left the Taverniers' house between 10:45 and 11:00 a.m. Defendant was next seen between 11:30 a.m. and noon. After spending the remainder of the day visiting various friends, he walked back to the Center that evening.

After defendant and the victim left the Taverniers' house, defendant claims that the victim dropped him off at McKay's store, told him that she was going home to take her daughter to a birthday party, and drove away. Defendant claims that to be the last time that he saw her.

When the victim did not return home, friends and family members began searching for her. The victim's automobile was found at the Silver Dollar Tavern, with her car keys and her purse inside. Family members filed a missing person report with the Coos County Sheriff's Office. The deputies were informed that defendant was the last person seen with the victim.

On December 20, 1986, a man walking his hunting dogs discovered a partially nude female body in a remote area of Coos County close to an abandoned dump site. He observed that the victim's hands and feet were tied behind her back with electrical wire. In the vicinity, officers found a cigarette butt and an empty cigarette package that later was matched to defendant's brand.

On December 23, 1986, the body was positively identified as that of Alice Smith. The cause of death was determined to be exposure.

Defendant was convicted on Count 2 of the indictment, which alleged aggravated felony murder in the course of kidnapping in the second degree. The indictment reads, in part:

"[T]he said Charles Franklin Smith, between or about November 22, 1986 and December 20, 1986 * * * did unlawfully and intentionally commit the crime of Kidnapping in the Second Degree and in the course of and in furtherance of said crime which the said defendant was committing, the said defendant personally and intentionally did cause the death of another human being, to-wit: Alice Lydia Smith, not a participant in the crime, by tieing [sic ] her hands and feet together behind her back and leaving her in a remote area to die."

Defendant's first four assignments of error concern the guilt phase of the trial. In these, defendant assigns error to the trial court's admission of evidence regarding: (1) statements made by defendant to deputies; (2) statements made by defendant to his jail cellmate and his cellmate's statements to the deputies; (3) the prison matrix system; and (4) the pregnancy of the victim. Defendant's remaining assignments of error are addressed to the penalty phase.

FIRST ASSIGNMENT OF ERROR

Defendant first assigns error to the trial court's denial of his motion to suppress statements that he made to detectives on three separate occasions: November 24, December 20, and December 23, 1986. Defendant claims that admission of these statements violates his right against self-incrimination under Article I, section 12, of the Oregon Constitution, and the Fifth Amendment to the United States Constitution. The admissibility of these statements requires separate inquiries under the Oregon Constitution and the United States Constitution.

I. Defendant's November 24, 1986, Statements

The trial court made the following findings of fact concerning defendant's November 24 statements:

"On November 24, Detective Adams went to [the Center] to talk to defendant because defendant's wife was missing and he was the last person seen with her. Defendant was not advised of his Miranda rights because Detective Adams did not even know if a crime had been committed.

"Defendant was at the Center pursuant to a sentence which required that as a condition of probation he complete the program at the Center. * * *

"The Center is not supervised by the jail and is not a lock-up facility. Persons at the Center may leave at will because the treatment is voluntary. The people in charge of the facility have no authority to make arrests, but they report violations by a person to that person's probation officer. A pass system has been developed at the Center."

A. Oregon Constitutional Analysis

In determining whether Miranda-like warnings ⁴ were required by the Oregon Constitution, we must assess the extent to which defendant was "in custody." In Oregon, a defendant who is in "full custody" must be given Miranda-like warnings prior to questioning. State v. Magee, 304 Or. 261, 265, 744 P.2d 250 (1987). In addition, such warnings may be required in circumstances that, although they do not rise to the level of full custody, create a "setting which judges would and officers should recognize to be 'compelling.' " Id. Defendant argues that detectives should have recognized that questioning at the Center was "compelling." For the following reasons, we reject this argument.

Defendant met with the detective in surroundings relatively familiar to defendant. The Center is a voluntary facility, not a custodial facility. The detective did not tell defendant that he was a suspect. In fact, on November 24, no crime had surfaced to investigate. The detective merely was gathering information on a missing-person report. Defendant, of his own free will, agreed to meet the detective at the Center; he was free to answer questions, or not to answer, or simply to end the meeting. The record and the findings of the trial court indicate that Detective Adams in no way coerced, compelled, or pressured defendant to answer. We agree with the trial court's conclusion that defendant's surroundings did not rise to the level of custody requiring Miranda -like warnings and, accordingly, that admission of statements made at that time did not violate defendant's rights under Article I, section 12.

B. Federal Constitutional Analysis

Under the United States Constitution, Miranda warnings must be given when a person is "in custody," i.e., when a person's freedom has been "significantly restrained," even if the person is in his or her own home or other familiar surroundings. Oregon v. Elstad, 470 U.S. 298, 309, 105 S.Ct. 1285, 1293, 84 L.Ed.2d 222 (1985). Conversely, Miranda warnings are not required when the person is not in custody, even if--for example--the questioning occurs in a police station. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977). Defendant asserts that he was "in custody" on November 24. The trial court, citing Mathiason, concluded that defendant was not in custody.

In Mathiason, the United States Supreme Court determined that the defendant was not in custody when he voluntarily came to the police station where police questioned him about a burglary:

"The defendant was told he was not under arrest. The door was closed. The [officer and the defendant] sat across a desk. * * * The officer told defendant he wanted to talk to him about a burglary and that his truthfulness would possibly be considered by the district attorney or judge. The officer further advised that the police believed defendant was involved in the burglary and [falsely stated that] defendant's fingerprints were found at the scene." 429 U.S. at...