State v. Sunderland

• Decision Date: 09 June 1970
• Citation: 468 P.2d 900,4 Or.App. 1
• Parties: STATE of Oregon, Respondent, v. Robert LeRoy SUNDERLAND, Appellant.
• Court: Oregon Court of Appeals

Page 900

468 P.2d 900

4 Or.App. 1

STATE of Oregon, Respondent, v. Robert LeRoy SUNDERLAND, Appellant.

Court of Appeals of Oregon, Department 2.

Submitted on Briefs April 6, 1970.

Decided May 7, 1970.

Rehearing Granted June 9, 1970.

Gary D. Babcock, Public Defender, Salem, for appellant.

Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Solicitor Gen., Salem, for respondent.

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

LANGTRY, Judge.

Defendant was convicted in a trial by the court of rape of his 16-year-old daughter. ORS 163.220.

Assignments of error on appeal are (1) that there was delay in taking him before a magistrate after he was arrested, and that, consequently, oral and written admissions made by him should have been excluded; and (2) that acquittal should have been ordered because there was insufficient evidence of force in the alleged rape.

Defendant was arrested on a warrant during the night of December 31, 1968. He was held in the Washington County jail until the morning of January 2, and during the interval was afforded normal opportunity to make telephone calls and contact counsel if he wished to do so. He was taken to the detectives' office in the same building as the jail at 9:25 a.m., on January 2 and there questioned by two detectives for about one and three-fourths hours. He was then taken before a district judge in the same building. He was advised by the judge of the charge against him and of his rights, and taken back to the detectives' office where he wrote a statement which essentially repeated what he had previously said. The defendant was fully advised of his rights by the detectives before each session. In the statements he gave, he admitted sexual relations with his daughter, but he denied use of force. On trial, his testimony was substantially the same as his oral and written statements. During the state's case, defendant's counsel objected to receipt in evidence of the oral and written statements on several grounds, only one of which is pertinent here, namely, that he was not promptly taken before a magistrate as required by ORS 133.550.

Defendant asserts that the statements are inadmissible by reason of the alleged violation of ORS 133.550, and also the Fourteenth Amendment to the United States Constitution, and Oregon Constitution, Art. I, § 11. The substance of the contention is that the McNabb-Mallory rule applies in Oregon since the 1963 enactment of ORS 133.550. This rule does not apply to states, but is applicable to proceedings in federal courts. ¹

ORS 133.550 provides:

'The defendant shall in all cases be taken before the magistrate without delay.'

ORS 136.545 provides that if a magistrate fails to give information required by ORS 133.610 when the defendant is taken before him, any evidence obtained directly or indirectly as a result of that failure is inadmissible.

Interpreting all of the above statutory provisions in 1965, the Oregon Supreme Court in State v. Allen, 239 Or. 524, 529, 398 P.2d 477, 479 (1965), said:

'* * * The state must take an arrested person promptly before a magistrate as is demanded by ORS 133.550 so that his rights may be explained to him by an impartial judicial officer. In the event that conditions make it impossible to comply with ORS 133.550 prior to taking such statements as the prisoner may want to give them, then the police must see to it that they explain his rights to him in a manner consistent with our recent decision in State v. Neely, supra (239 Or. 487, 395 P.2d 557, 398 P.2d 482 (1964)).' (Emphasis supplied.)

Despite the extended and vigorous argument in the brief filed by the Public Defender on defendant's behalf, we do not believe that the statutory changes of 1963 or recent federal decisions cited have made the prophylaxis of the McNabb-Mallory rule applicable in this case. As we view the present law of Oregon in this regard, our inquiry is whether the officers complied with the requirements of ORS 133.550 and its interpretation which we have quoted from State v. Allen, supra. Detective Vallery testified that the defendant was brought to his office at 9:25 a.m., on January 2, and that he was taken to court at 11:15 a.m. No question was asked of Vallery by either attorney or the court about whether the defendant could have been taken to the district court any sooner than he was. Officer Pyle was the other detective. During cross-examination, while defendant's attorney was examining Pyle closely as to how long the defendant had been questioned before being taken to the district court, he answered, 'The first session went from--it would be approximately that, Until we could get him into court, yes.' (Emphasis supplied.) The defendant did not testify about the time of court appearance. On the basis of this sketchy evidence, the trial court ruled:

'* * * (T)he Court does find that he was brought before a magistrate promptly on the next judicial day following his arrest and that objection will also be overruled.'

Failure to take the defendant before a magistrate on New Year's Eve or New Year's Day, times when the magistrate would not be expected to be holding preliminary hearings or arraignments, was not a 'delay' within the meaning of ORS 133.550. ² If the court's business on the morning of January 2 was such that the defendant could have been taken before the district court during the time he spent with the detectives, he should have been taken to the court, and to do otherwise would have been delay which violated the statute.

Obviously, a metropolitan area district court would be busy on the morning of the first court day after the New Year holliday. The only real evidence about any possible delay prior to appearing before a magistrate was that defendant appeared at 11:15 a.m. on January 2, and that was the time when the detective said, '* * * we could get him into Court * * *.' We hold that this, under these circumstances, was not delay in violation of the statute.

Under the language quoted from State v. Allen, 239 Or. 524, 398 P.2d 477 (1965), supra, the officers were not prohibited from questioning the defendant, in conformance with the rules which apply to such situations, during the interval in which they were waiting to take the defedant into court. The defendant makes no contention that any of his statements were not true, or were involuntary or coerced.

With reference to the second assignment of error, that there was insufficient evidence of the element of force requisite to prove rape, we conclude that this was a question for the factfinder. Besides testimony of the victim that she physically resisted, and was too tired to resist further, she related threats that her father had made on previous occasions about violence he would use against her mother in the event that the girl reported her father's sexual advances....