State v. Swader

• Decision Date: 19 April 1985
• Citation: 697 P.2d 557,72 Or.App. 593
• Parties: STATE of Oregon, Respondent, v. Gary Lawrence SWADER, Appellant. 10-82-06460; CA A28791.
• Court: Oregon Court of Appeals

Page 557

697 P.2d 557

72 Or.App. 593

STATE of Oregon, Respondent, v. Gary Lawrence SWADER, Appellant.

10-82-06460; CA A28791.

Court of Appeals of Oregon.

Argued and Submitted Feb. 29, 1984.

Decided March 13, 1985.

Reconsideration Denied April 19, 1985.

John Daugirda, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Robert E. Barton, 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 BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

WARREN, Judge.

Defendant appeals his conviction for sodomy in the first degree, ORS 163.405, claiming that: (1) his confession was made involuntarily and without the required Miranda warnings; (2) the court erred in admitting evidence of the victim's statements to his father; and (3) the state failed to present evidence adequate to corroborate defendant's confession, as required by ORS 136.425(1). We affirm.

The victim, a boy, was three years old at the time of the offense. Defendant's wife had provided care for the child in defendant's home on several occasions before the offense. On July 22, 1982, the child told his father of the alleged sexual contact with defendant. The child's father immediately contacted the Springfield police. The police interviewed the child using anatomically correct dolls, and the child enacted the sexual contact with defendant showing the officer that defendant had placed his penis in the child's mouth.

The following day the officer telephoned defendant and asked him to come to the Springfield police station. Defendant complied. He was taken into an unlocked, windowless interrogation room in the interior portion of the station with no public access. The officer explained the accusation to him. He was not given Miranda warnings, nor was he told that he was or was not free to leave at that time. Defendant denied the contact. The officer explained that the victim had been very specific and that normally children of that age do not manufacture accusations like that. The officer said he wanted to help defendant and urged him to get "his problem out and talk about it." Defendant said that he needed counseling. The officer testified at trial that defendant then explained what had happened:

"A. [BY POLICE OFFICER]: He told me he had taken a shower and come out of the shower and gone into the living room of his residence and sat on a couch.

"He told me that the victim * * * came--walked up to him. He told me he brushed some hair out of the victim's eyes and stood up, and he stated the towel that he had wrapped around himself came partly undone and that the victim placed his hands on the defendant's penis and then placed the defendant's penis in his mouth. He told me that contact lasted for one to two minutes.

"Q. What else did he say?

"A. He told me that this occurred in the month of May of 1982.

"Q. Did he tell you whether or not he thought that he was doing wrong or not?

"A. He told me he'd been bothered by it for a period of time and had some guilt feelings because of it and wanted to seek psychological help as a result of this."

The officer then advised defendant of his Miranda rights and conducted a taped interview in which defendant repeated the confession. Defendant immediately was arrested and charged with sodomy in the first degree. The tape was not used as evidence in the trial. Only defendant's verbal admission to the officer before the taping was admitted as evidence. In a trial to the court, he was found guilty.

The state's case at trial consisted of (1) defendant's oral confession to the officer made before Miranda warnings and (2) the victim's father's testimony relating the child's statements to him about the sexual contact. On appeal, defendant challenges the admission of both items of evidence.

We turn first to defendant's claim that his confession should be suppressed, because it was given without Miranda warnings and involuntarily as a result of an implied promise of beneficial treatment. Defendant claims that he was "in custody" from the moment he arrived at the police station, requiring the Miranda warnings immediately on his arrival, and that any statements he had made without the warnings should be suppressed. Although defendant cites the Oregon Constitution in his brief, he did not rely on it in the trial court. Accordingly, we consider only his federal constitutional claim.

There has been a good deal of confusion as to when "a person has been taken into custody or otherwise deprived of his freedom of action in any significant way" for the purpose of applying the rule in Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See State v. Roberti, 293 Or. 236, 646 P.2d 1341 (1982), vacated and rem'd sub nom. Oregon v. Roberti, 468 U.S. ----, 104 S.Ct. 3574, 82 L.Ed.2d 873 (1984), on remand former opinion withdrawn 298 Or. 412, 693 P.2d 412 (1984); State v. White, 297 Or. 302, 685 P.2d 983 (1984). This confusion has subsided since the decision in Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). There the Court announced the test for determining when there is "custodial interrogation" for Miranda purposes:

" * * * A policeman's unarticulated plan has no bearing on the question whether a suspect was 'in custody' at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation. * * * " 468 U.S. at ----, 104 S.Ct. at 3152, 82 L.Ed.2d at 336.

We are guided in our application of this standard by Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), and State v. Fields, 291 Or. 872, 635 P.2d 376 (1981). In Mathiason, the defendant, a suspect in a burglary, voluntarily presented himself at the police station in response to an officer's request. On his arrival at the station, the officer took him into a room, closed the door and informed him that he was not under arrest. The officer told the defendant that he believed that the defendant had been involved in a burglary and falsely represented that his fingerprints had been found at the scene of the crime. Five minutes into the investigation, the defendant confessed. The officer advised him of his Miranda rights, and he was released. He was later arrested and convicted of first degree burglary. The Supreme Court held that the confession was not obtained during custodial interrogation and was therefore admissible. The defendant voluntarily had come to the station and had left after the interview. The Court found that the circumstances did not prove that the defendant's freedom to leave was restricted in any way. The Court explained:

"Such a noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a 'coercive environment.' Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him 'in custody.' It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited." 429 U.S. at 495, 97 S.Ct. at 714. (Emphasis in original.)

In Fields, the defendant, on probation and suspected of auto theft, was asked by a police officer to accompany the officer to the probation office. He voluntarily complied. He was taken to a conference room, and the door was closed. The officer asked the defendant to respond to questions regarding the theft, making it clear that the defendant was not under arrest and not obligated to answer the questions. The officer detailed the car theft and the defendant's possible involvement in it, whereupon he confessed. He was arrested, advised of his Miranda rights and immediately transported to jail. Relying on Oregon v. Mathiason, supra, the court found that the questioning did not constitute a custodial interrogation giving rise to the requirements of Miranda.

"The only significant additional facts in this case are that the questioning took place in a probation office rather than in a patrol office and that defendant was arrested immediately after his confession, rather than being released and later arrested. We conclude that these facts do not suggest a different result under the precedent of Mathiason. Defendant was not in actual custody and, under these facts, there is no reason to conclude that he was otherwise deprived of his freedom of action in any significant way at the time of the questioning. We do not see subsequent release as the determining factor, since it sheds no light on whether custody existed before the point of confession." 291 Or. at 876, 635 P.2d 376.

In this case, defendant, suspected of sodomy, voluntarily presented himself at the police station. He was taken to an unlocked room and asked questions in pursuit of an investigation. After the circumstances of the crime were outlined for him, he confessed. The only fact in this case different from Mathiason and Fields is that we are not told that the officer affirmatively stated that defendant was free to leave and was not under arrest, but the trial court's findings specifically address this issue. The court found that the credible evidence indicated that, at the time defendant...