State v. Wood
Citation | 112 Or.App. 61,827 P.2d 924 |
Parties | STATE of Oregon, Respondent, v. Hector Clyde WOOD, Appellant. 34151; CA A61909. |
Decision Date | 11 March 1992 |
Court | Oregon Court of Appeals |
Peter Gartlan, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.
Hector Clyde Wood, pro se, filed a supplemental brief and a reply brief.
Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen. and Virginia L. Linder, Sol. Gen., Salem.
Defendant seeks reversal of his conviction for rape in the first degree. ORS 163.375. He argues that the trial court erred by admitting statements that he made to an investigating officer, by denying his request for discovery of a file compiled by the Children's Services Division (CSD) and by denying his motion to admit evidence of the victim's prior sexual conduct. We vacate the judgment and remand for an in camera inspection of portions of the CSD file.
On June 5, 1978, Detective Sergeant Robson, of the Benton County Sheriff's Office, contacted defendant at his residence. Robson testified that, during their exchange on defendant's front porch, Robson introduced himself and informed defendant of allegations that he had raped and sexually abused his nine-year old daughter. When Robson first asked him if the allegations were true, defendant did not respond. Robson repeated the question, and defendant asked where his daughter was. Robson told him that she had been taken into protective custody and asked him once or twice again if the allegations were true. At that point, according to Robson, defendant admitted that the allegations "probably were" true. Robson then advised defendant that there was a possibility that criminal charges would be brought against him and that he had the right to remain silent and to talk with an attorney. 1 Robson asked again about the allegations, and defendant stated that he did not want to answer questions until he had spoken with an attorney. Robson then stopped questioning defendant and left.
Defendant was tried in January, 1979, and was convicted of rape in the first degree. When he was released on his own recognizance pending sentencing, he fled the jurisdiction. The court ordered that a warrant be issued for his arrest but, "as a result of apparent oversight," no warrant was issued until November, 1983. In 1984, a federal warrant for unlawful flight was also issued. Defendant was arrested on the warrants in 1987, in New Mexico. He refused to waive extradition and was released on $5,000 bail, pending issuance of a governor's warrant for his extradition. He again fled. In April, 1989, he was arrested in California on the 1983 warrant. On August 1, 1989, he was sentenced on the 1979 rape conviction to a term of 10 years in prison, with a mandatory minimum of 38 months.
Defendant assigns error to the trial court's denial of his motion to suppress the admissions that he made to Robson, asserting that they were elicited in violation of his rights under Article I, section 12, of the Oregon Constitution and the Fifth Amendment. He urges us to decide whether he had been advised of his rights on the basis of current law, rather than under the law as it existed when he was tried in 1979, presumably because present case law is more favorable to him. Because we conclude that the trial court's denial of the motion to suppress was proper under past or present case law, it is unnecessary to address defendant's contention that we must apply current law.
Defendant argues that the circumstances surrounding the questioning on his porch fall within the principle that Miranda -like 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." ' " State v. Smith, 310 Or. 1, 7, 791 P.2d 836 (1990) (quoting State v. Magee, 304 Or. 261, 265, 744 P.2d 250 (1987)). However, we conclude that the circumstances were not compelling. Robson spoke with defendant on the porch at his own home. He identified himself and told defendant the purpose of his visit. Defendant's wife was in the house. Robson testified that defendant was not in custody during their conversation and that he never told him that he was under arrest or made any threats or promises to him. Defendant offers no evidence, and the record discloses none, that indicates that he was not free to refuse to speak to Robson and to remain in his home. Although defendant was being questioned because the police suspected that he had abused his daughter,
"the fact that police question a person as a suspect in a crime 'does not inherently create a "compelling" setting for Oregon constitutional purposes.' " State v. Carlson, 311 Or. 201, 205, 808 P.2d 1002 (1991) (quoting State v. Smith, supra, 310 Or. at 11, 791 P.2d 836).
When it appeared from defendant's answers that the allegations made by his daughter might be true, Robson immediately advised him of his rights. After defendant told Robson that he did not wish to answer any more questions until he had spoken with a lawyer, Robson stopped his questioning. Defendant's participation in the discussion was voluntary, and the circumstances were not compelling.
We reach the same result under federal constitutional analysis, which requires warnings when a person is subject to "custodial interrogation." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). Defendant was not under arrest; he was questioned at his home and was free to refuse to answer questions. He was not subject to custodial interrogation under federal standards. See Berkemer v. McCarty, 468 U.S. 420, 441, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984); Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977).
Finally, on the suppression issue, defendant argues that, even under 1979 case law, the evidence should be suppressed, because his admissions were made while he was in custody and because they were coerced. For the reasons discussed above, we conclude that he was not in custody and that his statements were not coerced.
Defendant also assigns error to the trial court's denial of his motion to strike the testimony of Weiman, a CSD worker, and to the denial of his "motion for discovery of exculpatory material within the CSD file." During testimony in the state's case, Weiman referred to reports that she had made to her agency after meeting with the victim. Defendant's counsel immediately told the court that the discovery statutes required that he be given Weiman's reports:
The court responded:
Defense counsel then moved to strike Weiman's testimony, and the court denied the motion.
Defendant argues that he was entitled to disclosure of the file under the discovery provisions of ORS 135.815:
We conclude that, under ORS 135.815, the prosecutor was required to disclose the portion of the CSD file containing written reports by Weiman, because the state intended to call her as a witness. Although CSD files are confidential under ORS 418.770, that confidentiality is not absolute. As explained in State v. Warren, 304 Or. 428, 432, 746 P.2d 711 (1987):
(Footnote omitted.)
Regardless of whether the prosecutor has physical possession of them, portions of CSD files pertinent to an investigation are presumed to be in the prosecutor's possession or control and must be made available to the defendant. State v. Warren, supra, 304 Or. at 433, 746 P.2d 711; State v. Johns, 44 Or.App. 421, 426, 606 P.2d 640, rev. den., 289 Or. 1 (1980). The portions of the file that include Weiman's reports were pertinent to the criminal investigation and, therefore, defendant was entitled to discovery of them.
During Weiman's testimony, defendant also became aware that the CSD file also contained a medical report made by a physician, Younger, who had examined the victim. The state did not intend to call Younger as a witness. However, it concedes that the victim was to be called as a witness, and the report in CSD's file contains memoranda of...
To continue reading
Request your trial-
State v. Zelinka
...to identify the times more precisely, and the date of the past incidents is not a material element of the offense. See State v. Wood, 112 Or.App. 61, 69, 827 P.2d 924, rev. den., 313 Or. 355, 833 P.2d 1284 (1992). Finally, in this case, the discovery provided to defendant 8 was likely to ad......
-
State v. McMillan
...it makes a difference whether the questioning takes place on a person's porch or in the police station. Compare State v. Wood, 112 Or.App. 61, 63-64, 827 P.2d 924, rev. den., 313 Or. 355, 833 P.2d 1284 (1992), with Magee, 304 Or. at 266, 744 P.2d 250. Although an officer's unarticulated sus......
-
State v. Lammi
...records to which the defendant should have had access for trial. Warren , 304 Or. at 435, 746 P.2d 711 ; see also State v. Wood , 112 Or.App. 61, 67, 827 P.2d 924 (1992) (same). Accordingly, on remand, the trial court must determine if there is evidence in the records to which the ORS 419B.......
-
Wood v. Hall
...in camera review of the CSD file and a determination of whether Wood was prejudiced by the discovery violations. See State v. Wood, 112 Or.App. 61, 827 P.2d 924, 928, 930, review denied, 313 Or. 355, 833 P.2d 1284 On October 15, 1992, two months after Wood had been released on parole, the t......