State ex rel. Juvenile Department v. Backer

940 P.2d 247, 148 Or. App. 344, 1997 Ore. App. LEXIS 734
CourtCourt of Appeals of Oregon
DecidedJune 11, 1997
Docket95J0026; CA A91452
StatusPublished

This text of 940 P.2d 247 (State ex rel. Juvenile Department v. Backer) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Juvenile Department v. Backer, 940 P.2d 247, 148 Or. App. 344, 1997 Ore. App. LEXIS 734 (Or. Ct. App. 1997).

Opinion

EDMONDS, J.

The juvenile court for Marion County found child to be within its jurisdiction for having committed acts that, if committed by an adult, would constitute rape in the first degree, ORS 163.375; sodomy in the first degree, ORS 163.405; unlawful sexual penetration in the first degree, ORS 163.411; and sexual abuse in the first degree, ORS 163.427. Child appeals and assigns error to the court’s denial of his motion to suppress his tape recorded confession, which was admitted at the jurisdictional hearing. We review de novo, ORS 419A.200(5); ORS 19.125(3), and reverse and remand.1

The victim, who was not quite four years old when the investigation began, is child’s half-sister. A relative noticed what appeared to be blood in the victim’s panties. She informed the victim’s mother, who called the sheriffs department, which began an investigation. The department arranged for the victim to be medically evaluated to determine the source and cause of the bleeding. The medical examination revealed physical evidence that was consistent with sexual assault. Additionally, the victim identified child as the perpetrator during her medical examination.

A sherifPs deputy went to child’s home and asked child’s mother to bring child, age 14, and his teen-age sister to the sheriffs office. He did not tell child or child’s mother that child was a suspect. When they arrived at the sheriffs office, they were met in the lobby by a detective, a representative of Services for Children and Families (formerly Children’s Services Division (CSD)), and Deputy Sheriff Scharn. Pursuant to a prearranged plan of investigation, the investigators separated child from his family members. The CSD representative escorted mother from the lobby to one location, the detective took child’s sister to a different location, and Scharn [347]*347directed child to the only interview room at the sheriffs office. Neither child nor mother verbally objected to being separated from each other at that time.

The interview room is a small, irregular-shaped room with recessed, fluorescent lighting. It is furnished with a desk and some chairs. Scharn, who was in uniform, sat on one side of the desk, and child sat on the other side. The door to the interview room remained closed throughout the interview.

At the hearing on the motion to suppress, Scharn testified that at the outset of the interview, he told child that he would not be arrested that day and would be going home with his mother, no matter what child told him. Scharn testified that he believed that he had given child Miranda warnings at the beginning of the interview, but had no certain recollection of that event. His written report did not record that Miranda warnings had been given, and notes from which the report was prepared had been destroyed. Also, no Miranda warnings are contained in the subsequent tape recording of child’s confession. Scharn also testified that he did not believe that he was legally obligated to give child Miranda-like warnings, because he did not consider child to be in custody.2 Child testified that Scharn did not tell him at any time [348]*348during the interview that he had the right to remain silent, terminate the interview, or that he had a right to have an attorney present. We are not persuaded, based on the totality of the evidence, that Scharn ever gave Miranda-like warnings to child. The more reasonable inference is that Scharn never considered the interview to be custodial in nature and, therefore, believed that the warnings were unnecessary.

According to Scharn, he interrogated child for about 15 minutes before child made incriminating admissions. Child testified that Scharn interrogated him for one and one-half hours before he confessed. Child’s tape-recorded confession is about 15 minutes in duration. The mother and the sister’s testimony corroborates child’s testimony about the length of the interview, and we find child’s testimony to be more credible in that regard.

Child testified that he repeatedly asked to see his mother and asked for an attorney during the first part of the interview and before he confessed. Deputy Scharn testified:

“[Prosecutor]: Did [child] at some point ask to have his mom present while he talked to you?
“[Scharn]: Yeah.
“ [Prosecutor]: When did that happen?
“[Scharn]: That happened during the first portion of the interview.
“[Prosecutor]: And how did that happen? Tell us how that came up.
“[Scharn]: We were talking about things and he goes, he said, he asked if he could go get his mom, or I can’t remember his exact words. And I told him that his mother was being interviewed by [the CSD worker]. And that, you know, when we were done talking that, you know, he could go, he would be going home with his mother. That he wasn’t going to be. [sic]
“ [Prosecutor]: Did he then ask to stop talking to you?
[349]*349“[Scharn]: No.
“[Prosecutor]: What would you have done had mom not been in the course of being interviewed? Would you allow—I’ll withdraw the question. Why did you want, or was it acceptable to you to interview Paul without his mom present?
“ [Scharn]: Yes, that’s normally how we do those interviews.” (Emphasis supplied.)

We are persuaded from the above testimony that child asked to leave the room during the interview to contact his mother and was denied that ability before he confessed.

Scharn testified that his demeanor was calm throughout the interview and that he made no threats or promises other than that child would be going home with his mother when they concluded the interview. Child testified that Scharn yelled at him, accused him of lying and threatened to “lock [child] up for a few days.” Child testified that he admitted to the acts with which he was eventually charged because he was fearful of Scharn.

The issue is whether the state has demonstrated on these facts that child’s confession was voluntary. State v. Ely, 237 Or 329, 332, 390 P2d 348 (1964). Under Article I, section 12, of the Oregon Constitution3

“a defendant who is in ‘full custody must be given Miranda-like warnings prior to questioning. 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.” ’ ” State v. Smith, 310 Or 1, 7, 791 P2d 836 (1990) (internal citations omitted).

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Related

State v. Chinn
373 P.2d 392 (Oregon Supreme Court, 1962)
State v. Smith
791 P.2d 836 (Oregon Supreme Court, 1990)
State Ex Rel. Juvenile Department v. Loredo
865 P.2d 1312 (Court of Appeals of Oregon, 1993)
State v. Magee
744 P.2d 250 (Oregon Supreme Court, 1987)
State v. Ely
390 P.2d 348 (Oregon Supreme Court, 1964)
State Ex Rel. Juvenile Department v. Rohlffs
938 P.2d 768 (Court of Appeals of Oregon, 1997)

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Bluebook (online)
940 P.2d 247, 148 Or. App. 344, 1997 Ore. App. LEXIS 734, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-juvenile-department-v-backer-orctapp-1997.