State v. Deminski

602 P.2d 1099, 43 Or. App. 313, 1979 Ore. App. LEXIS 3403

• Court: Court of Appeals of Oregon
• Decided: November 26, 1979
• Docket: No. 18-714, CA 14521
• Status: Published

Opinion

TANZER, P. J.

This case involves a Washington County burglar so >rolifie that he could not keep track of which of his nany burglaries he was charged with or which he ntended to confess to. With this preliminary caution, ve guide the reader down this confusing path. Defend-int appeals from his conviction after trial to the court or first degree burglary of a house at 1615 S. E. Alder Street in Hillsboro. He contends that his confession of hat burglary was involuntary and should have been uppressed.

On December 1, 1978, defendant was arrested by he Hillsboro Police Department regarding the 1615 S. 3. Alder Street burglary. Two days later, after being iven Miranda warnings, the defendant confessed to he Hillsboro police and the Washington County Sheriff s Office to two burglaries other than the bur-lary at 1615 S. E. Alder Street, but including one on le other side of Alder Street.

On December 5, two Washington County Sheriff’s etectives contacted the defendant. After reminding dm of his constitutional rights, they told defendant rat they wished to talk with him about burglaries he ras involved in. Defendant stated that he did not wish ) talk. One of the detectives explained to the defend-nt that he knew defendant would soon be charged 1th two burglaries and that he did not wish defend-nt to discuss these two burglaries. Specifically, he )ld defendant not to discuss the burglary of a house n N. W. 216th Street which the Washington County heriff’s Office planned to charge him with. He also )ld defendant not to discuss the Hillsboro burglary ith which he was going to be charged. That burglary us the one at 1615 S. E. Alder Street but the detective id not know that. He presumed defendant knew hich Hillsboro burglary he was going to be charged ith. He told defendant that the detectives wished to ear up other burglary investigations in the county id asked him to inform them of the other burglaries that he knew about without fear of being prosecuted for them.

Defendant agreed to this arrangement. He testified that he understood he was to be charged with burglarizing. He did not know which Hillsboro house the agreement involved, however, because he did not know which burglary he was going to be charged with. He therefore simply picked a Hillsboro burglary not to discuss, namely, the one on the other side of Alder Street, and assumed that he would not be prosecuted for all the other burglaries he pointed out. As the defendant put it, the others were "freebies.”

In the course of showing the detectives houses which he knew had been burglarized, defendant showed the house at 1615 S. E. Alder Street. He told the detectives that he and his roommate burglarized this house. This is the confession which was admitted at trial and is at issue on appeal.

The trial court ruled the confession admissible based on its findings that it was made voluntarily and in waiver of defendant’s right not to testify against himself.

We conclude that the defendant did not waive his right not to have his statements used against him in court, i.e., not to bear witness against himself. When the detectives reminded defendant of his constitutional rights he stated that he did not wish to talk. His understanding of the subsequent agreement, that any admission would not be used against him, evoked his confession. Self-incriminating statements may not be used against one who, subjected to custodial interrogation, has not waived the protection of the Fifth Amendment. Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966). Therefore, it was error to admit the detectives’ testimony regarding this confession at trial. Cf. State v. Thompson, 30 Or App 379, 567 P2d 132 rev den (1977).

The confession was one of the factors relied upon by le trial court in concluding that defendant was guilty [ the burglary at 1615 S. E. Alder Street. The error rerefore was not harmless and we reverse and re-Land for a new trial.

Reversed and remanded for new trial.