State v. Hutchins

164 P.3d 318, 214 Or. App. 260, 2007 Ore. App. LEXIS 1023

• Court: Court of Appeals of Oregon
• Decided: July 25, 2007
• Docket: 04C52451; A128171
• Status: Published

Opinions

SCHUMAN, J.

Defendant was convicted of violating ORS 166.275, possession of a weapon by an inmate, based on statements that he made during a disciplinary hearing at the Oregon State Penitentiary (OSP). On appeal, defendant argues that the statute under which he was convicted is unconstitutionally vague as written; that the term “weapon” does not encompass the hypodermic needle and syringe that he was found to have possessed; and that the court erred in admitting the statements that he made at the administrative hearing because he had not been given Miranda warnings when he made them. We hold that ORS 166.275 is not unconstitutionally vague, that a hypodermic needle is a “weapon” as defined in that statute, but that the trial court should have granted defendant’s motion to suppress his statements. We therefore reverse and remand.

The events giving rise to this case began when an OSP inmate was murdered. Several other inmates, including defendant, were moved from their cells to administrative segregation as part of the subsequent investigation. Later, defendant was moved to OSP’s most secure facility, the Intensive Management Unit (IMU). While he was away from the cell that he and a cellmate normally occupied, prison officials searched it and found a hypodermic needle and syringe hidden in a container of protein powder. A disciplinary hearing ensued.

At some point before the hearing, defendant received a form titled “Notice of Hearing — Notice of Inmate Rights.” That form contained the following relevant language:

“You may decline to attend your hearing, however, the hearings officer/adjudicator may make a determination in the case at issue, regardless of whether you appear or not. Additionally, you may not be allowed to attend your hearing if your inappropriate behavior warrants your exclusion from it.”

Defendant did not read the form carefully, but he knew from earlier experience that it informed him that he was not required to attend the hearing. Although no prison official ever told defendant or implied to him that nonattendance would increase the likelihood that he would receive the maximum sanction, he believed that to be the case based on inmate gossip.

After defendant had been in the IMU cell for three days, two correctional officers removed him from the cell using the standard procedure for that facility: they handcuffed defendant, attached him to a leash, and told him to back out of his cell without turning his head to either side. They did not tell him where he was being taken, and they did not inform him that he had the option of not going with them. In fact, they led him to a hearing room, where he was separated from the hearings officer by a window. The only door to his side of the room was locked and could be opened only by a correctional officer in a remote location.

The hearing began with the following dialogue between the hearings officer and defendant:

“[Hearings Officer]: Okay, Mr. Hutchins, you’ve been charged in this case with [possession of] Contraband I[, in violation of an OSP disciplinary rule]. Shows that you’ve received a copy of the misconduct report, notice of hearing, inmate rights, and rules of prohibited conduct, is that correct?

“[Defendant]: Yeah, I don’t have them with me because they didn’t tell me what this was for.

“[Hearings Officer]: Okay. Do you understand your rights [?]

“ [Defendant]: I think so.

“[Hearings Officer]: Okay. Well, if you have any questions, feel free to ask me, alright? Okay, the misconduct report states that they did a search of your cell, and, of you and Mr. Kobins’ cell, and they found a cannister of protein powder located on a shelf, and in it was masking tape with string attached to one end. They examined the contents and found a fully functional syringe with needle and plunger in it. I have a photograph of that needle and plunger. I also have documents here of canteen purchases by you, Mr. Hutchins, for protein powder in July and August.

[Defendant]: Mm hmm.

“[Hearings Officer]: How do you plead to Contraband I, being in possession of a syringe?

“[Defendant]: (laugh) How much of a difference is it going to make?

“[Hearings Officer]: Well, I’m just, you have four choices, Mr. Hutchins. You can admit the rule violation, deny the rule violation, make no plea to the rule violation, or plead no contest, which means you’re not contesting the charges.

“[Defendant]: Okay, I wasn’t aware that those are my choices. I’m sorry, I’m a little, a trifle ignorant here. Uuuuh. I, I . . .

“[Hearings Officer]: I’ll take a statement from you after I receive your plea.

“[Defendant]: Oh, you don’t even have to really worry about that. I don’t think I really want to give a statement.

“[Hearings Officer]: Okay, so how do you plea[?]

“[Defendant]: No contest.

“[Hearings Officer]: Alright.

“ [Defendant]: That sounds the most reasonable.

“[Hearings Officer]: Okay. And do you have something to say?

“[Defendant]: No, I really don’t. Well, I, I,...well, actually, yes. I would, I’m essentially taking responsibility here. I do not want my ceflee to be under this same pressure or have to deal with this.”

At no time was defendant informed of his right to remain silent or of the fact that what he said could be used against him subsequently in a criminal trial — in other words, he was not Mirandized.

Criminal charges were later filed against defendant for violation of ORS 166.275, which provides:

“Any person committed to any institution who, while under the jurisdiction of any institution * * *, possesses or carries upon the person, or has under the custody or control of the person any dangerous instrument, or any weapon including but not limited to any blackjack, slingshot, billy, sand club, metal knuckles, explosive substance, dirk, dagger, sharp instrument, pistol, revolver or other firearm without lawful authority, is guilty of a felony and upon conviction thereof shall be punished by imprisonment in the custody of the Department of Corrections for a term not more than 20 years.”

Defendant demurred to the indictment on the ground that the statute was unconstitutionally vague. The court disallowed the demurrer. Defendant also moved to suppress all of the statements that he had made during the administrative hearing at OSP on the ground that he should have received Miranda warnings. The court denied that motion as well. Finally, defendant moved for a judgment of acquittal on the ground that the state had presented no evidence from which a reasonable factfinder could determine that he possessed a “weapon” as that term was defined in ORS 166.275. That motion, too, was denied. On appeal, defendant renews all three of those arguments.

In his first assignment of error, defendant asserts that the term “sharp instrument” in ORS 166.275 makes the statute unconstitutionally vague. The Supreme Court has held that a statute suffers from that defect if:

“(1) it permits arbitrary and even retroactive punishment and delegates uncontrolled discretion to judges, juries, and law enforcement personnel to decide what and whom to punish, thereby violating the equal privileges guarantee of Article I, section 20, of the Oregon Constitution, the ex post facto prohibition of Article I, section 21, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution; and it fails to provide fair warning of what kind of orders are unlawful and must be obeyed, also in violation of the Due Process Clause.”

State v. Illig-Renn, 341 Or 228, 238-39, 142 P3d 62 (2006). However, a term “need not define an offense with such exactitude that a person could determine in advance whether specific conduct in all possible factual circumstances will be found to be an offense.” State v. Page, 129 Or App 558, 563, 879 P2d 903 (1994). It suffices that a “person[ ] of common intelligence can understand what is prohibited.” Id. Even presuming that a facial challenge to a statute not involving speech is cognizable, we readily conclude that the term “sharp instrument” passes constitutional muster. Although we can hypothesize difficult line-drawing situations (for example, a dull pocket knife rusted shut), the terms “sharp” and “instrument” are commonly used and relatively precise. Further, as applied to defendant under the circumstances of this case, it is beyond dispute that what he possessed was both an instrument and sharp.

By the same logic, defendant’s second assignment of error fails as well. The gist of that argument is that a hypodermic syringe and needle is not — or could not with any certainty be regarded as — a “weapon” as that term is used in ORS 166.275.¹ In support of his position, defendant argues that, because all of the other examples of “weapons” that the legislature specified in the statute are designed to be used as weapons (“blackjack, slingshot, billy, sand club, metal knuckles, explosive substance, dirk, dagger, * * * pistol, revolver or other firearm”), the term applies only to those sharp instruments that also are designed as weapons. That argument cannot be reconciled with at least one item on the legislature’s list (explosive substance) nor with the plain meaning of the statute, which imposes no such limitation on the term; the statute explicitly states that a “sharp instrument” is a weapon when possessed without lawful authority by an inmate, probably because it is capable of use as a weapon. See State v. Larsen, 44 Or App 643, 651, 606 P2d 1159, rev den, 289 Or 373 (1980) (purpose of ORS 166.275 is “to protect institutional security”). In other words, the statute declares that, even if a sharp instrument has innocent or innocuous uses outside of penal institutions, when possessed by an inmate, it becomes a weapon.

State v. Tucker, 28 Or App 29,558 P2d 1244, rev den, 277 Or 491 (1977), is not to the contrary. In that case, the defendant was charged with carrying a concealed weapon— more specifically, nunchaku sticks — in violation of ORS 166.240, which prohibited the concealing of “any revolver, pistol, or other firearm, any knife, other than an ordinary pocketknife, or any dirk, dagger, slung shot, metal knuckles, or any instrument by the use of which injury could be inflicted upon the person or property of any other person * * Tucker, 28 Or App at 31 n 1 (emphasis added). The defendant argued that the catch-all phrase emphasized above was -unconstitutionally vague. Id. at 31. The trial court agreed, and the state appealed. We reversed. Id. at 34. Applying ejusdem generis, the rule of statutory construction, which “allows the general terms of an act to be modified and limited by the enumeration of specific examples preceding the general language,” id. at 32, we concluded that the catch-all phrase included only those items that, like the enumerated objects, were “designed and intended primarily as weapons to inflict bodily injury or death.” Id. at 33.

Tucker is inapposite. Unlike ORS 166.275, the statute in Tucker contained an open-ended catch-all phrase at the end of a list of specific items — the classic statutory format to which ejusdem generis applies. As discussed above, however, “sharp instrument” is not a general term following a list of specifics; rather, it is itself one among a list of specific terms. We conclude that, when the prosecution proved that defendant possessed a hypodermic needle, it proved that he possessed a weapon as defined in ORS 166.275.

We also conclude, however, that the prosecution used the self-incriminatory statements that defendant made to the hearings officer at his institutional disciplinary hearing and that, by virtue of the circumstances of that hearing, those statements should have been suppressed because they were obtained in violation of Article I, section 12, of the Oregon Constitution.² That provision requires suppression of statements that result from either actual coercion or from the presumptive coercion that occurs whenever a defendant is entitled to Miranda warnings and does not receive them. State v. Gable, 127 Or App 320, 324, 873 P2d 351, rev den, 319 Or 274 (1994). Defendant does not argue that he was actually coerced; his argument focuses on the failure to administer Miranda warnings.

Those warnings are required before interrogating a suspect who is either in “full custody” or a setting “that judges would and officers should recognize to be ‘compelling.’ ” State v. Magee, 304 Or 261, 265, 744 P2d 250 (1987). When that interrogation takes place inside a jail or prison, the suspect is ordinarily in “full custody” in the sense that he or she is not free to walk away; full custody, in other words, “obviously includes extended official detention in a cell or another enclosure.” Id. However, as the case law has developed, interrogation during incarceration does not per se require Miranda warnings. For one thing, as long as the interrogation occurs in an administrative hearing and the statements are not subsequently used in a criminal prosecution, Article I, section 12, is simply irrelevant. Archuletta v. OWCC, 25 Or App 149, 548 P2d 1006 (1976). The self-incrimination clause of that section states that no person shall be “compelled in any criminal prosecution to testify against himself.” (Emphasis added.)

Further, even when statements by a person in prison are later used in a criminal prosecution, the prison setting alone is not dispositive. In State v. Goree, 151 Or App 621, 950 P2d 919 (1997), rev den, 327 Or 123 (1998), law enforcement officers put a body wire on the defendant’s girlfriend and instructed her to elicit incriminating statements during a jail visit. Id. at 623. We held that no Miranda warnings were necessary and upheld the trial court’s denial of the defendant’s motion to suppress, explaining:

“Clearly, the focus is not on the setting alone, that is, whether the suspect is questioned at home, on the street or in a police bureau office; the focus is instead on the extent to which the particular circumstances of the questioning create an environment in which the suspect reasonably will feel compelled to answer the questions of the police.

“Thus, merely because a suspect is questioned while being held in a corrections facility does not necessarily mean that he or she is in ‘custody’ for the purposes of determining whether Miranda warnings are required.”

Id. at 637 (emphasis in original). Rather, the determination depends on the circumstances of the particular case. Further, the correct perspective from which to evaluate those circumstances is objective. “The issue * * * is how a reasonable person in defendant’s position would have understood the circumstances of his questioning.” State v. Breazile, 189 Or App 138, 146, 74 P3d 1099 (2003) (emphasis in original).

Here, we conclude that the circumstances under which defendant was questioned were compelling. The only aspect of the situation that militates in favor of a contrary conclusion — and it is a substantial one — is the fact that defendant knew that he could “decline to attend” his hearing. The force of that fact, however, is more than offset by two related facts. First, he knew that, if he chose not to attend, the hearings officer could “make a determination in the case at issue.” Thus, the only way he could put his version of events on the record was by waiving his right of nonattendance. Second, and more importantly, when correctional officers came to take him to the hearing, they did not tell him where they were taking him and they did not tell him he had the option of not going with them. Indeed, they ordered him to back out of his cell, applied handcuffs and a leash, and escorted him to what was, to him, an unknown destination for an unknown purpose.

Once there, he remained in handcuffs throughout the hearing, in a room that was conspicuously locked and guarded. He was not told that his plea and his statements could be used in a subsequent criminal trial. He was confronted with evidence against him. And although he had been told that he could “decline to attend,” he was never told that, once in attendance, he could choose to terminate the proceedings and be returned to his cell. Nor does the record reveal that to be the case. Rather, he was informed that he had only four choices: confession, denial, no plea, or a plea of no contest. In short, “a reasonable person in defendant’s situation would have understood that he was being questioned under compelling circumstances.” Breazile, 189 Or App at 147. For that reason, the statements he made at the hearing should have been suppressed under Article I, section 12, of the Oregon Constitution.

Reversed and remanded.

1 Defendant was not charged with possession of a “dangerous instrument.”

2 The dissent calls our resolution of this issue “judicial policy making.” We reject that characterization, but we do not believe that debate would be of use to the bench, Bar, or public.