State v. Pressel

468 P.2d 915, 2 Or. App. 477, 1970 Ore. App. LEXIS 674

• Court: Court of Appeals of Oregon
• Decided: May 7, 1970
• Status: Published

Opinions

FOLEY, J.

Defendant was convicted of the crime of assault with intent to kill, and appeals from the resulting judgment. The sole assignment of error relates to the admission into evidence of certain statements made by the defendant which he claims were coerced.

A criminal trial is a search for the truth consistent with proper attention to the rights of the individual. Testimonial reliability is the basic concept underlying the admissibility of evidence in a trial. It is urged that the circumstances surrounding the taking of defendant’s statements in this case raised a presumption of eoercivenéss so strong that it was error to have admitted them. 'While the circumstances ..surr rounding the interrogation initially seem coercive,: in order to determine the validity of defendant’s claim we must decide whether the historical facts of this case “are sufficient to sustain a finding of voluntariness which meets state and federal constitutional concepts of due process.” Ball v. Gladden, 250 Or 485, 487, 448 P2d 621 (1968). It is “the totality of the circumstances shown in the record” which controls this decision. Frye v. Gladden, 1 Or App 629, 465 P2d 716 (1970).

We therefore turn to an examination of the facts. The defendant and a companion were southbound on the freeway, driving a car with out-of-state plates. It was in the early morning hours of a winter night. State Police Officer Forrester, on routine patrol in the same direction, decided to make a license check. The defendant, before the officer gave any signal, exited from the freeway and approached an immediately adjacent service station. The officer signaled the defendant’s car to stop just as it was approaching the service station. Defendant pulled to one side toward the rear of the lighted area of the service station. The police car stopped 15 to 20 feet behind. The officer walked toward defendant’s car. As he did so the driver’s door opened. When he was about five feet from the ear, the officer observed the defendant in the center of the front seat with a sawed-off shotgun in his lap pointed at the officer. The officer jumped back, turned, and ran behind his patrol car, but in so doing he slipped and fell there, breaking his wrist. Defendant, with the shotgun, left his car and approached the police car. The officer ran again, zigzagging as he went. When he reached a fence about 68 feet away he stopped and looked back. From this distance the defendant fired two blasts from the shotgun toward the officer, but did not hit him. The officer, while moving from side to side, returned the' fire from his service pistol, hut failed to hit the defendant. While the officer was attempting to reload his pistol, the defendant jumped into his own car and fled. The officer, after reloading, returned to the patrol car and at once pursued him.

The defendant and his companion, traveling, at a. high rate of speed, rolled their car over while attempting to pull into a rest area about seven miles down the road. As their car came to rest upside down, a truck driver who had observed the accident stopped to offer help. The defendant and his companion sought to induce him to immediately take them on down the road but he refused. As the two men were getting out of the truck cab the police officer drove up. The defendant and his companion started to run. Officer Forrester stepped out of his car with a rifle and ordered them to stop. The companion did, but defendant did not. The officer again ordered the defendant to stop, but he continued to run at top speed across an open field. The officer fired once and, despite his broken wrist, shot the defendant through the back of the knee at a distance of approximately 200 feet.

Other patrol cars arrived almost immediately. While Officer Forrester guarded the companion, two of the newly arrived officers, guided by the headlights of one of the patrol cars, entered the field and located the defendant lying on the ground. As the officers were approaching the defendant with loaded rifles, one of them called out from 60 to 70 feet away, “Don’t move a hair or I’ll blow your brains out.” After reaching the defendant, they séárched' him. After ascertaining that defendant was unarmed, Officer Breazeal handed his gun tb’ Officer Roébiick’áM began reading to the defendant from Ms copy of the Miranda

① warning card. From this point on no gnn was pointed at defendant.

As the officer read the Miranda card the defendant interrupted several times and said he “knew his rights.” The officer nevertheless continued to read him the card to its conclusion. In response to the reading of the final question on the Miranda warning card, “Having these rights in mind do you wish to talk to us now?”, the defendant answered “Yes.”

The questioning by Officer Breazeal then began. Officer Roebuck at the same time examined defendant’s knee to see what first aid should be administered. He determined none was necessary and tried to make the defendant comfortable.

Only after giving the Miranda warnings and after receiving from defendant a clear-cut willingness to respond, did the officers proceed with the questioning. Then, in answer to questions, defendant gave his name and stated he was an escapee from Washington State Penitentiary and that he shot at the policeman because “he couldn’t afford a bust,” which we understand to mean being retaken into custody. Demonstrating his awareness of these warnings, defendant refused to answer some questions, including one concerning the identity of his companion. Defendant stated that at the time he was advised of his rights and questioned he was in no pain whatever from the knee wound and was not drunk: The doctor who treated him approximately 70 minutes later testified that he did not recall any impression of intoxication and that defendant was not in shock.

In this case the policemen performed commendably and courageously. Aware that defendant had been shooting at a policeman only a few minutes before, they were seeking to learn what kind of subject they were dealing with, and what they might expect as they approached the defendant. Even with this in mind, they carefully and correctly followed the Miranda requirements of giving the appropínate warnings and advice to defendant.

The defendant does not argue that his answers were untruthful, but claims that he was in such a coercive situation that his fear overcame his knowledge and the warnings, and therefore his statements were involuntary and should not have been admitted in evidence.

We believe any presumption of coerciveness is overcome where, as here: the defendant, after warnings, responds affirmatively to the question of whether he desires to make a statement; thereafter states that at the time he made the statement he was not in pain and was not drunk; the treating doctor states that defendant was not in shock; and the defendant’s responses indicate his awareness of the warnings and the willingness to furnish information. While the circumstances under which this questioning was conducted were not the most favorable, blame for this should not rest upon the police officers. There is no provision of law granting to a properly warned, voluntarily and knowingly responding defendant a special immunity from interrogation because of the unusual situation in which he has placed himself.

The trial court found beyond a reasonable doubt, after testimony in an in camera hearing, that the statements of defendant were voluntarily and knowingly made after complete and proper warnings. Here' the historical facts which the transcript discloses justify the trial court’s finding of voluntariness within the constitutional concepts of due process. Ball v. Gladden, supra. The judgment of conviction is affirmed.

Miranda v. Arizona' 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974 (1966).