State v. Sherman

672 P.2d 1370, 66 Or. App. 144, 1983 Ore. App. LEXIS 4039

• Court: Court of Appeals of Oregon
• Decided: December 14, 1983
• Docket: 81-29109; CA A26331
• Status: Published

Opinions

VANHOOMISSEN, J.

Defendant appeals his jury conviction for leaving the scene of an accident, ORS 483.604.¹ He contends that the trial court erred in admitting evidence of statements he made to a police officer. The issue is whether defendant was in custody for Miranda purposes at the time he was questioned by the officer. The trial court concluded that he was not in custody. We agree and affirm.

About midnight on December 5, 1981, Dennis Mitchell was leaving the residence of a friend when he heard a crash and the sound of breaking glass. He saw a truck that had collided with a parked vehicle leaving the area. He followed it and was able to obtain its license number. He then reported the incident to the police. Later, Mitchell showed Deputy Hudson the damaged property and gave him the license number of the truck. He told Hudson that he believed more than one person was in the truck.

Using the license number, Hudson obtained the name and address of the truck’s registered owner. He then drove to that address, where he observed a truck in the driveway and noted that it was damaged. He matched pieces found at the accident scene with damaged parts of the truck.

Hudson then knocked on the residence door. Defendant’s father answered. When Hudson informed him that his truck had reportedly been in an accident earlier that evening, defendant’s father stated that defendant had “had the truck tonight.” Hudson asked to speak to defendant. Defendant, age 17, was summoned by his parents, who told him that an officer was waiting to speak with him. Defendant met Hudson in the hallway. His parents were nearby. Hudson asked him if he had been driving the truck in the driveway earlier that evening and if he had been in an accident. Defendant admitted driving the truck, being in the accident and that he had failed to comply with the requirements of ORS 483.604. Hudson then cited him for violation of ORS 483.604.

“(1) The driver of any vehicle which collides with any vehicle which is unattended immediately shall stop and:

“(a) Locate and notify the operator or owner of such vehicle of the name and address of the driver and owner of the vehicle striking the unattended vehicle; or

“(b) Leave in a conspicuous place in the vehicle struck a written notice giving the name and address of the driver and of the owner of the vehicle doing the striking and a statement of the circumstances thereof.

<<* * * * *

At trial, defendant objected to the admission of his statements to Deputy Hudson on Miranda grounds. The trial court found that defendant was not “in custody” for Miranda purposes when he made the statements and that they were admissible.²

Defendant first contends that the trial court erred in admitting evidence of his statements to Hudson. Miranda warnings are required whenever a person is subjected to custodial interrogation. If an officer has decided to arrest, the interrogation is custodial and warnings are required. State v. Roberti, 293 Or 59, 644 P2d 1104, 293 Or 236, 646 P2d 1341 (1982).³ However, if the officer has not decided to arrest, the following factors are relevant in determining whether a person is “in custody” for Miranda purposes: whether the person (1) was free to leave, (2) was being questioned as a suspect or as a witness, and (3) freely and voluntarily accompanied the officer to the place of questioning. State v. Paz, 31 Or App 851, 572 P2d 1036 (1977), rev den 282 Or 189 (1978).

Hudson testified that he did not intend to arrest defendant, and the trial court so found.⁴ That conclusion is supported by the evidence. Hudson’s intention not to arrest, however, is not dispositive. We must determine whether defendant was nonetheless deprived of his freedom of action in a significant manner. If he was, he was “in custody” for Miranda purposes. State v. Roberti, supra. Defendant was at home and in the presence of his parents. Although he contends that he felt obligated to answer Hudson’s questions, that is not controlling. In Oregon v. Mathiason, 429 US 492, 495, 97 S Ct 711, 5 L Ed 2d 714 (1977), the Supreme Court said:

“* * * Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes, place in the station house, ór because the questioned person is one whom the police suspect. * * *”

We find that defendant was not deprived of his freedom of action in a significant manner. As to the second Paz factor, we conclude that defendant was being questioned as a suspect. The third Paz factor, whether defendant voluntarily accompanied Hudson to the place of questioning, does not appear relevant here. We conclude that defendant was not “in custody” for Miranda purposes.

Defendant relies on State ex rel Juv. Dept. v. Killitz, 59 Or App 720, 651 P2d 1382 (1982). Killitz is distinguishable. There, the juvenile defendant who was summoned to the principal’s office did not know that an officer was waiting there to question him. Here, defendant, who was at home, was informed by his parents that an officer was waiting to question him in their presence. In Killitz, the defendant could have been subjected to school disciplinary procedures for refusing to go to the principal’s office. Here, there is no evidence that defendant would have suffered any adverse consequences for refusing to speak to Deputy Hudson.

Affirmed.

1 ORS 483.604 provides in relevant part:

2 The trial court stated:

“I find the statements admissible. First I find that they were voluntary under the circumstances and that Mr. Sherman’s will is not overborne by anything in the totality of the circumstances or by what the police officer said. As regards the Miranda aspect, the gist of the Roberti decision is briefly this: first of all, the Roberti decision does not do away with the requirement that a person must either be under arrest or under some type of equivalent custodial-type restraint at the time of the alleged questioning. What the Roberti decision says in effect is it applies a common sense rule. Roberti says that once a police officer has made up his mind he’s going to arrest the defendant, it is clear that the defendant is in a custodial-type restraint because anybody can figure out the police officer is not going to let him go. And so you are going to have to figure out from the totality of the circumstances whether prior to the conversation involved, it can reasonably be said that the officer pretty well had made up his mind that he was going to arrest the defendant. And I find that that * * * wasn’t the case here. On that basis I hold the statements tobe admissible.”

Defendant contends that the trial court’s finding regarding whether Hudson intended to arrest him was “inaudible.” He argues that, if the court found that Hudson intended to arrest him, Miranda warnings were required, and if the court found that Hudson did not intend to arrest him, then the evidence does not support that finding. We conclude that the trial court found that Hudson had not decided to arrest defendant prior to questioning him. That finding is consistent with the court’s conclusion that defendant’s statements were admissible. Even if the record were unclear on the point, we would presume that the facts were decided in a manner consistent with the ultimate conclusion reached by the court. Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968).

3 In Roberti, the circumstances surrounding the officer’s contact with the defendant and the officer’s decision to arrest triggered the requirement for Miranda warnings. Those circumstances were:

“* * * [Defendant] had been signaled to stop his vehicle by the officer’s emergency light, and if he had not obeyed that signal he would have been guilty of the crime of fleeing or attempting to elude a police officer. He was performing a variety of tests at the behest of the officer. * * *” (Footnote omitted.) 293 Or at 90.

The Supreme Court found that

“* * * a reasonable person in the same circumstances would have believed he was not free to leave, and this defendant was, in fact, not free to leave by reason of the officer’s decision to prevent defendant’s leaving. * * *” 293 Or at 90-1.

4 On cross-examination, Hudson testified:

“[Defense Counsel]: Based on what the other people told you and the father told you, would the defendant have just been free to leave at anytime?

“HUDSON: Well, the question was never brought up. It was his house, I guess he could have gone anywhere he wanted. I would have to say, yes, he was.”