State v. Pressel

¶1Defendant 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.

¶2A 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 *479rounding 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).

¶3We 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 *480not 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.

¶4The 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.

¶5Other 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 de*481fendant from Ms copy of the Miranda① warning card. From this point on no gnn was pointed at defendant.

¶6As 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.”

¶7The 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.

¶8Only 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.

¶9*482In 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.

¶10The 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.

¶11We 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.

¶12The 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 *483historical 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.

¶14dissenting.

¶15The majority opinion correctly states:

“After reaching the defendant, they searched him. After ascertaining that defendant was unarmed, Officer Breazeal handed his gun to Officer Roebuck and began reading to the defendant from his copy of the Miranda warning card. From this point on no gun was pointed at defendant.”

¶16This, however, is not quite the whole story.

¶17During the course of the interrogation that followed the Miranda warnings, the defendant, if capable of understanding, knew that the admonition concerning the consequences of movement was not yet a matter of past history. According to Officer Roebuck the following conditions existed during both the reading and the waiver.

“Q. And you were paying, particular attention to Mr. Pressel at that time I assume?

“A. Yes.

“Q. Where was your .30-30 rifle at this time? “A. I had one in my left hand and Officer Breazeal’s in my right hand.

“Q. And were these directed towards the defendant?

“A. No.

“Q. What direction were they pointed?

“A. Port. Like this. TJp like this.'

“Q. You were holding them up in the air?

“A. Yes.. One of them I had my hand on the *484trigger and the hammer, and the other one was just in my hand.

“Q. But you were in such a position that you could fire in just a split second, isn’t that true, if necessary?

“A. If necessary I could have dropped the weapon and fired.

“Q. And one you actually had your finger on the trigger?

“A. Yes. The hammer was down but I had my hand on the trigger, yes.”

¶18With the above addition the majority opinion accurately portrays the circumstances under which the defendant was questioned.

¶19In Frye v. Gladden, 1 Or App 629, 465 P2d 716 (1970), we said that it is our duty to examine the historical facts of each case to determine whether they “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, 443 P2d 621 (1968). In Frye, we also said that it is “the totality of the circumstances shown in the record” which must control the decision in each case.

¶20In so doing,

“… we are not bound by á trial judgé or jury’s finding of. voluntariness .if we believe the historical facts upon which such finding is based are insufficient to meet constitutional standards of due process. This is pursuant to our duty to interpret cónstitutionál standards and require conformance thereto.” Ball v. Gladden, supra, at 487-88.

¶21In "the vast-majority of confession: eases we have and undoubtedly should and will continue to follow the *485findings of the trial judges who see and hear the witnesses. Nevertheless, much as we may wish to do so, we cannot fulfill our constitutional obligation by automatically adopting the trial judges’ finding in every instance where there is any evidence to support it.

¶22I cannot say, with any real degree of conviction, that a man’s responses to his captors are wholly voluntary when at the moment of questioning he is lying on the ground in the dark, wounded, guarded by police with guns at the ready, seconds after having been told at gunpoint that if he moved his brains would be blown out.

¶23The decision as to what to offer in evidence and how to offer it was not that of the police. The information given by the defendant and introduced by the state could easily have been made available to the jury by other means.

¶24I would reverse and remand for a new trial in the course of which the evidence in question could be introduced through means other than a tainted confession. For the foregoing reasons, I respectfully dissent.