State v. Simmons

                                      133

Argued and submitted September 13, 2018; conviction on Count 1 reversed and
 remanded, remanded for resentencing, otherwise affirmed February 5, 2020


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                  RONNIE BLAINE SIMMONS,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      16CR20383; A163661
                                  

    Defendant appeals a judgment of conviction pursuant to a bench trial for
possession of a controlled substance, ORS 475.834, and delivery of a controlled
substance, ORS 475.830(2). He assigns error to the trial court’s denial of his
motion to suppress statements that he made to a detective after a scale and oxycodone were found in his car. Defendant contends, among other things, that ORS
136.425(1) requires suppression because the trial court found facts showing that
the detective induced the statements with the promise that the charges could
be dismissed, and that the trial court erred in concluding otherwise. He contends further that the error was not harmless as to his conviction for delivery.
Held: The trial court erred in denying defendant’s motion to suppress because it
found that the detective offered defendant the hope that the charges would be
dismissed and defendant’s statements “follow[ed] in consequence of the hopes
thereby excited.” See State v. Jackson, 

, 

 (2018) (quoting State v. Wintzingerode, 

 (1881)). That error was not harmless,
because the court expressly relied on the statements at issue to convict defendant
of delivery of a controlled substance.
    Conviction on Count 1 reversed and remanded; remanded for resentencing;
otherwise affirmed.




    Andrew Erwin, Judge.
   Kali Montague, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Jacob R. Brown, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General,
and Peenesh Shah, Assistant Attorney General.
134                                               State v. Simmons

  Before Ortega, Presiding Judge, and Lagesen, Judge, and
Powers, Judge.*
    LAGESEN, J.
   Conviction on Count 1 reversed and remanded; remanded
for resentencing; otherwise affirmed.




______________
   * Lagesen, J., vice Garrett, J. pro tempore.
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 (2020)                              135

        LAGESEN, J.
         Appealing a judgment of conviction pursuant to a
bench trial for possession of a controlled substance, ORS
475.834, and delivery of a controlled substance, ORS 475.830(2),
defendant assigns error to the trial court’s denial of his
motion to suppress statements that he made to a detective after a scale and oxycodone were found in defendant’s
car. Defendant contends, among other things, that ORS
136.425(1) requires suppression because, in his view, the
facts found by the court show that his statements were
induced by the promise of a benefit extended by the detective who interviewed him and that the court erred in concluding otherwise. He contends further that the error was
not harmless as to his conviction for delivery and requires
reversal of that conviction. We agree and, accordingly,
reverse defendant’s conviction for delivery.
         While driving on Highway 26, defendant failed
to drive within his lane and also executed an illegal lane
change. Deputy Yazzolino observed these infractions and
stopped defendant for them. While Yazzolino was getting
defendant’s information, another deputy—Maller—arrived
on the scene accompanied by Taz, a drug-detecting dog. Taz
in short order detected drugs in defendant’s car. Maller then
searched the car, finding a digital scale covered with a white
powdery residue, a prescription pill bottle containing several oxycodone pills, small plastic baggies, and cut straws.
         At that point, Maller arrested defendant and advised
him of his Miranda rights. Yazzolino took defendant around
the corner to meet with Detective Betonte, who worked for
the Westside Interagency Narcotics Team. Betonte communicated to defendant that continuing to talk to him could be
beneficial, specifically (as the trial court later found), that
“if the defendant was willing to talk with him that maybe
something could be done. Maybe he could talk with the DA’s
Office, maybe he’d dismiss the charges.” During his conversation with Betonte, defendant confessed to giving another
person two oxycodone pills earlier in the day. Following the
interview with Betonte, defendant was transported to jail.
        Before trial, defendant orally moved to suppress evidence of the statements to Betonte. Defendant’s theory was
136                                           State v. Simmons

that Betonte had improperly induced him to make those
statements, in violation of ORS 136.425, Article I, section 12,
of the Oregon Constitution, and the Fifth Amendment to
the United States Constitution. Defendant argued that he
reasonably believed—based on what Betonte communicated
to him—that talking to Betonte could lead to him not going
to jail or not being charged:

   “When we’re looking at the Miranda issue we are looking at
   in part it is a person in the defendant’s circumstance would
   have believed the officer was making a promise, and the
   reason they would have relied on that in making the confession and making those statements. … And that this
   detective went through and told him you know, if you talk
   to me if you cooperate I can get you something. His exact
   words are not necessarily the crutch [sic] here. The crutch
   [sic] here though is in part what was [defendant’s] understanding of that conversation? He was confused as to him
   being taken to jail because his conversation with Deputy
   Betonte. His reasonable belief was that if he answered
   these questions, if he talked to them, that he would not be
   arrested, that these charges could go away, that he wasn’t
   going to be going to jail that day.”

         The trial court denied the motion. Although it noted
that it could not ascertain the precise words of the parties’
conversation, the court found that Betonte communicated
to defendant that “if the defendant was willing to talk with
him that maybe something could be done. Maybe he could
talk to the DA’s Office, maybe he’d dismiss the charges.” The
court found further that Betonte did not make any express
promises to defendant, and that Betonte relayed to defendant that Betonte himself did not have the power to make
anything happen. The court also found that defendant subjectively believed that it would be better for him to cooperate
with Betonte’s questioning. These circumstances, the court
concluded, did not demonstrate that defendant’s will was
overborne when he made his statements to Betonte.

         As noted, the trial court found defendant guilty of
possession of a controlled substance and delivery of a controlled substance. In finding defendant guilty of delivery, the
court relied, in part, on defendant’s statements to Betonte.
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         Defendant appealed. On appeal, he contends that
the trial court erred in denying his motion to suppress. He
argues that the court erred when it concluded that Betonte’s
statements did not constitute promises or “inducements” of
the sort rendering defendant’s admissions to him subject to
suppression. He argues further that, under our decision in
State v. Belle, 

, 

 (2016), the court
was required to grant defendant’s motion once it found that
defendant had a subjective belief that talking with Betonte
would be to his benefit. The state responds that the court
correctly concluded that Betonte did not induce defendant’s
confession and, alternatively, that any error is harmless.
        We review a trial court’s ruling on a motion to suppress for legal error, deferring to the trial court’s explicit
and implicit factual findings. Belle, 

.
        We start—and finish—with defendant’s contention
that suppression is required under ORS 136.425(1). That
statute provides:
      “A confession or admission of a defendant, whether in
   the course of judicial proceedings or otherwise, cannot be
   given in evidence against the defendant when it was made
   under the influence of fear produced by threats.”
That statute “embod[ies] the common-law rule that confessions made by a defendant in custody that were ‘  “induced by
the influence of hope or fear, applied by a public officer having the prisoner in his charge,” ’ are inadmissible against
the defendant.” State v. Jackson, 

, 

(2018) (quoting State v. Powell, 

, 

 (2012) (quoting State v. Wintzingerode, 

(1881))). For purposes of ORS 136.425, a promise constitutes
an improper inducement if it communicates to the prisoner
the idea of a “temporal benefit or disadvantage,” thereby
causing the prisoner to confess:
       “The precise form of words in which the inducement is
   presented to the [defendant’s] mind is immaterial. It is sufficient if they convey to him the idea of temporal benefit or
   disadvantage, and his confession follows in consequence of
   the hopes thereby excited.”
Wintzingerode, 

; Powell, 

.
138                                                       State v. Simmons

         Applying that standard, the Supreme Court has
concluded that officers improperly induced a defendant’s
confession by telling him that he was in a “tough spot,” that
his “best bet” was to confess and seek leniency from the
court, that it “might be” better for the defendant to confess,
and that the officers would fight the defendant if he chose
to take the “hard way.” State v. Linn, 

,

 (1946). We, too, have considered the types of
promises that implicate the statute, concluding in Belle that
a detective’s promise to a suspect, who was a member of the
National Guard, that a matter could be handled at the state
level and not under the military code, was the type of promise of a benefit prohibited by ORS 136.425(1). Belle, 

.
        Applying that standard here, we conclude that
Betonte’s statements to defendant, as found by the trial
court, constituted an impermissible inducement under
ORS 136.425(1). The court found that Betonte communicated to defendant that “if the defendant was willing to
talk with him that maybe something could be done. Maybe
he could talk with the DA’s Office, maybe he’d dismiss the
charges.” Not unlike the statements in Linn and Belle,
Betonte’s remark communicated to defendant the idea that
there would be a “temporal benefit” to continuing to talk
with Betonte—in this case, that “maybe something could
be done,” that Betonte could talk to the district attorney,
and that maybe the district attorney would dismiss the
charges. In other words, Betonte’s statements to defendant
offered defendant the hope that, if he continued to talk
with Betonte, Betonte would intercede on his behalf with
the prosecutor. The hope that Betonte offered may have
been thin—Betonte told defendant that continuing to talk
“maybe” would lead to something being done and Betonte
interceding on defendant’s behalf with the prosecutor—
but he offered hope nonetheless to encourage defendant to
talk.1

    1
      It is worth observing that statements like Betonte’s undercut the Miranda
warnings by suggesting that what a defendant says may end up averting a criminal proceeding completely, instead of being used in court against the defendant—
thereby increasing the risk that such statements will, in fact, operate to induce a
defendant to talk when he or she otherwise would not.
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         The remaining question is whether defendant’s statements to Betonte “follow[ed] in consequence of the hopes
thereby excited.” The trial court’s findings answer that question as well. After finding that Betonte made the comments
that he did, the court found that it was defendant’s “belief
that if he was forthcoming and voluntarily—voluntarily
cooperated with the questioning that it was very likely that
it would go better for him.” That finding compels the conclusion that Betonte’s offer of a benefit induced defendant to
continue to talk to him in the hope that talking would lead
to the benefit that Betonte offered. See Belle, 

 (“Once the trial court found as fact that defendant’s
confession was induced by [the detective’s] statements, then
it necessarily follows as a matter of law that the confession
could not be admitted under ORS 136.425.”). In other words,
the facts found by the trial court compel the conclusion that
defendant’s statement was the product of the hope generated
by Betonte’s representations to defendant about the possible
benefits of talking. The court therefore erred when it denied
the motion to suppress.
         That leaves the issue of harmlessness. Defendant
concedes—and we agree—that the error is harmless with
respect to his conviction for possession of a controlled substance. With respect to his conviction for delivery, however,
the error was not harmless. That is because the trial court
expressly relied on the statements at issue to convict defendant. As a result, we cannot conclude that there is little likelihood that the error affected the court’s verdict. See State
v. Davis, 

, 

 (2003) (articulating test
for harmless error).
       Conviction on Count 1 reversed and remanded;
remanded for resentencing; otherwise affirmed.