12
Submitted April 25, 2019, affirmed February 3, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
DUSTIN LEE PRYOR,
Defendant-Appellant.
Lincoln County Circuit Court
16CR79489; A165359
481 P3d 340
Defendant appeals a judgment of conviction for two counts each of first-degree sodomy, ORS 163.405, and first-degree sexual abuse, ORS 163.427. He
assigns error to the trial court’s denial of his motion to suppress a confession
that he made during a police interview. Defendant contends that his confession
was induced by a promise of leniency—the detective told defendant that he would
be going home after the interview—in violation of ORS 136.425(1) and the state
and federal constitutions. He also argues that, under the totality of the circumstances, his admissions were involuntary because the detectives used coercive
interrogation techniques and the interview was lengthy. Held: The trial court
did not err in denying defendant’s motion to suppress his confession. None of
the detective’s statements suggested that defendant could obtain a benefit in
exchange for his confession, and, under the totality of the circumstances, defendant’s confession was not otherwise the product of his will being overborne.
Affirmed.
Thomas O. Branford, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Shawn Wiley, Deputy Public Defender, Office
of Public Defense Services, filed the opening brief and a supplemental brief for appellant. Dustin L. Pryor filed a supplemental brief pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the briefs for respondent.
Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
LAGESEN, P. J.
Affirmed.
Cite as 309 Or App 12 (2021) 13
LAGESEN, P. J.
Defendant appeals a judgment of conviction—by
a jury—for two counts each of first-degree sodomy, ORS
163.405, and first-degree sexual abuse, ORS 163.427. The
primary issue before us is whether the trial court erred in
denying defendant’s motion to suppress the confession that
he made during a police interview. Defendant contends that
his confession was induced by a promise of leniency, in violation of ORS 136.425(1), and was otherwise involuntary in
violation of Article I, section 12, of the Oregon Constitution
and the Fifth Amendment to the United States Constitution.
We conclude otherwise and affirm.
We state the facts in accordance with the trial
court’s findings of fact as supplemented by the record. The
facts are uncontested.
While in foster care, L told her foster mother that “it
tickled when [defendant] put his tongue in her pee pee and
that he wanted … her to put her tongue on his pee pee.”
L’s foster mother asked who defendant was, and L replied,
“Mama’s boyfriend.” L’s foster mother immediately reported
L’s disclosure to the police.
Shortly thereafter, Detective Lane met with defendant at the police department to interview him regarding
L’s allegations. Defendant and Lane drove separately to the
police department, and Lane told defendant that the interview was voluntary and that he was free to leave at any
time.
During the interview, Lane confronted defendant
with L’s allegations. Defendant denied them but reported
that L had seen his penis when she had “pantsed” him and
when she had walked in on him using the bathroom. He also
reported that L had grabbed his penis over his sweatpants.
At the close of the interview, Lane asked defendant to come
back for a second interview and a polygraph examination.
Defendant agreed to come back.
The polygraph examination and second interview
took place two weeks later. Defendant again drove himself
to the police station. The interview began shortly before
10:00 a.m., when the polygraph specialist, Detective Martin,
14 State v. Pryor
thanked defendant for coming to the station and explained
that defendant was not required to take the exam. Even
though defendant was not under arrest, Martin informed
him of his Miranda rights before conducting the exam. She
did so at a pace that was not rushed, and defendant signed
a form indicating that he understood them.
The pretest polygraph procedure lasted around an
hour, during which Martin asked defendant questions about
his sleep, hunger, and other physiological factors that could
have affected defendant or the results of the test. At the
close of the pretest, defendant got up and walked out of the
room. Martin did not try to stop him, and defendant took a
nine-minute break before returning for the exam.
The tone of the exam itself was casual and conversational; Martin was in plain clothes and defendant appeared
relaxed and chuckled at several of his own statements.
Defendant had brought a drink with him and occasionally
sipped from it. The polygraph examination itself lasted 15
to 20 minutes, and, after an hour and 18 minutes total,
the polygraph process was finished. At that point, Martin
invited defendant to take another break, and defendant left
the room for 10 minutes. When he returned for the posttest interview, which began at 11:27 a.m., Martin informed
defendant that he had failed the polygraph exam and told
him that she would like to talk to him about that.
Martin told defendant that she did not believe that
defendant was being truthful. Martin explained:
“I don’t think you’re some bad guy that’s going around
grabbing little kids off the street or anything. I think it was
just one of those things that happened that maybe (inaudible) in a certain way and, and you normally wouldn’t do
something like that. It was just out of the norm for you and
it, and it happened with her. I understand that. People will
understand that.
“But what we don’t understand and what we do worry
about is people who know that they did it, everybody knows
they did it, and they continue to deny it. And that doesn’t
help anybody. It doesn’t help you. It doesn’t help [L]. It
doesn’t help anybody in this situation. I’d like you to get this
Cite as 309 Or App 12 (2021) 15
behind you today and give you a chance. Get this off your
chest. Let’s, let’s talk about it so you can move forward.”
In response, defendant continued to deny any wrongful behavior, insisting that he was trying to tell Martin
the truth. He nonetheless began to add more details to his
descriptions of what had happened with L, explaining that
“[L] asked me if she could see it” and “[w]hen she grabbed
me, I was horrified. I didn’t know what to do.” Defendant
told Martin that L had “started it” and frequently asked
him to touch her, but that he had refused. He appeared emotional in recounting these details, covering his head in his
hands and crying. Defendant responded to some but not all
of Martin’s questions; Martin continued to ask questions
at a relaxed pace with frequent pauses. After roughly an
hour of questioning, defendant asked for a break to use the
restroom, which Martin promptly honored.
Fourteen minutes later, defendant returned to the
room. He talked about a horrific experience that he had had
earlier in his life. Martin posited that defendant was trying to avoid talking about the allegations, and defendant
insisted that he was not doing that.
A few minutes later, Lane entered the room. He
encouraged defendant to tell the truth about what had happened and told defendant that he would feel better once he
did. Lane also told defendant that “an unknown male’s DNA”
was found on L—a lie—and asked if that DNA would match
defendant’s DNA. Lane also told defendant that he would be
a “lost cause” until he admitted what had a happened and
got help:
“I already know you put your tongue on her (inaudible).
I already know that your penis was in her mouth. If you
didn’t get aroused, those two things would not have happened. And they did happen. So you’ve got to (inaudible).
Until you do, you are a lost cause.
“And that’s, that’s the truth right there. No one can help
you. You will never get help. You will be the monster that
people think you are. (Inaudible) make you the monster
that they think you are. Because no one’s going to get help
unless they can admit to what they did wrong or admit that
16 State v. Pryor
they had a problem or had a lapse in judgment. And you’re
not giving us anything here, dude.
“… He’s blaming [L] for all of this. Now who would
blame a child for their own problems? Who does that,
[defendant]?
“Is that what your official response to this allegation is?
You’re blaming a four-year-old for coming on to you sexually? Who is going to buy that? No one who knows. And I
can’t imagine a jury just would ever go that far. I certainly
don’t see the judge believing that.
“But I do know children sometimes do some really peculiar things, because I’ve been doing this for a long time.
(Inaudible) 25 years working with kids and people, and the
only people I ever see get help are people that can talk about
it. They admit what happened and help us understand.
“And you know that everything I’ve been telling you,
[defendant], you already know, because you’re not dumb.
You’re a smart guy. You know that I’m speaking to you
straight.
“I understand you’re afraid. I get that. But like I already
told you, you get to go home today. You’re walking out.
“THE DEFENDANT: I’m not afraid. I’m … terrified.”
Lane asked defendant why he was terrified but defendant
did not answer. Instead, four hours and 16 minutes into the
process, he asked to step outside of the interview room with
Lane.
Defendant took a 13-minute break where he smoked
and told Lane about a condition he thought, from research
that defendant had been doing on his own, that he had and
that he believed made it difficult for him to speak about
traumatic things. Defendant confided that he had been suicidal in the past on several occasions. He also said that he
was willing to talk to Lane about L. They returned to the
room, and, soon after, defendant admitted to engaging in
sexual behavior with L.
Thereafter, a grand jury indicted defendant on two
counts of first-degree sodomy, ORS 163.405, and two counts
of first-degree sexual abuse, ORS 163.427. Before trial, he
moved to suppress the statements that he had made to the
Cite as 309 Or App 12 (2021) 17
detectives during the interviews. Defendant argued that
(1) the detectives impliedly promised leniency in exchange
for his confession, (2) under the totality of the circumstances, defendant’s statements were not voluntary, and
(3) even if defendant waived his Miranda rights at the outset
of the interview, he invoked them later by remaining silent
for extended periods of time in response to questioning.
The trial court denied defendant’s motion to suppress. In considering defendant’s assertion that the detectives promised leniency, the court found:
“There was no express or implicit promise that the
Defendant would not be prosecuted or that he would receive
leniency from the police and/or the courts. Telling a suspect
that he is not in custody and that he will not be arrested
that same day, regardless of his answers, communicates no
express or implied promise of a legal benefit or disadvantage. It does tell the suspect that he/she is not in custody
and that the person is, and will remain, free to leave that
day. Such statements do not contravene ORS 136.425(1).”
In weighing whether defendant’s confession was
voluntary under the totality of the circumstances, the court
found as fact that Martin was “calm” and “conversational,”
and that Lane was “quiet and decent in manner” throughout the interview. The court added that, though Martin was
“direct” with defendant “about the possibility of abuse” of
L, the detectives’ questions were “open-ended,” “low-key,”
and that “[t]here was nothing about the officers’ questions
which remotely implicated badgering behavior.” It further
determined that defendant’s assertions that he was trying
to tell the truth were evidence of defendant’s continued willingness to speak with the detectives. The court also noted
that every request by defendant for a break was granted—
including defendant’s request after the “apparently pivotal
point” in the interview where defendant expressed that
he was “terrified”—that defendant never asked to end the
interview despite understanding his Miranda rights, and
that the detectives never tried to force defendant to go
through with questioning. The court determined that defendant’s request for breaks during the more intense moments
of the interview further demonstrated that defendant knew
that he could leave at any time—a conclusion that, the court
18 State v. Pryor
reasoned, was supported by the fact that the detectives never
restricted defendant’s movement during the breaks, allowing defendant to walk to his vehicle and otherwise spend
his time away from their supervision. It therefore concluded
that “the interactions of the officers with the Defendant did
nothing to impart a belief by the Defendant that he was compelled to answer their questions.” The court also concluded
that nothing defendant did during the interview constituted
an assertion of his right to remain silent.
Defendant exercised his right to a jury trial, and the
jury returned a verdict of guilty on all counts. He appeals
and, as noted, assigns error to the trial court’s denial of his
motion to suppress. He argues that the detectives’ promise that he would be going home after the interview was
an implied promise of leniency that required suppression of
his statements under ORS 136.425(1), Article I, section 12,
and the Fifth Amendment. He also argues that, under the
totality of the circumstances, his admissions were not voluntary, because the detectives used coercive interrogation
techniques and the interview was lengthy. The state maintains that the court properly denied defendant’s motion to
suppress, contending that the facts as found by the court do
not support defendant’s claim that his confession was the
product of a promise of leniency or otherwise involuntary.
Standard of review. We review trial court rulings
on motions to suppress for legal error, deferring to the trial
court’s explicit and implicit factual findings where there is
evidence in the record to support them. State v. Simmons,
302 Or App 133, 137,
460 P3d 521 (2020). Whether a confession was the product of a prohibited inducement and whether
a confession was otherwise involuntary are ultimately questions of law. See State v. Jackson,
364 Or 1, 22,
430 P3d 1067
(2018). Thus, the primary inquiry here is whether, in light
of the trial court’s factual findings, “the state met its burden
to prove that defendant’s free will was not overborne and his
capacity for self-determination was not critically impaired,
and that he made his statements without inducement from
fear or promises.”
Id.
Inducements. The first question before us is whether
defendant’s confession was involuntary as the product of
Cite as 309 Or App 12 (2021) 19
unlawful inducement in violation of ORS 136.425(1) and
Article I, section 12. See Jackson,
364 Or at 21 (explaining
that “both the statute and Article I, section 12 embody the
common-law rule” precluding the evidentiary use of confessions induced by threats or promises). That statute provides,
in part:
“A confession or admission of a defendant … cannot be
given in evidence against the defendant when it was made
under the influence of fear produced by threats.”
ORS 136.425(1) “encompasses the common law and
thus applies to confessions induced by promises of leniency
as well as by threats.” State v. Powell, 352 Or 210, 218,
282
P3d 845 (2012). “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[.]” Simmons,
302 Or
App at 137 (quoting State v. Wintzingerode,
9 Or 153, 163
(1881)). Those promises may be express or implied:
“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,
9 Or at 163. Thus, whether a confession has
been unlawfully induced turns, in essence, on (1) whether
the defendant has been told something that communicates
the idea of a temporal benefit or disadvantage attached to
confessing, that is, that the defendant “ha[s] been offered
a quid pro quo … in exchange for a confession,” and
(2) whether the defendant accepts that quid pro quo offer by
confessing in the hopes of obtaining the offered benefit. State
v. Chavez-Meza,
301 Or App 373, 387,
456 P3d 322 (2019),
rev den,
366 Or 493 (2020); Simmons,
302 Or App at 139; see
also State v. Hogeland,
285 Or App 108, 116-17,
395 P3d 960
(2017) (discussing quid pro quo requirement). In conducting
our review, we keep in mind that the state bears the burden
of demonstrating that a confession was not the product of
an unlawful inducement. State v. Vasquez-Santiago,
301 Or
App 90, 106 n 4,
456 P3d 270 (2019).
20 State v. Pryor
In defendant’s view, Lane’s statements—that defendant would “get to go home today,” that defendant could
get help, and that defendant could avoid being viewed as a
“monster”—constituted promises of leniency meant to
induce a confession. Defendant argues:
“The detective’s meaning would be plain to any reasonable
person in defendant’s circumstances: we know you did this.
If you continue to talk to us and tell us what happened, you
will not be considered a monster, you can get help, and you
will walk out of this station and not be arrested. That is a
promise of leniency in exchange for defendant continuing
to waive his right to silence and continuing to cooperate
with the officers, requiring suppression as a matter of law.”
(Emphasis added.)
As should be evident, the question whether a confession was unlawfully induced involves a highly factspecific inquiry. Although in a different context statements
such as Lane’s could potentially operate as inducements,
viewed in the context of Lane’s overall exchange with
defendant in this case, the statements on which defendant
focuses did not communicate what defendant argues that
they did. That is, the statements did not communicate that
a quid pro quo was on the table—that Lane was offering
freedom and access to help to defendant in exchange for his
confession. Rather, Lane’s statements, in context, communicated that defendant would be going home at the end of
the day one way or another, and that, in his experience, people who confessed were the ones who were able to get help.
Cf. Hogeland, 285 Or App at 110 (unlawful inducement when
interrogating officer’s statement could have been reasonably
understood to mean that the defendant would not be prosecuted if he confessed—officer stated that if “an accident
has happened[,] … [d]o we convict this person and make
them a huge [example] for the world to see? No. We make
sure this person has help” (third brackets and emphases in
original)). Similarly to the help statement, in context, Lane’s
monster statement communicated to defendant that, based
on his experience, the effect of confessing would be that he
could avoid being perceived as a monster, not that Lane was
offering some form of assistance in exchange for defendant’s
confession. Consequently, because Lane’s statements did
Cite as
309 Or App 12 (2021) 21
not raise the prospect of defendant obtaining a benefit in
exchange for his confession, the trial court was correct to
conclude that they did not constitute unlawful inducements.
Other voluntariness issues. The next question is
whether, notwithstanding the absence of unlawful inducements, defendant’s confession was otherwise involuntary,
thereby precluding its admission under Article I, section 12,
or the Fifth Amendment. Under the state and federal constitutions, the legal test for involuntariness is whether
defendant’s will was overborne under the totality of the
circumstances, thereby resulting in his confession: “[T]he
voluntariness of an admission or confession depends on
whether or not, in the totality of the circumstances, a defendant’s free will was overborne and his or her capacity for
self-determination was critically impaired.” Jackson, 364
Or at 21, 27-28 (explaining that the standards under the
state and federal constitutions do not meaningfully differ,
and noting the types of circumstances that bear on whether
a defendant’s confession was voluntary, such as the defendant’s mental ability, the detectives’ methods of interrogation, the length of the interrogation, its location, and
whether the defendant was given breaks). A confession in
Oregon is considered involuntary unless the state proves by
a preponderance its voluntariness.
Id. at 21; State v. Belle,
281 Or App 208, 213,
383 P3d 327 (2016).
Defendant argues that his confession was involuntary under the totality of the circumstances for four reasons: (1) the detectives promised that he would be free to
leave after the interrogation, (2) the detectives lied to him
about finding an “unknown male’s DNA” on L, (3) the detectives used coercive techniques such as “maximization” and
“minimization” to elicit a confession, and (4) the interview
was between four and five hours long.1 Although, as we discuss, some of those circumstances are the types of circumstances that can cut against a conclusion that a confession
1
As mentioned earlier, during his interview with Lane, defendant suggested to Lane that he might have some sort of condition that made it hard to
talk. Defendant has not suggested in this case that whatever condition he might
have—if any—bears on the question of whether his confession was voluntary. See
Jackson, 364 Or at 28 (noting that voluntariness inquiry takes into account a
defendant’s personal characteristics, including physical and mental health).
22 State v. Pryor
is voluntary, ultimately, the totality of the circumstances
surrounding defendant’s confession demonstrates that
his free will was not overborne at the time that he made
it.
As for the matter of police deception, we have recognized that police deception weighs against a finding of
voluntariness; deception, however, does not automatically
render a confession involuntary. For example, in Chavez-Meza, we determined that the defendant’s confession was
voluntary even though the detectives deceptively and incorrectly advised the defendant that, if he had believed that the
12-year-old victim was 18, then the charged crimes would
be less serious. 301 Or App at 389-90. That was because the
other circumstances in that case, many of which are similar
to those here, demonstrated that the defendant’s confession
was nevertheless voluntary:
“[D]efendant was not in custody at any time during
the interview. He appeared voluntarily at an interview
with two detectives and sat in the room next to the door.
Defendant was told he was free to leave at the outset of the
interview, and he was informed that he would be permitted
to leave at the conclusion of the interview. The detectives
also informed defendant of his Miranda rights at the beginning of the interview. The interview lasted approximately
two hours. Defendant’s answers do not show that he misunderstood the detectives’ questions or appeared to be under
particular duress. Finally, defendant ultimately made his
most damaging admissions during periods of the interview
that were largely in response to fact-based questions about
what had occurred during the times he met with the victim.
After those admissions, defendant expressed great relief[.]”
Id. at 391-92.
Here, when considered under the totality of the circumstances and in view of Chavez-Meza, the detective’s false
representation does not point to the conclusion that defendant’s will was overborne. Unlike the false representation
at issue in Chavez-Meza, the detective’s misrepresentation
did not suggest that it would be beneficial to defendant to
say any particular thing. By contrast, in Chavez-Meza, the
detective’s statement implied that it could be beneficial to
the defendant to admit the conduct, but state that he had
Cite as 309 Or App 12 (2021) 23
not been aware of the victim’s age. That implication of a
benefit—something not offered by the false statement about
DNA evidence—is something that could have some effect on
a defendant’s ability to exercise free will in deciding not to
talk. Yet, notwithstanding that implication, we determined
that the totality of the circumstances demonstrated that
the defendant’s decision to talk was voluntary. The circumstances here lead to the same conclusion.
Regarding the officers’ interview tactics, although
the detectives “maximized” their certainty of defendant’s
wrongdoing while “minimizing” or normalizing defendant’s
crimes in an effort to persuade defendant to confess, we agree
with the trial court that the detectives’ tactics in this case,
when considered in the balance of the circumstances, did
not result in defendant’s will being overborne. See Jackson,
364 Or at 31 (“The question that a trial court must decide
is not whether a particular interrogation method was used,
but whether, considering the totality of the circumstances,
the suspect’s will was overborne.”). Here, as the court recognized upon review of the interview recordings, though the
detectives were “direct” with defendant “about the possibility of abuse,” they were “quiet and decent in manner,” their
questions were “open-ended” and “low-key” throughout the
interview, and none of their questions “remotely implicated
badgering behavior.”
That the tactics did not result in defendant’s will
being overborne in these circumstances is supported by
defendant’s own conduct throughout the interviews, which
indicates that defendant recognized that it was his choice
whether to speak. Defendant repeatedly told the detectives
that he was trying to tell them the truth; in the middle of the
interview, defendant insisted that he was not trying to avoid
talking about the allegations; when defendant requested a
break during a “pivotal point” in the interview, he asked
Lane to join him; and, after confiding in Lane about his
troubled past during his smoke break, he stated that he was
willing to talk about L.
With respect to the interview’s length, it was long—
between four and five hours. That is a duration that often
cuts against a determination of voluntariness. But, again,
24 State v. Pryor
the particular circumstances of each case matter, and, in
this case, those particular circumstances show that the time
was not an unbroken continuum controlled by the officers
but, instead, was punctuated with regular breaks at defendant’s request. The interview began around 10:00 a.m.—
when defendant voluntarily reported to the police station
as scheduled—and went through the middle of the day.
Defendant’s requests for breaks—of which he took four,
each lasting from nine to 14 minutes—were immediately
honored. As a result of the officers honoring his requests
for breaks, the longest defendant was interviewed without
a break was roughly an hour and a half. When defendant
requested breaks, the officers did not insist on accompanying him, something that, the trial court reasoned, served
as a reminder that defendant was free to go whenever he
wished. When Lane did accompany defendant on his final
break, it was at defendant’s request, another indication that
defendant’s decision to speak with detectives was not the
product of his will being overborne but, instead, the product
of his choice to talk.
Finally, the remaining circumstances all point to
the conclusion that defendant’s confession was not the product of an overborne will. Defendant was not in custody; he
was invited to the second interview and drove himself there.
Despite not being in custody, Martin read defendant his
Miranda rights and made sure that he understood them.
Defendant was advised on multiple occasions that he was
not required to be there and that he would be going home
that day no matter what he told the detectives. Cf. Chavez-Meza, 301 Or App at 391-92 (concluding that a confession
was voluntary under comparable circumstances). Defendant
controlled when he spoke and when he did not: He chose
to answer many of the detectives’ questions, but responded
with silence to many others. Further, as evidenced by the
pretest polygraph procedure, defendant did not suffer from
any form of cognitive impairment during the interview.
Although the interview process was no doubt physically
and mentally demanding, “the fact that an interrogation
is physically and mentally demanding does not necessarily make the admissions that are adduced involuntary and
inadmissible.” Jackson, 364 Or at 31. All of this leads to
Cite as
309 Or App 12 (2021) 25
one conclusion: Defendant confessed on his own terms. His
capacity for free will was not overborne.
Loose ends. We have a few loose ends to address. In
a supplemental brief, defendant assigns error to the trial
court’s instruction that only 10 jurors needed to find defendant guilty to convict him, although he acknowledges that
the jury’s verdict on each count was unanimous. That claim
of error is foreclosed by State v. Flores Ramos, 367 Or 292,
294, 334,
478 P3d 515 (2020) (holding that error in instructing the jury that it could return nonunanimous guilty verdicts did not require reversal of convictions rendered by
unanimous guilty verdicts), and State v. Kincheloe,
367 Or
335, 339,
478 P3d 507 (2020) (same).
In a pro se supplemental brief, defendant also
assigns error to (1) the state’s use of the polygraph at a pretrial hearing, (2) the trial court’s failure to exclude Lane
from the courtroom during other witness testimony, and
(3) defendant’s exclusion from a meeting in chambers
between the trial court judge and counsel. Those contentions are not preserved, and we reject them for that reason.
Affirmed.
