State v. Quinn , 112 Or. App. 608 ( 1992 )

De MUNIZ, J.

Defendant appeals his conviction for criminally negligent homicide, ORS 163.145(1), and raises two assignments of error. First, he contends that the trial court erred by denying his motion to suppress statements that he made to the police after his arrest; second, he contends that the evidence was insufficient to prove that his acts were the legal cause of the victim’s death and that the court erred by denying his motion for judgment of acquittal. We affirm.

Defendant waived his right to a jury trial. These facts are taken from the trial court’s findings. The victim emerged from a store after purchasing beer. He was intoxicated. Defendant and two friends were outside, “messing around in the street.” They were making “gun noises.” The victim, a Viet Nam veteran, was offended by their conduct. Words were exchanged, and a fight ensued. It is unclear who started the fight. The victim, who had just participated in a pool tournament, struck defendant in the leg with his pool cue. There was a lull in the action, long enough for defendant to remove himself from the fray. Instead, defendant picked up a chunk of asphalt and struck the victim with it. He fell to the street, and defendant and his friends fled. It was snowing. Riley, who was driving down the street, did not see the victim, because of the snow and slush oh the road. She drove over him. Riley stopped and made sure that the victim received emergency medical attention. Defendant stipulated that the victim’s death was caused by being run over by a car.

These facts are taken from the court’s findings and the evidence in the record that supports those findings on defendant’s motion to suppress statements that he made after being arrested. See State v. Stevens, 311 Or 119, 126, 806 P2d 92 (1991);Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968). Deputy Sheriff Hannigan arrested defendant six days after the altercation with the victim. Hannigan handcuffed defendant and placed him in the back seat of the patrol car. Hannigan testified that he was “fairly sure” that he advised defendant:

“It’s my duty as a police officer to advise you of your rights. You have the right to remain silent, anythingyou say can and will be used against you in a court of law. You have the right to an attorney. If you can’t afford to hire an attorney, one will be appointed to represent you. If you do give a statement at any time, you can stop at any time you wish. Do you understand these rights?”

Defendant indicated that he understood. Hannigan asked defendant about his involvement in the victim’s death. Defendant denied that he had murdered anyone. Hannigan told defendant that two witnesses had said that defendant was involved. Defendant began to cry and then explained his involvement. On the way to the sheriffs office, he elaborated on that involvement. When they reached the station, another officer removed the handcuffs. Hannigan read defendant his rights from a standard Miranda card.¹ Hannigan and Detective Awmiller then interviewed defendant, who reiterated the statements that he had made in the car.

The court denied defendant’s motion to suppress his statements, and defendant then waived his right to a jury. After a bench trial, the court found him guilty of criminally negligent homicide.

In his first assignment of error, defendant contends that the warnings that Hannigan gave him in the car did not satisfy the requirements of Article I, section 12, or the Fifth Amendment. He contends that they were defective, because they did not inform him that he could consult with an attorney before questioning and that he could have his lawyer present during interrogation. He also argues that the statements he made after receiving the standard Miranda warnings at the station should have been suppressed, because they were the tainted fruit of the statements that he made in the car.

In reviewing defendant’s constitutional claims, we look first to the Oregon Constitution. Sealy v. Hicks, 309 Or 387, 393, 788 P2d 435 (1990), cert den_US_, 111 S Ct 65 (1991); State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983). Defendant was in “full custody” when he was handcuffed and placed in the back seat of the police car. Any custodial setting is inherently coercive. State v. Magee, 304 Or 261, 265, 744 P2d 250 (1987); State v. Sparklin, 296 Or 85, 89, 672 P2d 1182 (1983). Therefore, defendant was entitled to “Miranda-like” warnings under Article I, section 12, before being interrogated. State v. Carlson, 311 Or 201, 204, 808 P2d 1002 (1991); State v. Smith, 310 Or 1, 7, 791 P2d 836 (1990); see Miranda v. Arizona, 384 US 436, 458, 86 S Ct 1602, 16 L Ed 2d 694 (1966).

Oregon courts have not declared precisely what Article I, section 12, requires police to tell a person who is in custody. In State v. Sparklin, supra, the Supreme Court said:

“An attorney’s presence at custodial interrogations is one way to secure the right to be free from compelled self incrimination. For this reason we require the police to inform a detained person that he may terminate questioning at any time and that he may have an attorney to advise him before he speaks.” 296 Or at 89.

Article I, section 12, and the Fifth Amendment each proscribe compelled self incrimination. We have previously observed that

“the Oregon constitutional right against self incrimination is presently protected by the same warnings which the United States Supreme Court requires under the Fifth and Fourteenth Amendments * * State v. Rowe, 79 Or App 801, 804, 720 P2d 765, rev den 302 Or 86 (1986).

In evaluating the contours of Article I, section 12, we continue to see “no value in being different merely for the sake of the difference.” See State v. Kell, 303 Or 89, 95, 734 P2d 334 (1987). Accordingly, analyses under the Fifth Amendment are persuasive in determining what Article I, section 12, requires. Our Supreme Court has been similarly persuaded. In State v. Sparklin, supra, it said:

“[A]s long as the text of the federal Miranda warnings remains the law, we think that the convenience of a single text exceeds any gain from improving that text.” 296 Or at 89.

In Miranda, supra, the Supreme Court held:

“[A]n individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation. * * * [T]his warning is an absolute prerequisite to interrogation. * * *

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“[I]t is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him.” 384 US at 472.

Although the Oregon Supreme Court found the “text” of the federal Miranda warnings convenient, Miranda itself does not require any particular language. Indeed, “no talismanic incantation [is] required to satisfy its strictures.” California v. Prysock, 453 US 355, 359, 101 S Ct 2806, 69 L Ed 2d 696 (1981). An “effective equivalent” is satisfactory. Duckworth v. Eagan, 492 US 195, 202, 109 S Ct 2875, 106 L Ed 2d 166 (1989); (quoting Miranda v. Arizona, supra, 384 US at 476).

What Hannigan told defendant in the patrol car is quoted above. Defendant indicated that he understood those rights. The issue is whether those warnings effectively informed defendant that he was entitled to consult with an attorney before questioning and to have one present during interrogation.

In California v. Prysock, supra, the defendant was not expressly advised that he had the right to have an attorney appointed before further questioning. The Supreme Court observed that

“[inquiries into] whether a criminal defendant was adequately informed of his right to the presence of appointed counsel prior to and during interrogation [have focussed on whether] the right to appointed counsel was linked with some future point in time after the police interrogation. ’ ’ 453 US at 360.

The Court found that the warnings given the defendant were adequate, because

“nothing in the warnings given respondent suggests any limitation on the right to the presence of appointed counsel different from the clearly conveyed rights to a lawyer in general * * *.” 453 US at 360. (Emphasis supplied.)

Similarly, the warnings that Hannigan gave defendant did not suggest any limitation whatsoever on his right to have counsel present. He was told that he had a right to counsel and that, if he could not afford a lawyer, one would be appointed. He was not expressly told that he could consult a lawyer before questioning or that he could have his lawyer present during questioning. Nonetheless, the standard in California v. Prysock, supra, was met. The warning that defendant received did not suggest any limitation on his right to have counsel present during interrogation, or that the appointment of counsel was conditioned on a future event. Hannigan told defendant, “You have the right to an attorney.” (Emphasis supplied.) That advice apprised defendant that he had the right to counsel, right then. It could not mislead him into believing that he would have the right to counsel at some future time, nor did it suggest that defendant’s right to counsel was conditioned upon any event. Instead, the warning effectively informed defendant that his right to counsel attached immediately and unconditionally.

The evil to be avoided arises when police give “pretzel-like warnings [that are] intertwining, contradictory, and ambiguous.” See Duckworth v. Eagan, supra, 492 US at 216 (Marshall, J., dissenting) (quoting Commonwealth v. Johnson, 484 Pa 349, 356, 399 A2d 111 (1979)). The thread connecting cases on inadequate warnings is that the warnings cannot mislead the suspect into believing that his right to counsel is conditioned on some future event or that it does not accrue immediately. In Duckworth, the defendant was told that a lawyer would be appointed “if and when you go to court.” Duckworth v. Eagan, supra, 492 US at 198. The Court held that that provision accurately stated the procedure for appointing counsel under Indiana law² and did not invalidate an otherwise adequate set of warnings that informed the defendant that he had a right to counsel before and during questioning. 492 US at 204.

In United States v. Lamia, 429 F2d 373, cert den 400 US 907 (2d Cir 1970), the defendant was given warnings similar to those that this defendant received in the patrol car. After Lamia’s arrest, an FBI agent told him that he was not required to make a statement and that, “he had a right to an attorney, if he wasn’t able to afford an attorney, an attorney would be appointed by the court.” 429 F2d at 374. He argued that that warning did not inform him that he had a right to have his lawyer present during interrogation. The Second Circuit concluded:

“Lamia had been told without qualification that he had the right to an attorney and that one would be appointed if he could not afford one.” 429 F2d at 376. (Emphasis supplied.)

The defendant was informed that his right to an attorney was unconditional. He was effectively informed that he had the right to have his lawyer present during interrogation. See also United States v. Floyd, 496 F2d 982 (2d Cir), cert den sub nom Miller v. United States, 419 US 1069 (1974).

Similarly, the Oregon Supreme Court upheld a warning that did not mislead the defendant into believing that his access to counsel would be delayed or that it was contingent upon a future event. State v. Lowry, 245 Or 565, 423 P2d 172 (1967). In that case, the defendant had been told, “you are entitled to consult a lawyer.” 245 Or at 566. He was also told that the state would provide him with a lawyer if he could not afford one and that he did not have to talk if he chose not to. The court held:

“[T]he manner in which defendant was informed adequately apprised him of his right to counsel prior to and during interrogation.” 245 Or at 566.

Lowry cites no authority for its conclusion, and it was tried before Miranda v. Arizona, supra, was decided. However, Lowry was argued after Miranda, and the briefs in that case discuss Miranda.

The timing of Lowry does not diminish the value of its holding. Whether the court construed the defendant’s rights from its interpretation of Miranda, or divined them from some other source, is irrelevant. What is relevant is that the court properly recognized the rights that a suspect must be warned about and concluded that the language of the warnings that were given effectively conveyed the necessary information. There is no meaningful distinction between the adequacy of the warnings that Lowry received and the warnings that Hannigan gave defendant. In both cases, the warnings apprised the suspects that their right to counsel was not conditioned on a future event and that it attached immediately.

The substance of the warnings, not the exact words, determines whether the warnings are adequate. State v. Corona, 60 Or App 500, 505, 655 P2d 216 (1982). We conclude that a warning that the right to counsel accrues immediately and unconditionally does inform a suspect that he has a right to counsel before and during interrogation. Hannigan’s warnings could not have misled defendant into believing “that a lawyer [would] not be provided until some indeterminate time in the future after questioning” Duckworth v. Eagan, supra, 492 US at 214 (Marshall, J., dissenting). (Emphasis in original.)

Defendant claims that the statements that he made at the police station were tainted by the statements that he made in the police car, because, “[o]nce [he] made his original statement, the ‘cat was out of the bag.’ ” State v. Garrison, 16 Or App 588, 602, 519 P2d 1295, rev den (1974); see also United States v. Bayer, 331 US 532, 540, 67 S Ct 1394, 91 L Ed 1654 (1947). Because the warnings that Hannigan gave defendant in the police car satisfied Article I, section 12, and the Fifth Amendment, the subsequent confession could not have been tainted by the statements that defendant made in the car.

In his second assignment of error, defendant contends that the evidence was insufficient to support a finding that he was the legal cause of the victim’s death. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the state. See State v. King, 307 Or 332, 339, 768 P2d 391 (1989). We will reverse the trial court’s denial of a motion for judgment of acquittal only if no rational trier of fact could have found, beyond a reasonable doubt, that the defendant was the legal cause of the victim’s death. State v. King, supra, 307 Or at 339; State v. Harris, 288 Or 703, 721, 609 P2d 798 (1980).

ORS 163.145(1) provides:

“A person commits the crime of criminally negligent homicide when, with criminal negligence, the person causes the death of another person.”

“Criminal negligence” means that

“a person fails to be aware of a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.” ORS 161.085(10).

The trial court found that defendant had an adequate opportunity to withdraw from the fracas. Instead, he picked up a chunk of asphalt and struck the victim with it. He used unlawful force against the victim and left him lying in the street.

Defendant argues that the victim’s death “was the result of [Riley’s] conduct of driving over [him].” The fact that defendant’s conduct was not the immediate cause of the victim’s death does not relieve him of responsibility. Defendant is responsible for the foreseeable consequences of the unlawful force that he used. State v. Baker, 87 Or App 285, 289, 742 P2d 633, rev den 304 Or 405 (1987). When defendant left the victim lying in the road, at a minimum, he ignored the substantial and unjustifiable risk that a motorist, unable to see the victim, might drive over him. Defendant’s conduct was the legal cause of the death, and the trial court properly denied his motion for judgment of acquittal.

Affirmed.

1 The Klamath County Sheriffs Advice of Rights Statement reads:

“It is my duty as a police officer to inform you of your rights.

“I. You have the right to remain silent.

“2. Anything you say can and will be used against you in a court of law.

“3. You have the right to talk to a lawyer and have him present with you while you are being questioned.

“4. If you cannot afford to hire a lawyer, one will be appointed to represent you before being questioned, if you wish one.

“5. If you do give a statement, you can stop talking any time you wish.

“6. Do you understand these rights?

“7. Having these rights in mind, do you wish to talk to us now?”

2 Under Indiana law, counsel is appointed at the defendant’s initial court appearance. Indiana Code § 35-33-7-6 (1988).