State v. Neely

DEITS, J.

Defendant appeals his conviction for robbery in the second degree. He assigns as errors the trial court’s refusal to suppress a gun surrendered by him to his probation officer, the denial of his motion for judgment of acquittal of robbery in the second degree and the court’s refusal to instruct the jury on robbery in the third degree. We affirm.

On March 25,1984, a convenience store in Bend was robbed by a man who threatened the clerk by lifting his jacket to display the grip of a pistol that was thrust into his belt. Earlier that day, there had been a residential burglary in Bend in which a .357 Magnum pistol had been stolen. Defendant was on probation, under the supervision of probation officer Murray. On March 26,1984, the Bend city police asked Murray for a photograph of defendant, who was a suspect in the robbery and the burglary. Murray tried to contact defendant to question him about the crimes and also about his absence from work and possible use of alcohol. He was unable to contact defendant but left messages with his wife and at his work.

On March 27, defendant stopped Murray in the parking lot at Murray’s office and asked to speak to him. They went to the office, where Murray informed him that the police were looking for him in connection with the robbery. Murray asked defendant if he had done it; he said that he had not. Murray then telephoned the police to have them come to the office to question defendant about the robbery. He did not tell Murray whom he was calling. As Murray was identifying himself to the dispatcher, defendant suddenly blurted out, “I did it. I’m sorry. I did it.” He lifted up his shirt, displaying a pistol and handed it to Murray, who inspected the pistol and determined that it was unloaded. Murray asked him several more questions about the robbery. He generally refused to answer, but did say, “The clerk can I.D. me,” and, in response to Murray’s question about what happened to the money, “I gave it to some bums.”

Murray did not give defendant Miranda warnings, nor did he tell him that he was not free to leave. Murray later testified that he would not have allowed him to leave if he had tried to do so before the police arrived. When the police arrived, Murray gave them the weapon. Defendant and Murray spoke alone for several moments. The police then reentered the office, arrested defendant for unauthorized use of a motor vehicle and advised him of his Miranda rights.

Defendant was indicted for robbery in the first degree. ORS 164.415. In response to defendant’s motion, the court concluded that he was in custody when he spoke to Murray, and it suppressed his three incriminating statements. However, the court refused to suppress the gun. At the close of the state’s case, the court granted defendant’s motion for acquittal of robbery in the first degree, because the state failed to prove that he was armed with a deadly weapon. However, the court denied his motion for acquittal of robbery in the second degree, and the jury found him guilty of the charge. Defendant appeals.

He argues that, because the gun was the direct product of his statements, which were suppressed because they were elicited before he was given Miranda warnings, it should have been suppressed under State v. White, 59 Or App 61, 620 P2d 184 (1982), modified 297 Or 302, 685 P2d 983 (1984). The state argues that Miranda warnings were not required because, when the statements were made and the gun was surrendered, he was not in custody,¹ his statements were volunteered and, even if he was in custody, probation officers are not required to give Miranda warnings.

The present state of the law is that the Oregon Constitution does not require Miranda-type warnings if a person is not in “full custody.” State v. Smith, 301 Or 681, 725 P2d 894 (1986). Because defendant was not in “full custody,” as that term appears to have been used by Judge Jones’ concurrence in Smith, we decide the constitutional issues raised by defendant only under the federal constitution.²

An individual must be given Miranda warnings when subjected to “custodial interrogation.” Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966). When determining whether questioning is “custodial interrogation,” “the ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler, 463 US 1121, 1125, 103 S Ct 3517, 3520, 77 L Ed 2d 1275 (1983). When defendant made the statements, he was not under arrest, nor was his freedom of movement restrained. He freely went to meet Murray, Oregon v. Mathiason, 429 US 492, 97 S Ct 711, 50 L Ed 2d 714 (1977); State v. Hickam, 71 Or App 471, 692 P2d 672 (1984), and voluntarily entered Murray’s office. Murray sat at his desk, and defendant sat in a chair adjacent to Murray’s desk. There is no evidence that he was physically restrained in any way. He was not told that he was not free to leave.

The questioning of defendant as a suspect does not itself mean that he was in custody. Oregon v. Mathiason, supra; State v. Fields, 291 Or 872, 635 P2d 376 (1981). The fact that he did not freely leave is not relevant in determining whether custody existed when the gun was relinquished. State v. Fields, supra. Murray’s testimony that he would not have allowed defendant to leave before the police arrived does not compel the conclusion that he was in custody. An officer’s uncommunicated intention not to allow a person being questioned to freely leave at any time is not an independent basis for determining custody.³ See State v. Roberti, 298 Or 412, 426 n 4, 693 P2d 27 (1984) (Lent, J., dissenting); State v. Hickam, supra. As the United States Supreme Court concluded in Berkemer v. McCarthy, 468 US 420, 104 S Ct 3138, 82 L Ed 2d 317 (1984):

“A policeman’s unarticulated plan has no bearing on the question whether a suspect was ‘in custody’ at a particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” 468 US at 442. (Footnote omitted.)

We hold that, under the totality of the circumstances, when defendant made the statements and surrendered the weapon, he was not in custody.⁴ Minnesota v. Murphy, 465 US 420, 104 S Ct 1136, 79 L Ed 2d 409 (1984).

Defendant next contends that the court erred in denying his motion for judgment of acquittal on the charge of robbery in the second degree. Robbery in the second degree is committed when a person “represents by word or conduct that the person is armed with what purports to be a dangerous or deadly weapon.” ORS 164.405(l)(a). The evidence indicates that, during the armed robbery, while lifting his jacket to expose the grip of a pistol that was thrust in his belt, defendant ordered the clerk to give him money. His conduct clearly comes within the language of the statute defining second degree robbery and, thus, the court properly denied defendant’s motion.

Defendant, relying on the concurring opinion in State v. Vance, 285 Or 383, 591 P2d 355 (1979), argues that the legislature did not intend robbery in the second degree to encompass robberies committed with real, but unloaded, weapons. In Vance, the issue was whether pointing an unloaded real gun at another person constituted robbery in the first degree.⁵ The defendant’s argument was that, because the definition of second degree robbery included such conduct, the legislature did not intend the conduct to constitute first degree robbery. The court concluded that the legislature did not intend the adoption of the criminal code to abrogate the common law inference that a gun used in a robbery and pointed at a victim within firing range is loaded. Thus that conduct could be first degree robbery.

In the concurring opinion in State v. Vance, supra, on which defendant here relies, Judge Linde pointed out that, by concluding that the conduct in question may be first degree robbery, it follows that the legislature could not have intended the same conduct to be second degree robbery. Judge Linde explained:

“On its face, this definition of second degree robbery seemed to cover a threat with a real but empty gun. Such a threat would appear to represent that the robber is armed with what purports to be a dangerous or deadly weapon. If so, the legislature presumably would not have meant the identical threat also to suffice for an inference that the weapon was in fact loaded, raising the crime to first degree robbery, without additional support in the evidence.” 285 Or at 396.

The court’s decision in State v. Vance, supra, does not compel the conclusion that a threat with a real, but unloaded, gun may never be second degree robbery. The court did not hold that it may be inferred that a gun is loaded every time the state offers proof that a defendant represented being armed with a gun. Rather, the court held that the inference was permissible from the additional fact in that case that it was “pointed at” the victim. Thus, under facts which differ from Vance, such as in this case, a threat with a real, but unloaded, gun may be second degree robbery. In addition, as Judge Linde recognized in his concurring opinion in State v. Vance, supra, accepting the conclusion that a robbery involving a threat with a real, but unloaded, gun can never be second degree robbery creates an absurd result. A robber using a toy gun could be charged with second degree robbery, but the use of a real, but unloaded, gun would result in a conviction only for third degree robbery. We do not believe that the plain language of the statute compels such a result nor that the legislature intended it.

Defendant’s last argument is that the court erred in failing to give his requested instruction defining robbery in the third degree. Because there was no evidence or reasonable inference from which the jury could “rationally and consistently find the defendant guilty of [third degree robbery] and innocent of [second degree robbery],” the court did not err. State v. Washington, 273 Or 829, 836, 543 P2d 1058 (1975); see State v. White, 87 Or App 194, 741 P2d 930 (1987).

Affirmed.

1 Although the state did not appeal the pretrial suppression of defendant’s statements, that does not preclude the state from arguing at this juncture that defendant was not in custody. State v. White, 297 Or 302, 307 n 4, 685 P2d 983 (1984).

2 Notwithstanding footnote 2 in State v. Kell, 303 Or 89, 734 P2d 334 (1987), we conclude that State v. Smith, supra, compels the conclusion that Article I, section 12, does not mandate Miranda-type requirements in this case. In Smith, the issue was

“[w]hether Article I, section 12, of the Oregon Constitution requires that persons detained for questioning by law enforcement officers be given warnings similar to those required by Miranda ***” State v. Smith, supra, 301 Or at 683. (Footnotes omitted.)

The three-member plurality concluded that Article I, section 12, does not require that Miranda-type warnings be given in any situation. The two dissenters concluded that Article I, section 12, requires that warnings be given to persons in custody. Judge Jones concurred with the majority’s conclusion that warnings need not have been given to Smith but concluded that Article I, section 12, requires that individuals in “full custody” be warned. In this case, we conclude that defendant was not in “full custody” when he made the incriminating statements and surrendered the gun. Hence, it is apparent that four judges agree that defendant need not have been warned under Article I, section 12. The State v. Kell, supra, footnote cited by the dissent is not contrary to this conclusion.

3 Before Berkemer, there was some confusion concerning whether the officer’s subjective intent was a relevant consideration in deciding if a person was in “custody” for purposes of the Miranda rule in this state. In State v. White, 297 Or 302, 685 P2d 983 (1984), the court stated:

“We now hold that interrogation is custodial under Miranda if the police officer actually knows that he would not let the person being questioned leave or if the officer should be aware that the totality of circumstances in which the interrogation takes place is such that the person questioned would reasonably believe he is not free to leave.” 297 Or at 310.

However, the White court was applying its holding in State v. Roberti, 293 Or 236, 646 P2d 1341, vacated and remanded sub nom Oregon v. Roberti, 468 US 1205, 104 S Ct 3574, 82 L Ed 2d 873 (1984), opinion withdrawn State v. Roberti, 298 Or 412, 693 P2d 27 (1984), and Roberti was vacated in the light of Berkemer.

4 Because of our disposition of this issue, we need not decide the state’s other contentions.

5 ORS 164.415 provides:

“(1) A person commits the crime of robbery in the first degree if the person violates ORS 164.395 and the person:

“(a) Is armed with a deadly weapon; or

“(b) Uses or attempts to use a dangerous weapon; or

“(c) Causes or attempts to cause serious physical injury to any person.”