State v. Houston

RICHARDSON, P. J.,

dissenting.

I disagree with the part of the majority opinion dealing with admission of defendant’s statements to his parole officer. I conclude that, on the record, the court did not err by admitting the statements, so I dissent.

Defendant’s entire argument under this assignment is:

“In this case, the State conceded that no warnings were given prior to the questioning of defendant [by the parole officer]. The court should have made findings on the custody status of defendant, whether the warnings were given and if there was a waiver of his right to remain silent.

“Defendant concedes that the witness was not questioned on these matters, prior to the court hearing her testimony.”

The argument and statement of the grounds for exclusion of the testimony in the trial court were equally terse. Defendant contended that a parole officer has to advise a parolee of his Miranda rights and told the court that he objected to the testimony on the same basis as he had objected to the testimony of Officer Stolley. There was no elaboration as to what he meant or how he related the circumstances of the conversation with his parole officer to the grounds for suppression of Stolley’s testimony.

Defendant did not question the parole officer or put on any evidence regarding the circumstances of his conversation with her. The lack of a record to support his cryptic arguments on appeal make further analysis difficult.

Defendant moved to suppress the statements and had the responsibility to articulate the basis of his motion so that the parties can litigate it. The state stipulated that the parole officer had not given defendant any warning of his rights and that seemed to be the sole basis for defendant’s motion. I see no reason why we should address theories or issues not preserved below. ' t

The majority says:

“The trial court did not make findings concerning the circumstances of the telephone call, i.e., where defendant was when the conversation occurred, who initiated the call and how long after defendant had been given Miranda-type warnings by the police that the call took place. Without those findings by the trial court, we are unable to determine whether defendant was in full custody or in compelling circumstances when he made the statements to the parole officer and whether he was properly advised of his rights.” 110 Or App at 24-25. (Footnote omitted.)

However, the record discloses much of the information that the majority seeks. There is no dispute but that defendant was arrested on November 16,1988, and that he was advised of his Miranda rights on that day sometime after his arrest, as he was being taken to jail in custody. The telephone conversation with the parole officer was on November 16 and from the jail. Consequently, we know that defendant was probably in “full custody,” that he had been advised of his Miranda rights a short time before by Stolley and that he was not again advised by the parole officér.

Even if we assume that defendant was in full custody at the jail and that the call was initiated by his parole officer, we know that he had just been advised of his rights and had the ability to terminate the conversation by hanging up the telephone. State v. Smith, 310 Or 1, 791 P2d 836 (1990); see Minnesota v. Murphy, 465 US 420, 104 S Ct 1136, 79 L Ed 2d 409 (1984). Defendant did not raise in the trial court, and only obliquely argues on appeal, that he did not waive his rights.

There is nothing in the record on which the trial court can base findings regarding the remaining inquiry posed by the majority — who initiated the conversation. That information is simply not material. Defendant had been advised of his rights, and he made no argument at trial that he had not waived them. Consequently, the parole officer could have interrogated him without violating his rights. Defendant could have protected those rights by simply hanging up the telephone. If there are any additional material defects in the record regarding this issue, defendant’s contentions must fail, because he did not articulate any basis that would have induced the state to present any further evidence if the state has that burden.