State v. Raiford

488 P.2d 295 (1971)

STATE of Oregon, Respondent,
v.
Larry Vernard RAIFORD, Appellant.

Court of Appeals of Oregon, Department 1.

Argued and Submitted June 25, 1971. Decided August 26, 1971. Rehearing Denied November 11, 1971.

Terrance L. McCauley, Portland, argued the cause for appellant. With him on the brief was Paul J. Rask, Portland.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.

Before SCHWAB, C.J., and FOLEY and THORNTON, JJ.

Rehearing Denied November 11, 1971. See 490 P.2d 206.

THORNTON, Judge.

Defendant was convicted of burglary in a dwelling house. On appeal, defendant contends that the trial court erred by not suppressing his confession.

Defendant, a 17-year-old, was arrested at 3 a.m., November 26, 1969, on a charge of violating a curfew for minors. While in custody for that offense, defendant waived his Miranda^[1] rights and confessed in writing to a burglary which had occurred several days before.

Defendant was indicted for the burglary on February 6, 1970. Prior to trial, on December 3, 1970, the court held a hearing on a motion to suppress defendant's handwritten confession.

Defendant admitted signing the waiver and writing the confession, but he testified that he did so because he had been hit in the mouth at the time of his November 26 arrest and had been told later, at the station house, that he would "get the same thing I had gotten outside if I didn't cooperate."

Defendant did not produce any witnesses to support his claim of physical abuse, although he stated that a "group worker" at the Juvenile Detention Home had seen his injured mouth. Defendant did not produce a blood-stained shirt he claimed to have worn at the time of the alleged beating.

Witnesses for the state testified that the confession and waiver were both voluntarily made and that no threats or violence had been used to induce defendant to make them.

The court admitted the confession and it was used against defendant at his trial.

Defendant argues that his confession should have been suppressed for two reasons. First, the defendant claims that he was questioned in an inherently coercive atmosphere. Defendant asks us to note his age, the fact that the questioning occurred at approximately 4 a.m., the length of the questioning and his isolation. However, the trial court heard testimony concerning the factual circumstances surrounding defendant's interrogation and the court concluded that the atmosphere had not been such as to make defendant's confession and waiver involuntary and coerced. As stated in Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621, 622 (1968):

"What actually transpired is a question of fact for the trial court or jury. If the evidence sustains such historical factual findings they will not be disturbed by this court. If findings are not made on all such facts, and there is evidence from which such facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the ultimate conclusion, e.g., voluntariness or lack thereof, made by the trial court or jury * * *."

See also, State v. Regan, Or. App., 92 Adv. Sh. 893, 484 P.2d 861, Sup.Ct. review denied (1971).

Defendant's second contention is that the police are required to inform a minor that his confession can be used to secure a criminal conviction and that the record does not reveal any evidence that defendant was so informed. Defendant relies upon language in State v. Gullings, 244 Or. 173, 416 P.2d 311 (1966), to support his argument. In that case the Oregon Supreme Court stated that a minor can make an admissible confession

"* * * so long as it is made clear to the juvenile that criminal responsibility can result * * *." 244 Or. at 178-179, 416 P.2d at 313.

Defendant would have us interpret the term "criminal responsibility" narrowly and reverse because the record does not show that defendant was told that his confession could be used in a criminal proceeding in adult court, which could result in a criminal sentence to the county jail or the state penitentiary. We do not so interpret this statement. Instead, we read the dicta in Gullings as mandating the police to inform a juvenile that some form of punishment can result from the the use of any confession the juvenile might make. It is the knowledge that punishment can be a consequence of his actions, and not the form this punishment might take, that is the important factor to be considered by the juvenile when deciding whether to waive his Fifth Amendment rights.

The advice form signed by defendant specifically states that

"* * * Anything you say and any statement you write can be USED AGAINST YOU IN COURT to prove that you have committed a crime * *." (Emphasis supplied.)

The record reveals that an officer told defendant that anything he said could be used against him in court.

Witnesses for the state testified that defendant told the police he had heard the statement of rights before and knew what the officer was talking about when he read them to him, and defendant admitted, on examination by the court during the hearing on the motion to suppress, that he knew the "routine."

The evidence sustained the finding that defendant was made sufficiently aware of the consequences of this actions for his admissions to constitute a voluntary confession.

Affirmed.

NOTES

[1] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R. 3d 974 (1966).