Appeal from Circuit Court, Lane County. Roland K. Rodman, Judge.
Otto R. Skopil and Bruce W. Williams, Salem, argued the cause for appellant. On the briefs were Williams, Skopil & Miller and Harry C. Coolidge, Salem.
William F. Frye, District Attorney at Trial, Eugene, argued the cause for respondent. With him on the brief were Donald L. Paillette, District Attorney, and Francis W. Linklater, Deputy District Attorney, Eugene.
In Banc. Denecke, Justice. Perry, Chief Justice, and McAllister, Sloan, O'Connell, Goodwin and Lusk, Justices.
The defendant, who was 15 at the time of the charged offense, was found guilty of first-degree murder.
Defendant contends that certain evidence was obtained by an illegal search and seizure. The evidence was blood, head and pubic hair, and saliva of the defendant. The defendant raised the issue by a timely motion to suppress.
The state seems to argue that the question is solely a fifth-amendment problem, the right against selfincrimination, and not a fourth-amendment issue, the right to be free from unreasonable search and seizure. It relies upon Schmerber v. California, 384 U.S. 757, 86 S Ct 1826, 16 L ed2d 908 (1966), for its position. We read Schmerber v. California as clearly requiring blood taking to be accomplished in conformity with fourth-amendment standards, as well as fifth-amendment standards. Those standards were met in that case because the seizure, the blood taking, was incident to a lawful arrest.
We conclude that the fourth-amendment standards were met in this case because the seizure was made with the consent of the defendant.
The evidence about the seizure was sharply divergent. The trial court made detailed findings of fact and found that the defendant consented. There is ample evidence to support its findings. The court also
stated the constitutional standards it deemed applicable in passing upon this issue. We are in agreement with those expressed standards, and the defendant does not contend they are incorrect.
The murder victim was a girl who lived in defendant's rural neighborhood. The defendant was not a prime suspect during the time here relevant. The defendant, along with others in the neighborhood, had been questioned by the state police and he had said that he saw a hunter in the vicinity about the time of the murder. The defendant's family had retained an attorney after the initial questioning. The police asked the attorney if they might go to the defendant's house and take some clothing and personal effects for examination. After the attorney agreed and so informed the Little family, the police picked up this property. Apparently, after this, the defendant was away on a hunting trip and the police asked his mother to call when he returned. They explained that they wanted to show the defendant some photographs to see if he could identify the hunter he said he saw.
Later, the defendant's mother called the officer and told him her son had returned. The officer went to the house with the photographs. While there, the defendant's mother, in the defendant's presence, told the officer she had heard that various body samples were being taken from other boys in the neighborhood and asked if they were going to take some from her son. The officer said they would if it was agreeable. The mother responded that although she would like him to give the samples, because he had a cold she did not want him to go into town. Accordingly, it was arranged for a doctor to come out and the officer and a doctor came out that same day. The accused pulled
his sleeve up and the physician took the blood. He also cut head and pubic hairs.
The officer later learned that the crime detection laboratory wanted saliva; therefore, the next day an officer went out with a vial. At the officer's request the defendant spat into the vial.
The trial court found that all this was conducted in a congenial atmosphere. There was no testimony, however, that the defendant expressly consented to any of the takings.
At some stage of the taking of the body substances defendant's attorney was called by defendant's mother in defendant's presence, and he approved the taking of the blood and hair, which he believed to be head hair. He was not asked about the pubic hair or saliva.
The state has the burden of establishing that the defendant consented to the seizure. State v. Marshall, 234 Or 183, 184, 380 P2d 799 (1963). Mere acquiescence to lawful authority is not consent. We do not need to decide whether a mother of a 15-year-old son can consent to a search and seizure of her son against his consent.*fn1 There was ample evidence to support the trial court's findings of fact that the son consented, in addition to his mother's consent. We also agree with the trial court's conclusion of law that the facts, as it found them, amounted to the requisite consent.
After the trial court had made its ruling denying the motion to suppress, the defendant filed a motion for a change of judge. The motion stated, among other
things, that the judge was prejudiced and, therefore, disqualified under ORS 14.250.
The basis for the charge of prejudice was the trial court's written opinion on the motion to suppress. In effect the court stated that it did not believe the testimony of defendant's mother and father.
The defendant was not entitled to have his motion granted as a matter of course under ORS 14.250-14.270 because the court had already ruled on a matter in issue in the case, the motion to suppress, and the motion to disqualify, therefore, was not timely. Taylor v. Gladden, 232 Or 599, 602-603, 377 P2d 14 (1962). We do not need here to decide whether the statutory time limitations are applicable to motions to disqualify based upon specific charges of prejudice rather than "statutory prejudice" (as it was labeled in Taylor v. Gladden, supra (232 Or at 603) or "imputation of prejudice" (as it was labeled in State ex rel Lovell v. Weiss, Or , 430 P2d 357 (1967), 442 P2d 241 (1968). The opinion of the trial judge, after hearing the testimony, that the testimony of witnesses favorable to the defendant was not worthy of belief is not evidence of prejudice.
"The unfavorable opinion of a party or witness which a hearing officer or a trial judge may entertain as a result of evidence received in a prior and connected hearing involving that individual is not 'bias' in the invidious sense. It is in effect a judiciallydetermined finding which may properly influence such officer or judge in a supplemental proceeding involving the penalty or punishment to be assessed, or the grace to be extended." MacKay v. McAlexander, 268 F2d 35, 39 (9th Cir 1959). Accord, Huntingdon v. Crowley, 64 Cal2d 647, 51 Cal Rptr 254, 414 P2d 382, 393 (1966).
Defendant moved for an order requiring the state to produce for defendant's inspection and copying or ...