Appeal from Circuit Court, Josephine County. Samuel M. Bowe, Judge. No. 72-533-C.
Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Robert F. Webber, Deputy District Attorney, Grants Pass, argued the cause for respondent. With him on the brief was Robert M. Burrows, District Attorney, Grants Pass.
Langtry, Judge. Schwab, Chief Judge, and Thornton, Judge.
Defendant was convicted by a jury and sentenced for the crime of robbery in the first degree (ORS 164.415) and appeals.
Two men, LaValley and Lantz, held up a store in Grants Pass on August 7, 1972. LaValley was armed with a revolver. Later, defendant made a tape-recorded confession after his arrest. In the confession defendant admitted giving LaValley and Lantz information about the store, knowing they intended to use the information in robbing the store and that they would make it "worth your while" if he helped them. Defendant also confessed to meeting LaValley and Lantz at a house on the Rogue River Highway shortly after the robbery and to receiving $20 as his share of the proceeds. He stated he then returned directly to his home.
The store and defendant's home were in Josephine County and the house on the Rogue River Highway was in Jackson County.
Defendant was questioned by police on August 10, 1972 and denied having a part in the robbery. He was arrested on August 11, 1972. On August 12, 1972 he gave the above confession after being informed of his Miranda*fn1 rights and waiving them.
In camera, defendant testified that while he was
being taken to the police station on August 11, 1972 one of the police officers told him that LaValley had just killed someone during a robbery in California and that there was now a murder involved.
Defendant testified that while being held in the jail he heard a report of the murder on the radio, and that the officers who took his statement told him that "* * * robbery is a lot less than murder * * *" and "* * * everything would be a lot easier" if he cooperated although they "* * * 'can't promise you anything' * * *."
Defendant makes three assignments of error. (1). The trial court erred in ruling his confession voluntary and admissible. (2). The state failed to corroborate the confession sufficiently pursuant to ORS 136.540 (1). (3). The trial court erred in refusing to give a requested instruction to the jury on the lesser included offense of theft by receiving.
(1). Defendant claims that his confession was involuntary because of the psychological coercion exerted by the police in telling him of the killing committed by LaValley and implying that defendant might be involved.
The trial court made a finding of fact that the confession was voluntary. This finding was supported by the fact the defendant had waived his Miranda rights, had not been physically coerced or mistreated, had stated his confession was voluntary and ...