Appeal from Circuit Court, Columbia County. Donald L. Kalberer, Judge. No. 19774.
Paul J. Jolma, Clatskanie, argued the cause and filed the brief for appellant.
John W. Burgess, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Foley, Judge. Schwab, Chief Judge, and Langtry, Judge.
Defendant was convicted, following a jury trial, of arson in the first degree. ORS 164.325. His principal assignment of error involves the adequacy of the Miranda*fn1 warnings given to him prior to his making certain statements which were used against him at trial for impeachment purposes.
Officer Beers, a member of the Oregon State Police, had gone to Illinois to take defendant into custody and return him to Oregon for trial. While they were on an airplane en route, defendant made certain statements to Officer Beers which were inconsistent
with an alibi defense which he raised at trial. Prior to allowing the jury to hear testimony as to those statements, the trial court held an in camera hearing to determine whether the warnings required by Miranda had been given.
At the in camera hearing Officer Beers testified that defendant began to talk spontaneously about the charges against him. Officer Beers stated that he then "read the Miranda " to defendant, and that defendant stated that he understood his rights.*fn2 Officer Beers testified specifically that he told defendant that he could wait to discuss the matter with an attorney and that he asked whether he had an attorney. When defendant responded that he did not, Officer Beers testified that he told defendant that the court would appoint one for him if he could not afford one. Officer Beers then stated that defendant said that he would get an attorney, but that he would "just as soon" discuss the matter with Officer Beers while on the airplane.
Officer Beers further testified that he advised defendant that he did not have to make a statement if he did not want to, and that he had a right to have an attorney present during any questioning. Finally, Officer Beers testified that he specifically advised defendant that any statement could and probably would be used against him in a court of law, and that if he should choose to make any statements, he could stop at any time. Defendant responded by stating that he wished to talk about the case.
Defendant's testimony at the in camera hearing contradicted much of Officer Beers' testimony. The trial judge apparently gave credence to Officer Beers' version of the facts, since he ruled that the warnings given complied with the standards of Miranda and that defendant's statements were admissible.
Thereafter, following defendant's testimony in support of an alibi defense, the state called Officer Beers as a rebuttal witness to impeach defendant's testimony with an inconsistent statement made to Beers during the airplane trip. When questioned concerning the advice which he had given defendant prior to defendant's having made the statement, Officer Beers testified to essentially the same effect as he had in the ...