Appeal from Circuit Court, Benton County. Richard Mengler, Judge. No. 27011.
Gary D. Babcock, Public Defender, Salem, 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 charged with murder of his 29-year-old, retarded stepson. He was found guilty by jury verdict of manslaughter and received a prison sentence of 10 years. He appeals, assigning as error the refusal of the trial court to suppress statements made by the defendant and the failure to submit to the jury as a lesser included offense the crime of criminally negligent homicide. ORS 163.145. We reverse on the basis of the first assignment of error, but because the case must be remanded for a new trial in which the issue involved in the second assignment is likely to recur, we deem it proper to discuss that issue as well. This necessitates a synopsis of the evidence at the trial.
Deceased died almost instantly on September 18, 1972, from the discharge of a shotgun, the barrel of which was about two and one-half feet from deceased when fired. The charge from the gun entered his chest just below the left nipple and proceeded downward at about a 45 degree angle. Present in the one-room cabin at or just prior to the stepson's death were the defendant, his wife and the stepson. The shotgun which produced death was a .410 gauge, single shot which belonged to the wife and was kept in the cabin. The defendant denied that he fired the fatal shot and though his testimony is hazy, the inference which could be drawn from it and from "truth serum" statements he made to a psychiatrist is that the stepson was killed while defendant and his wife were struggling over the gun. Defendant testified the wife was the one who had the gun; that he remembered struggling with her over it. However, he claims to have no recollection of the immediate events leading to the discharge of the gun and the death. Defendant's fingerprints were found on the gun and "gunshot residue" was found on his hands. No "gunshot residue" was found on the wife's hands. Three smudged fingerprints were found on the gun which could not be attributed to either the wife or defendant. The state called defendant's wife as a witness but she was not permitted to testify, the defendant husband claiming the privilege not to allow her to testify.
Defendant's first assignment of error deals with the denial of his motion to suppress statements he made to an officer shortly after his arrest.
The Miranda warnings were given to the defendant in Junction City soon after his arrest and defendant was taken to Corvallis about 11 p.m., where
he again was advised of his rights. Defendant stated that he understood his rights. Thereafter the following testimony of police officer Dolan was introduced by the state:
"Q I would ask you to explain to the Court exactly what transpired during your initial conversation with the defendant, first concerning what the charge was and then concerning, if you will, references to attorneys, what you advised him, what his response to that was. You can start first right at the beginning of that conversation.
"A Okay. I said, 'Now, Mr. Suggs, we have already advised you or [sic] your rights from this Miranda card and you have indicated to me that you do understand these rights that we have discussed with you.' And I asked then, 'You do understand these rights?' And he replied, 'I understand. I haven't done anything.' I said, 'Okay, and you are willing to talk to us at this time? We haven't --' And I was intending to say, we haven't promised you anything, and he interrupted and he said, 'About anything I know about.' I said, 'Okay, very good. I would like to begin.' Mr. Suggs said, 'I don't understand what it's all about.' I said, 'Well, we will get into that. We need to cover everything carefully. We have advised you at this time that you are under arrest charged with the crime of murder.' Mr. Suggs replied, 'No, you haven't did that.' I answered, 'Do you recall that we did that there in Junction City?' His answer was, 'No, no, I do not.' I says, 'Okay. Do you understand now that you are under arrest and you are charged with the crime of murder?' Mr. Suggs replied, 'I want an attorney.' I answered, 'You want an ...