Submitted on November 27, 2012.
Washington County Circuit Court C090781CR Rick Knapp, Judge.
Peter Gartlan, Chief Defender, and Ryan T. O'Connor, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Janet A. Klapstein, Senior Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Haselton, Chief Judge, and Sercombe, Judge.
Defendant appeals a judgment of conviction for murder, ORS 163.115, abuse of a corpse in the second degree, ORS 166.085, and unlawful use of a weapon, ORS 166.220, all relating to the murder of his girlfriend. He raises four assignments of error, three of which we reject without discussion. We write only to address defendant's contention that the trial court erred in denying his motion to suppress statements that he made to police regarding the murder. Specifically, he argues that police violated his state and federal constitutional rights against compelled self-incrimination by failing to advise him of his Miranda rights before questioning him. The state responds that the circumstances in which defendant made the statements were not custodial or compelling in nature and that, in any event, police had advised defendant of his Miranda rights three times prior to the interrogation--including twice the day before--and nothing had occurred in the interim that could have caused a reasonable person to believe that his rights had changed. We conclude that the prior Miranda warnings remained valid and, accordingly, affirm.
In reviewing a denial of a motion to suppress, we are bound by the trial court's findings of historical fact when there is constitutionally sufficient evidence in the record to support them. State v. Ehly, 317 Or 66, 74-75, 854 P.2d 421 (1993). We state the facts consistently with that standard. On March 10, 2009, defendant reported to the Hillsboro Police Department that his girlfriend and her vehicle were missing, and police began an investigation. From that time until April 3, 2009, when defendant made the statements at issue, defendant had at least 15 contacts with police, the majority of which he initiated in an effort to monitor the investigation and provide police with additional information. Defendant most often interacted with Hillsboro Detective Brady.
Defendant agreed to take a polygraph test on March 23. Before the test, defendant was formally advised of his Miranda rights, and he signed a form indicating that he understood them. However, the test was cancelled and ultimately rescheduled for April 2. On that day, at approximately 2:30 p.m., defendant was again formally advised of his Miranda rights, and he signed another form indicating that he understood them. Defendant then took the polygraph test. After the test, defendant agreed to speak with Brady and another detective, Ganete, in the interview room at the Hillsboro Police Department. There, at about 6:35 p.m., Ganete read defendant his Miranda rights, and defendant orally indicated that he understood them.
During the interview, Brady and Ganete suggested that defendant was lying because he had failed the polygraph test and because information from his phone records contradicted his version of events. At approximately 9:00 p.m., defendant asked for a lawyer. Brady and Ganete then terminated the interview and told defendant that he was free to leave. Two hours later, Brady and Ganete drove defendant to his residence. Upon arriving, defendant invited the detectives inside and asked them for police protection. Brady reminded defendant that he had asked for a lawyer and explained that they had to allow him the opportunity to seek legal counsel before speaking with him. Brady also told defendant that he was "a free man" and "not in custody." Defendant indicated that he understood and reiterated that he did not wish to speak to the detectives without a lawyer present. Brady and Ganete then left the residence.
The next morning, April 3, police found a body that was believed to be that of defendant's girlfriend. Shortly thereafter, defendant called Brady's cell phone and asked to speak with Ganete. Ganete asked if he could call defendant back on a land-line telephone, and defendant agreed. Upon answering Ganete's call, defendant asked if Ganete and Brady could come to his residence and talk. Ganete responded:
"I can go to your house * * * the problem you have to understand that you are a free man and if you want an attorney you have the right to find an attorney on your own * * * you are completely free to do that. And if you want to talk to us of your own free will * * * there is no problem."
Defendant replied, "[C]ome here to my house." Shortly thereafter, defendant reiterated, "I don't want to wait for the attorney, because if I wait longer I know you guys will probably not find me * * *, you won't find me here well."
Brady and Ganete traveled to defendant's residence, and defendant invited them inside. A woman was also present; the detectives asked her to leave, and Ganete searched the interior of the residence to confirm that no one else was there. Before beginning the interview, Brady asked defendant multiple times whether he wanted to speak with the detectives. Brady also informed defendant that he was "free, " "not in custody, or under arrest, " and that he could ask ...