Argued and Submitted March 21, 2014.
Multnomah County Circuit Court. 130130435. Angel Lopez, Judge.
Susan G. Howe, Senior Assistant Attorney General, argued the cause for appellant. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Neil F. Byl, Deputy Public Defender, argued the cause for respondent. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Before Armstrong, Presiding Judge, and Egan, Judge, and De Muniz, Senior Judge.
[262 Or.App. 564] EGAN, J.
Defendant was indicted on five criminal counts for allegedly shaking his infant daughter. In this interlocutory appeal, the state assigns error to the trial court's pretrial order granting defendant's motion to suppress statements made during interviews with the police. The issue is whether, under ORS 136.425(1), Article I, section 12, of the Oregon Constitution, or the Fifth and Fourteenth Amendments to the United States Constitution, defendant made his statements voluntarily. Under the state statute, we affirm.
In reviewing the trial court's decision respecting the voluntariness of confessions and admissions, we accept the court's findings of fact if there is any evidence to support them. State v. Goree, 151 Or.App. 621, 631, 950 P.2d 919 (1997), rev den, 327 Ore. 123, 966 P.2d 216 (1998). " If findings are not made on all such facts, and there is evidence from which such facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the ultimate conclusion, e.g., voluntariness or lack thereof, made by the trial court * * *." Ball v. Gladden, 250 Ore. 485, 487, 443 P.2d 621 (1968). Whether the facts found by the trial court are sufficient to sustain the trial court's ultimate conclusion regarding voluntariness is a question of law that we review for legal error. Goree, 151 Or.App. at 631.
Defendant and Pelayo, brought their infant daughter, G, to the hospital after she was injured. An attending physician did not believe that the observed injuries could have been caused in the manner that the parents claimed. Detectives Hurley and Manus of the Portland Police Bureau came to the hospital. The detectives were told by medical personnel that the child had sustained bruising, a subdural hematoma on the back of her head, and was displaying elevated liver enzymes, a symptom sometimes associated with trauma. The child was intubated and was not breathing on her own when the detectives arrived. Based on what they had been told, the detectives were concerned that the child had been abused.
The detectives interviewed both parents, beginning with Pelayo. Hurley testified that defendant approached them after that interview and indicated his desire to [262 Or.App. 565] discuss what had happened. That first interview took place in a hospital conference room with " exterior and interior" windows; the detectives were not wearing uniforms, wore badges clipped to their belts, and carried concealed firearms. Hurley testified that they informed defendant that he was not under arrest and told him that the interview was being recorded. Defendant stated that he had been caring for G on the day in question and generally recounted what had happened on that day. He denied remembering any event that could account for G's injuries. At one point, detective Hurley stated:
" I don't think you went home on Sunday and decided you were going to break your kid. That's not what I'm here saying. But sometimes something will happen that explains the injury that's an accident. There's no crime involved. I get to write my report that says, 'This was an accident. It wasn't meant to be but it explains the injury on the child.'"
After defendant replied that he couldn't remember anything that might have caused the injury, the detective continued:
" [HURLEY]: So let me tell you what type of injury this is. It's a head injury. It's a hematoma to the back of her head to her brain. Okay.
" [DEFENDANT]: Right. That's what she told me.
" [HURLEY]: Bleeding back there--so the doctor explained?
" [DEFENDANT]: Yeah. That's what [Pelayo] told me.
" [HURLEY]: Have you talked to the doctor, to Dr. Lanehart (ph)?
" [DEFENDANT]: No. I haven't. I got here around--around 2:30.
" [HURLEY]: Okay. So Dr. Lanehart is the doctor that has seen her and he is the one that's going to diagnose all her tests and do all that stuff. I've spoken to Dr. Lanehart. He is a specialist for child abuse. That's specifically what he's called in on and that's what he was called in on this case.
[262 Or.App. 566] " [DEFENDANT]: Okay.
" [HURLEY]: The type of injury that she has to the back of her head is a shaking injury. So if you pick up a kid and ...