Argued and Submitted October 17, 2013.
Malheur County Circuit Court 10073080C. J. Burdette Pratt, Judge.
George W. Kelly argued the cause and filed the brief for appellant.
Jennifer S. Lloyd, Attorney-in-Charge, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Christina M. Hutchins, Senior Assistant Attorney General.
Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Schuman, Senior Judge.[*]
[269 Or.App. 625] HASELTON, C. J.
Defendant, who was convicted after a jury trial of two counts of first-degree sexual abuse, ORS 163.427, and one count of second-degree sodomy, ORS 163.395, appeals. He asserts that the trial court erred in denying his motion to suppress evidence, and in denying his motion for a mistrial made during the prosecutor's closing argument. He also argues that nonunanimous jury verdicts are unconstitutional. We reject the latter argument without discussion. As explained below, we conclude that the trial court correctly denied defendant's motion to suppress, but erred in denying his motion for a mistrial. Accordingly, we reverse and remand.
MOTION TO SUPPRESS
We begin with the denial of defendant's motion to suppress. In particular, as recounted more fully below, defendant sought to suppress statements that he made during a police interview, as having been involuntarily given in response to improper inducement. In reviewing the trial court's determination as to purported involuntariness,
" we accept the court's findings of fact if there is any evidence to support them. If findings are not made on 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. 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."
State v. Ruiz-Piza, 262 Or.App. 563, 564, 325 P.3d 802 (2014) (citations and internal quotation marks omitted).
The complainant is defendant's biological niece and adopted daughter, M. In 2008, M, who was then a teenager, made disclosures that defendant had sexually abused her when she was younger. M was subsequently interviewed at an assessment program, the STAR Center. At the request of Detective Perkins, who arranged for and observed the STAR Center interview, M made a pretext call to defendant [269 Or.App. 626] during which she asked defendant why he had abused her. Defendant responded variously that he did not remember, that he did not want to discuss it over the phone, that his wife had not been a good wife to him, and that M was, in a way, taking his wife's place. He also stated that he was " not proud of it" and " [i]f I could just get it to go away it would be great."
Following the pretext call, Perkins obtained a warrant to search defendant's home for evidence of sexual abuse, and, in the course of executing the warrant, he encountered defendant. Perkins informed defendant of M's allegations, advised him of his Miranda rights, and asked defendant (who was not under arrest) if he would come to the police station to be interviewed. Defendant agreed and accompanied Perkins.
Once at the police station, Perkins confirmed that defendant remembered the Miranda warning. The ensuing interview, which was conducted in a small room, lasted approximately 30 minutes. Defendant initially denied any sexual contact with M and indicated that he had no memory of the events she had disclosed. During the interview, Perkins remarked that it was odd for defendant to say he did not remember, rather than that it " didn't happen," and the following exchanges occurred:
" PERKINS: *** [T]he way I work I believe, number one, I believe victims when they talk, okay, unless there's some extenuating circumstance, you know, like a major custody battle, that sort of thing, which I don't see in this case. Uh, it looks like the kids pretty much are separated the way they want to be separated and there hasn't been a problem with it.
" Um, but to your benefit, and like I said, we're recording, it's best to come out with what happened other than, you know, me having to tell a judge that, you know, it took a half an hour to --I'm not really into
that; I don't really like to sit here and berate. People have issues, people have problems that need to get help, and you know, that's what we would like to see happen. Um, but it doesn't--I just don't want it to look bad on you that you, you know, you'd lie up and down, so it's best just to get it out because the truth's going to come out.
[269 Or.App. 627] " [DEFENDANT]: Mmm hmmm."
There followed some general discussion of defendant's activities with M, as well as some discussion of the allegations that M had made, and then the following exchange occurred:
" [DEFENDANT]: I know you know more than you're letting me know, that you think you know, that's kind of a triple statement there. I did not undress her. I did not put a vibrator inside her.
" PERKINS: No one said that.
" [DEFENDANT]: Right.
" PERKINS: That would make you a monster, about putting something inside her. But the thing, your finger, they didn't say anything else. I think you're a man that has some issues and I don't know where they come from, I don't know your family, your past, what happened to you as a kid; I don't know anything about that. I mean, this is the first time I've met you. But I do know having done this for a long time that people have issues and they need to get help. They need to get past it. I mean you're still young, Paul, but you need to get this off your chest and you need to get the help. Do you understand that?
" PERKINS: Look, you can't get anything by lying, and not being a man and facing up to, you know, your responsibilities.
" [DEFENDANT]: No. I know. I'm just *** I know."
Thereafter, Perkins asked defendant, " Why did it happen?" and defendant responded variously that his relationship with his wife had been bad, and that M had been like a friend to him and not like his own biological child, as she was adopted. Defendant then acknowledged that he had had sexual contacts with M.
Defendant was charged with five counts of first-degree sexual abuse and one count of second-degree sodomy, [269 Or.App. 628] with the indictment alleging that the conduct occurred at various times between January 2000 and May 2006. Defendant moved before trial to suppress his statements made during the interview, arguing that they were obtained involuntarily, in violation of Article I, section 12, of the Oregon Constitution. In particular, defendant argued that Perkins's statements implied a promise of leniency and suggested that defendant needed to admit his crimes in order to obtain help. At the suppression hearing, Perkins acknowledged that the interrogation had involved a " carrot-and-stick approach," whereby a confession could benefit defendant by allowing him to get help but continued nondisclosure would " look bad" to the court. Defendant testified that he believed from his interaction with Perkins that he would receive psychological help and that he needed to cooperate or " the penalty would get worse." The trial court denied defendant's motion to suppress stating:
" Throughout the tape Detective Perkins used a very, I would describe it as a very soft, low-toned conversation. At no time was his voice even raised. At no time did I hear any threats or promises. He was certainly encouraging [defendant] to disclose what happened, but I heard nothing that would suggest he was intimidating, making any improper promises, or anything--did anything that made the statement involuntary."
On appeal, defendant reiterates his arguments, contending that his admissions were obtained in violation of Article I, section 12. ...