State ex rel. Juvenile Department v. Cochell

THORNTON, P. J. Defendant appeals from an order of commitment to juvenile training school. He was found to have committed acts, namely burglary and theft, which if committed by an adult would constitute violations of the criminal law. See ORS 419.476(1)(a). He contends that the order should be reversed because he was entitled to Miranda warnings before being questioned by a police detective. The issue is whether defendant was in custody for the purposes of Miranda at the time of the questioning. We review de novo, ORS 419.561(4), and affirm the juvenile court’s finding that defendant was not in custody. At about 4:30 p.m. on August 17, 1981, detective Boutwell arrived at the scene of a shooting at an apartment complex.1 Boutwell had been told that a male juvenile had been shot and was in terminal condition. He had been advised also that defendant, a 13-year-old, was a possible suspect. When he arrived, Boutwell did not know whether the shooting was accidental or not. He testified: “At that time they didn’t know if it was accidental or what it was. It was being investigated as an accidental shooting or maybe a criminal shooting.” Boutwell did not know that defendant had been involved in a burglary earlier that day. Boutwell found defendant in another apartment in the complex. He was crying and quite upset. Boutwell and others helped to calm him. Boutwell was able to talk to him after about 15 minutes. Defendant told Boutwell that he ' had found a gun in a plastic bag earlier in the day while riding his bike and had taken it to the victim’s residence to show him. Boutwell asked defendant if he would voluntarily go with him to the area where defendant said he had found the gun. Defendant agreed to do so. Defendant rode with Boutwell to an area a few blocks from the apartment complex. Although defendant indicated that that was where he had found the gun, [336] Boutwell found no bicycle tracks or footprints of any kind or the plastic bag defendant said he found the gun in. Boutwell and defendant returned to the apartment complex. Boutwell asked defendant to remain seated in the patrol car. He then talked with some of the other officers on the scene and was told that the gun might have been taken in a burglary. On the basis of the discussions with the other officers and defendant’s unsubstantiated story about finding the gun, Boutwell determined that defendant was a suspect in either a theft or burglary. He returned to the police car and advised defendant of his Miranda rights. After indicating that he understood his rights, defendant admitted that he had stolen the gun in a burglary of a residence about three blocks away. Several additional items of stolen property were also found in defendant’s apartment. He was taken to a nearby juvenile detention home, where he was readvised of his Miranda rights. He gave Boutwell a three-page signed statement admitting his participation in the burglary and identifying the items taken. At his hearing, defendant argued that the inculpatory statements already mentioned, which were made by him before the Miranda warnings were given, should be suppressed and that the later admissions were the “fruit of the illegal police conduct” and should also be suppressed. On appeal, he argues that because he was a suspect in the shooting at the time Detective Boutwell arrived, he was not free to leave the scene and was therefore in custody for the purposes of Miranda. He contends that he should have been given the warnings before questioning and that none of the statements he made before or after the warnings were given should be considered. He does not contend that his statements were coerced or otherwise the product of an overborne will. See Malloy v. Hogan, 378 US 1, 84 S Ct 1489, 12 L Ed 2d 653 (1964). Miranda warnings are required only when there has been such a restriction on a person’s freedom as to render him “in custody.” Oregon v. Mathiason, 429 US 492, 495, 97 S Ct 711, 50 L Ed 2d 714 (1977). Custody can result from actual custody in the form of arrest or from deprivation of freedom of action in a significant way. Oregon v. Mathiason, supra; Miranda v. Arizona, 384 US 436, 444, [337] 86 S Ct 1602, 16 L Ed 2d 694 (1966); State v. Roberti, 293 Or 59, 644 P2d 1104, 293 Or 236, 646 P2d 1341 (1982). In the present case, there is no evidence as to what defendant thought during the questioning by Boutwell, because defendant did not testify. Boutwell testified that he had been unaware of the burglary during the preliminary questioning before giving the Miranda warnings and that he did not know whether the shooting had been accidental or not. He also testified that during the questioning defendant was not in custody and was free to walk away at any time. Boutwell also testified that he had lacked probable cause to arrest defendant for any crime during the initial questioning. See State ex rel Juv. Dept. v. Sanders, 56 Or App 724, 725, 643 P2d 384 (1982). There is no evidence that defendant was held under any physical restraint. State ex rel Juv. Dept. v. Sanders, supra, 56 Or App at 728. Boutwell testified that defendant voluntarily accompanied him to the area where defendant said that he had found the gun. Defendant emphasized at trial and on appeal that he was told to remain in Boutwell’s patrol car when they returned to the apartment complex. Even if at that point defendant could be said to be “in custody” for purposes of Miranda, that finding is not dispositive since defendant made no statements to Boutwell after he was told to remain in the patrol car and before the Miranda warnings. It was only after Boutwell had returned to the patrol car and advised him of his rights that defendant made further admissions. Defendant stresses the fact that he was a “focal suspect” during the pre-advice questioning. As stated above, he was suspected to have shot the victim, but there was no indication whether the shooting was accidental or not. In addition, Boutwell had no knowledge of the burglary and could not have suspected that defendant had participated in it. As the Oregon Supreme Court noted in State v. Fields, 291 Or 872, 876, 635 P2d 376 (1981), quoting from Oregon v. Mathiason, supra: “ ‘ * * * Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not [338] required to administer Miranda warnings to everyone whom they question. * * *’ ” We hold that defendant was not in custody and that he was not otherwise deprived of his freedom of action to require the giving of Miranda warnings. Because defendant was not in custody, there could be no taint under Wong Sun v. United States, 371 US 471, 83 S Ct 407, 9 L Ed 2d 441 (1963). Lastly, although not raised by defendant below or on appeal, we note from our review of the record that the amended petition did not allege theft. The only violations of the law alleged were burglary in the first degree and criminally negligent homicide. ORS 419.500(1) provides that the court, on motion of an interested party or on its own motion, may at any time direct that the petition be amended. No such motion was made. Accordingly, while we affirm the finding of jurisdiction, the finding that defendant committed theft in the second degree is vacated. Defendant is within the jurisdiction of the court for his involvement in the burglary. Affirmed as to jurisdiction on burglary charge; reversed as to jurisdiction on theft charge; remanded for reconsideration of disposition. Footnotes [1] The petition alleged that defendant committed burglary and criminally negligent homicide. Defendant requested that the hearing be bifurcated, and the burglary charge was heard first. The motion to suppress based on Miranda was made during the hearing on the burglary charge. The criminally negligent homicide charge was eventually dismissed. We, therefore, take the facts as developed in the burglary portion of the hearing.