State v. Maskell

WARREN, J. Defendant appeals his conviction for arson, assigning as error the denial of his motion to suppress. He contends that his confessions were involuntary and that their admission at his trial violated Article I, section 12, of the Oregon Constitution and the Fifth Amendment of the United States Constitution.1 We reverse and remand. Detective Greisen visited defendant at his residence to inquire about a fire in the neighborhood. Defendant is mentally retarded. After Greisen read him the Miranda rights, defendant said that he had not been involved. Greisen asked him to take a polygraph examination. He agreed, and the next day he came to the station for the examination. He still insisted that he was innocent. Detective Miller, the examiner, told him that he did not have to take the test and that he was free to go anytime. He gave defendant a form explaining the Miranda rights and a polygraph examination consent form, but defendant testified at trial that he could not read them. Miller explained the examination procedure and basically how the polygraph worked. Then, Miller told defendant to put the form down, because he was going to give him “the best and shortest advice” that he had to offer. He testified that he advised defendant: “If you honest-to-God did not set that fire, stick around, take this test, because I’m the guy that’s going to go to the detective and say, this fellow’s in the clear. “I said, if you did set the fire, you don’t have to tell me, you don’t have to tell anybody, just stand up, say, I want a lawyer and walk out of the office, because if you lie to me, you’re going to fail this test. “I said, now I’ll be quiet. If you’re willing to take the test, I need your signature. If you’re not willing to take the test, you stand up and walk out of here. Then I [sic] be quiet. And then he signed the form.” Defendant took the polygraph examination. After-wards, Miller told him that the polygraph indicated that he had been deceptive. After some persuasion, he confessed that [524] he had started the fire. Greisen then took over the interrogation, and defendant confessed to him also. The test for voluntariness is whether, under the totality of the circumstances, the confession resulted from an “essentially free and unconstrained choice” or if the defendant’s will was overborne and his capacity for self-determination was critically impaired. State v. Vu, 307 Or 419, 425, 770 P2d 577 (1989). The use of a polygraph testing proceeding to encourage a confession does not per se make a resulting confession involuntary. State v. Benton, 92 Or App 685, 759 P2d 332, rev den 307 Or 101 (1988). The trial court found that defendant understood the Miranda rights. When defendant asked the trial court to rule on voluntariness, the trial court stated: “[T]o me there’s no question that Mr. Maskell voluntarily made the statements, and that aspect of the statements was part of my initial ruling, that they explained to him that he did not have to make any statements and that if he did they would be used against him.” The trial court apparently considered the statements voluntary, because no Miranda violation had occurred. It did not address the issue of whether, apart from any Miranda question, Miller’s advice rendered defendant’s decision to’take the polygraph involuntary. The advice, though probably well-intentioned, should not have been given. The admonition that if one is innocent, one should take the test, could be coercive if it were understood to mean that one had to take it to maintain his innocence. Similarly, the admonition that, if one is guilty, one should not take the test, could be coercive if understood as meaning that a refusal would be an admission of guilt. Because we cannot say that the advice was coercive as a matter of law, we remand to the trial court for findings on the existing record and conclusions based on those findings. Specifically, the court should make findings pertinent to whether the advice led defendant to believe that a refusal to take the polygraph examination would be an admission of guilt and rendered his admission involuntary. Reversed and remanded for further proceedings not inconsistent with this opinion. Footnotes [1] Defendant does not argue that the analysis under the Oregon Constitution differs from the analysis required by the United States Constitution. We think the result is the same under both constitutions.