State v. Didlot

322 Or.App. 662

521 P.3d 159

STATE of Oregon, Plaintiff-Respondent,

v.Mitchel James DIDLOT, Defendant-Appellant.

A171537

Court of Appeals of Oregon.

Argued and submitted December 22, 2021.

November 16, 2022

Anne Kimiko Fujita Munsey, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Lauren P. Robertson, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.

SHORR, J.

Defendant, who was convicted of one count of first-degree rape and one count of first-degree sexual abuse after a stipulated facts trial before the court, appeals from the judgment of conviction. In his sole assignment of error, defendant asserts that the trial court erred in denying his motion to exclude statements that he made during a police interview, which he alleges were the product of unlawful inducement in violation of ORS 136.425(1) and Article I, section 12, of the Oregon Constitution. We conclude that defendant's statements were made voluntarily, and the trial court did not err in denying his motion. Therefore, we affirm.

We state the facts in accordance with the trial court's findings of fact as supplemented by the record.¹ The facts are undisputed for purposes of appeal.

A report of abuse of the victim, defendant's five-year-old daughter, was made sometime in July 2018. On July 17, 2018, Detective Murray of the Springfield Police Department was assigned to investigate, and he witnessed a forensic interview of the child. The following day, Murray telephoned defendant and asked if he would come to the police station to speak with him. Before he called defendant, it was his understanding that the child's mother had already called defendant and confronted him about the alleged abuse.² Defendant agreed to come to the police department to speak with Murray.

On July 20, defendant and his then fiancée went to the police station around noon. Murray met defendant and defendant's fiancée in the department lobby. Murray was dressed in plain clothes with a firearm and handcuffs on his belt. Murray spoke to defendant's fiancée before he spoke with defendant. Regarding the interview itself, which was video recorded and lasted approximately one hour and 35 minutes,³ the trial court found, in its written order,⁴ as follows:

"At approximately 12:26 p.m. Detective Murray began his interview with Defendant. The interview took place in an interview room. Detective Murray did not make any promises or threats to the defendant before entering the interview room. Prior to the interview, Detective Murray did not notice any signs of impairment or cognitive defect on the part of the defendant. In reviewing the video, the Court notes that the defendant followed the conversation with ease and did not exhibit any difficulty in tracking the conversation. Defendant was advised the interview was being recorded. Detective Murray and Defendant were the only two people in the room during the interview. Both Detective Murray and Defendant were cordial with one another during the interview. Voices were calm and the Court did not witness any evidence of body language or posturing by either individual that could be viewed as intimidating, threatening or coercive. Both Detective Murray and the defendant were sitting in their chairs, not leaning forward. The interview resembled a conversation not an interrogation.

"Before any questioning began, Detective Murray advised the defendant that he was not under arrest and advised him of his Miranda rights. The defendant was asked if he understood his rights and answered yes to the question.

"During the interview the defendant shared his thoughts on why he thinks he is at the police department and states that it is due to false accusations by the child's mother. * * *

"Detective Murray advised the defendant about the forensic interview of the child and that the child disclosed that some ‘stuff’ happened between her and the defendant. After he tells the defendant about the interview, the following exchange occurs:

" ‘Detective Murray: What kind of what I like to do, [defendant], is is [sic ] I like to get people help because it's—part of it's a sickness. * * *

" ‘Defendant: Yeah.

" ‘Detective Murray: And I like to get people on the right track if something happened, whether it was just a little thing or like—I'm not saying like you, you know, held a gun to her head and did some— " ‘Defendant: (shakes head side to side) I don't even own one. * * *

" ‘Detective Murray: —stuff. All right. I'm not saying that. But sometimes less violent stuff like that has occurred, and sometimes people just make a stupid mistake, all right? And if they did it, this is kind of the opportunity ‘cause, like, I'm—we're we're [sic ] just in a casual setting, you and I. We're just here talking, a couple guys, to each other. I'm not shocked by anything that comes out of people's mouths. I don't judge people. So what I'm getting at is if there's something that happened, let's talk about it today and get it behind us and maybe come up with a safety plan, what might be an option. So when she talked about what you and her did, she was pretty specific. And I won't give details—not right now ‘cause that's not how this works. I'm just more kind of gauging you on on [sic ] honesty. Tell me your version and, like I say, we can get to the bottom of it. Okay? What happened? * * *’

"The interview continues without the defendant admitting to any inappropriate touching of his child. Detective Murray tells the defendant the following:

" ‘I'm trying to help you out today by giving you this opportunity to just to be honest, because, like I said, I don't, I don't see where kids in this particular setting (referring to forensic interview) make false accusations. So I think something happened between the two of you, and that's why I'm, I'm trying to get just down to the bottom of it. You know, I'm wanting to get everybody help involved, including (the child) if she needs the proper counseling, stuff like that. * * *’ "The defendant then responds that the child's mom says the counseling is not helping and Detective Murray tells the defendant that ‘it may not be the right counselor. But this—this is when we get involved, we hopefully get them on that right track.’ The interview continues with Detective Murray stating:

" ‘[s]o here's a couple things that I like to do. I, we like to prove somebody's innocent, innocence just as much as if there if [sic ] they did something. We've never met before, but I'm a straight shooter. I will always, if you cooperate today and if you tell me the absolute truth, I'm going to document that he was cooperative and he was truthful. That's what I'll do for you. If for some reason during this investigation—because I have to investigate it—I find out you were dishonest on anything, its going to come back and bite you. And that's why I'm giving today as your opportunity to go—if, if you've made a stupid mistake—everybody makes mistakes—then we'll—like I say, we'll talk about that and get get [sic ] past it. But I I don't want to waste everybody's time. * * *’

"Defendant continues with the interview without any clear admissions to sexual contact with his child. Detective Murray tells the defendant that something is telling him that the defendant is leaving something out and he is just looking for the defendant to be honest and states ‘you know, I'm gonna, I'm gonna, I'm gonna support you.’ Detective Murray also talks with the defendant about how sometimes getting things off your shoulders is a huge relief. In response the defendant responds ‘my biggest worry is jail.’ In response to that concern expressed by Defendant, Detective Murray replies, ‘Oh, don't—we're not even talking about that right now—I want—I want to get people help is what I'm trying to do.’

"It is during the remainder of the interview that Defendant ultimately admits to sexual contact with his child and writes an apology letter to her. Later during the interview Defendant tells Detective Murray the following: ‘My curiosity is—am I going to jail after this, is my mom and brother going to find out, and my fiancée going to find out about this.’ "

(Footnote omitted.)

At that point, Murray asks defendant what he thinks should happen to somebody in his situation and defendant replies, "Help. * * * Get as much help as possible." When Murray asks what would be help, defendant responds, "I don't know. I mean you guys are experts on what—what's good * * *." After defendant writes an apology letter to his daughter, Murray arrests him.

Thereafter, defendant was charged by indictment with one count of rape in the first degree, ORS 163.375, and one count of sexual abuse in the first degree, ORS 163.427. Before trial, defendant filed a motion to exclude the statements and admissions he made during interrogation by the police, which he asserted were illegally, improperly, and/or involuntarily obtained. Defendant specifically argued that Murray impliedly promised that defendant would get help instead of going to jail and that, considering the totality of the circumstances, defendant's statements and confession were involuntary.

As noted above, the trial court denied defendant's motion. The court explained:

"While there was discussion about getting the defendant ‘help,’ none of Detective Murray's statements individually or taken as a whole, amount to an implied promise of ‘help’ or treatment instead of or in lieu of prosecution or jail. Detective Murray did not make an explicit promise of any kind other than he would be documenting if defendant was truthful. Even Defendant's own volunteered statements about his concern regarding jail, before and after his admissions, evidence his recognition that any ‘help’ was not instead of or in

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