State v. Pryor

309 Or.App. 12

481 P.3d 340

STATE of Oregon, Plaintiff-Respondent,

v.Dustin Lee PRYOR, Defendant-Appellant.

A165359

Court of Appeals of Oregon.

Submitted April 25, 2019.

February 3, 2021

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Shawn Wiley, Deputy Public Defender, Office of Public Defense Services, filed the opening brief and a supplemental brief for appellant. Dustin L. Pryor filed a supplemental brief pro se.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the briefs for respondent.

Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

LAGESEN, P. J.

Defendant appeals a judgment of conviction—by a jury—for two counts each of first-degree sodomy, ORS 163.405, and first-degree sexual abuse, ORS 163.427. The primary issue before us is whether the trial court erred in denying defendant's motion to suppress the confession that he made during a police interview. Defendant contends that his confession was induced by a promise of leniency, in violation of ORS 136.425(1), and was otherwise involuntary in violation of Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the United States Constitution. We conclude otherwise and affirm.

We state the facts in accordance with the trial court's findings of fact as supplemented by the record. The facts are uncontested.

While in foster care, L told her foster mother that "it tickled when [defendant] put his tongue in her pee pee and that he wanted * * * her to put her tongue on his pee pee." L's foster mother asked who defendant was, and L replied, "Mama's boyfriend." L's foster mother immediately reported L's disclosure to the police.

Shortly thereafter, Detective Lane met with defendant at the police department to interview him regarding L's allegations. Defendant and Lane drove separately to the police department, and Lane told defendant that the interview was voluntary and that he was free to leave at any time.

During the interview, Lane confronted defendant with L's allegations. Defendant denied them but reported that L had seen his penis when she had "pantsed" him and when she had walked in on him using the bathroom. He also reported that L had grabbed his penis over his sweatpants. At the close of the interview, Lane asked defendant to come back for a second interview and a polygraph examination. Defendant agreed to come back.

The polygraph examination and second interview took place two weeks later. Defendant again drove himself to the police station. The interview began shortly before 10:00 a.m., when the polygraph specialist, Detective Martin, thanked defendant for coming to the station and explained that defendant was not required to take the exam. Even though defendant was not under arrest, Martin informed him of his Miranda rights before conducting the exam. She did so at a pace that was not rushed, and defendant signed a form indicating that he understood them.

The pretest polygraph procedure lasted around an hour, during which Martin asked defendant questions about his sleep, hunger, and other physiological factors that could have affected defendant or the results of the test. At the close of the pretest, defendant got up and walked out of the room. Martin did not try to stop him, and defendant took a nine-minute break before returning for the exam.

The tone of the exam itself was casual and conversational; Martin was in plain clothes and defendant appeared relaxed and chuckled at several of his own statements. Defendant had brought a drink with him and occasionally sipped from it. The polygraph examination itself lasted 15 to 20 minutes, and, after an hour and 18 minutes total, the polygraph process was finished. At that point, Martin invited defendant to take another break, and defendant left the room for 10 minutes. When he returned for the post-test interview, which began at 11:27 a.m., Martin informed defendant that he had failed the polygraph exam and told him that she would like to talk to him about that.

Martin told defendant that she did not believe that defendant was being truthful. Martin explained:

"I don't think you're some bad guy that's going around grabbing little kids off the street or anything. I think it was just one of those things that happened that maybe (inaudible) in a certain way and, and you normally wouldn't do something like that. It was just out of the norm for you and it, and it happened with her. I understand that. People will understand that.

"But what we don't understand and what we do worry about is people who know that they did it, everybody knows they did it, and they continue to deny it. And that doesn't help anybody. It doesn't help you. It doesn't help [L]. It doesn't help anybody in this situation. I'd like you to get this behind you today and give you a chance. Get this off your chest. Let's, let's talk about it so you can move forward."

In response, defendant continued to deny any wrongful behavior, insisting that he was trying to tell Martin the truth. He nonetheless began to add more details to his descriptions of what had happened with L, explaining that "[L] asked me if she could see it" and "[w]hen she grabbed me, I was horrified. I didn't know what to do." Defendant told Martin that L had "started it" and frequently asked him to touch her, but that he had refused. He appeared emotional in recounting these details, covering his head in his hands and crying. Defendant responded to some but not all of Martin's questions; Martin continued to ask questions at a relaxed pace with frequent pauses. After roughly an hour of questioning, defendant asked for a break to use the restroom, which Martin promptly honored.

Fourteen minutes later, defendant returned to the room. He talked about a horrific experience that he had had earlier in his life. Martin posited that defendant was trying to avoid talking about the allegations, and defendant insisted that he was not doing that.

A few minutes later, Lane entered the room. He encouraged defendant to tell the truth about what had happened and told defendant that he would feel better once he did. Lane also told defendant that "an unknown male's DNA" was found on L—a lie—and asked if that DNA would match defendant's DNA. Lane also told defendant that he would be a "lost cause" until he admitted what had a happened and got help:

"I already know you put your tongue on her (inaudible). I already know that your penis was in her mouth. If you didn't get aroused, those two things would not have happened. And they did happen. So you've got to (inaudible). Until you do, you are a lost cause.

"And that's, that's the truth right there. No one can help you. You will never get help. You will be the monster that people think you are. (Inaudible) make you the monster that they think you are. Because no one's going to get help unless they can admit to what they did wrong or admit that they had a problem or had a lapse in judgment. And you're not giving us anything here, dude.

"* * * He's blaming [L] for all of this. Now who would blame a child for their own problems? Who does that, [defendant]?

"Is that what your official response to this allegation is? You're blaming a four-year-old for coming on to you sexually? Who is going to buy that? No one who knows. And I can't imagine a jury just would ever go that far. I certainly don't see the judge believing that.

"But I do know children sometimes do some really peculiar things, because I've been doing this for a long time. (Inaudible) 25 years working with kids and people, and the only people I ever see get help are people that can talk about it. They admit what happened and help us understand.

"And you know that everything I've been telling you, [defendant], you already know, because you're not dumb. You're a smart guy. You know that I'm speaking to you straight.

"I understand you're afraid. I get that. But like I already told you, you get to go home today. You're walking out.

"THE DEFENDANT: I'm not afraid. I'm * * * terrified."

Lane asked defendant why he was terrified but defendant did not answer. Instead, four hours and 16 minutes into the process, he asked to step outside of the interview room with Lane.

Defendant took a 13-minute break where he smoked and told Lane about a condition he thought, from research that defendant had been doing on his own, that he had and that he believed made it difficult for him to speak about traumatic things. Defendant confided that he had been suicidal in the past on several occasions. He also said that he was willing to talk to Lane about L. They returned to the room, and, soon after, defendant admitted to engaging in sexual behavior with L.

Thereafter, a grand jury indicted defendant on two counts of first-degree sodomy, ORS 163.405, and two counts of first-degree sexual abuse, ORS 163.427. Before trial, he moved to suppress the statements that he had made to the detectives during the interviews. Defendant argued that (1) the detectives impliedly promised leniency in exchange for his confession, (2) under the totality of the circumstances, defendant's statements were not voluntary, and (3) even if defendant waived his Miranda rights at the outset of the interview, he invoked them later by remaining silent for extended periods of time in response to questioning.

The trial court denied defendant's motion to suppress. In considering defendant's assertion that the detectives promised leniency, the court found:

"There was no express or implicit promise that the Defendant would not be prosecuted or that he would receive leniency from the police and/or the courts. Telling a suspect that he is not in custody and that he will not be arrested that same day, regardless of his answers, communicates no express or implied promise of a legal benefit or disadvantage. It does tell the suspect that he/she is not in custody and that the person is, and will remain, free to leave that day. Such

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