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FILED: May 18, 2011

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Appellant,

v.

LANCE FRANKLIN POWELL,

Defendant-Respondent.

Benton County Circuit Court
CM0621169
A141129

Janet Schoenhard Holcomb, Judge.

Argued and submitted on July 30, 2010.

Douglas F. Zier, Assistant Attorney General, argued the cause for appellant. With him on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Kenneth A. Kreuscher, Deputy Public Defender, argued the cause for respondent. With him on the brief was Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Landau, Judge pro tempore.

SERCOMBE, J.

Affirmed in part, reversed in part, and remanded for further proceedings.

SERCOMBE, J.

Defendant was charged with aggravated first-degree theft. ORS 164.057. The state appeals from a pretrial order suppressing defendant's self-incriminating statements and the physical evidence obtained as a result of those statements. See ORS 138.060(1)(c) (allowing state appeal from an "order made prior to trial suppressing evidence"). Defendant made two confessions, first to private investigators and then to the police, in the course of successive interviews. The issue on appeal is whether those confessions can be given in evidence in light of ORS 136.425(1), which provides for exclusion of confessions or admissions of a defendant where "made under the influence of fear produced by threats." The state contends that defendant's initial confession to private investigators should not have been suppressed under ORS 136.425(1) because the statute applies only to governmental officials and not private investigators. The state further argues that, even if the first confession is inadmissible, defendant's subsequent confession to police was sufficiently attenuated from the first confession and, accordingly, it should not have been suppressed. We conclude that the trial court properly suppressed the first confession, but that the second confession should have been admitted into evidence. Thus, we affirm in part and reverse in part.

We are bound by the trial court's express and implied findings of fact where there is evidence in the record to support them, but we assess anew whether those findings and the record on review establish that defendant's statements were involuntary under the statute. State v. Foster, 303 Or 518, 529, 739 P2d 1032 (1987); State v. Aguilar, 133 Or App 304, 307, 891 P2d 668 (1995).

We state the facts consistently with those standards of review. Defendant was employed as a courier for FedEx. A large number of packages were missing from defendant's worksite, and the company initiated an investigation. As part of that inquiry, two FedEx investigators, Ladd and Lewis, interviewed defendant in a conference room at the FedEx offices.(1) The interview lasted 30 minutes. Ladd questioned defendant for the first half of the interview. During that time, defendant denied any knowledge of or involvement in the disappearance of the packages. Lewis then intervened, stating:

"It's apparent that you took this stuff, so now we're at a crossroads, okay? * * * We're at a point where either we handle it in-house here, in FedEx, or we can turn everything we have over to the [police department], and then they handle it from there. Now if you choose that route, there's nothing you can do. They'll be going to get search warrants for your house, for your mother's house. They'll go through all of your stuff. It's just gonna be a big mess, okay? * * *

"At this point, our base concern here at FedEx is we want to know, we need to make a customer happy. And if we can make the customer happy, then they don't come back on [defendant], okay? And I don't think you're a bad guy, okay? If I had thought you were a bad guy I would've taken all this stuff and we would've given it to the [police department] and said, 'You gotta jack him up, we're done with him,' okay? I don't feel that way. You've got a lot of stuff going on in your life right now, and I know it. People do boneheaded things, okay? But where we go now is what's going to decide your future. * * * Nobody but who's in this room needs to know."

(Emphases added.) Defendant then made inculpatory statements and agreed to take the investigators to his house to recover some of the stolen property.

On the way to his house, defendant expressed second thoughts about proceeding. Nonetheless, one of the investigators reassured defendant, stating, "Your continued cooperation with us is appreciated. This is going to make sure that we keep the D.A. out of this." Defendant allowed the investigation to continue. After stolen property was recovered from his house, the investigators informed defendant that he needed to return to the office to provide a written statement and that he would then be free to leave. At the office, defendant wrote a statement with assistance from Ladd and Lewis.

According to defendant's testimony, Ladd then said, "Listen, I need you to give a statement to the police. We just need a third party to kind of document what's been said here, what's going on. * * * It doesn't mean you're being arrested." A City of Corvallis uniformed police officer, Officer Glock, entered the conference room. Ladd remained in the room during police questioning.(2)

Glock indicated that she knew what was going on and was aware that Ladd and Lewis had recovered property from defendant's house. Glock advised defendant of his Miranda rights, telling him that they were just "a matter of housekeeping, * * * just a formality." When she asked defendant if he knew why the police were present, defendant answered, "Probably to arrest me." When asked why he made that statement, defendant explained that he "wanted to see if [the officer] said * * * that basically the deal was off with the FedEx representatives, or see if she basically confirmed what they were saying, that 'no, I'm not necessarily going to arrest you. I'm just here to get a * * * third party statement documentation.'"

Glock responded to defendant's supposition of impending arrest, "Not necessarily. * * * That could be a possibility but it's ultimately up to your company how they want to handle this." Ladd nodded along with the officer's statement.

Defendant subsequently repeated his inculpatory statements to Glock, and she sought consent to search defendant's house. Defendant told Glock that all of the stolen property had been recovered and did not immediately consent to a search. However, a second officer joined the interview and told defendant that, if he consented, the police could ensure that defendant's wife and children would be away from the house at the time of the search. According to defendant, the officer stated, "If not, I have more than enough evidence from what's recovered in the other room there that we'll just go ahead and take you down to the jail, hold you there, we'll get a warrant, and then we'll show up over there with six or eight marked cars, have your family sit on the front lawn in front of all the neighbors while we search the house." Defendant then consented to the search.

The trial court suppressed all of defendant's inculpatory statements and the property recovered from his residence. The court concluded:

"The question before the Court is whether or not defendant's confession was voluntary or in violation of statutory or constitutional protections. Based on the totality of the evidence presented at the suppression hearing, the court finds that defendant did not make a voluntary confession. The express and implied promises of immunity from criminal prosecution given to the defendant by the Fed Ex investigators render[ ] his statements to them involuntar[y]. Because there was not a sufficient break in time or location between the Fed Ex investigation interviews and the interview by law enforcement investigators, statements made by defendant in response to subsequent interrogation and evidence seized after his involuntary confessions must also be suppressed. Unsolicited statements by the defendant are admissible."

On appeal, the parties agree that there is no constitutional basis for excluding defendant's first confession, inasmuch as there was no state action to procure it.(3) The state contends that the trial court incorrectly excluded defendant's statement to the FedEx investigators as an involuntary confession under ORS 136.425(1). As noted, that statute provides that a confession or admission "cannot be given in evidence against the defendant when it was made under the influence of fear produced by threats." According to the state: (1) ORS 136.425(1) does not apply to confessions induced by promises of leniency but instead operates to exclude only confessions induced by threats; (2) the statute does not apply to confessions elicited by private persons; and (3) ORS 136.432, an antisuppression statute, bars the exclusion of evidence based on a statutory violation. We conclude that defendant's initial confession was properly suppressed under ORS 136.425(1).

The state's contentions about the scope of ORS 136.425(1) present questions of statutory construction. In construing a statute, we examine the text of the statute in context, along with any relevant legislative history, to discern the legislature's intent. State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). ORS 136.425(1) (2007)(4) provides:

"A confession or admission of a defendant, whether in the course of judicial proceedings or otherwise, cannot be given in evidence against the defendant when it was made under the influence of fear produced by threats; nor is a confession only sufficient to warrant the conviction of the defendant without some other proof that the crime has been committed."

The first part of that provision, by its terms, applies only to confessions or admissions "made under the influence of fear produced by threats." The statute makes no mention of confessions induced by promises of leniency. Nonetheless, the state's contention that ORS 136.425(1) applies only to confessions induced by threats and not those spurred by promises of leniency has been rejected in numerous cases, beginning with State v. Wintzingerode, 9 Or 153, 1881 WL 1363 (1881). In that case, the court held that, although the original predecessor to ORS 136.425(1) purported to extend only to confessions induced by threats, the statute was not intended to abrogate the common-law rule that applied also to confessions induced by promises of leniency. Id. at 161-62. Subsequent cases have reaffirmed that principle by stating that the statute incorporates the common-law rules on involuntary confessions. See, e.g., Foster, 303 Or at 525 (ORS 136.425(1), an expression of the common-law rules, prohibits statements made under the influence of threats or promises); State v. Smith, 301 Or 681, 690-93, 725 P2d 894 (1986) (explaining that "[w]e know of no case that interprets or applies ORS 136.425 independently of the common-law rules on confessions and admissions" and holding that the statute excludes confessions induced by threats or promises); State v. Ely, 237 Or 329, 332, 390 P2d 348 (1964) (under former ORS 136.540 (1957), renumbered as ORS 136.425 (1973/74), the state must show that a defendant's statement is made "without the inducement of either fear or hope"); State v. Morris, 83 Or 429, 439, 163 P 567 (1917) (citing an earlier codification of ORS 136.425(1) for the proposition that a confession, to be deemed voluntary and admissible, cannot be "induced by hope or fear"); State v. Moran, 15 Or 262, 265, 14 P 419 (1887) (explaining that "[i]t must be taken as settled in this State that [an earlier codification of ORS 136.425(1)] is only declaratory of the common-law rule" that a court must determine whether a "confession has been obtained by the influence of hope or fear applied by a third person to the prisoner's mind"); Aguilar, 133 Or App at 308 (confessions induced by promises of immunity "were involuntary as a matter of law" under both Article I, section 12, of the Oregon Constitution and ORS 136.425(1)). Consistently with those cases, we conclude that ORS 136.425(1) operates to exclude confessions induced by promises of leniency.

The state's second contention--that ORS 136.425(1) operates to exclude only confessions made to police or government officials and not those made to private persons--raises a more difficult question. On its face, the statute applies to any "confession or admission of a defendant" without regard to whether the statement is given to a private or a public actor. That, however, does not end the inquiry. We construe the statute's meaning in light of its pertinent legislative history. Gaines, 346 Or at 171-72. The state argues that, prior to 1957, the statute explicitly applied to statements made "in the course of judicial proceedings, or to a private person." General Laws of Oregon, Crim Code, ch XXII,