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State v. Austin , 1 Or. App. 556 ( 1970 )


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  • 465 P.2d 256 (1970)

    STATE of Oregon, Respondent,
    v.
    Augusta Junior AUSTIN, Appellant.

    Court of Appeals of Oregon, Department 2.

    Argued and Submitted January 23, 1970.
    Decided February 5, 1970.

    J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

    Jim G. Russell, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.

    Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.

    FOLEY, Judge.

    Defendant was found guilty by a jury of attempted burglary. He appeals claiming violation of his constitutional right against self-incrimination.

    Defendant was arrested near the scene of a reported burglary. He was twice given the Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R. 3d 974 (1966)), and he declined to say anything. Five or ten minutes later, after defendant had been booked, an officer asked him if he wanted to make a phone call. The officer testified that he answered by saying that he did not, and then proceeded to volunteer to the policeman "that we `had him' that he knew that he had done wrong by breaking into the Pastime * * *." This statement by defendant was admitted in evidence over defendant's objection and he assigns this as error.

    If an accused indicates at any time prior to or during questioning that he wishes to remain silent, the interrogation must cease. Miranda v. Arizona, supra. However, "Volunteered statements of any kind are not barred by the Fifth Amendment * * *." Miranda v. Arizona, supra, 384 U.S. at 478, 86 S.Ct. at 1630; State v. Joseph, 252 Or. 610, 451 P.2d 468 (1969); State v. Hill, 245 Or. 510, 422 P.2d 675 (1967).

    Here the question asked defendant was not designed to elicit incriminating evidence but to remind defendant of one of his rights. The incriminating part of his answer was not responsive to the question and was purely voluntary. There was no error in admitting the statements.

    Affirmed.