# State v. Pressel

> Court of Appeals of Oregon · May 7, 1970 · 2 Or. App. 477

URL: https://www.frixlaw.com/law-library/cases/9621841

## Case

- **Full name:** STATE OF OREGON, Respondent, v. ROY PRESSEL, Appellant
- **Court:** Court of Appeals of Oregon
- **Decided:** May 7, 1970
- **Citations:** 2 Or. App. 477; 468 P.2d 915; 1970 Ore. App. LEXIS 674
- **Precedential status:** Published
- **Opinion:** Dissent by Schwab
- **Judges:** Foley, Schwab, Fort
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9621841

## Opinion text

SCHWAB, C. J.,
dissenting.
The majority opinion correctly states:
“After reaching the defendant, they searched him. After ascertaining that defendant was unarmed, Officer Breazeal handed his gun to Officer Roebuck and began reading to the defendant from his copy of the Miranda warning card. From this point on no gun was pointed at defendant.”
This, however, is not quite the whole story.
During the course of the interrogation that followed the Miranda warnings, the defendant, if capable of understanding, knew that the admonition concerning the consequences of movement was not yet a matter of past history. According to Officer Roebuck the following conditions existed during both the reading and the waiver.
“Q. And you were paying, particular attention to Mr. Pressel at that time I assume?
“A. Yes.
“Q. Where was your .30-30 rifle at this time? “A. I had one in my left hand and Officer Breazeal’s in my right hand.
“Q. And were these directed towards the defendant?
“A. No.
“Q. What direction were they pointed?
“A. Port. Like this. TJp like this.'
“Q. You were holding them up in the air?
“A. Yes.. One of them I had my hand on the *484 trigger and the hammer, and the other one was just in my hand.
“Q. But you were in such a position that you could fire in just a split second, isn’t that true, if necessary?
“A. If necessary I could have dropped the weapon and fired.
“Q. And one you actually had your finger on the trigger?
“A. Yes. The hammer was down but I had my hand on the trigger, yes.”
With the above addition the majority opinion accurately portrays the circumstances under which the defendant was questioned.
In Frye v. Gladden, 1 Or App 629 , 465 P2d 716 (1970), we said that it is our duty to examine the historical facts of each case to determine whether they “are sufficient to sustain a finding of voluntariness which meets state and federal constitutional concepts of due process.” Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968). In Frye , we also said that it is “the totality of the circumstances shown in the record” which must control the decision in each case.
In so doing,
“* * * we are not bound by á trial judgé or jury’s finding of. voluntariness .if we believe the historical facts upon which such finding is based are insufficient to meet constitutional standards of due process. This is pursuant to our duty to interpret cónstitutionál standards and require conformance thereto.” Ball v. Gladden, supra, at 487-88.
In "the vast-majority of confession: eases we have and undoubtedly should and will continue to follow the *485 findings of the trial judges who see and hear the witnesses. Nevertheless, much as we may wish to do so, we cannot fulfill our constitutional obligation by automatically adopting the trial judges’ finding in every instance where there is any evidence to support it.
I cannot say, with any real degree of conviction, that a man’s responses to his captors are wholly voluntary when at the moment of questioning he is lying on the ground in the dark, wounded, guarded by police with guns at the ready, seconds after having been told at gunpoint that if he moved his brains would be blown out.
The decision as to what to offer in evidence and how to offer it was not that of the police. The information given by the defendant and introduced by the state could easily have been made available to the jury by other means.
I would reverse and remand for a new trial in the course of which the evidence in question could be introduced through means other than a tainted confession. For the foregoing reasons, I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9621841. Public record. Not legal advice.