Just before midnight on August 6, 1982, defendant telephoned his brother in California and told him he had just "strangled a kid." Defendant's brother advised him to call a mental hospital or talk to someone who could help him with his problem. Minutes later, defendant telephoned Dammasch State Hospital and asked to speak to a doctor, giving a false name to the receptionist. The receptionist asked him what was wrong, and he replied, "Murder. I just killed a man." The receptionist asked defendant for a phone number that she could have a psychiatrist call him back at. Defendant gave her the phone number of the telephone booth he was at.

The receptionist telephoned the Clackamas County Sheriff's Office, explained the situation, and gave the defendant's telephone number. Then the receptionist called Dr. Wendy Saville, the psychiatrist on duty that night at the hospital, asking Dr. Saville to keep defendant on the line so that the sheriff's office could "trace the call."

Dr. Saville talked to the defendant for 10 or 15 minutes. When Dr. Saville asked defendant his name, defendant asked her if their conversation would be confidential. Dr. Saville assured defendant the conversation would be confidential, and only then did he give Dr. Saville his name. During the conversation, defendant made a number of incriminating statements about his homosexual encounter with the victim, his fantasies and his role in the victim's death.

While defendant conversed with Dr. Saville, the sheriff's office contacted the Portland Police Bureau, which located the telephone booth and sent a uniformed police officer to investigate. When the officer arrived at the telephone booth and determined that defendant was the person talking to the state hospital, he physically removed defendant from the telephone booth, patted him down for weapons, found none, removed defendant's wallet and placed him in the locked rear passenger seat of his patrol car.

The officer returned to the telephone booth to talk to Dr. Saville. Dr. Saville told the officer she believed the conversation with defendant was supposed to be confidential. The officer insisted Dr. Saville divulge what defendant told her, becoming angry and pushing her as he talked. Dr. Saville gave in and told the officer defendant claimed to have murdered someone.

The officer returned to the patrol car and questioned defendant, without advising him of his Miranda rights. Defendant eventually confessed to the murder and led the officer to the body.

Defendant was charged with murder.

Defendant moves to suppress his statements to Dr. Saville. Was defendant's confession to Dr. Saville a "confidential communication."? Could defendant be considered a "patient" of Dr. Saville's? How should the court rule?

Answer:

See State v. Miller, 709 P.2d 225 (Or. 1985) (superseded by statute in Powers v. Cheely, 771 P.2d 622 (Or. 1989)).

(1) The statements to the psychiatrist and receptionist are a protected confidential communication
(2) The confession violated Miranda, but the inevitable discovery exception applied

 Vahn Chang

Emory University School of Law