dissenting.
The majority reverses the trial court, because it concludes that defendant’s statements made to police on August 17 and 18, 1981, were involuntary. I disagree and, therefore, dissent.
The general rule is that “[vjoluntariness is determined by the totality of the circumstances; police trickery or false statements, alone, may not be sufficiently coercive to result in involuntariness.” State v. Burdick, 57 Or App 601, 606, 646 P2d 91 (1982). A statement is not voluntary if it is made as a result of police conduct which overbears the defendant’s will. State v. Cochran, 72 Or App 499, 512, 696 P2d 1114 (1985). Viewing the totality of the circumstances in this case, the actions of the police were not sufficient to overbear defendant’s will and render his statements of August 17 and 18 involuntary.
The majority concludes that the police manipulated *743defendant’s fear so that the questioning constituted actual coercion. Defendant’s fear was real, but it was not fear of the police. Although, in an effort to encourage defendant to talk about the murder, Officer Burkhart referred to the source of his fear several times in the interrogation, he did not augment that fear in order to overbear defendant’s will or to impair his ability to make a voluntary confession.
Neither did the police “impliedly threaten to release him into the hostile community if he refused [to cooperate],” as the majority states. Defendant had been advised of his Miranda rights, but he had not been arrested and was not in police custody on August 17; he was in a hospital. The police had no power either to hold him or to release him on that date. It is not a normal police function to house or guard an able-bodied individual who is not under arrest simply because the individual is afraid for his safety for some real or imagined reason. The police lack the resources to provide that kind of protection for every citizen who might request it. They had a right, and perhaps a duty, to inquire into the causes of defendant’s fears, for which he was requesting police protection.
The trial court correctly found that defendant’s statements both before and after his arrest on August 18 were voluntary, considering the “totality of the circumstances.” The questioning did not occur in the coercive environment of a police station but at the hospital and was not of unreasonably long duration. The trial court found that defendant was not impaired physically or mentally so that he was unable to make a voluntary confession. The interviews were taped, allowing the trial court to hear the manner and tone of the questions and answers. Finally, defendant had been properly advised of his Miranda rights. (He does not claim otherwise on appeal.) He could have broken off questioning at any time by exercising his right to remain silent or by requesting an attorney. He did neither.
The police did not create defendant’s fear. In fact, on August 17, they had protected him from people whom he feared, because those people sought to get even with him for his part in the Norwest murder. Part of his fear arose from the possible retaliation of the others involved in the murder if he “snitched” on them; the police offered to protect him from *744those he feared, if he would discuss the murder. That is not impermissible police activity and does not render defendant’s statements of August 17 and 18 involuntary.1
I have reviewed the 91 pages of single-spaced transcript of the questions and answers in defendant’s taped statement to police, which began at 10:11 p.m. on August 17, 1981, and ended at 12:55 a.m. on August 18. From those 91 pages, the majority has gleaned a few phrases that it relies on as coercive police conduct. The essence of the conversation between defendant and the police officers was that they believed that defendant knew more about Norwest’s murder than he was telling them, that both defendant and the officers believed defendant to be in some danger from others because of his part in the murder, that defendant wanted police protection, that the officers told defendant that they could probably protect him best if he were in jail and that, if he was sentenced to a term of imprisonment for his part in the murder, they could help to see to it that he was encarcerated in another state. Defendant was not in custody. He had been advised of his Miranda rights and had neither asserted the right to remain silent nor the right to the aid of counsel.
ORS 136.425(1) provides, in part:
“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 * * *.”
I would hold that the reference to “threats” has to be to threats by police or those acting as police agents. That a *745member of the Mafia goes to the police and admits his own complicity in crimes, because he fears other Mafia members, cannot make his incriminating statements inadmissible. That children fear the wrath of their parents, incurred because of crimes they have committed, and therefore confess to police cannot make the confession inadmissible as evidence.
The rules relevant to the admission of confessions were discussed by the Supreme Court in State v. Smith, 301 Or 681, 725 P2d 894 (1986). The test is whether the promise or threat inducing the confession is one that might induce a false confession. The object is not to exclude confessions of the truth but to avoid the possibility of confessions of guilt from those who are innocent. State v. Smith, supra, 301 Or at 692. The key is whether any promise or threat was made “which would elicit a false confession.” 301 Or at 693. I submit that there is nothing in the portions of defendant’s interrogation by police officers on August 17, 1981, that is quoted by the majority that could lead us to conclude that it would elicit a false confession.
I agree with the majority that statements made to police on August 20, however, should have been suppressed, as violative of his right to counsel under Article I, section 11, of the Oregon Constitution. However, I would still affirm the conviction, because the error was harmless when viewed in the light of all of the evidence. Or Const, Art VII (amended), § 3; State v. Olds, 35 Or App 305, 313, 581 P2d 118, rev den 284 Or 80a (1978). On August 20, defendant admitted greater involvement in the homicide than he had previously, but even without that statement, the admissible evidence of guilt, which included the testimony of a co-defendant, was so substantial and convincing that its suppression would not have changed the trial result.2 State v. Van Hooser, 266 Or 19, 511 P2d 359 (1973); see State v. Mains, 295 Or 640, 669 P2d 1112 (1983). Their admission was harmless beyond a reasonable doubt. Chapman v. California, 386 US 18, 87 S Ct 824, 17 L Ed 2d 705 (1967). I would affirm the trial court. Therefore, I dissent.
*746Warren, Van Hoomissen and Rossman, JJ., join in this dissent.The cases cited by the majority, Dorsciak v. Gladden, 246 Or 233, 425 P2d 177 (1967); State v. Cochran, supra; and State v. Capwell, 64 Or App 710, 669 P2d 808 (1983), involve situations more coercive than those in this case. In Capwell, the police made implied promises of more lenient treatment if the defendant would confess. In Dorsciak, the defendant never had the advice of counsel, although he had requested it; he was told that the judge would be easier on him and he would be more likely to receive psychiatric assistance if he confessed; and the police emphasized that, if he went to trial, his daughters would receive a great deal of unfavorable publicity. In Cochran, the police used four deceptive techniques during a seven hour interrogation: (1) they told the defendant that “If I thought you’d killed her, I wouldn’t do this,” and then threw his signed Miranda rights card in the wastebasket; (2) they used the “good-guy bad-guy” routine; (3) they told him that blood on his hands was causing them to glow orange under a black light; and (4) they tricked him into believing that he had supernatural abilities that could be used to find the true killer. The facts in this case do not reflect the level of police conduct found in any of those cases and are not sufficient to justify suppression.
From my examination of the record, I am satisfied that the evidence of defendant’s guilt was so overwhelming, that the trial result would have been the same if more of defendant’s statements made to Burkhart on August 17,18 and 20 had been admitted in evidence.