State v. Neely

• Decision Date: 30 September 1964
• Citation: 395 P.2d 557,239 Or. 487
• Parties: STATE of Oregon, Respondent, v. Earl Ray NEELY, Appellant.
• Court: Oregon Supreme Court

Page 557

395 P.2d 557

239 Or. 487

STATE of Oregon, Respondent, v. Earl Ray NEELY, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted June 3, 1964.

Decided Sept. 30, 1964.

Howard R. Lonergan, Portland, argued the cause and filed briefs, for appellant.

Charles J. Merten, Portland, argued the cause for respondent. On the brief were George Van Hoomissen, Dist. Atty., and Gerald R. Pullen, Deputy Dist. Atty., Portland.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, JJ.

DENECKE, Justice.

The defendant was convicted of the crime of statutory rape upon a stepdaughter. ORS 163.220. He appeals upon the ground that he was deprived of constitutional rights guaranteed to him by the 'due process' clause of the Fourteenth Amendment of the United States Constitution. He alleges that his oral and written confessions were inadmissible because they were obtained prior to his having been taken before a magistrate, and before he had been afforded the assistance of counsel.

Sometime between 3:30 and 4:00, p. m., two deputy sheriffs arrested the defendant at his place of employment. The arrest was pursuant to a warrant of arrest for the crime of statutory rape. There is a conflict in the evidence as to whether or not the defendant was informed that he had been placed under arrest. At approximately 4:15, p. m., after he had showered and changed his clothes, the defendant, accompanied by the two officers, left the plant and proceeded to the sheriff's office in Gresham. They arrived at the sheriff's office at approximately 4:35, p. m.

The officers questioned the defendant for about an hour, and at 5:45, p. m., they began to take down the statement in which the defendant confessed the crime. After the defendant had read and signed the statement, he was taken to Rocky Butte Jail, where he was booked at 7:20, p. m., the same evening. Later that evening, he was released on bail.

On the issue of whether or not defendant was advised of his right to counsel, the testimony of Officer Dow, one of the interrogating officers, is ambiguous. The officer is clear that defendant asked about his right to counsel. However, the officer's further testimony is susceptible to two interpretations: (1) that, prior to the confession being made, the defendant asked whether he had a right to counsel and was informed by the officer that after the interrogation the defendant would be entitled to counsel, or (2) after the confession was made, the defendant asked about counsel and was advised he was entitled to counsel. Under either interpretation he was not informed prior to make the confession that he was entitled to counsel prior to interrogation.

Officer Graven, the other interrogator, testified there was a telephone available and the defendant could have used it at any time to call an attorney. Officer Graven did not talk to the defendant about defendant's right to counsel because, according to this officer, the defendant wanted to come in and plead guilty and see if he could get probation.

Defendant testified that he was never informed and did not know he was under arrest until after he had signed the confession. He stated that the officers told him that his wife brought in his stepdaughter and she made a written statement accusing defendant of the crime; that the officers said they wanted a statement from defendant for the divorce proceeding which was then pending between defendant and his wife; and that once his wife got the divorce the matter would be forgotten. Defendant stated that the officers never asked him if he wanted an attorney and, with the belief that he was not arrested nor in danger of a criminal prosecution, he did not think he needed one.

There is no evidence whether or not he was told that he did not have to make any statement or that such a statement could be used against him. The defendant's testimony creates an inference that he was not so advised.

There is no evidence that the defendant was coerced into making the confession. Although there is some evidence from which it might be possible to conclude that the confession was obtained by trickery, defense counsel has never so contended.

The defendant testified that he can probably write as well as the police officers. He had been earning between $5,000 and $7,000 per year. After he was jailed, he retained his own attorney.

Under our past decisions the admission of defendant's confession would not be violative of his rights. State v. Nunn, 212 Or. 546, 553, 321 P.2d 356 (1958). However, recently, the Supreme Court of the United States has decided several cases stating that the presence or absence of certain circumstances renders the confession constitutionally inadmissible.

The most recent of these decisions is Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (June 1964). In that case the defendant had been arrested, interrogated, and released upon the issuance of a writ of habeas corpus obtained by his attorney. Approximately 11 days later he was again arrested and brought to jail between 8:00 and 9:00, p. m. He asked to see his attorney, and his attorney asked to see his client. Both requests were denied. Defendant was not advised of his constitutional rights. Although it is not known how long the was interrogated, it is known that certain damaging admissions were obtained during the interrogation. Because these admissions, made without the assistance of counsel, were held to be admitted in violation of defendant's right to counsel as guaranteed by the Fourteenth Amendment, defendant's state conviction was reversed.

The essence of the majority's decision is:

'We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied on opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as 'made obligatory upon the States by the Fourteenth Amendment,' * * *.' 378 U.S. at 490, 84 S.Ct. at 1765, 12 L.Ed.2d at 986.

Neely did not request the assistance of counsel; therefore, one of the critical facts present in the Escobedo case is absent here. Whether such a request is necessary before an accused can successfully contend he was deprived of his right to counsel we do not now need to decide.

In the previously-quoted statement of the crucial elements in the Escobedo decision, the fact that the defendant had not been informed of his right to remain silent was specifically stated. The majority reiterated that fact in other portions of its opinion and partially distinguished Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958), as follows:

'* * * Among the critical circumstances which distinguish that case [Crooker v. California] from this one are that the petitioner there, but not here, was explicitly advised by the police of his constitutional right to remain silent and not to 'say anything' in response to the questions, * * *.' 378 U.S. at 491, 84 S.Ct. at 1765, 12 L.Ed.2d at 986.

Mr. Justice White, and the two justices joining in his dissent, at least in...