State v. Neely

Decision Date27 January 1965
Citation239 Or. 487,398 P.2d 482
PartiesSTATE of Oregon, Respondent, v. Earl Ray NEELY, Appellant.
CourtOregon Supreme Court

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

George Van Hoomissen, Dist. Atty., and George M. Joseph, Deputy Dist. Atty., Portland, argued the cause for respondent on rehearing. With them on the briefs was Gerald R. Pullen, Deputy Dist. Atty., Portland.

William F. Frye, Eugene, filed a brief for Oregon District Attorneys' Ass'n amicus curiae.

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

DENECKE, Justice.

The state petitioned for a rehearing and the Oregon District Attorneys' Association filed a brief in support of the petition. We granted the petition.

In our initial opinion we stated that there was no evidence that defendant had been advised that he did not have to make any statement. We concluded that Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (June 1964), requires that an accused be effectively warned of his constitutional right to remain silent and that if this is not affirmatively shown by the state, a confession obtained without such a warning is inadmissible. Therefore, we reversed and remanded the case.

It was called to our attention in the state's brief on the petition for rehearing that on the form on which defendant's confession was typewritten were the following printed words:

'* * * I make the following statement, of my own free will, without fear, threats, coercion, or promises of reward or immunity of any kind: I know that I am not required to make any statement and I know that any statement I make may be used against me in Criminal proceedings in Court. The following facts are true to the best of my knowledge: * * *.' (Emphasis added.)

One of the officers testified that defendant read the statement thoroughly before signing it. It could be reasonably inferred that the officer was referring to the entire document. Defendant did not deny that he read the statement.

Under usual circumstances a person has notice or knowledge of what he has read or written; for example, a person reading a document headed 'RELEASE' is held to have notice that the document was a release. Broad v. Kelly's Olympian Co., 156 Or. 216, 233, 66 P.2d 485 (1937).

The circumstances under which a confession is obtained may weaken or destroy the inference of knowledge which ordinarily arises from the reading or writing of a statement. We do not find in this case, however, that they did destroy such inference.

The circumstances here were that the words, 'I know that I am not required to make any statement,' were readily understandable; defendant was a mature man, and, according to his testimony, able to write as well as the deputy sheriffs; the interrogation was short and no claim of coercion was made.

Circumstances frequently attendant upon a confession, including this one,--being charged with a serious crime, being brought to a police station, courthouse or jail, and being interrogated by law enforcement officers--may dull the understanding of what an accused has read or written. However, this defendant did not testify that he did not understand the printed statement in the confession.

Under the circumstances attendant upon the taking of this confession we hold that defendant had knowledge of his right to remain silent and, therefore, the confession was not inadmissible on that ground.

Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224, 228 (1948), and Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513, 520 (1963), are not to the contrary. In Haley the defendant was 15; he was interrogated by relays of police from midnight until 5:00 a. m. when he signed a confession. Under such circumstances the Court was of the opinion that defendant could not have appreciated the statement in the confession, 'the law gives you the right to make this statement or not as you see fit.' The Court, therefore, gave no weight to such recital. 1

In Haynes the recital was that no threats or promises had been made. Defendant had been held incommunicado from 10:00 p. m. until he signed a confession at 2:00 p. m. the next day. During this period he had been questioned for two hours or more. He had repeatedly asked to call his wife and was told he could not do so until he signed a confession. The state contended that the statement in the confession that no threats or promises had been made was conclusive that the confession had been made voluntarily. The Court held that such statement was of doubtful probative value and made its own independent examination of the facts and found the confession coerced.

Defendant also contended that his confession was inadmissible because it was obtained without his first being advised of his constitutional right to the assistance of counsel. In our initial opinion we specifically did not decide this issue. We must now so decide.

The state admits that defendant was not advised, prior to the making of the confession, of his right to counsel.

In State v. Kristich, 226 Or. 240, 248, 359 P.2d 1106, 1110 (1961), we expressly refused to follow the New York Court of Appeals decision 'that it violates constitutional rights to question an accused after arrest when he asks for his attorney. People v. Di Biasi, 1960, 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166 N.E.2d 825.' We observed, however: 'it is now clear that criminal convictions may be jeopardized on appeal by the failure to provide or permit access to counsel at preliminary stages of the criminal process as well as upon trial.' (226 Or. at 250, 359 P.2d at 1111). In State v. Kristich, supra, we held to the single, established test for the admissibility of confessions, i. e., was it given freely and voluntarily? Access to counsel was only a circumstance to be considered in determining the answer to this question.

In Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (May 1964), the United States Supreme Court gave new significance to the absence of counsel at the time incriminating statements are obtained by law enforcement officials. In Massiah the defendant had been indicted, had retained an attorney, and was released on bail. By means of an electronic listening device placed by law enforcement officers in an informer's car and a planned conversation by the informer with defendant while in the informer's car, incriminating admissions were obtained from defendant.

'* * * We hold that the petitioner was denied the basic protections of [the Sixth Amendment] when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel. * * *' 377 U.S. at 206, 84 S.Ct. at 1203, 12 L.Ed.2d at 250.

The opinion does not discuss the voluntariness of the statements. It cites with approval the decisions of the New York Court of Appeals which we refused to follow in State v. Kristich, supra.

Then in Escobedo v. Illinois, supra, the Court moved this constitutional right to the assistance of counsel to a stage in the criminal process earlier than the time of indictment. The Court held:

'The interrogation here was conducted before petitioner was formally indicted. But in the context of this case, that fact should make no difference. When petitioner requested, and was denied, an opportunity to consult with his lawyer, the investigation had ceased to be a general investigation of 'an unsolved crime.' * * * Petitioner had become the accused, and the purpose of the interrogation was to 'get him' to confess * * *.

* * *

* * *

'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 an 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 485, 490, 84 S.Ct. at 1762, 1765, 12 L.Ed.2d at 982, 986.

The state admits, because of Escobedo, that if Neely had requested an opportunity to consult with his attorney and had been denied such request, his confession would be inadmissible. Escobedo unequivocally holds that a suspect in Neely's situation has a Fourteenth Amendment right to the assistance of counsel. The decisive issue remaining, therefore, is whether the state had an obligation to inform defendant that he had a right to the assistance of counsel.

At the judicial stage of a criminal proceeding the state, through the court, has the obligation of advising a defendant of his right to the assistance of counsel. In the absence of an affirmative showing of such advice, any conviction is constitutionally erroneous. In Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962), defendant was held entitled to the assistance of appointed counsel at trial. The trial record in that case did not show that the trial judge offered, or that defendant declined, counsel. The state high court held, therefore, that the defendant was presumed to have waived counsel. The United States Supreme Court commented upon this ruling:

'* * * This might mean that the petitioner could have suffered no constitutional deprivation if he had not formally requested counsel, and that failure to make such a request is to be presumed unless the record shows the contrary. But it is settled that where the assistance of counsel is a constitutional...

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