State v. Keller

• Decision Date: 26 May 1965
• Citation: 80 Or.Adv.Sh. 663,402 P.2d 521,240 Or. 442
• Parties: STATE of Oregon, Respondent, v. Robert Vasco KELLER, Appellant.
• Court: Oregon Supreme Court

Page 521

402 P.2d 521

240 Or. 442

STATE of Oregon, Respondent, v. Robert Vasco KELLER, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted March 1, 1965.

Decided May 26, 1965.

Lawrence A. Aschenbrenner, Public Defender, Salem, argued the cause and filed the brief for appellant.

Tom P. Price, Deputy Dist. Atty., Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty., Portland.

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

HOLMAN, Justice.

The defendant was convicted of the burglary of a drug store in the city of Portland and has appealed. He was arrested in the state of Washington a few days after the burglary when his automobile was involved in an accident. A quantity of narcotics was found in his car. He was questioned by the Port Angeles, Washington, police while in custody and admitted his complicity in the burglary in question. It was apparently known by the Port Angeles police that he was wanted in Portland for the burglary. A confederate had been apprehended, and had implicated Keller. There is no evidence that he was informed that he had a right to remain silent or that he was entitled to the services of a lawyer prior to the time he first made oral self-incriminating statements. A typewritten statement was thereafter signed by the defendant who can neither read nor write but can sign his name. The statement was read to him prior to his signing it. It contained the following statement:

'I have been advised that anything I say can be used against me in a court of law, that I have a right to counsel (lawyer), and that no duress, threats or promises were made to induce statements from me.'

Subsequently, Portland police transported the defendant from Port Angeles to Portland and he made incriminating statements to them during the trip. Another typewritten statement was taken from him upon his arrival at Portland. It recited as follows: '* * * 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 proceeding in court. * * *' It said nothing about his having been advised of his right to counsel. It was read to him prior to his signing it. There is no evidence that he failed to understand the warning that he had to make no statement or the offer of counsel previously extended to him at Port Angeles.

Evidence of both the oral and written confessions was received. All were substantially the same. All were received without objection relative to failure to advise of the right to remain silent or be represented by counsel.

The defendant contends error was committed by the admission into evidence of his oral and written confessions because he had not been effectively advised of his rights to the assistance of counsel and to remain silent.

This case was tried prior to the decision in Escobedo v. State of Illinois, 378 U.S 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) which states as follows:

'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,' Gideon v. Wainwright, 372 U.S., [335,] at 342, 83 S.Ct., at 795 [9 L.Ed.2d 799, at 804, 93 A.L.R.2d 733,] and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.'

This court has decided that a defendant who was tried prior to Escobedo and whose direct appeal was pending at the time Escobedo was decided is entitled to raise the question of whether he had been effectively advised of his rights to remain silent and to counsel. Our decision was without regard to whether he raised the question by objection at trial. The general rule is that to be availed of on appeal the erroneous admissibility of evidence must be objected to at trial. The deviation from this rule was allowed because defendant could not be expected to have objected on grounds that he had no reason to believe existed at the time he was tried. His original guilt-determining process was not completed at the time the rule was changed and he was therefore given its benefit. State v. Clifton, Or., 401 P.2d 697 (May 12, 1965).

In the Escobedo case the defendant requested counsel--which is not true in this case. The rule of the Escobedo case was adopted by this court in State v. Neely, 79 Or.Adv.Sh. 257, 80 Or.Adv.Sh. 69, 395 P.2d 557, 398 P.2d 482, wherein it was specifically held that the right to be advised that one is entitled to be represented by a lawyer is not dependent upon a request. The court said, at 80 Or.Adv.Sh. 77, 398 P.2d 486, as follows:

'We hold that the Sixth Amendment as made obligatory by the Fourteenth Amendment requires that before law enforcement officials can interrogate a person who is the focal suspect of a crime, such person must effectively be informed of his right to assistance of counsel as well as his right to remain silent. In the absence of such knowledge an accused can in no way be deemed to have intelligently waived his constitutional rights, and in the absence of such waiver a confession obtained by such interrogation is inadmissible.'

Based upon the record, evidence of the first oral statement made to the Port Angeles police was not admissible in evidence because defendant had not been advised of his rights to remain silent and to be represented by a lawyer. The first written statement was likewise objectionable because, while there was evidence defendant was advised of his right to counsel, he was not advised of his right to remain silent. He was told that what he said could be used against him, but he was not told that he was not required to talk. The warning was insufficient. In Escobedo the court quoted from Bram v. United States, 168 U.S. 532, 562, 18 S.Ct. 183, 194, 42 L.Ed. 568, 580, as follows:

"It cannot be doubted that, placed in the position in which the accused was when the statement was made to him that the other suspected person had charged him with a crime, the result was to produce upon his mind that fear that, if he remained silent, it would be considered an admission of guilt, and therefore render certain his being committed for trial as the guilty person; and it cannot be conceived that the converse impression would not also have naturally arisen that, by denying, there was hope of removing the suspicion from himself."

The second oral confession made on the trip from Port Angeles to Portland was no more admissible than the previous ones. The second written statement, taken at Portland, included a warning that defendant had a right to remain silent.

Whether defendant, in view of the recitations in both written confessions, had now been effectively advised of all of his rights when he signed the second one was a question of fact to be determined by the trial judge preliminary to ruling on the confession's admissibility in evidence; as was the question of whether defendant's subsequent signing of the confession constituted a knowing waiver of his rights. We realize that the trial judge had no reason to consider these matters nor did either couns...