State v. Ervin

• Citation: 81 Or.Adv.Sh. 385,406 P.2d 901,241 Or. 475
• Parties: STATE of Oregon, Respondent, v. Walter Lee ERVIN, Appellant.
• Decision Date: 20 October 1965
• Court: Supreme Court of Oregon

Page 901

406 P.2d 901

241 Or. 475

STATE of Oregon, Respondent, v. Walter Lee ERVIN, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Oct. 4, 1965.

Decided Oct. 20, 1965.

Thomas D. Kerrigan, Portland, for appellant.

George M. Joseph, Deputy Dist. Atty., Portland, for respondent, George Van Hoomissen, Dist. Atty., and Charles J. Merten, Deputy Dist. Atty., Portland, on the brief.

Before McALLISTER, C. J., and PERRY, SLOAN, GOODWIN, DENECKE, HOLMAN, and LUSK, JJ.

GOODWIN, Justice.

The defendant, under police interrogation, confessed to a brutal beating and robbery of a woman. He now appeals from a judgment of conviction, contending that his confession should not have been received in evidence.

Following what was described in oral argument as the customary ¹ police routine in such cases, the defendant, a prime suspect in the robbery, was arrested between 8:00 and 9:00 p. m. for jaywalking, and lodged in jail until 2:30 a. m., when he was awakened and taken to an interrogation room for questioning.

The officers who obtained the confession swore that before the interrogation commenced they advised the defendant that he did not have to make a statement, and that he could use the telephone if he wanted to call an attorney. This testimony was corroborated by a deputy district attorney who was present at the interrogation. The deputy district attorney testified also that the defendant said he did not want a lawyer. The state contends that the evidence thus satisfied the rule in State v. Neely, 239 Or. 487, 395 P.2d 557, 398 P.2d 482 (1965).

State v. Neely holds that the police must, before interrogation, effectively advise the defendant of his constitutional right to remain silent, and of his constitutional right to counsel. Further, the record must show that these rights were understandingly waived by the defendant before a confession obtained by interrogation may be used in court. State v. Keller, 80 Or.Adv.Sh. 663, 402 P.2d 521 (1965); State v. Allen, 239 Or. 524, 398 P.2d 477 (1965); State v. Neely, supra.

While the trial court made no specific finding of waiver, a finding that would have been helpful, State v. Keller, supra, we may assume from the ruling admitting the evidence that the court was satisfied that the defendant's rights had been protected. See State v. Sallee, 81 Or.Adv.Sh. 101, 405 P.2d 501 (1965).

The only substantial question presented by the assignments of error is whether, upon the record, the evidence was sufficient to justify the trial court's implied finding that the defendant had been advised of his rights. We are satisfied that there was sufficient evidence to support the trial court's decision on the matter. State v. Allen, 80 Or.Adv.Sh. 925, 404 P.2d 207 (1965).

The defendant has suggested that the inferences to be drawn from the circumstances of his arrest and interrogation are inconsistent with the state's duty to protect the rights of all its citizens, those in...