State v. Atherton

Citation410 P.2d 208,242 Or. 621
PartiesSTATE of Oregon, Respondent, v. James Dwayne ATHERTON, Appellant.
Decision Date12 January 1966
CourtSupreme Court of Oregon

Oscar D. Howlett, Portland, argued the cause and filed a brief for appellant.

George M. Joseph, Deputy Dist. Atty., Portland, argued the cause for respondent. On the brief were George Van Hoomissen, Dist. Atty., and Tom P. Price, Deputy Dist. Atty., Portland.

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

GOODWIN, Justice.

This is an appeal from a conviction of violating ORS 163.280. (armed robbery). The only substantial issue is whether the defendant's confession was admissible.

A tavern was robbed at gunpoint by two men. A short time later one man was found in an automobile which answered a description given by witnesses. The automobile was stopped by a police officer and the defendant Atherton was placed under arrest and taken to the city jail.

At the trial, during a hearing out of the presence of the jury as required under State v. Brewton, 238 Or. 590, 603, 395 P.2d 874 (1964), an officer testified:

'Well, I brought him to the robbery office and started to inform him of his legal rights, at which time he interrupted us and informed us that he had been in contact with his attorney, Milton Brown, and had been advised not to make any statement.'

There was no further effort to question the defendant that day.

Two days later, a second officer saw the defendant in jail. The second officer gave this account of his conversation with the defendant:

'* * * [A]t which time I identified myself, and told him what he was being charged with or accused of, and that it was not necessary for him to talk to me about the case without first having legal advice of counsel. At this time he informed me that he had already retained counsel, and that until such time as he had seen his counsel, he had nothing more to say. At this time, why, I immediately left his presence.'

The defendant must have said something more to this officer, however, for the officer went on to testify that he told the defendant before leaving him that he would check out certain alibi information which the defendant apparently had given the officer.

The next day, according to the officer's recollection, he reported back to the defendant concerning the alibi. The defendant then became upset, the officer stated, and volunteered the identification of the 'second subject involved,' one Roberts.

The next day, the fourth day after the defendant's arrest, the officer again visited the defendant in jail. The defendant's attorney had not yet visited the defendant, apparently because he was occupied with other matters. In any event, the defendant reported to the officer that he had not seen his attorney. The officer questioned him, however, about the holdup, and the defendant confessed.

The defendant took the stand and told his version of the interrogation. He recalled the time in jail as four days of more or less incessant questioning. He denied that he had been advised of his right to remain silent, and denied that the officers had advised him that he could see his attorney any time he wanted to.

At no time has the defendant contended that there was any wrongful delay after his arrest in bringing him before a magistrate. Accordingly, we are not called upon to decide whether the delay, if challenged, in itself would have been a ground for excluding the confession.

The only errors assigned in this appeal are based upon the defendant's contention that his confession was obtained by police interrogation in violation of his rights as set forth in State v. Neely, 239 Or. 487, 395 P.2d 557, 398 P.2d 482 (1965). He asks us to rule as a matter of law that the confession was inadmissible despite the findings of the trial court that the defendant had been effectively advised of his rights and that his confession thereafter was voluntarily made.

The record affords no basis for this court to overturn the trial court's findings of fact. The defendant, faced with a specific finding that he had been effectively advised of his rights, asks this court now to extend the holding in State v. Neely, supra, to hold, as a matter of law, that any police interrogation after arrest is illegal. The defendant contends that such an implementation of the Sixth Amendment right to counsel is required by the decision in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). The effect of such a holding would be to make irrelevant the issue in the Brewton case of voluntariness under the Fifth Amendment.

There are two factual differences between the interrogation of this defendant and the interrogation of the celebrated Danny Escobedo. The police did warn this defendant of his right to remain silent. The police did not warn Escobedo of his right to remain silent. The failure to warn Escobedo of his right to remain silent was deemed important in light of the second difference between the two cases. In Escobedo, the police actively interfered with the attorney-client relationship. The police kept the prisoner and his attorney apart despite requests from both for consultation. In the case at bar there is no claim either of police interference or of a denial of an opportunity to consult.

The Escobedo case, and subsequently, in this state, the Neely case, held that a statement taken from a person under arrest who had not been effectively advised of his right to remain silent, and who had been denied the assistance of counsel (or, as in Neely, not informed of his right to counsel), cannot be received in evidence. Neither case requires the exclusion of a voluntary statement obtained from a prisoner who has received and has understood the requisite advice concerning his rights.

In Neely we held that the right to counsel and the right to remain silent are substantially without meaning to a person under arrest unless he knows that he has these rights. There is no waiver without knowledge. State v. Keller, 80 Or.Adv.Sh. 663, 402 P.2d 521 (1965). Conversely, with knowledge, there can be a waiver. In State v. Keller, we held that whether or not the defendant was adequately advised of and waived his rights is a question of fact which, like that of voluntariness, the trial court must decide in a preliminary way before any of the evidence concerning the statement can be heard by the jury.

We adhere to the rule that the prosecution, if it expects to use statements made by a person under arrest, must show that, prior to his interrogation, he was advised both of his right to remain silent and of his right to the assistance of counsel. Obviously, after showing that the defendant had been advised of his rights, the state must also show that any statement offered in evidence was voluntarily given. The courts will view with suspicion that voluntariness of a statement taken from a prisoner whose reluctance to talk to the police in the absence of counsel had to be worn away by persistent interrogation.

In the case at bar, the trial court found, as facts: (1) the defendant knew that he was not required to talk; (2) he knew that he could consult counsel whenever he and his attorney could get together; and (3) with knowledge of his rights he was willing nonetheless to talk to the police in the absence of his counsel.

If the defendant was properly advised, voluntariness then becomes a question of fact. Some factors that may be relevant in the trial judge's determination of the issue of voluntariness are described in recent decision of the United States Supreme Court. See, e. g., Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 (1964); Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Blackburn v. State of Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960).

The defendant contends that decisions prior to Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) can no longer be relied upon to justify the admission of voluntary confessions made in the absence of counsel. In the Massiah case, however, the police obtained the incriminating statements by the use of a hidden microphone, and with the help of an informer believed by the defendant to be an ally. There was no voluntary disclosure of evidence to the police by a suspect who knew that he was talking to the police. The Massiah case therefore has to be embellished before it can be said to hold that the police may never talk to a defendant who has an attorney unless the attorney is present.

While the New York courts have, apparently, 1 adopted rules which as a practical matter prohibit any interrogation of a defendant after arrest, we do not believe that such rules necessarily must follow from the Fifth and Sixth Amendments. Neither the right to remain silent nor the right to counsel is a right that cannot be waived.

One of the notions which underlies the retributive aspects of criminal justice is that the criminal knew what he was doing when he committed the crime. After a person is arrested ajd accused of a crime, the Fifth Amendment denies the government the right to force him to admit his guilt. The Sixth Amendment requires the government to advise him of his right to counsel and see that he has an attorney, if he wants one, at all times after the adversary phase of the prosecution has commenced. Nothing, however, in the philosophy underlying these two great guardians of freedom requires the police to refrain from discussing a crime with a suspect who wants to discuss it, if he has been fully advised of his rights and has decided to talk in spite of his knowledge that he need not do so. Once it is shown that an accused knew what he was doing when he talked to the police, and that he did so with full knowledge of his rights, he ought to be just as responsible ior his decision to talk as he is...

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20 cases
  • State v. Jackson
    • United States
    • Oregon Court of Appeals
    • December 15, 1982
    ...conclusion I have reached is consistent with the rationale expressed by Denecke, C.J., in his dissenting opinions in State v. Atherton, 242 Or. 621, 629, 410 P.2d 208, cert. den. 384 U.S. 1025, 86 S.Ct. 1982, 16 L.Ed.2d 1030 (1966); State v. Rosenburger, 242 Or. 376, 380, 409 P.2d 684 (1966......
  • State v. Allen
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    • Oregon Supreme Court
    • December 6, 1967
    ...after he had said he did not want to talk. Therefore, for the reasons stated in the dissents of Justice Denecke in State v. Atherton, 1966, 242 Or. 621, 629, 410 P.2d 208, and in State v. Rosenburger, 1966, 242 Or. 376, 380, 409 P.2d 684, and in his specially concurring opinion in State v. ......
  • State v. Singleton
    • United States
    • Oregon Supreme Court
    • November 20, 1979
    ...his right to consult with an attorney, can thereafter waive that right and, if so, under what circumstances. In State v. Atherton, 242 Or. 621, 410 P.2d 208 (1966), as in this case, the defendant, upon being informed by the police of his "legal rights," told them that he had an attorney and......
  • State v. Brewton
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    • January 18, 1967
    ...so only upon express findings supported by credible evidence that there was an intelligent waiver of rights. See, e.g., State v. Atherton, 242 Or. 621, 410 P.2d 208, cert. denied, 384 U.S. 1025, 86 S.Ct. 1982, 16 L.Ed.2d 1030 Whether or not Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct......
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