422 P.2d 581 (Or. 1967), State v. Brewton

Citation:422 P.2d 581, 247 Or. 241
Opinion Judge:HOLMAN, J.,
Party Name:STATE of Oregon, Respondent, v. Frank Leroy BREWTON, Appellant.
Attorney:William J. Sundstrom, Portland, argued the cause and filed a brief for appellant, and appellant filed briefs in propria persona. Jacob B. Tanzer, Deputy District Attorney, Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, District Attorney, Portland. Hardy...
Case Date:January 18, 1967
Court:Supreme Court of Oregon

Page 581

422 P.2d 581 (Or. 1967)

247 Or. 241

STATE of Oregon, Respondent,


Frank Leroy BREWTON, Appellant.

Supreme Court of Oregon, En Banc

January 18, 1967

Argued and Submitted Dec. 5, 1966.

William J. Sundstrom, Portland, argued the cause and filed a brief for appellant, and appellant filed briefs in pro. per.

Jacob B. Tanzer, Deputy Dist. Atty., Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty., Portland.

Hardy Myers, Jr., Portland, filed a brief as amicus curiae on behalf of American Civil Liberties Union of Oregon.


GOODWIN, Justice.

This is an appeal from a conviction of first-degree murder. Background facts beyond those essential for this appeal are substantially outlined in State v. Brewton, 220 Or. 266, 344 P.2d 744 (1959), and in 238 Or. 590, 395 P.2d 874 (1964).

The only issue here is whether it was error to permit the state to impeach the defendant with statements that were elicited from him by police interrogation which, the state concedes, rendered the statements inadmissible as a part of its case in chief. The interrogation, which took place in November 1957, was not preceded by the warnings and advice concerning Fifth and Sixth Amendment protection that are now required by State v. Neely, 239 Or. 487, 503--504, 395 P.2d 557, 398 P.2d 482, 486--487 (1965), and by subsequent decisions of this court.

After the state had rested without offering Brewton's admissions in evidence, Brewton took the stand in his own defense. He told a story which, if believed, might have been consistent with his theory

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that he was not a principal in the crime. Brewton's courtroom story, however, was wholly inconsistent with the statements he had given the police shortly after his arrest.

After hearing the defendant's testimony, the state offered his police-station admissions for the limited purposes of impeachment, and they were so received over a timely objection. (The trial court earlier had held a hearing upon the issue of voluntariness, and [247 Or. 243] had found as a fact that the admissions which Brewton made to the police were voluntary, at least in the sense that they were not coerced in any manner. The statements fell under the exclusionary rule only because they did not meet the constitutional requirements of State v. Neely.)

A number of state and federal decisions tend to support the trial court in receiving such evidence for impeachment. Tate v. United States, 109 U.S.App.D.C. 13, 283 F.2d 377 (1960), deals with the conflict between the McNabb-Mallory exclusionary rule and a desire for truth provable by trustworthy evidence. The case holds that when one set of these interests must yield it is better that the exclusionary rule yield than to stand upon that rule and invite perjury. See also State v. McClung, 66 Wash.2d 654, 404 P.2d 460 (1965), cert. denied, 384 U.S. 1013, 86 S.Ct. 1967, 16 L.Ed.2d 1031 (1966). It might be noted that the federal procedural rationale for the McNabb-Mallory rule has recently been replaced by constitutional rules now binding on the states. Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964).

This court has not been faced with the identical question decided in Tate v. United States, but State v. Smith, 242 Or. 223, 408 P.2d 942 (1965), is instructive. In State v. Smith, we held that a confession not shown to be voluntary was just as untrustworthy when used to prove the defendant a liar as when used to prove that he committed the crime for which he was on trial. It has been pointed out in the case at bar that Brewton's admissions to the police were voluntary, at least in the pre-Escobedo sense that they were not obtained by threats or promises.

While an argument can be made that 'voluntary' unconstitutional confessions can be distinguished from [247 Or. 244] 'involuntary' unconstitutional confessions, solely for the purposes of impeachment, this dichotomy does not appeal to us as constitutionally meaningful.

Since the decision in State v. Neely, supra, this court has consistently applied the exclusionary rule when the facts established interrogation which was held to violate the constitutional rights of the defendant as interpreted in State v. Neely. See, e.g., State v. Ervin, 241 Or. 475, 406 P.2d 901 (1965); State v. Keller, 240 Or. 442, 402 P.2d 521 (1965). In these cases we have recognized the inherently coercive character of police interrogation of a suspect in custody who has not been advised of his rights. Even in cases in which we have affirmed convictions following custodial interrogation, we have done 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 (1966).

Whether or not Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 714 (1966) is binding upon Oregon courts with reference to trials concluded before the Miranda decision was published, we are satisfied that any attempt in the future to restrict the exclusionary rule to the state's case in chief would be inconsistent with the constitutional principles which are inherent in the Miranda case as well as in our own earlier decision in Neely.

The United States Supreme Court under the Fourteenth...

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