468 P.2d 657 (Or.App. 1970), State v. Evans

Citation:468 P.2d 657, 2 Or.App. 441
Opinion Judge:FOLEY, J.
Party Name:STATE of Oregon, Respondent, v. Robert Joseph EVANS, Appellant.
Attorney:J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem. Jacob B. Tanzer, Solicitor General, Salem, argued the cause for respondent. With him on the brief was Lee Johnson, Attorney General, Salem.
Case Date:April 23, 1970
Court:Court of Appeals of Oregon
 
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Page 657

468 P.2d 657 (Or.App. 1970)

2 Or.App. 441

STATE of Oregon, Respondent,

v.

Robert Joseph EVANS, Appellant.

Court of Appeals of Oregon, Department 2.

April 23, 1970

       Argued and Submitted March 18, 1970.

        Rehearing Denied May 19, 1970.

        Review Granted June 30, 1970.

Page 658

       [2 Or.App. 442] J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

       Jacob B. Tanzer, Solicitor Gen., Salem, argued the cause for respondent. With him on the brief was Lee Johnson, Atty. Gen., Salem.

       Before LANGTRY, P.J., and FOLEY and FORT, JJ.

       FOLEY, Judge.

       Defendant was indicted in Multnomah County for first degree murder in the August 6, 1963, strangling death of Irene E. Davis. After several days of trial, defendant, on March 3, 1964, withdrew his plea of not guilty and, pursuant to ORS 163.130, confessed his guilt of homicide in open court. ORS 163.130 reads:

'If upon an indictment for murder the defendant is convicted upon his own confession in open court, the court shall hear the proof and determine [2 Or.App. 443] the degree of murder and give judgment accordingly.'

       The court then conducted the hearing called for and admitted in evidence and considered a confession of the defendant. The defendant was not properly advised of his right to remain silent and of his right to counsel before making this confession, and the state concedes that the confession is violative of the principles set forth in Neely 1 (right to counsel, right to remain silent), Escobedo 2 and Miranda. 3

Page 659

The question, then, is whether these decisions apply to this case. Miranda does not apply because the trial occurred prior to the decision date of Miranda. Miranda applies prospectively only. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, reh. den. 385 U.S. 890, 87 S.Ct. 12, 17 L.Ed.2d 121 (1966); State v. Dills; Stice, 244 Or. 188, 194, 416 P.2d 651 (1966); State v. Allen, 248 Or. 376, 382, 434 P.2d 740 (1967). Neely, following and applying Escobedo in Oregon, does apply to the confession in this case, because the Oregon Supreme Court, in Elliott v. Gladden, 244 Or. 134, 411 P.2d 287, cert. den. 384 U.S. 1020, 86 S.Ct. 1982, 16 L.Ed.2d 1043 (1966), held that Neely would apply to all cases not 'finally decided' before the date of the Escobedo decision (June 22, 1964)....

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