Haynes v. Cupp

• Decision Date: 02 July 1969
• Citation: 456 P.2d 490,253 Or. 566
• Parties: William Woodman HAYNES, Appellant, v. Hoyt C. CUPP, Warden, Oregon State Penitentiary, Respondent.
• Court: Oregon Supreme Court

Page 490

456 P.2d 490

253 Or. 566

William Woodman HAYNES, Appellant, v. Hoyt C. CUPP, Warden, Oregon State Penitentiary, Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted April 7, 1969.

Decided July 2, 1969.

Kenneth C. Hadley, Deputy Public Defender, Salem, argued the cause for appellant. With him on the briefs was Gary D. Babcock, Public Defender, Salem.

David H. Blunt, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were Robert Y. Thornton, Atty. Gen., Salem, and Helen B. Kalil, Asst. Atty. Gen., Salem.

Before PERRY, C.J., and McALLISTER, O'CONNELL, DENECKE and HAMMOND ^*, JJ.

DENECKE, Justice.

Petitioner appeals from an order dismissing his petition for post-conviction relief, which order was entered after a demurrer to such petition had been sustained and petitioner declined to plead further.

Petitioner was convicted of the crime of burglary not in a dwelling and sentenced to the penitentiary on December 9, 1963. From such conviction he appealed to this court (State v. Haynes, 239 Or. 132, 396 P.2d 694 (1964). He did not assign as error the ground with which we are concerned on this appeal. The judgment of conviction was affirmed.

One of the grounds alleged in the petition for post-conviction relief is that the petitioner was interrogated by officers although he was not informed of his right to remain silent or his right to counsel and as a result of such interrogation petitioner made admissions which were received in evidence at his trial. The defendant contends: 'Petitioner's Escobedo claims are Res judicata both on the grounds that his appeal was concluded four and one-half months after the Escobedo decisions; and because he did not raise them in a post conviction proceeding prior to the instant matter.'

This first contention of the defendant is, in essence, that a suspect's right to be advised of his right to remain silent and of his right to counsel stems from the decision in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and the principles of Escobedo are not to be applied to a case in which the appeal in this court was not decided for four and one-half months after the Escobedo decision and when petitioner's counsel did not then raise this issue.

The defendant's contention is not well taken.

In this jurisdiction the right of a suspect to be informed of his right to remain silent and his right to counsel stems from our decision in State v. Neely, 239 Or. 487, 395 P.2d 557, 398 P.2d 482 (1965), decided upon rehearing January 27, 1965. We held that such rights necessarily followed from Escobedo v. Illinois, supra (378 U.S. 478, 84 S.Ct. 1758).

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), we held that Neely would not be applied in cases 'finally decided' before June 22, 1964, the date of the Escobedo decision. In Guse v. Gladden, 243 Or. 406, 414 P.2d 317 (1966), we elaborated upon 'finally decided' and held Guse's case was not finally decided prior to Escobedo because less than 90 days elapsed between affirmance of Guse's conviction by this court and June 22, 1964. The 90 days was included because that is the time available to petition for certiorari to the United States Supreme Court. Guse was tried in 1963 and his conviction was affirmed by this court on May 13, 1964. The petitioner in the instant case was tried in 1963 and his appeal was affirmed by this court on November 18, 1964.

We have not been in complete accord as to what rights first originated in the decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), and what rights date from State v. Neely, supra, 239 Or. 487, 395 P.2d 557, 398 P.2d 482, in which we attempted to interpret Escobedo. See 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). We are in accord, however, that State v. Neely, supra, 239 Or. 487, 395 P.2d 557, 398 P.2d 482, established that before a confession or an admission obtained by custodial interrogation could be admissible it was necessary to prove that the defendant had been advised of his right to remain silent and his right to counsel. The present petition alleges that no such advice was given. This case was not finally decided before June 22, 1964, therefore, State v. Neely, supra, 239 Or. 487, 395 P.2d 557, 398 P.2d 482, is applicable.

As part of his first contention the defendant also urges that the petitioner waived his right to assert this ground for post-conviction relief because he failed to urge it in his appeal.

ORS 138.550(2) provides:

'When the petitioner sought and obtained direct appellate review of his conviction and sentence, no ground for relief may be asserted by petitioner in a petition for relief under ORS 138.510 to 138.680 unless such ground was not asserted and could not reasonably have been asserted in the direct appellate review proceeding. If petitioner was not represented by counsel in the direct appellate review proceeding, due to his lack of funds to retain such counsel and the failure of the court to appoint counsel for that proceeding, any ground for relief under ORS 138.510 to 138.680 which was not specifically decided by the appellate court may be asserted in the first petition for relief under ORS 138.510 to 138.680, unless otherwise provided in this section.'

The direct appeal was argued on November 5, 1964. We can assume that appellant's brief in that case was filed at least three or four months before that time. Escobedo was decided in June 1964; however, many courts did not believe that decision required the advising of an interrogated accused of his rights. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Our decision in State v. Neely, supra, 239 Or. 487, 395 P.2d 557, 398 P.2d 482, holding that Escobedo did require such advice to the accused, came down in an initial opinion in September 1964, but our holding was not fully defined until the opinion on the petition for rehearing in January 1965. In State v. Clifton, 240 Or. 378, 401 P.2d 697, decided in May 1965, we held that on appeal the defendant could successfully urge that it was error to admit admissions of the defendant when he was not informed of his constitutional rights although no objection to the testimony of such...