North v. Cupp

• Decision Date: 19 November 1969
• Citation: 461 P.2d 271,254 Or. 451
• Parties: John Addison NORTH, Appellant, v. Hoyt C. CUPP, Warden Oregon State Penitentiary, Respondent.
• Court: Oregon Supreme Court

Page 271

461 P.2d 271

254 Or. 451

John Addison NORTH, Appellant, v. Hoyt C. CUPP, Warden Oregon State Penitentiary, Respondent.

Supreme Court of Oregon, In Banc.

Nov. 19, 1969.

Ken C. Hadley, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief 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., and Helen B. Kalil, Asst. Atty. Gen., Salem.

HOLMAN, Justice.

Petitioner was convicted in 1963 of the crime of using explosives to commit a crime in a building entered in the nighttime. ¹ He was apprehended in the basement of a bank building. A search of his automobile produced incriminating evidence. The search was made six days after petitioner's arrest and without a warrant. There can be little doubt that the search and seizure was in violation of the Fourth Amendment. The evidence found in the car was introduced by the state without objection at petitioner's 1963 trial. An unsuccessful appeal was taken from his conviction, but no error was assigned to the receipt of evidence secured through illegal search and seizure. State v. North, 238 Or. 90, 390 P.2d 637 (1964). Petitioner then brought this post-conviction proceeding, asserting a violation of his Fourth Amendment rights because of the court's receipt of the evidence found in his automobile. Petitioner appealed from an adjudication, rendered after a hearing, that he was barred from asserting his Fourth Amendment rights because there had been an intentional failure to object.

Petitioner's counsel, who represented him during his trial of conviction, testified in the post-conviction hearing that he failed to object to the introduction of the evidence in question because he thought it was admissible. Petitioner testified he had no way of knowing whether the evidence was properly admissible or not. Incompetence of counsel is not asserted as a ground for relief.

At the threshold of this opinion a question arises which has not been presented by counsel. That problem is whether the provisions of Oregon's Post Conviction Procedure Act dictate that petitioner prevail upon a showing that constitutionally defective evidence was introduced at his trial of conviction despite the absence of any objection to its introduction. ORS 138.550(1) provides as follows:

'The failure of petitioner * * * to have raised matters alleged in his petition at his trial, Shall not affect the availability of relief under ORS 138.510 to 138.680 * * *.' (Emphasis ours.)

If the statute is interpreted literally, it can be construed to mean that petitioner must be granted relief even though he did not object at trial and regardless of the reason for his failure to do so.

At the outset, it should be made clear that we are not talking about the right to file a petition for relief for the purpose of having the court consider petitioner's alleged constitutional grievance. A petitioner has such right. We are only considering whether a petitioner is entitled to relief upon a showing that constitutionally defective evidence was admitted without regard to the circumstances under which he failed to object.

The quoted part of ORS 138.550(1) must not be construed in a vacuum but must be read with the other provisions of the act. ORS 138.530(1)(a) provides that relief can be granted where there was 'A substantial denial in the proceedings resulting in petitioner's conviction * * * of petitioner's rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, * * *.' We do not construe the provision of ORS 138.550(1), which is in question, as intending to determine what state of facts constitutes a 'substantial denial.' Whether there has been a substantial denial of petitioner's constitutional rights by the admission of the evidence during his trial of conviction is the question at hand. This will be determined by the circumstances under which he failed to raise the issue at trial. The question is not predetermined by ORS 138.550(1).

If ORS 138.550(1) is construed as putting the petitioner, under all circumstances, in the same situation as he was at trial, insofar as his right to enforce his constitutional right is concerned, it has in effect said there can be no procedural restrictions on the subsequent assertion of constitutional rights. There has been a procedural rule of long standing in this state requiring contemporaneous objection to the introduction of inadmissible evidence before error may be asserted on appeal because of its admission. This rule serves a legitimate state purpose because it gives the trial court the opportunity to conduct a trial without using the tainted evidence, and a new trial may thus be avoided. Any other rule would destroy the possibility of giving any finality to the trial process. The defendant's attorney could fail to object to the admission of constitutionally objectionable evidence, secure in the knowledge that his client always had an anchor to windward guaranteeing him a new trial if the jury's verdict was adverse.

This procedural rule would be completely eroded by permitting the granting of relief in post-conviction proceedings in the absence of an objection at trial. It would be senseless to require an objection to the evidence as a prerequisite to the assertion of error on appeal if the necessity for such an objection could subsequently be avoided by instituting an application for post-conviction relief. We cannot believe the legislature intended any such result.

However, there are situations in which the law recognizes that it is inappropriate to require a contemporaneous objection at trial as a prerequisite to the subsequent raising of the constitutional issue. We believe that the provision in question was intended to prevent the assertion of the procedural rule in such situations. The most common illustration is where the objection could conceivably have been made but could not reasonably have been expected. Examples are where the right subsequently sought to be asserted was not generally recognized to be in existence at the time of trial; where counsel was excusably unaware of facts which would have disclosed a basis for the assertion of the right; and where duress or coercion prevented assertion of the right. Also, the failure to assert the right would not be a bar where counsel was incompetent or was guilty of bad faith.

In Clark v. Gladden, 247 Or. 629, 432 P.2d 182 (1967), we allowed a prisoner who had been represented by counsel at his sentencing hearing to attack in post-conviction proceedings an habitual-criminal sentence based upon foreign convictions which his counsel had not challenged at the hearing. We did not discuss counsel's reasons, if any, for failure to object, as neither party in the Clark case made the quality of counsel's performance an issue. The state adopted an all-or-nothing position, arguing that an Oregon prisoner cannot use Oregon post-conviction proceedings to challenge foreign convictions, regardless of their vulnerability to collateral attack, if he did not raise the questions at trial. We held otherwise.

Since the reasons for counsel's failure to challenge the convictions were never made an issue, we did not go into the line of inquiry which is opened up in the case at bar. Accordingly, our failure to discuss the circumstances under which counsel failed to object in the Clark case should not be taken as a holding that petitioner is entitled to relief without regard to such circumstances.

We now proceed to the question whether petitioner's failure to object to the admission of the evidence at his trial of conviction was under such circumstances that it would be unfair to enforce the procedural rule requiring a contemporaneous objection. Petitioner does not claim that his attorney at his trial of conviction was incompetent. The record shows that his counsel was of many years' standing in the Bar. Both petitioner and his attorney knew that petitioner's automobile was in the hands of the police. It was known by them that petitioner was apprehended in the basement of the bank at a place completely away from his vehicle. They do not contend that they thought the evidence from the vehicle had been secured pursuant to a warrant. When the state presented the evidence taken from the automobile, all relevant facts were known to both of them that were necessary in deciding whether an objection should or should not be made.

No showing is made by petitioner that he or his counsel were laboring under any coercion, implied or otherwise. Nor did they show that relevant facts were justifiably unknown to them which would have disclosed a basis for an objection. They appeared to contend at the post-conviction trial that some relevant aspects of the law of search and seizure which would have made clear their right to object were not known to them because of obscurity in the law. The trial of conviction was in 1963. There was nothing obscure about the law at that time as applied to the facts of the search and seizure in this case. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), had been decided a year and a half earlier. Mapp was no innovation in Oregon, where the rule prohibiting the admission of illegally seized evidence was one of long standing.

Lest it be thought that in fact counsel was incompetent because he failed to object to the evidence, we quote with approval language quoted in State v. Abel, 241 Or. 465, 469, 406 P.2d 902, 904 (1965):

"As to the requirement under the Fourteenth Amendment, the sevices of counsel meet the requirements of the due process clause when he is a member in good standing at the bar, gives his client his complete loyalty, serves him in good faith to the best of his ability, and his service is of such character as to preserve the essential integrity of the proceedings as a trial in a...