State v. Brewton

• Decision Date: 18 January 1967
• Citation: 422 P.2d 581,247 Or. 241
• Parties: STATE of Oregon, Respondent, v. Frank Leroy BREWTON, Appellant.
• Court: Oregon Supreme Court

Page 581

422 P.2d 581

247 Or. 241

STATE of Oregon, Respondent, v. Frank Leroy BREWTON, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Dec. 5, 1966.

Decided Jan. 18, 1967.

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.

Before McALLISTER, C.J., and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE, and HOLMAN, JJ.

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 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 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 '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 Amendment has attempted to achieve uniformity between the state and federal systems in the interpretation of Fourth, Fifth, and Sixth Amendment rights. It has done so upon the assumption that the exclusionary rule is a necessary procedural device to implement the substantive rights written into the Fourth, Fifth, and Sixth Amendments. This court, accordingly, has adopted the assumption that without the procedural aid of the exclusionary rule those substantive rights would be empty promises instead of constitutional guarantees. We so held in State v. Neely, and we have followed that view in cases coming before us since Neely.

If we should today adopt a restrictive application of the exclusionary rule, the result could be a major step backward. This court would in effect be saying to the overzealous that police officers will be free in the future to interrogate suspects secretly, at arms length, without counsel, and without advice, so long as they use means consistent with threat-or-promise voluntariness, and so long as they understand that they may file the information only for use to keep the defendant honest. Thus the police could, at their option, take a calculated risk: By giving up the possibility of using the suspect's statements in the state's case, they could obtain by unconstitutional means and store away evidence to use if the defendant should elect upon trial to take the stand. As commendable as it may be to prevent perjury, the price of such prevention could be to keep defendants off the stand entirely. In some cases, the temptation to silence a suspect of dubious probity might very well outweigh the desire to conduct a constitutionally valid interrogation. We have concluded that to introduce such a rule could undo much of the recent progress that has been made in upgrading police methods to preserve the rights guaranteed under the Fifth and Sixth Amendments, and would be inconsistent with the trend of our recent decisions.

We are also unable to follow the 'middle ground' suggested in Tate v. United States, supra, to the effect that if a defendant merely takes the stand and denies his part in the crime he may not be impeached by the fruits of unconstitutional interrogation, but if he testifies about collateral matters he may be so impeached. Such a rule would be virtually unworkable. The usual reason a defendant chooses to take the stand is to give the jury a comprehensive statement of his side of the story. Any story that would be responsive to the questions raised by the state's case would tend to open up collateral matters and would invite...