State v. Davidson

• Decision Date: 12 March 1969
• Citation: 451 P.2d 481,252 Or. 617
• Parties: STATE of Oregon, Respondent, v. Keith L. DAVIDSON, Appellant.
• Court: Oregon Supreme Court

Page 481

451 P.2d 481

252 Or. 617

STATE of Oregon, Respondent, v. Keith L. DAVIDSON, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted Feb. 7, 1969.

Decided March 12, 1969.

Ernest Lundeen, Eugene, argued the cause and filed a brief for appellant.

Billy L. Williamson, Deputy Dist. Atty., Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty., Portland.

Before SLOAN, P.J., and GOODWIN and HOLMAN, JJ.

HOLMAN, Justice.

Defendant appealed from a judgment of conviction of the crime of embezzlement by bailee. He was charged with failing to return an automobile to the owner who had given him possession of it for the purpose of allowing him to test it.

Defendant's first assignment of error is the court's failure to grant his motion for the discharge of his attorney. Defendant was without funds to secure an attorney and one was appointed for him by the court. Defendant became dissatisfied with his appointed attorney's services and asked that he be removed. No adequate reasons were given to the court for defendant's dissatisfaction and the court denied the motion. Defendant also asked that he be allowed to substitute a hired attorney in which request the court acquiesced. However, defendant failed to secure anyone on this basis. Defendant was forced to trial with his court-appointed lawyer, after being given four continuances. Defendant conducted a large part of the trial himself while his lawyer sat by his side. To recite the facts is to refute defendant's claim of error. Defendant did not have to use the services of the attorney. His knowledge that he did not have to use his attorney's services was demonstrated by the fact that he chose to use him for some parts of the trial and not for others. He had no right to have another court-appointed lawyer in the absence of a legitimate complaint concerning the one already appointed for him.

Defendant next contends that the court erred in allowing evidence of an admission made by him while he was in custody. There is evidence that substantiates the following state of facts. Defendant was served with a warrant, while at the city jail in Springfield, charging him with crimes involving a vehicle other than that with which this case is concerned. He was immediately warned of his rights and transported the four miles from the Springfield city jail to the Lane County jail in Eugene. Within 30 minutes of the time he was taken into custody at Springfield, and while he was being dressed in at the county jail in Engene, he was asked a question by the officer who had taken him into custody concerning the vehicle involved in the present case. Defendant then made the incriminating admission in question. Defendant contends that because he was arrested on another charge he had to be re-advised of his rights when he was questioned concerning the present case 30 minutes later.

The warning given to defendant was not limited to any specific unlawful conduct, nor do we know of any reason which requires it to be so limited, considering the purpose of the Miranda ¹ rule. Neither was the length of time between warning and admission sufficient to require a new warning.

Defendant also contends there was no articulation by him of any waiver of his right to have the advice of counsel and his right to remain silent. There was evidence that the warning was given in simple terms and that defendant, a person of apparently normal intelligence, stated that he understood the warning and thereafter made the statements without any prolonged period of questioning or coercive atmosphere. It is not always necessary to articulate a waiver. It may be shown by the manner in which the questions are asked, the responses that are made, the age experience and intelligence of the person being questioned as well as all the other surrounding circumstances. Any clear and unambiguous conduct by a person who has been advised of his rights which indicates his willingness to answer questions without a lawyer is sufficient. State v. Matt, Or., 444 P.2d 914 (1968); State v. Wright, Or., 444 P.2d 912 (1968). There was evidence of sufficient historical facts relative to the circumstances surrounding the admission to sustain the trial court's ruling that defendant was properly warned and waived his right to an attorney and to remain silent Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968).

Defendant's next assignment of error was that the evidence was insufficient to sustain his conviction. He contends that the vehicle was not shown to have been of a value in excess of $75, which was a necessary element of the crime. No one testified to the value of the automobile....