State v. Dayton

• Decision Date: 22 December 1965
• Citation: 409 P.2d 189,242 Or. 269,81 Or.Adv.Sh. 783
• Parties: STATE of Oregon, Respondent, v. Helen Carolyn DAYTON, Appellant.
• Court: Oregon Supreme Court

Page 189

409 P.2d 189

242 Or. 269

STATE of Oregon, Respondent, v. Helen Carolyn DAYTON, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Nov. 30, 1965.

Decided Dec. 22, 1965.

Lawrence A. Aschenbrenner, Public Defender, Salem, argued the cause and filed the brief for appellant.

George M. Joseph, Asst. Dist. Atty., Portland, argued the cause for respondent. On the brief was George Van Hoomissen, Dist.Atty., Portland.

Before McALLISTER, C. J., and PERRY, SLOAN, GOODWIN, DENECKE, HOLMAN and LUSK, JJ.

HOLMAN, Justice.

Defendant was convicted of the crime of first degree murder. She was charged with killing her husband by running him down with her automobile. The evidence justified a finding that the defendant and her husband had been drinking in their tavern and had engaged in an argument. She left the tavern, secured her automobile, and ran over him as he walked down the sidewalk after he emerged from the tavern.

Defendant's first assignment of error is based upon the court's admission of the testimony of two police officers as to statements she made to them about twenty minutes after the occurrence in question. The two officers were on patrol when they received a radio report of a hit-and-run accident. They drove to the location given in the report, saw another police car was already there and therefore did not stop. Instead, they cruised the neighborhood looking for a vehicle described in the report. After some searching they came upon a vehicle which fitted the description. It was parked about six or seven blocks from where the victim was found. They had alighted from their patrol car and had commenced to inspect the vehicle when the defendant came from an adjacent house. At this time their inspection had detected no damage to the vehicle but they had noticed some markes on the hood where dust or dirt had been disturbed. In response to questions by officers defendant told them that it was her car and that twenty minutes earlier she ahd driven it from the tavern in question to where it was parked.

Defendant claims the purpose of this questioning was to elicit a confession from her, that at the time she was the focus of an accusatory investigation, that she was not warned of her rights to counsel or to remain silent and therefore did not waive them. As a result, she says she was deprived of her constitutional rights at the time of the interrogation. Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); State v. Neely, 239 Or. 487, 395 P.2d 557, 398 P.2d 482 (1965).

At the time of the questioning the officers did not know if the vehicle they had discovered was the one for which they were searching or if the defendant was its driver. After the conversation with her they still did not know if it was the right vehicle. They had a right to be highly suspicious. At the time of the questioning defendant was not in custody and answered the questions voluntarily. This is a far cry from the facts in Escobedo. The Escobedo rule was not meant to, nor does it, prevent routine investigation by police. The questioning was investigatory and not accusatory. It was a general inquiry into an unsolved crime. State v. Shannon, 81 Or. Adv.Sh. 209, 405 P.2d 837 (1965). No error was committed in admitting testimony of the conversation.

In addition, defendant's counsel made no objection to the introduction of the testimony and correctly expressed agreement with the court's admission of it.

Defendant's second claim of error relates to the court's admission of the testimony of a police detective who questioned her while she was in custody after she had been returned to the scene of the crime and to whom she made incriminating statements. She complains that at the time of its admission the court had made no determination that she had been advised of her right to counsel. There was a conflict in the evidence as to whether she was so advised. She testified she was not. However, one of the investigating officers who had known the defendant for five or six years testified as follows:

'* * * I said, 'you don't have to tell us anything. However, whatever you do tell us can be used. However, if you don't wish to talk to us, you don't, but it will make our job much easier if you do tell us what you know about the incident that did take place, and if you need an attorney, you may have an attorney at any time you ask for one.' And I said, 'Get a good attorney, Helen,' and that was the gist of the conversation.

* * *

* * *

'I said, 'Helen, this is Detective Terleski. I have known him over a long period of time. He is very fair and he is not unreasonable.' I said, 'You tell him and answer his questions to the best of your ability that he should ask you. It will make our job that much easier. We will be able to clear this thing up that much faster.' I says, 'However, if you don't feel like answering any of the questions he asks, you don't have to.''

The detective who questioned her testified as follows:

'A Oh, Officer Baughman was acquainted with her from before and he explained to her she didn't have to say anything, that she just didn't--she could be silent if she wished, and she had asked me later if she could have an attorney, and I told her if she felt she needed one, she could have one at any time.'

The above testimony was given at the in camera hearing before the court. In testimony before the jury the detective testified as follows:

'A Oh, first, when I first started talking to her, she didn't know her husband was dead, and I began to ask her some questions, and she said that--she asked if she had a right to an attorney before she answered any questions, or could get an attorney if she wanted to. I told her she did, if she wanted to, she could get an attorney before she talked or answered any questions. * * *'

Where there is a conflict in the testimony...