State v. Matt

• Decision Date: 25 June 1968
• Parties: STATE of Oregon, Respondent, v. Duane Edward MATT, Appellant. . Submitted on Appellant's Brief
• Court: Oregon Supreme Court

Page 914

444 P.2d 914

251 Or. 134

STATE of Oregon, Respondent, v. Duane Edward MATT, Appellant.

Supreme Court of Oregon, In Banc.

Submitted on Appellant's Brief June 25, 1968.

Decided Sept. 5, 1968.

No appearance for respondent.

Gary D. Babcock, Public Defender, Salem, filed a brief for appellant.

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

HOLMAN, Justice.

This is an appeal from a conviction for the crime of larceny of an automobile. Defendant maintains the trial court erred in admitting the testimony of a police officer relative to attempted exculpatory but incriminating statements made by defendant concerning where he had secured the vehicle.

Defendant admits there was evidence that he was advised of his constitutional rights and that he told the police officer he was familiar with his rights and was willing to make a statement. He contends, however, that the evidence was insufficient to sustain a finding that he had waived his right to have the advice of counsel at the time he was being questioned because there was no evidence of any Express statement that he had waived his right to counsel. He bases his contention on the following language found in Miranda v. State of Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966):

'An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. A statement we made in Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962), is applicable here:

'Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anythings less is not waiver."

Carnley v. Cochran was a case in which in accused was tried without benefit of counsel. The record was silent as to whether he had been informed that he was entitled to counsel and whether he had refused counsel. It was contended that it should be presumed that defendant waived the benefit of counsel. The Supreme Court held that waiver could not be presumed from a silent record. The literal interpretation given the language quoted in Miranda by defendant does not seem justified by the facts of Carnley v. Cochran. In the present case defendant was informed of his rights and stated that he understood them and was willing to make a statement. Without any evidence of a prior substantial period of questioning, defendant responded to a request for information concerning where he had obtained the vehicle. Certainly, it could not have been intended by the court in Miranda that the only way a waiver might be accomplished was by the use of the words: 'I am willing to answer questions without the services of a lawyer.' There is no magic in these words. 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 surely sufficient. If one is subjected to a protracted period of questioning after warning it could be claimed that his will was overcome despite his understanding of...