State v. Neely

CourtSupreme Court of Oregon
Writing for the CourtBefore McALLISTER; DENECKE; White
Citation395 P.2d 557,239 Or. 487
PartiesSTATE of Oregon, Respondent, v. Earl Ray NEELY, Appellant.
Decision Date30 September 1964

Page 557

395 P.2d 557
239 Or. 487
STATE of Oregon, Respondent,
v.
Earl Ray NEELY, Appellant.
Supreme Court of Oregon, In Banc.
Argued and Submitted June 3, 1964.
Decided Sept. 30, 1964.

Page 558

Howard R. Lonergan, Portland, argued the cause and filed briefs, for appellant.

Charles J. Merten, Portland, argued the cause for respondent. On the brief were George Van Hoomissen, Dist. Atty., and Gerald R. Pullen, Deputy Dist. Atty., Portland.

Before McALLISTER, C. J., and ROSSMAN, [239 Or. 488] PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, JJ.

DENECKE, Justice.

The defendant was convicted of the crime of statutory rape upon a stepdaughter. ORS 163.220. He appeals upon the ground that he was deprived of constitutional rights guaranteed to him by the 'due process' clause of the Fourteenth Amendment of the United States Constitution. He alleges that his oral and written confessions were inadmissible because they were obtained prior to his having been taken before a magistrate, and before he had been afforded the assistance of counsel.

Sometime between 3:30 and 4:00, p. m., two deputy sheriffs arrested the defendant at his place of employment. The arrest was pursuant to a warrant of arrest for the crime of statutory rape. There is a conflict in the evidence as to whether or not the defendant was informed that he had been placed under arrest. At approximately 4:15, p. m., after he had showered and changed his clothes, the defendant, accompanied by the two officers, left the plant and proceeded to the sheriff's office in Gresham. They arrived at the sheriff's office at approximately 4:35, p. m.

The officers questioned the defendant for about an hour, and at 5:45, p. m., they began to take down the statement in which the defendant confessed the crime. After the defendant had read and signed the statement, he was taken to Rocky Butte Jail, where he was booked at 7:20, p. m., the same evening. Later that evening, he was released on bail.

On the issue of whether or not defendant was advised of his right to counsel, the testimony of Officer [239 Or. 489] Dow, one of the interrogating officers, is ambiguous. The officer is clear that defendant asked about his right to counsel. However, the officer's further testimony is susceptible to two interpretations: (1) that, prior to the confession being made, the defendant asked whether he had a right to counsel and was informed by the officer that after the interrogation the defendant would be entitled to counsel, or (2) after the confession was made, the defendant asked about counsel and was advised he was entitled to counsel. Under either interpretation he was not informed prior to make the confession that he was entitled to counsel prior to interrogation.

Officer Graven, the other interrogator, testified there was a telephone available and the defendant could have used it at any time to call an attorney. Officer Graven did not talk to the defendant about defendant's right to counsel because, according to this officer, the defendant wanted to come in and plead guilty and see if he could get probation.

Defendant testified that he was never informed and did not know he was under arrest until after he had signed the confession. He stated that the officers told him that his wife brought in his stepdaughter and she made a written statement accusing defendant of the crime; that the officers said they wanted a statement from

Page 559

defendant for the divorce proceeding which was then pending between defendant and his wife; and that once his wife got the divorce the matter would be forgotten. Defendant stated that the officers never asked him if he wanted an attorney and, with the belief that he was not arrested nor in danger of a criminal prosecution, he did not think he needed one.

There is no evidence whether or not he was told that he did not have to make any statement or that [239 Or. 490] such a statement could be used against him. The defendant's testimony creates an inference that he was not so advised.

There is no evidence that the defendant was coerced into making the confession. Although there is some evidence from which it might be possible to conclude that the confession was obtained by trickery, defense counsel has never so contended.

The defendant testified that he can probably write as well as the police officers. He had been earning between $5,000 and $7,000 per year. After he was jailed, he retained his own attorney.

Under our past decisions the admission of defendant's confession would not be violative of his rights. State v. Nunn, 212 Or. 546, 553, 321 P.2d 356 (1958). However, recently, the Supreme Court of the United States has decided several cases stating that the presence or absence of certain circumstances renders the confession constitutionally inadmissible.

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93 practice notes
  • Miranda v. State, No. 759
    • United States
    • United States Supreme Court
    • October 10, 1966
    ...878 (C.A.9th Cir.); People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361; State v. Dufour, 206 A.2d 82 (R.I.); State v. Neely, 239 Or. 487, 395 P.2d 557, modified 398 P.2d 482.The cases in both categories are those readily available; there are certainly many others.18. For instan......
  • State v. Douglas
    • United States
    • Supreme Court of Oregon
    • September 22, 1971
    ...in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), as interpreted by us in State v. Neely, 239 Or. 487, 395 P.2d 557, 398 P.2d 482 (1965), is applicable not only to interrogations leading up to confessions but is equally applicable to interrogation aimed at obtaini......
  • State v. Smith
    • United States
    • Supreme Court of Oregon
    • September 16, 1986
    ...Page 902 State v. Moran, 15 Or. 262 (14 Pac. 419) [ (1887) ]. * * * " 35 Or. at 391, 58 P. 765. In State v. Neely, 239 Or. 487, 493-94, 395 P.2d 557, 398 P.2d 482 (1965), this court said: "The Oregon decisions excluding involuntary confessions have based the exclusion upon common-law rules ......
  • Duncan v. State, 7 Div. 614
    • United States
    • Supreme Court of Alabama
    • June 30, 1965
    ...that if this is not affirmatively shown by the State, a confession obtained without such warning is inadmissible. State v. Neely (Ore.), 395 P.2d 557. [278 Ala. 168] To like effect is State v. Dufour (R.I.), 206 A.2d For other cases holding Escobedo to require the rejection of a confession ......
  • Request a trial to view additional results
93 cases
  • Miranda v. State, No. 759
    • United States
    • United States Supreme Court
    • October 10, 1966
    ...878 (C.A.9th Cir.); People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361; State v. Dufour, 206 A.2d 82 (R.I.); State v. Neely, 239 Or. 487, 395 P.2d 557, modified 398 P.2d 482.The cases in both categories are those readily available; there are certainly many others.18. For instan......
  • State v. Douglas
    • United States
    • Supreme Court of Oregon
    • September 22, 1971
    ...in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), as interpreted by us in State v. Neely, 239 Or. 487, 395 P.2d 557, 398 P.2d 482 (1965), is applicable not only to interrogations leading up to confessions but is equally applicable to interrogation aimed at obtaini......
  • State v. Smith
    • United States
    • Supreme Court of Oregon
    • September 16, 1986
    ...Page 902 State v. Moran, 15 Or. 262 (14 Pac. 419) [ (1887) ]. * * * " 35 Or. at 391, 58 P. 765. In State v. Neely, 239 Or. 487, 493-94, 395 P.2d 557, 398 P.2d 482 (1965), this court said: "The Oregon decisions excluding involuntary confessions have based the exclusion upon common-law rules ......
  • Duncan v. State, 7 Div. 614
    • United States
    • Supreme Court of Alabama
    • June 30, 1965
    ...that if this is not affirmatively shown by the State, a confession obtained without such warning is inadmissible. State v. Neely (Ore.), 395 P.2d 557. [278 Ala. 168] To like effect is State v. Dufour (R.I.), 206 A.2d For other cases holding Escobedo to require the rejection of a confession ......
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