Pеtitioner was convicted in 1963 of the crime of using' explosives to commit a crime in a building entered in the nighttime.
①
He was apprehended in the basement of a bank building. A search of his automobile produced incriminating evidence. The search was made six days after petitioner’s arrest and without a warrant. There can be little doubt that the search and seizure was in violation of the Fourth Amendment. The evidence found in the car was introduced by the state without objection at petitioner’s
*454
1963 trial. An unsuccessful appeal was taken from his conviction, but no error was assigned to the receipt of evidence secured through illegal search and seizure.
State v. North,
Petitioner’s counsel, who represented him during his trial of conviction, testified in the post-conviction hearing that he failed to object to the introduction of the evidence in question because he thought it was admissible. Petitioner testified he had no way of knowing whether the evidence was properly admissible or not. Incompetence of counsel is not asserted as a ground for relief.
At the threshold of this opinion a question arises which has not been presented by counsel. That problem is whether the provisions of Oregon’s Post-Conviction Hearing Act dictate that petitioner prevail upon a showing that constitutionally defective evidence was introduced at his trial of conviction despite the absence of any objection to its introduction. ORS 138.550(1) provides as follows:
“The failure of petitioner * * * to have raised matters alleged in his petition at his trial, shall not affect the availability of relief under ORS 138.510 to 138.680 * * (Emphasis ours.)
If the statute is interpreted literally, it can be construed to mean that petitioner must be' granted relief *455 even though he did not object at trial and regardless of the reason for his failure to do so.
At the outset, it should be made clear that we are not talking about the right to file a petition for relief for the purpose of having the court consider petitioner’s аlleged constitutional grievance. A petitioner has such right. We are only considering whether a petitioner is entitled to relief upon a showing that constitutionally defective evidence was admitted without regard to the circumstances under which he failed to object.
The quoted part of ORS 138.550(1) must not be construed in a vacuum but must be read with the other provisions of the act. ORS 138.530(1) (a) provides that relief (-an be granted where there was “[a] substantial denial in the proceedings resulting in petitioner’s conviction ® * * of petitioner’s rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, # * We do not construe the provision of ORS 138.550(1), which is in question, as intending to determine what state of facts constitutes a “substantial denial.” Whether there has been a substantial denial of petitioner’s constitutional rights by the admission of the evidence during his trial of conviction is the question at hand. This will be determined by the circumstances under which he failed to raise the issue at trial. The question is not predetermined by ORS 138.550(1).
If ORS 138.550(1) is construed as putting the petitioner, under all circumstances, in the same situation as he was at trial, insofar as his right to enforce his constitutional right is concerned, it has in effect said there can be no procedural restrictions on the subsequent assertion of constitutional rights. There has *456 been a procedural rule of long standing in this state requiring contemporaneous objection to the introduction of inadmissible evidence before error may be asserted on appeal because of its admission. This rule serves a legitimate state purpose because it gives the trial court the opportunity to conduct a trial without using the tainted evidence, and a new trial may thus be avoided. Any other rule would destroy the possibility of giving any finality to the trial process. The defendant’s attorney could fail to object to the admission of constitutionally objectionable evidence, secure in the knowledge that his client always had an anchor to windward guaranteeing him a new trial if the jury’s verdict Avas adverse.
This procedural rule would be completely eroded by permitting the granting of relief in post-conviction proceedings in the absence of an objection at trial. It would be senseless to require an objection to the e/vidence as a prerequisite to the assertion of error on appeal if the necessity for such an objection could subsequently be avoided by instituting an application for post-conviction relief. We cannot believe the legislature intended any such result.
However, there are situations in which the law recognizes that it is inapprоpriate to require a contemporaneous objection at trial as a/prerequisite to the subsequent raising of the constitutional issue. We believe that the provision in question was intended to prevent the assertion of the procedural rule in such situations. The most common illustration' is where the objection cоuld conceivably have been made but could not reasonably have been expected.- Examples -are where the right subsequently sought to be asserted-was not generally'recognized to be-in exist *457 ence at the time of trial; where counsel was excusably unaware of facts which would have disclosed a basis fоr the assertion of the right; and where duress or coercion prevented assertion of the right. Also, the failure to assert the right would not be a bar where counsel was incompetent or was guilty of bad faith.
In
Clark v.
Gladden,
Since the reasons for counsel’s failure to сhallenge the convictions were never made an issue, we did not go into the line of inquiry which is opened up in the case at bar. Accordingly, our failure to discuss the circumstances under which counsel failed to object in the Clark case should not be taken as a holding that petitioner is entitled to relief without regard to such circumstances.
We now proceed to the question whether petitioner’s failure to object to the admission of the evidence at his trial of conviction was under such circumstances that it would be unfair to enforce the procedural rule requiring a contemporaneous objection. Petitioner does, not claim that his attorney at his trial of con *458 viction was incompetent. The record shows that his counsel was of many years’ standing in the Bar. Both petitioner and his attorney knew that petitioner’s automobile was in the hands of the police. It was known by them that petitioner was apprehended in the basement of the bank at а place completely away from his vehicle. They do not contend that they thought the evidence from the vehicle had been secured pursuant to a warrant. When the state presented the evidence taken from the automobile, all relevant facts were known to both of them that were necessary in deciding whether an objection should or should not be made.
No showing is made by petitioner that he or his counsel were laboring under any coercion, implied or otherwise. Nor did they show that relevant facts were justifiably unknown to them which would have disclosed a basis for an objection. They appeared to contend аt the post-conviction trial that some relevant aspects of the law of search and seizure which would have made clear their right to object were not known to them because of obscurity in the law. The trial of conviction was in 1963. There was nothing obscure about the law at that time as applied to the faсts of the search and seizure in this ease.
Mapp v. Ohio,
Lest it be thought that in fact counsel was incompetent because he failed to object to the evidence, we quote with approval language quoted in
State v. Abel,
“ ‘As to the requirement under the Fourteenth *459 Amendment, the services of counsel meet the requirements of the due process clause when he is a member in good standing at the bar, gives his client his complete loyalty, serves him in good faith to the best of his ability, and his service is of such character as to preserve the essential integrity of the proceedings as a trial in a court of justice. He is not required to be infallible. We know that some good lawyer gets beat in every law suit. He made some mistakes. The printed opinions that line the walls in our offices bear mute testimony to that fact. His client is entitled to a fair trial, not a perfect one.’
“U. S. ex rel Weber v. Ragen (CA 7 Ill) 176 F2d 579, 586, per Minton, J.”
Also see
Benson v. Gladden,
When a petitioner has a competent attorney who is not guilty of fraud and all the circumstances are such that the attorney would reasonably have been expected to object to constitutionally defective evidence, there is nothing unfair in asserting in post-conviction x>roceedings the procedural rule requiring а contemporaneous objection. There is no substantial denial of a constitutional right. Certainly, in such a situation, everything has been done that can be done to provide petitioner with an opportunity to assert his constitutional right at his trial of conviction. If we were to presume that, under such circumstances, the failure to object was an oversight on the part of petitioner’s attorney, we believe the procedural rule should still be invoked. Any other result would put the burden upon the state to see that the petitioner hired or was furnished at his trial of conviction that nonexistent x>erson, a perfect lawyer. This, in our opinion, is an impоssibility, and due process does not require *460 it. Any other holding would also invite the intentional by-pass which no one could detect because the intent would be entirely within the mind of petitioner’s attorney.
Petitioner bases his right to raise now the constitutional objection to the admissibility of the evidence on
Fay v. Noia,
We also believe Henry v. Mississippi, supra, does not sustain petitioner’s position. It was an appeal to the United States Supreme Court from a state court conviction. Evidence of a claimed constitutionally defective search and seizure had been admitted without objection at trial'. The Supreme Cоurt concluded that if a state procedural rule prevented assertion on appeal in state court of the claimed defective seizure aiid served an adequate and legitimate state interest, *461 it would not review the alleged deprivation, of the federal right. It also concluded that a rule similar to ours, rеquiring the accused to make a contemporaneous objection, served a legitimate state purpose. In Henry, the accused was not barred by his failure to object to the evidence because the state interest served by the rule requiring objection was subsequently served when the motion for directed verdict was made and ruled upon. Since, at that point, the state’s interest would no longer be served by the state’s insistence upon compliance with the rule requiring a contemporaneous objection, there was no longer any bar to review of the federal question by the Supreme Court. If the motion for directed verdict had not been made, Henry would then have been in the same posture as the case at bar, in which case it would seem clear that the Court would have held that review was barred because a legitimate and adequate state interest was served by the rule requiring a contemporaneous objection to inadmissible evidence.
In the present case there was no subsequent procedure as there was in Henry v. Mississippi, supra, which could have provided the state with the opportunity to protect its interest. Under these circumstances direct review by the Supreme Court is barred.
Petitioner also contends that he was'not advised of his unqualified right to counsel prior to making damaging admissions which were the fruit of i interrogation by police officers. There was evidence that he was told prior to interrogation that he had the right 'to remain silent, that what he said could be used .against him, - and. that he could consult, with an attorney, if he had one, prior to making any state, ments.. .:He. was.; aqt\advised that: he would -be' given *462 an appointed attorney by the state if he could not afford one.
Petitioner argues that the 90-day period after affirmance of his conviction during which he could have appealed for a writ of certiorari to the United States Supreme Court did not expire until June 23, 1964, and, therefore, his case had not been finally adjudicated when
Escobedo v. Illinois,
We have established that retrospective application of
Escobedo
will be limited to cases which were not finally adjudicated on June 22, 1964, the date
Escobedo
was decided.
Elliott v. Gladden,
We have also established that a case will not be considered finally adjudicated until the time has elaрsed in which an application for a writ of certiorari can be made to the United States Supreme Court.
Haynes v. Cupp,
In addition, we have held that
State v. Neely,
“We hold that the Sixth Amendment as made *463 obligatory by the Fourteenth Amendment requires that before law enforcement officials can interrogate a person who is the focal suspect of a crime, such person must effectively be informed of his right to assistance of counsel as well as his right to remain silent * * ®.”239 Or at 503-504 .
No thought was given at the time of the
Neely
decision to the necessity of informing the suspect that if he was indigent and could not afford an attornеy, one would be appointed for him.
Miranda v. Arizona,
In
Johnson v. New Jersey,
The judgment of. .the trial court is affirmed.
Notes
ORS 164.260.