Lead Opinion
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 inf ormed 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
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 bim 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 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 bim 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
There is no evidence that the def endant 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,
The most recent of these decisions is Escobedo v. Illinois,
The essence of the majority’s decision is:
“We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested .and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ * * 12 L ed2d at 986
Neely did not request the assistance of counsel; therefore, one of the critical facts present in the Escobedo case is absent here. Whether such a request is necessary before an accused can successfully contend he was deprived of his right to counsel we do not now need to decide.
In the previously-quoted statement of the crucial elements in the Escobedo decision, the fact that the defendant had not been informed of his right to remain silent was specifically stated. The majority reiterated that fact in other portions of its opinion and partially distinguished Crooker v. California,
“* * '* Among the critical circumstances which distinguish .that case [Crooker v. California] from this one are that the petitioner there, but not here, was explicitly advised by the police of his constitutional right to remain silent, and not to ‘say*492 anything’ in response .to the questions, * * 12 L ed2d at 986
Mr. Justice White, and the two justices joining in his dissent, at least in part, agree with this part of the majority opinion. Mr. Justice White writes:
“The Court may be concerned with a narrower matter: the unknowing defendant who responds to police questioning because he mistakenly believes that he must and that his admissions will not be used against him. But this worry hardly calls for the broadside the Court has now fired. The failure to inform an accused that he need not answer and that his answers may be used against him is very relevant indeed to whether the disclosures are compelled. Cases in this Court, to say the least, have never placed a premium on ignorance of constitutional rights. If an accused is told he must answer and did not know better, it would be very doubtful that the resulting admissions could be used against him. When the accused has not been informed of his rights at all the Court characteristically and properly looks very closely at the surrounding circumstances. See Ward v Texas,316 US 547 , 86 L ed 1663,62 S Ct 1139 ; Haley v Ohio,332 US 596 , 92 L ed 224,68 S Ct 302 ; Payne v Arkansas,356 US 560 , 2 L ed2d 975,78 S Ct 844 . I would continue to do so. But in this case Danny Escobedo knew full well that he need not answer and knew full well that his lawyer had advised him not to answer.” 12 L ed2d at 991
In the three cases cited by the dissent the failure to advise the accused of his right to be silent was only one part of the “totality of the circumstances.”
None of the opinions in Escobedo discuss the origin of the proposition that the right to remain silent at a police interrogation is a federal constitutional right, nor from which specific section of the Bill of Rights
Malloy v. Hogan,
“* * * The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement — the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty, as held in Twining, for such silence.” 12 L ed2d at 659
That decision held that the petitioner’s constitutional right to be free from s elf-incrimination prevented a court from holding him in contempt for refusing to testify before a referee conducting an inquiry into alleged gambling. However, the court’s discussion makes it clear that it is of the opinion that the right to remain silent in a police interrogation also derives from the Fifth Amendment right against self-incrimination. The majority admits that while this was the view expressed in Bram v. United States,
The Oregon decisions excluding involuntary confessions have based the exclusion upon common-law rules of evidence, codified into an Oregon statute. OBS 136.540. State v. Wintzingerode,
We conclude that the Escobedo decision requires that an accused be effectively warned of his constitutional right to remain silent and that if this is not affirmatively shown by the state, a confession obtained without such warning is inadmissible. Whether law enforcement officers must in addition advise an accused of his right to counsel and whether it is necessary that this advice be given by a magistrate we need not now decide.
We have considered defendant’s other contention that he cannot again be tried because he already has been once in jeopardy. On the basis of the record of the proceeding in the second attempt to try this matter, we find against defendant on this issue.
Eeversed and remanded for a new trial.
Notes
People v. Dorado, 40 Cal Rptr 264,
Lead Opinion
ON REHEARING
The state petitioned for a rehearing and the Oregon District Attorneys’ Association filed a brief in support of the petition. We granted the petition.
In our initial opinion we stated that there was no evidence that defendant had been advised that he did not have to make any statement. We concluded that Escobedo v. Illinois,
It was called to our attention in the state’s brief on the petition for rehearing that on the form on which defendant’s confession was typewritten were the following printed words:
“* * * I make the following statement, of my own free will, without fear, threats, coercion, or promises of reward or immunity of any kind: I know that I am not required to make any statement and I know that any statement I make may be used against me in Criminal proceedings in Court. The following facts are true to the best of my knowledge: * * (Emphasis added.)
Under usual circumstances a person has notice or knowledge of what he has read or written; for example, a person reading a document headed “RELEASE” is held to have notice that the document was a release. Broad v. Kelly’s Olympian Co.,
The circumstances under which a confession is obtained may weaken or destroy the inference of knowledge which ordinarily arises from the reading or writing of a statement. We do not find in this case, however, that they did destroy such inference.
The circumstances here were that the words, “I know that I am not required to make any statement,” were readily understandable; defendant was a mature man, and, according to his testimony, able to write as well as the deputy sheriffs; the interrogation was short and no claim of coercion was made.
Circumstances frequently attendant upon a confession, including this one, — being charged with a serious crime, being brought to a police station, courthouse or jail, and being interrogated by law enforcement officers — may dull the understanding of what an accused has read or written. However, this defendant did not testify that he did not understand the printed statement in the confession.
Under the circumstances attendant upon the taking of this confession we hold that defendant had knowledge of his right to remain silent and, therefore, the confession was not inadmissible on that ground.
In Haynes the recital was that no threats or promises had been made. Defendant had been held incommunicado from 10:00 p.m. until he signed a confession at 2:00 p.m. the next day. During this period he had been questioned for two hours or more. He had repeatedly asked to call his wife and was told he could not do so until he signed a confession. The state contended that the statement in the confession that no threats or promises had been made was conclusive that the confession had been made voluntarily. The Court held that such statement was of doubtful probative value and made its own independent examination of the facts and found the confession coerced.
5. Defendant also contended that his confession was inadmissible because it was obtained without his first being advised of his constitutional right to the assistance of counsel. In our initial opinion we specifically did not decide this issue. We must now so decide.
The state admits that defendant was not advised,
In State v. Kristich,
In Massiah v. United States,
“* * * We hold that the petitioner was denied the basic protections of [the Sixth Amendment] when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from bim after he had been indicted and in the absence of his counsel. # # *” 12 L ed2d at 250.
Then in Escobedo v. Illinois, supra, the Court moved this constitutional right to the assistance of counsel to a stage in the criminal process earlier than the time of indictment. The Court held:
“The interrogation here was conducted before petitioner was formally indicted. But in the context of this case, that fact should make no difference. When petitioner requested, and was denied, an opportunity to consult with his lawyer, the investigation had ceased to be a genéral investigation of ‘an unsolved crime.’ * * * Petitioner had become the accused, and the purpose of the interrogation was to ‘get him’ to confess * * #.
“We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to.eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him, of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ # # 12 L ed2d at 982, 986.
The state admits, because of Escobedo, that if Neely had requested an opportunity to consult with his attorney and had been denied such request, his con
At the judicial stage of a criminal proceeding the state, through the court, has the obligation of advising a defendant of his right to the assistance of counsel. In the absence of an affirmative showing of such advice, any conviction is constitutionally erroneous. In Carnley v. Cochran,
“* * * This might mean that the petitioner could have suffered no constitutional deprivation if he had not formally requested counsel, and that failure to make such a request is to be presumed unless the record shows the contrary. But it is settled that where the assistance of coimsel is a constitutional requisite, the right to be furnished counsel does not depend on a request. * # *” (Emphasis added.) 8 L ed2d at 75-76.
The conviction was reversed.
In Doughty v. Sacks, 175 Ohio St 46,
The state upon oral argument contended that a distinction should be made between the necessity of informing an accused of his right to counsel at the judicial stage of a criminal proceeding and prior thereto. The state acknowledged its obligation to inform an accused of his right to counsel at the judicial stage. The state contends it has no such obligation at the time of interrogation.
In Escobedo Mr. Justice Goldberg, writing for the majority, stated:
“We have also learned the companion lesson of history that no system of criminal justice can, or should, survive if it comes to depend, for its continued effectiveness on the citizens’ abdication through unawareness of their constitutional rights. No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, these rights. * * *” 12 L ed2d 985.
Mr. Justice Goldberg was speaking of ignorance of one’s right to be silent; however, ignorance of an accused’s right to counsel cannot be treated differently.
“* * * Although the opinion purports to be limited to the facts of this case, it would be naive to think that the new constitutional right announced will depend upon whether the accused has retained his own counsel [Citing oases], or has asked to consult with counsel in the course of interrogation. Cf. Carnley v. Cochran,369 US 506 , 8 L ed 2d 70,82 S Ct 884 . * * *” (Emphasis added.) 12 L ed2d at 988-989.
Adoption of the distinction advanced by the state would lead to results contrary to the basic beliefs of the United States Supreme Court and of this court. Under the state’s contention a suspect like Escobedo who has been previously jailed and, therefore, has previously needed the assistance of counsel, has a constitutional right to counsel because he knows through experience to demand counsel; however, a suspect who has never had any prior experience with the criminal process and, therefore, does not know by experience the assistance that a lawyer can give and, therefore, does not demand such assistance, has no constitutional right to counsel. If the state’s distinction were accepted, we would grant the assistance of counsel to those educated enough to demand it and deny it to those too ignorant to ask for it. The United States Constitution demands equal treatment during the criminal process for the inexperienced and the uneducated.
We hold that the Sixth Amendment as made 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
Former opinion modified; reversed and remanded.
The prevailing opinion was by Mr. Justice Douglas, with three other Justices concurring, and reversed. Mr. Justice Frankiurter specially concurred in the decision to reverse.
People v. Hartgraves, 31 Ill2d 375,
Dissenting Opinion
dissenting.
I am unable to agree with that portion of the majority opinion which holds that, in the absence of informing the prisoner of his right to assistance of counsel, this is a denial of a constitutional right that prevents the use of a confession obtained.
In my opinion, Escobebo v. Illinois,
It should be noted that Mr. Justice Goldberg, writing for the majority in Escobedo v. Illinois, supra, commences the opinion with this statement:
“The critical question in this ease is whether, under the circumstances, the refusal by the police to honor petitioner’s request to consult with his lawyer during the course of an interrogation constitutes a denial of ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright,372 US 335 , 342, 9 L ed 2d 799, 804,83 S Ct 792 , 93 ALR2d 733, and thereby renders inadmissible*505 in a state criminal trial any incriminating statement elicited 'by the police during the interrogation.” (Emphasis supplied)
As I understand this statement, the matter as decided was simply that if a request was made for counsel then to proceed would amount to the denial of a constitutional right and thus, because a constitutional right was denied, the statement elicited by the police cannot be used in the criminal trial, and the question of the voluntariness of the statement is foreclosed by reason of the denial. The majority opinion in Escobedo distinguishes Crooker v. California,
For myself, I am unable to discover as a matter of legal consequence what assistance at this time of accusation an honest lawyer could be to his client other than to keep reminding the prisoner of his right to remain silent.
There are no matters then being litigated wherein the assistance of counsel would prevent fair play if the prisoner has been effectively warned of his constitutional right to remain silent, for from then on all proceedings become evidentiary on the question of voluntariness of the statements.
The logical result of the majority opinion is simply to require that the public furnish counsel to indigents prior to heretofore determined constitutional requirements, and, in my opinion, for no reasonable purpose.
For the above reasons, I dissent from that portion of the opinion which requires that police officers shall, prior to interrogation, inform a prisoner of his right to counsel or a constitutional right has been invaded.