*1 argued September 30, Argued on and remanded June reversed rehearing 9, 1964, former modified December January 27, 1965 NEELY STATE OF OREGON 2d 557 2d 482 395P. 398P.

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

Charles Portland, argued cause for the brief were George On Van Hoomissen, respondent. Portland, and Gerald R. Attorney, District Pullen, Portland. Attorney, District Deputy A Mc Chief Justice, Before lluster, Rossman, Jus- Perry, Sloan, O’Connell, Denecke, Goodwin tices. J.

DENECKE, *2 The defendant was convicted crime of of the statu- tory rape upon stepdaughter. ap- a ORS 163.220. He peals upon ground deprived that he was of con- rights guaranteed by stitutional to him the “due process” clause the Fourteenth Amendment of the alleges He United States Constitution. that his oral they and written confessions were because inadmissible having prior were obtained to his been taken before magistrate, and before he had been afforded the assistance of counsel. p.m., deputy

Sometime between 3:30 and two 4:00, place sheriffs arrested the at his of em- defendant ployment. pursuant The arrest was to a warrant of statutory rape. for arrest the crime of There is a conflict in the evidence as to whether or not the de- placed fendant was inf ormed that he had been under approximately p.m., arrest. At 4:15, after he had changed and clothes, showered ac- defendant, companied by plant pro- the two left officers, and They ceeded to the office in sheriff’s Gresham. arrived approximately p.m. at the sheriff’s office at 4:35, questioned The officers defendant about they p.m., began and at hour, to 5:45, take down the statement in which the defendant confessed the signed defendant crime. After the had read Rocky taken to he was statement, Butte Jail, where p.m., evening. at he was booked same 7:20, Later evening, was released on he bail. of whether or not the issue defendant On was ad- testimony to counsel, vised of Officer is ambiguous. officers, interrogating one Dow, about his asked that defendant The officer is clear further testi- the officer’s However, to counsel. that, (1) to two interpretations: mony susceptible the defendant being made, confession to the prior counsel and was in- to he had whether asked after the interrogation officer that formed or after (2) to counsel, be entitled would defendant asked about the defendant was made, the confession he was entitled to counsel. advised and was counsel was not informed prior he interpretation either Under entitled to coun- that he was the confession making interrogation. prior sel testified interrogator, the other Graven,

Officer the defendant available a telephone there was time to call an any attorney. used it at have could to the defendant did not talk about Officer Graven to counsel to this because, according defendant’s *3 to come in and plead the defendant wanted officer, get probation. and see if he could guilty that he was never informed testified Defendant under arrest until after know was he did not he and He stated that the officers the confession. had signed bim in his and brought stepdaughter that his wife told statement defendant of accusing a written made she said they officers wanted state- that crime; which for the divorce proceeding defendant ment from defendant and his and wife; between then pending was the divorce the matter would got his wife once that that the officers never Defendant stated forgotten. be bim with the belief attorney and, if he wanted asked of a criminal danger arrested nor not he was that he needed one. not think he did prosecution, or not he whether was told no evidence There any to make statement or that have did not he against such a statement could Mm. The de- be used testimony fendant’s creates an that he was inference not so advised. no

There is evidence that the defendant was coerced making Although into the confession. there is some might possible from which it evidence conclude by trickery, that the confession was obtained defense counsel has so contended. never probably can

The defendant testified that he write earning as well officers. He had as the been year. per $7,000 between After he $5,000 attorney. jailed, he retained his own past our decisions the admission of Under defend rights. ant’s confession would not be violative of his (1958). Nunn, 321 P2d 546, 553, State Or recently, Supreme Court of the However, United stating pres has decided several cases that the States ence or absence of certain circumstances renders the constitutionally confession inadmissible. recent of

The most these decisions is Escobedo v. (June Illinois, 84 S Ct ed2d 1758, 12 US 1964). In case the defendant had been arrested, interrogated, upon and released the issuance of a writ corpus attorney. Approxi of habeas obtained Ms mately days again brought he later was arrested and jail p.m. between 8:00 He 9:00, asked to see attorney, attorney and his asked to see Ms client. requests Both were denied. Defendant was not advised rights. Although constitutional it is not known interrogated, long he how it is known that cer damaging during tain admissions were obtained *4 interrogation. Because these made admissions, with were counsel, out the assistance held to be admitted right guaran- in violation of defendant’s to counsel as by teed the Fourteenth Amendment, state defendant’s conviction was reversed. majority’s

The essence of the decision is: “We hold, therefore, where, as here, the investigation longer general inquiry is no into an begun partic- unsolved crime but has to focus on a suspect, suspect police ular custody, has been taken into police carry process out a of interro- gations eliciting incriminating that lends itself to suspect requested statements, .and been de- opportunity lawyer, nied an to consult with his police effectively have not warned him of his absolute constitutional to remain silent, the accused has been ‘the Assistance of denied Counsel’ violation the Sixth Amendment to the Con- obligatory upon by stitution as ‘made the States * * the Fourteenth Amendment,’ L ed2d at 986

Neely request did not the assistance of counsel; present one of the critical facts therefore, in the Esco- request bedo case is absent here. Whether such a necessary successfully before an accused can contend deprived he to counsel we do not now need decide. previously-quoted

In the statement of the crucial elements in the Escobedo decision, fact that defendant had not been informed of his to remain specifically majority silent was stated. The reiterated portions partially fact in other of its distinguished Crooker v. California, 357 US 433, 78 (1958), 2 L ed2d Ct as S follows: “* * '* Among the critical circumstances distinguish [Crooker .that case California] which petitioner are that the from this one there, but not explicitly advised here, his con- ‘say to remain silent, stitutional and not to *5 492 ** response questions,

anything’ the in .to 12 L at ed2d 986 justices joining in and the two White,

Mr. Justice part part, agree of the with this at in least dissent, his majority opinion. Mr. White writes: Justice may with a narrower concerned “The Court be responds unknowing defendant who

matter: to the mistakenly police questioning be- because he will he must and that his admissions lieves that hardly worry against this him. But not be used fired. the Court has now calls the broadside that he need not The to inform an accused failure against may be used and that his answers answer very him indeed to whether dis- relevant say compelled. Court, are Cases in this closures ignor- premium placed a on never have least, rights. If is told of constitutional an accused ance it would better, answer and did not know he must very resulting doubtful that the admissions could against him. the accused not used When be been rights at all the char- informed of Court very acteristically surrounding properly closely at looks v Texas,

circumstances. See Ward Haley L 62 v 1139; ed Ct 547, 1663, S 316 US Payne 92 L ed 68 S Ct 224, 302; US Ohio, 596, 2 L ed2d 78 S Ct 844. 356 US Arkansas, v Danny to do so. But this continue case would in I full well that he need not answer knew Escobedo lawyer that his had him full well advised and knew 12 L at ed2d not to answer.” by cited dissent the failure to the three cases In only to be silent was accused advise “totality part of the circumstances.” one opinions origin Escobedo discuss None of proposition that the to remain silent at interrogation right, is a federal constitutional specific Rights of the Bill from which section nor Amendment) (other such than the Fourteenth opinions assume that it is a federal All the is derived. right. constitutional

Malloy Hogan, Ct 84 S (June 1964), ed2d decided week before Esco- bedo, stated:

“* * * The Fourteenth Amendment secures against privilege state invasion the same that the *6 guarantees against Amendment in- Fifth federal fringement right person a remain of to silent —the speak in unless he chooses to cise the unfettered exer- penalty, no his own and to suffer as will, Twining, in L held such silence.” 12 ed2d at petitioner’s decision held the That that constitu- right pre- to tional be free from self-incrimination holding contempt a from vented court him in for re- testify fusing conducting before a referee in- an quiry alleged gambling. into However, court’s dis- cussion makes it clear that it is of the that right police interrogation to remain silent in a also from the against derives Fifth Amendment majority self-incrimination. The admits that while this expressed view in Bram was the v. United States, 168 (1897), contrary 42 L 183, 18 S Ct ed 568 US expressed Mississippi, had later in Brown been v. (1936). 56 S Ct ed 682 US See Beisel, Hlegal By Control Over Enforcement the Law, discussing (1955), supra. Bram v. United States, Oregon excluding involuntary The decisions con upon have fessions based the exclusion common-law Oregon evidence, rules of codified into an statute. Wintzingerode, State v. OBS 136.540. 9 Or 160- (1881). Oregon We have never held that the con prohibition against (Art stitutional self-incrimination exclusionary 12)§ rule and we was tbe basis this I, Malloy that at time. need not determine issue this Hogan, supra, make and Escobedo to remain during police interrogation a a Fourteenth silent Amendment derived from Fifth Amendment of the Federal Constitution. requires that the Escobedo decision

We conclude effectively that accused be warned of constitu an right to silent and that if this is not tional remain by affirmatively state, a ob shown confession warning tained without is inadmissible. Whether such in law officers must addition advise enforcement it neces accused of his to counsel and whether sary given magistrate we this advice now decide. ‹ need not defendant’s other contention have considered

We already again be tried because he cannot he jeopardy. in On basis of record been once attempt try proceeding matter, the second this against on this defendant issue. we find trial. and remanded for new Eeversed *7 ON REHEARING ‹ People (Aug Rptr 264, 1964), Dorado, Cal 394 P2d 952 Escobedo, relying upon held a confession was inadmissible interrogating had not the accused officer advised because counsel. and his remain silent Howard R. Lonergan, Portland, argued the cause and filed briefs for appellant.

George Hoomissen, Van District Attorney, M. George Joseph, Deputy District Attorney, Port- the cause for land, argued respondent on rehearing. *8 Deputy- E. Pullen, on the briefs was Gerald them With Attorney, Portland. District Oregon 'Frye, Eugene, filed a for F. brief William Attorneys’ curiae. Association as amicus District and Justice, Before Chief Perry, McAllister, Goodwin, Denecke O’Connell, Lusk, Sloan, Justices. J.

DENECKE, petitioned rehearing The state for a and the Ore- Attorneys’ gon District filed Association a brief in petition. granted support petition. We In our initial we stated there was no evidence that defendant had been advised that he did any have to make statement. not concluded that We Illinois, Escobedo v. 84 Ct. S (June 1964), requires ed2d 977 that an be ef- accused fectively warned of constitutional to remain affirmatively and that if this is silent not shown warning state, confession obtained such a without is inadmissible. we Therefore, reversed and remanded the case.

It called our attention in the state’s brief petition rehearing on that on the form on typewritten which defendant’s confession was were following printed words: * “* * following my I make the statement, will, own free without fear, threats, coercion, or promises immunity any of reward or kind: required I I any know that am not to make state- any ment I know may statement I make against proceedings be used me in Criminal following Court. The facts are true to the best of ** my knowledge: (Emphasis added.) *9 read testified that defendant One of the officers signing thoroughly conld the it. It statement before referring reasonably was inferred that the officer deny that the entire document. Defendant did not to read statement. he person usual circumstances a notice

Under knowledge or of what he has read or for ex written; ample, person reading a document “RE headed LEASE” is held to have notice the document Kelly’s Olympian awas release. Broad v. Co., 156 Or (1937). 66 P2d 216, 233, 485 The circumstances under which a confession is may destroy obtained weaken or the inference of knowledge ordinarily reading which arises from the or writing of a statement. doWe not find in this case, they destroy however, that did such inference.

The circumstances here were that “I words, required any know that I am not to make statement,” readily were understandable; defendant awas mature according testimony, man, to his and, able to write as deputy well as interrogation sheriffs; short and no claim of coercion was made. frequently

Circumstances upon attendant a confes- including being sion, charged this one, with a serious — being brought police crime, to a station, courthouse jail, being interrogated or law enforcement may understanding dull the of what an ac- officers— cused has read or written. However, this defendant testify did not that he did not printed understand statement the confession.

Under upon circumstances attendant taking of this confession we hold that defendant had knowl- edge silent and, remain therefore, the confession was not inadmissible ground. on that

Haley v. Ohio, 332 US ed S Ct. 302, (1948), Haynes Washington, 224, (1963), 10 L ed2d S Ct are not contrary. Haley to the In the defendant was 15; he interrogated by relays midnight from signed until 5:00 a.m. he when confession. Under such circumstances the Court was of the that de appreciated fendant could not have the statement in gives you “the law confession, to make you this statement or not as see fit.” The there Court, such recital. ‹ weight gave no fore, Haynes In prom- the recital was that no or threats had ises been made. had Defendant been held incom- *10 p.m. signed municado from 10:00 until he a confession p.m. day. During period at 2:00 the next this he had questioned been two repeat- hours or more. He had edly asked to call his wife and was told he could not signed he do until a so confession. The state contended that the statement in the confession no threats or promises had been made was conclusive that the con- voluntarily. fession had been made The Court held probative that such statement of was doubtful value independent and made its own examination of the facts and found confession coerced. Defendant also

5. contended that his confession inadmissible because it was was obtained without his being first advised of his constitutional to the of In assistance counsel. our initial spe we cifically did not decide this issue. We must now so decide.

The state admits that defendant was not advised, ‹ The prevailing opinion by Mr. Douglas, Justice with concurring, three other Justices iurter and reversed. Mr. Justice Frank specially concurred in the decision to reverse.

499 his to making of prior confession, to the counsel. P2d 1106 Kristich,

In Or State v. the New York (1961), expressly follow refused to we Appeals constitu- “that it violates decision Court rights question when an after arrest accused tional attorney. People DiBiasi, v. he asks for observed, We however: 166 NE2d 825.” NY2d 544, may jeop- criminal now clear convictions “it is permit appeal by provide the failure to or ardized on preliminary stages of the criminal access to counsel at upon (226 250). process trial.” well as Or at In as supra, single, Kristich, we held to estab- State admissibility test for the of confessions, lished i.e., given freely voluntarily? itwas Access counsel only in circumstance to be considered determin- question. ing the answer to this In Massiah v. States, United US S Ct (May 1964), 12 L ed2d 1199, Supreme the United States gave significance Court new to the absence incriminating at counsel the time statements are by obtained law enforcement officials. In Massiah the defendant had been indicted, had retained an at torney, By and was released on bail. means of an elec listening placed by tronic device law enforcement of planned ficers car informer’s conversa tion with informer defendant while in the in *11 incriminating former’s car, admissions were obtained defendant. from “* * * petitioner hold that We was denied protections [the the basic Amendment] Sixth against when there used at him his trial evi incriminating dence of his own words, which fed agents deliberately eral bim had from elicited after he had been indicted and in the absence of his # # *” 12 L counsel. ed2d at 250.

The does not discuss the voluntariness of approval the statements. with It cites the decisions of Appeals the New York Court of which we refused to supra. Kristich, in follow State supra, Then in Illinois, Escobedo v. the Court moved this constitutional to the assistance of stage process a counsel to in the criminal earlier than the time of The Court held: indictment. interrogation

“The here was conducted before petitioner formally indicted. But the context make case, of this that fact should no difference. petitioner requested, op and was denied, When portunity lawyer, investiga to consult with his genéral investigation ceased to tion had * * * ‘an the crime.’ unsolved Petitioner had become purpose interrogation accused, and * * ‘get him’ to confess #. was to hold, therefore, here, as where, “We investigation longer general inquiry is no into begun par an unsolved crime but has to focus on a suspect, suspect ticular has been taken into custody, police carry police process out a interrogations to.eliciting that lends itself incrimi nating suspect requested statements, and opportunity denied an to consult with law been yer, his effectively have not warned him, of his absolute constitutional to remain the accused has denied ‘the silent, been Assistance in violation of the Sixth of Counsel’ Amendment obligatory upon as ‘made to the Constitution States 12 L ed2d ## by the Fourteenth Amendment,’ at 986. Neely Escobedo, because of admits, that if

The state opportunity requested an to consult with had attorney request, had been denied such his con- *12 Escobedo unequivocally be inadmissible. fession would Four- situation Neely’s that a holds suspect of counsel. to the assistance Amendment teenth is whether therefore, remaining, decisive issue The inform defendant that state had obligation the assistance of counsel. he had a of a criminal At the judicial stage proceeding has the of court, obligation state, through advising to the assistance of a defendant counsel. of an affirmative In the absence showing such conviction is advice, any constitutionally erroneous. Cochran, v. Carnley In 369 US S Ct L8 defendant (1962), ed2d 70 was held entitled to the counsel at assistance appointed trial. The trial in that case did record not show that the trial judge or that offered, defendant declined, counsel. The state court high held, therefore, the defendant was pre- sumed to have waived counsel. The United States Supreme Court commented this upon ruling: “* * * This might mean that could petitioner

have suffered no constitutional if he deprivation formally had not requested and that counsel, failure to make such a request to be unless presumed the record shows the contrary. But it is settled that where the assistance coimsel ais constitu tional requisite, to be counsel furnished * # *” does not on a depend request. (Emphasis L added.) 8 ed2d at 75-76.

The conviction was reversed. v. Sacks,

In Doughty Ohio St NE2d 727, 728 defendant “had (1963), discussed the retention of counsel with his [for wife trial] but never made to the court any request counsel be appointed to * * him Gideon v. Wain represent Distinguishing wright, 83 S Ct 792, 9 ed2d 799, 93 (1963), upon request

ALR2d that no basis de counsel was made this court defendant, Ohio corpus. petition In a memorandum nied the for habeas citing Carnley supra, opinion, Cochran, the United *13 Supreme Doughty nom States Court sub v. reversed, (1964). 376 84 650 Maxwell, 202, US S Ct ed2d 702, 11 L argument upon oral The state contended necessity distinction should be made between the informing of right an accused of his to counsel at the judicial stage proceeding prior a criminal of and acknowledged obligation thereto. The state its judicial an inform accused of his to counsel at the stage. obligation The state contends it has no such interrogation. › agree. of at the time We cannot Goldberg, writing

In Escobedo Mr. Justice for the majority, stated: companion “We have also learned the lesson of

history system justice that no of criminal or can, depend, should, survive if it comes to for con- its effectiveness on the tinued citizens’ abdication through rights. unawareness of their constitutional system preserving worth No should have to fear permitted that if accused is to consult with a lawyer, he will become aware of, exercise, * * *” rights. 12 L ed2d these 985. Goldberg speaking ignorance Mr. Justice of ignorance to be silent; one’s however, of an differently. accused’s to counsel cannot be treated › People 375, Hartgraves, (Nov. v. 31 Ill2d 1964); 202 NE2d 33 Sturgis State, 343, (1964); 235 Md v. 201 A2d 681 Anderson v. (Dec. State, 1964); A2d 205 281 rand Scanlon, State v. 84 NJ Super 427, (1964), appear A2d 448 to be in line with People Dorado, Rptr 264, contention. v. state’s 40 Cal 394 P2d (Aug. 1964) (petition rehearing pending); Wright (9th Dickson, contrary 1964), v. 336 F2d 878 Cir are to the Likewise, Coyle, state’s contention. 203 A2d Commonwealth v. 415 Pa (Oct. appears 1964), contrary. to be supra, White, Mr. Justice Illinois, v. In Escobedo joining, justices dissenting other with two to cases was not restricted opinion that Escobedo requested counsel: the accused which * “* * purports Although to be naive it case, of this would to the facts limited think an- the new constitutional upon depend has accused will whether nounced [Citing has or counsel oases], his own retained asked interrogation. in the counsel course to consult with Carnley Cochran, Cf. * * *” (Emphasis added.) 2d Ct 884. L ed 82 S L ed2d at 988-989. Adoption of distinction advanced the state contrary to the lead to results basic beliefs would Supreme and of court. Court this States the United suspect contention a like Escobedo the state’s Under jailed previously and, been therefore, who has *14 previously the assistance of has a con- counsel, needed right through to counsel because he knows stitutional suspect experience a to demand who counsel; however, any prior experience with had the criminal has never by experience process does know not and, therefore, lawyer give and, that a can assistance therefore, the has no assistance, not demand such constitutional does right the counsel. If state’s distinction were ac- to grant cepted, the of we would assistance counsel to enough deny to demand it and it to those educated ignorant ask for it. The to United those too States equal during demands treatment crim- Constitution inexperienced process for the and the uneducated. inal hold that Sixth Amendment made We as by requires obligatory Fourteenth Amendment that interrogate per can law enforcement officials a before suspect person a the focal such crime, son iswho effectively must informed of be bis assist- ance of counsel well as as to remain silent. knowledge In absence such an accused can in way intelligently no deemed have waived his rights, constitutional such in absence of waiver by interrogation a confession obtained such is inad- missible. opinion

Former reversed and modified; remanded. dissenting. PEEEY, J., agree portion I am unable to with of the ma- opinion jority holds in that, which the absence of in- forming prisoner to assistance of counsel, this is a denial of a constitutional prevents the use of confession obtained. my opinion,

In v. Illinois, Escobebo US requires ed 84 S 12 L 2d such no con- Ct requirement nor do I clusion, believe that such would protect any practical way rights in a of an accused that should affect the admission the con- fession if tarily without obtained duress or fraud volun- prisoner.

from the Goldberg, It should be noted that Mr. Justice writ- ing majority supra, Illinois, Escobedo v. commences the with this statement: question “The critical in this ease whether, under the circumstances, the refusal petitioner’s request to honor to consult with his lawyer during interrogation the course of an con stitutes a denial of ‘the Assistance of Counsel’ in violation of Sixth Amendment to the Constitu *15 obligatory upon by tion as ‘made Fourteenth the States the Wainwright, Gideon Amendment,’ v. 342, 372 US ed 2d 799, 804, 83 S Ct 792, thereby ALR2d and renders inadmissible incriminating any state- trial criminal in a state interroga- during 'by police the the elicited ment supplied) (Emphasis tion.” matter as the statement, this As I understand request made for simply was that if decided denial of proceed amount to would then to counsel a constitutional because thus, a constitutional by police elicited statement denied, question trial, in the criminal cannot be used by is foreclosed of the statement of voluntariness majority opinion in Escobedo of denial. The reason distinguishes California, Crooker a denial of 2d where there was 1287, L ed S Ct request the Crooher of on the basis that in counsel, prisoner the Escobedo case the had case and not in explicitly advised of constitu been say anything and not to to remain silent tional response questions. in to myself, am as a

For I unable to discover matter legal consequence this what assistance at time lawyer accusation honest could be to his client other keep reminding prisoner than to to remain silent. being litigated

There then are no matters wherein prevent play fair the assistance of counsel would if effectively prisoner been warned of his con- right to remain for from then silent, stitutional on all proceedings evidentiary question become on the of the statements. voluntariness logical majority opinion simply The result public require indigents that the furnish counsel prior require- to heretofore determined constitutional my opinion, purpose. no and, reasonable ments, *16 Wainwright, Gideon 83 S Ct 9 ed 2d ALR2d 799, 93 733. portion

For the above I reasons, dissent from that requires which officers shall, prior interrogation, prisoner inform a to counsel or constitutional has been invaded.