STATE OF OREGON v. NEELY, 239 Or. 487

DENECKE, J. 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 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 making 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 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 such a statement could be used against Mm. The defendant’s testimony creates an inference that he was not so advised. 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, 212 Or 546, 553, 321 P2d 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. The most recent of these decisions is Escobedo v. Illinois, 378 US 478, 84 S Ct 1758, 12 L ed2d 977 (June 1964).

In that case the defendant had been arrested, interrogated, and released upon the issuance of a writ of habeas corpus obtained by Ms attorney. Approximately 11 days later he was again arrested and brought to jail between 8:00 and 9:00, p.m. He asked to see his attorney, and his attorney asked to see Ms client. Both requests were denied. Defendant was not advised of his constitutional rights. Although it is not known how long he was interrogated, it is known that certain damaging admissions were obtained during the interrogation.

Because these admissions, made without the assistance of counsel, were held to be admitted in violation of defendant’s right to counsel as guaranteed by the Fourteenth Amendment, defendant’s state conviction was reversed.

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, 357 US 433, 78 S Ct 1287, 2 L ed2d 1448 (1958), as follows: “* * '* 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 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 (other than the Fourteenth Amendment) such a right is derived. All the opinions assume that it is a federal constitutional right. Malloy v.

Hogan, 378 US 1, 84 S Ct 1489, 12 L ed2d 653 (June 1964), decided the week before Escobedo, stated: “* * * 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, 168 US 532, 18 S Ct 183, 42 L ed 568 (1897), the contrary had been later expressed in Brown v. Mississippi, 297 US 278, 56 S Ct 461, 80 L ed 682 (1936). See Beisel, Control Over Hlegal Enforcement By the Law, 86 (1955), discussing Bram v. United States, supra.

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, 9 Or 153, 160-165 (1881). We have never held that the Oregon constitutional prohibition against self-incrimination (Art I, § 12) was tbe basis of this exclusionary rule and we need not determine that issue at this time. Malloy v. Hogan, supra, and Escobedo make the right to remain silent during a police interrogation a Fourteenth Amendment right derived from the Fifth Amendment of the Federal Constitution.

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. People v. Dorado, 40 Cal Rptr 264, 394 P2d 952 (Aug 1964), relying upon Escobedo, held that a confession was inadmissible because the interrogating officer had not advised the accused of his right to remain silent and his right to counsel.