Petition — Oregon v. Haynes

In the Supreme Court

of the Gnited States

OCTOBER TERM, 1979

No. ‘¢ Y -=1200

STATE OF OREGON,

Petitioner,

Vv.

CHARLES LEROY HAYNES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF OREGON

JAMES A. REDDEN

Attorney General

WALTER L. BARRIE

Solicitor General

ROBERT C. CANNON

Assistant Attorney General

State Office Building

Salem, Oregon 97310

Phone: (503) 378-4402

Counsel for Petitioner

=i

TABLE OF CONTENTS

_ Page

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i, hss hiblidadaseephasoosenens 2

CS EES, SRO SY a OES ib ashishamh 2

Constitutional Provisions Involved .................cccccccssesssseeeeeseeees 2

Ne oi sn ciddacsscecchsascnncccccececaseeses 3

Brera ene GI CNS WUT G ooo s ons... c cc ccccccccsccccccccesccseesescces 9

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Nee a essseenes 33

TABLE OF AUTHORITIES

Cases

Page

Brewer v. Williams, 430 US 37, 97 S Ct 1232, 51 L Ed 2d 424

ce anise cala ccnissoweisonnccnecececcncs 10

Cauglin v. U.S., 391 Fed 371 (9th Cir. 1968) ..................ccceeeeees 12

Commonwealth v. Hilliard, 471 Pa 318, 370 A2d 322

RR EE IRN Tsp LC NE Tt 11

Commonwealth v. McKenna, 355 Mass 313, 244 NE2d 560

CE aisecieenscelnaiaphtatinvaphohdasitaivasAbaiwebeesshseinesccscenseserosesvecenece 11

Fare v. Michael, C. — US ——, 99 S Ct 2560, 61 L Ed 2d 197

thi ERE AER TGR» SC SRS 12

Hallman v. State, — Ark ——, 575 SW2d 688 (1979) .............. 12

Hancock v. White, 378 F 2d 479 (1st Cir. 1967) ...............ccc0c008 11

Johnson v. Zerbst, 304 US 458, 58 S Ct 1019, 82 L Ed 1461

SRE Sci atie FE ARN 10

Michigan v. Mosely, 423 US 96, 96 S Ct 3211, 46 L Ed 2d

Be elena aiaali ea ebtlabiittbeakbetaxdecantdeitvenivacctccecorecnes cess 10

Miranda v. Arizona, 384 US 436, 86 S Ct 1601, 16

ERS a SE 2,3,9,10

Moore v. Wolff, 495 F2d 35 (8th Cir. 1974) .............cccccceseeeeesees 12

Pierce v. State, 235 Pa 237, 219 SE2d 158 (1975) ...............0000 12

1

TABLE OF AUTHORITIES

Cases

People v. Boyd, 86 Cal Ap 3rd 54, 150 Cal Rptr 34 (1979)

People v. Hobson, 39 NY2d, 478. 348 NE2d 894, 384 NY Supp

tn tag A ROE NEEL IE. NEM Se 11

Porter v. State, — Ind ——, 391 NE2d 801 (1979).................... 12

USS. v. Cobbs, 481 F2d 196 (8rd Cir. 1973) .....ccccccccccccoseccoceccece. 12

Constitutional Provisions

United States Constitution, Amendment V ............................. 2,7

United States Constitution, Amendment VI1................ 2,7,10,12

United States Constitution, Amendment XIV ......................... 3

Other Authorities

Sg wc tr gi EDT EN NS CS NE SER AE RE RE 7

ii

In the Supreme Court

of the United States

October Term, 1979

No.

STATE OF OREGON,

Petitioner,

V.

CHARLES LEROY HAYNES,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF OREGON

The petitioner, State of Oregon, respectfully prays

that a writ of certiorari issue to review the judgment

and opinion of the Supreme Court of the State of

Oregon entered in this proceeding on November 6,

1979.

OPINIONS BELOW

The Court of Appeals of the State of Oregon sitting

in banc, affirmed defendant’s conviction for murder on

May 7, 1979. The Court of Appeals of the State of

Oregon was equally divided. See, 40 Or App 129, 594

P2d 436 (1979).

The opinion of the Supreme Court of the State of

Oregon reversed defendant’s conviction for murder

and remanded the case to the Circuit Court of Lane

County, State of Oregon for trial. See, 288 Or 59, 602

P2d 272 (1979).

2

JURISDICTION

The judgment of the Supreme Court of the State of

Oregon was entered on November 6, 1979. The man-

date of the Supreme Court of the State of Oregon

issued on December 17, 1979; and this petition for writ

of certiorari was filed within 90 days of that date. The

jurisdiction of this Court is invoked under 28 USCA §

1257(3).

QUESTION PRESENTED

When a defendant is properly advised of his con-

stitutional rights to remain silent and to the presence

of counsel as required by Miranda v. Arizona, 384 US

436, 86 S Ct 1601, 16 L Ed 2d 694 (1966), waives said

rights both orally and in writing and then begins to

discuss the case with the authorities; and while being

questioned a lawyer is retained b¥ a third party on

defendant’s behalf, not acting at defendant’s request;

does the Constitution of the United States require the

police to cease questioning until the police have in-

formed the defendant that an attorney is present and

seeking an opportunity to consult with him?

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment V:

“No person * * * shall be compelled in any crimin-

al case to be a witness against himself * * *”

United States Constitution, Amendment VI:

“In all criminal prosecutions, the accused shall

3

enjoy the right * * * to have the assistance of

counsel for his defence.”

United States Constitution, Amendment XIV, § 1:

“* * * [Nor shall any State deprive any person of

life, liberty or property, without due process of law

* Ke 3?

STATEMENT OF THE CASE

A. General Background and Material Facts.

Respondent, Charles Leroy Haynes, was arrested

on March 11, 1978 for the murder of Pam Bruno. (Tr

28-30). Parts of Pam Bruno’s body had previously been

discovered by the police to-wit: a thigh and a breast.

(Tr 28). Defendant was taken to a police car where he

was informed of his constitutional rights which

respondent indicated he understood. (Tr 30-31). After

being transported to the police station respondent was

again advised of his constitutional rights and respond-

ent orally and in writing indicated he understood and

waived said rights. Respondent signed a Miranda

warning card. See State’s Exhibit No. 1.

Respondent Haynes told Detective Smith he “must

have” killed Pam Bruno and respondent remembered

a “lot of blood” in the bathtub of his residence.

Respondent then said that he stabbed Pam Bruno

while she was being held by co-defendant John Bruno.

(Tr £3). During this questioning Detective Smith indi-

cated respondent was very cooperative and that no

threats, promises, or force had been used to obtain

4

respondent’s admissions to his involvement in the

murder of Pam Bruno. The questioning of defendant

started at 7:00 P.M. and lasted until midnight on

March 11, 1978. (Tr 35). The questioning continued

because respondent professed that he had trouble re-

calling where the remainder of Pam Bruno’s body had

been placed. (Tr 35-37).

At 2:00 A.M. on Sunday, March 11, 1978, respond-

ent was brought to the office area of the Springfield

City Jail where he identified the knife used to murder

Pam Bruno. This took approximately three minutes at

which time respondent Haynes was returned to his

cell. (Tr 38).

City police Detectives Smith and Bond testified

respondent never asked for an attorney.’ At approxi-

mately 2:00 A.M. on the morning of March 12, 1978 a

Springfield attorney received a call from respondent

Haynes’ wife who said her husband had been arrested

by the Springfield police. (Tr 176). Mrs. Haynes asked

the attorney to do something about it. The defense

attorney called the Springfield Police Department

where he was advised that respondent was under

arrest for murder. The defense attorney called Mrs.

Haynes and said he could not represent her husband.

Mrs. Haynes was referred to an Eugene attorney,

Kenneth Morrow. (Tr 177).

'The trial court said “I find no credible evidence that (respondent) Mr.

Haynes ever asked for an attorney” (Tr 399).

5

At 7:00 A.M. Mrs. Haynes contacted Mr. Morrow

by telephone and indicated her husband had been

arrested for murder. Mrs. Haynes also said that he

was in the Springfield Jail. Mrs. Haynes requested

Morrow represent respondent Haynes. Morrow called

the Springfield Police Department at approximately

7:30 A.M. and was advised that respondent Haynes

was not in the Springfield Police Department. Morrow

told the woman who answered the telephone that he

had been retained to represent respondent Haynes,

that respondent Haynes had been charged with mur-

der and was in the custody of the Springfield Police.

Morrow again called the Springfield Police and was

again told respondent had not been arrested and was

not in custody. Morrow then telephoned the Lane

County Jail in Eugene, Oregon in an attempt to locate

respondent Haynes. A detective with the Lane County

Sheriff’s office advised Morrow respondent was in

custody in the Springfield Jail and that he could see

respondent there. Morrow was told to contact Sergeant

Stewart. (Tr 104-110).

At approximately 8:00 A.M. on March 12, 1978

Morrow called the Springfield Police Department and

spoke to Sergeant Stewart. Stewart told Morrow

respondent Haynes was in custody and Morrow said he

was coming to see respondent Haynes.

Morrow arrived at the Springfield Police Jail at

6

approximately 8:30 A.M. As he arrived he saw two

people leave from the east entrance and enter a

vehicle. Morrow entered the police station and asked

to see Sergeant Stewart. Sergeant Stewart told Mor-

row respondent Haynes and Detective Smith had left

the station approximately two minutes before Morrow

had entered. (Tr 104-110).

At 8:30 A.M. on March 12, 1978 defendant was

removed from the police station by Detective Smith.

Respondent Haynes was returned to the police station

at 11:00 A.M. Sunday morning. (Tr 42-45). At 2:30

P.M., Sunday afternoon, respondent Haynes was

again questioned by Detective Smith at which time

repondent Haynes said that his wife had first stabbed

Pam Bruno and that the others had also stabbed her,

taken her to the bathroom where Pam Bruno was

“butchered-out.” Respondent Haynes’ admissions were

tape recorded. Respondent prior to making the taped

statement was advised of his constitutional rights. (Tr

48-50; 90).

At approximately 6:00 P.M. on March 12, 1978

respondent Haynes and co-defendant John Bruno were

transported to the Haynes’ residence where respond-

ent Haynes said he would be willing to re-enact the

crime for video recording. They did so. Because of a

malfunction in the video tape equipment the re-

enactment was repeated a second time.

7

At the outset of each re-enactment respondent

Haynes was advised of his constitutional rights.

Respondent indicated he understood those rights and

was willing to partiipate in the video tape re-

enactment. (Tr 52-57).

B. Manner in Which the Federal Question was

Raised.

The federal question was originally raised by a

pretrial motion for omnibus hearing filed by defense

counsel April 25, 1978. The motion provides:

“Comes now the defendant, by and through his

attorney, Jack A. Billings and moves the court for

an order for an omnibus hearing, pursuant to ORS

135.037, at which time defendant will contest the

manner in which admissions were obtained from

him by police officers and during time that he was

in police custody.”?

During the hearing on said omnibus hearing held

on May 16, 17, and 18, 1978 defense counsel argued

that defendant’s Fifth and Sixth Amendment rights

under the United States Constitution were violated.

Following the evidentiary hearing the Lane Coun-

ty Circuit Court orally denied the motion to exclude

the statements based upon a denial of defendant’s

right to counsel. (Tr 399-406).

2ORS 135.037(2) provides:

“The purpose of a omnibus hearing shall be to rule on all pretrial motions

and requests, including but not limited to the following issues: (A)

Suppression of evidence; * * * (C) Challenges to voluntariness of admis-

sions or confession; * * *’

8

Respondent Haynes entered into a stipulation in

the trial court that the prosecution could show facts,

which the trier of fact would believe beyond a reason-

able doubt that would result in the defendant’s convic-

tion for murder, subject only to the defendant’s right

to appeal the constitutionality of the admissions.

On appeal to the Oregon Court of Appeals respond-

ent Haynes asserted the trial court erred in admitting

into evidence all statements made by the defendant

while in custody and State’s Exhibit No. 3 (the video

tape). (See Appellant’s Brief at 17; 21-22). The Court

of Appeals sitting in banc, affirmed respondent’s con-

viction.

Respondent Haynes sought a petition for review to

the Oregon Supreme Court where respondent Haynes

again assserted that he was denied the right to counsel

when the police thwarted his attorney’s attempt to

speak with him at the Springfield Police Department

and that respondent Haynes had been denied his right

to counsel for the admissions were not the product of

respondent’s free will. The Oregon Supreme Court

allowed respondent’s petition for review and filed its

opinion November 6, 1979.

The Oregon Supreme Court reversed respondent’s

conviction for murder. The federal question presented

in this case has been properly raised and appropriately

reserved at all stages.

9

REASONS FOR GRANTING THE WRIT

A. THE OREGON SUPREME COURT INCORRECT-

LY HELD THAT A CRIMINAL DEFENDANT

CANNOT WAIVE HIS RIGHT TO COUNSEL

AND HIS RIGHT TO REMAIN SILENT UNDER

THE PRINCIPLES ESPOUSED IN MIRANDA V.

ARIZONA, AFTER AN ATTORNEY IS RE-

TAINED BY A THIRD PERSON TO REPRESENT

DEFENDANT.

At bar respondent Haynes was advised no less than

five times that he had the right to remain silent and

the right to counsel. See Appendix B. At each point

respondent said that he understood said rights and

knowingly and voluntarily waived them. At no point

in the questioning of respondent did he ever assert his

right to counsel or his right to remain silent.

The Oregon Su~reme Court finds inadmissible all

statements made by respondent after defense counsel

Morrow attempted to contact Haynes at the Spring-

field Jail. The Oregon Supreme Court states:

“We hold only that when unknown to the person in

this situation an identified attorney is actually

available and seeking an opportunity to consult

with him and the police do not inform him of that

fact, any statement or the fruits of any statement

obtained after the police themselves know of the

attorney’s efforts to reach the arrested person can-

not be rendered admissible on the theory that the

person knowingly and intelligently waived . wn-

sel.” 288 Or at p 70.

The Oregon Supreme Court’s opinion at bar is

10

inconsistent with the concept that a criminal defend-

ant can give a statement after he is advised of his

constitutional rights if he knowingly, voluntarily and

intelligently waives said rights. A third person, albeit

family or friend, cannot by retaining counsel, assert

the defendant’s constitutional privileges. The criminal

defendant is not imprisoned within his constitutional

rights to remain silent or to the presence of counsel.

These are personal rights which can be waived and

were waived in this case. This Court’s opinions in

Miranda v. Arizona, supra; Michigan v. Mosely, 423

US 96, S Ct 3211, 46 L Ed 2d 313; Brewer v. Williams,

430 US 37, 97 S Ct 1232, 51 L Ed 2d 424 (1977), and

Johnson v. Zerbst, 304 US 458, 58 S Ct 1019, 82 L Ed

1461 (1937) are all contrary to the decision of the

Oregon Supreme Court under the facts at bar.

The Sixth Amendment privilege of counsel is not

absolute and may be waived. The fact that an attorney

has been retained does not make inadmissible a volun-

tary statement.

The Oregon Supreme Court opinion has adopted,

under the Sixth Amendment, a principle which ex-

cludes from evidence any confession or admissions

even though the defendant has knowingly, voluntarily

and intelligently waived his right to the presence and

consultation with counsel. Such a ruling is inconsis-

tent with the opinions of this Court previously cited.

11

B. THE OREGON SUPREME COURT OPINION

HAS DECIDED AN IMPORTANT QUESTION OF

CONSTITUTIONAL LAW ON WHICH THE DE-

CISIONS OF SEVERAL JURISDICTIONS,

STATE AND FEDERAL, ARE IN CONFLICT.

There are several decisions involving the issue of

the accused’s right to the presence of counsel after

arrest and after the defendant has been appointed or

retained an attorney. These opinions appear to be in

conflict.

The Oregon Supreme Court cited People v. Hobson,

39 NY2d 479, 348 NE2d 894, 384 NY Supp 2d 419

(1976); Commonwealth v. McKenna, 355 Mass 313,

244 NE2d 560 (1969); and Commonwealth v. Hilliard,

471 Pa 318, 370 A2d 322 (1977) as authority. See also,

People v. Boyd, 86 Cal App 3rd 54, 150 Cal Rptr 34

(1979); and Hancock v. White, 378 F 2d 479 (1st Cir.

1967). These courts establish either a per se rule or a

modified rule, that once an attorney is retained or

appointed the defendant cannot waive the presence of

counsel except in the presence of said attorney. The

Oregon rule avoids the per se rule; but does require the

defendant be advised of the presence of the attorney

before a voluntary confession is admissible.

The following jurisdictions have held that the pres-

ence or absence of a retained attorney or appointed

attorney is but one factor to be taken into considera-

tion in determining whether the defendant voluntari-

12

ly waived his right to counsel and his right to remain

silent. Porter v. State, — Ind ——, 391 NE2d 801

(1979); Hallman v. State, — Ark ——, 575 SW2d 688

(1979); Pierce v. State, 235 Ga 237, 219 SE2d 158

(1975); Moore v. Wolff, 495 F2d 35 (8th Cir. 1974); U.S.

v. Cobbs, 481 F2d 196 (3rd Cir. 1973); and Caughlin v.

U.S., 391 F2d 371 (9th Cir. 1968).

A criminal defendant has the right to waive the

presence of and consultation with counsel. The issue is

whether the defendant voluntarily, knowingly and

intelligently waived his right to counsel. Where the

state is able to carry its heavy burden to show a

voluntary, knowing and intelligent waiver of the right

to retained or appointed counsel, based upon a totality

of the circumstances, the statements are admissible.

See e.g. Fare v. Michael, C. — US ——, 99 S Ct 2560,

61 L Ed 2d 197 (1979).

The suppression of evidence by the Oregon

Supreme Court based upon the facts reiterated herein

was not a correct interpretation of the Sixth Amend-

ment to the United States Constitution and said in-

terpretation should be reviewed by this Court.

CONCLUSION

The decision of The Oregon Supreme Court has

interpreted the Sixth Amendment to the United States

Constitution in a manner inconsistent with previous

decisions of the United States Supreme Court. The

13

decision of the Oregon Supreme Court should be re-

versed thereby affirming the conviction for murder

entered by the Lane County Circuit Court, State of

Oregon.

Respectfully submitted,

JAMES A. REDDEN

Attorney General

WALTER L. BARRIE

Solicitor General

ROBERT C. CANNON

Assistant Attorney General

Counsel for Petitioner

January, 1980

APPENDIX

17

Appendix A

IN THE SUPREME COURT OF THE

STATE OF OREGON

In Banc

STATE OF OREGON,

Respondent,

v.

CHARLES LEROY HAYNES,

Petitioner.

(TC 78-1762, CA 11461, SC 26285)

On Review from the Court of Appeals.*

Argued and submitted September 7, 1979.

J. Marvin Kuhn, Deputy Public Defender, Salem,

argued the cause for petitioner. With him on the brief

was Gary D. Babcock, Public Defender.

Brian R. Barnes, Assistant District Attorney,

Eugene, argued the cause for respondent. With him on

the brief was J. Pat Horton, District Attorney.

LINDE, J.

Reversed and remanded.

Denecke, C.J., specially concurring.

*Appeal from Circuit Court, Lane County. William A. Beckett, Judge.

40 Or App 129, 594 P2d 436 (1979).

18

LINDE, J.

The issue to be decided is whether the prosecution

may use against a defendant statements obtained

from him while in police custody and after the police,

but not the defendant, knew that an attorney sought to

consult with him. The question came before the Court

of Appeals simultaneously in two cases, in one of

which the statement had been admitted and in the

other of which it had been excluded by the respective

trial courts. The Court of Appeals was evenly divided

on the issue, thus affirming both trial courts in this

respect. State v. Henry, State v. Haynes, 40 Or App 129,

594 P2d 436 (1979). We allowed review. We hold that a

suspect who has previously been told in general terms

of his right to counsel and has waived this right must

be informed when counsel actually seeks to consult

with him and must voluntarily and intelligently have

rejected that opportunity, before further statements

may thereafter be taken from him and used against

him.

The course of events in the case now before us, State

v. Haynes, may be summarized as follows. Sergeant

Smith of the Springfield police department, accom-

panied by an investigator, arrested defendant about

6:30 p.m. on Saturday, March 11, 1978, as a suspect in

a murder investigation. Smith testified that immedi-

ately upon arrest he advised defendant as follows:

“You have the right to remain silent. Anything you

say can and will be used against you in a court of law.

You have a right to talk to a lawyer and have him

present with you while you are being questioned and

when you are required to face witnesses. If you can-

not afford to hire a lawyer, one will be appointed to

represent you if you request one.”

He repeated this advice to defendant when they reach-

ed the police station, and defendant acknowledged

that he understood the advice and signed a so-called

Miranda’ card on which the above statements were set

out.

1So called because the federal constitutional version of these rights

was established in Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed

2d 694 (1966).

\

a:

19

Sergeant Smith questioned defendant in Smith’s

office. Defendant originally claimed to remember

nothing but eventually made admissions substantially

implicating him in the homicide. He was placed in a

cell at midnight. At about 2:30 a.m. defendant was

taken to another room to view some knives and invited

to state if one of them was used in the murder. He

identified one of the knives and was returned to his

cell until 8:30 on Sunday morning, March 12. At that

time Smith took defendant from the Springfield police

jail in an automobile and drove to the Marcola area.

He testified that he did so in order to question defend-

ant further and to obtain defendant’s cooperation in

locating parts of the body of the victim, which had

been dismembered.

Meanwhile, defendant’s wife attempted to retain an

attorney. At approximately 2:00 a.m. Sunday morning

she called Robert Naslund, a former Lane County

district attorney practicing in Springfield, to check

into her husband’s arrest. Naslund telephoned the

Springfield police department and obtained confirma-

tion that defendant was held on a homicide charge,

which he reported to Mrs. Haynes. Naslund declined to

undertake defendant’s representation and recom-

mended another Lane County attorney, Kenneth Mor-

row, asking Mrs. Haynes not to call Morrow before

7:00 o’clock that morning. Mrs. Haynes telephoned

Morrow at the indicated hour and asked him to repre-

sent her husband.

Morrow spent the following hour seeking to

arrange a visit with defendant. He telephoned the

Springfield Police Department and told the woman

who answered that he had been retained to represent

Charles Haynes and wanted to confirm that Haynes

was at the Springfield jail. The woman reported after

a short interval that Haynes was not there, no one had

been arrested for murder, and “we know nothing about

it.” She repeated this answer when Morrow made a

second call a few minutes later. Morrow then tried to

20

locate Haynes at the nearby Eugene Police Depart-

ment. Eventually a Eugene detective checked once

more with the Springfield police and told Morrow that

he could find Haynes at the Springfield jail, where

Morrow should contact Sergeant Stewart. Morrow

telephoned Stewart about 8:00 a.m. and said that he

was coming to Springfield to see Haynes. Morrow

testified that he arrived at the police department

sometime before 8:30 a.m. He also testified that he

saw two men leave the building by a side entrance and

enter a private car.

As mentioned earlier, this was at about the same

time that Sergeant Smith took defendant from the jail

and for a drive in an automobile. Smith testified that

at this time he knew that Morrow was trying to locate

Haynes and regarded Haynes as his client, because it

was Smith who had received the telephone inquiry

from the Eugene detective and had asked the detective

to inform Morrow where Haynes could be found. Judge

Spencer stated in his oral findings:

“I’m satisfied that [Sergeant Stewart] knew that

Sergeant Smith was taking the prisoner, and that

they both were aware that Morrow would be there to

see Haynes and would find him gone. And whether

they articulated between themselves that they were

doing what they were doing to frustrate Mr. Morrow’s

desire to see Haynes or not, that was the practical

effect. It was the effect that they had to anticipate.

And the implication seems to me to be overwhelming

that it was their intent.”

Sergeant Smith and the defendant remained away

from the Springfield headquarters until about 11:00

a.m. During this period defendant disclosed some de-

tails concerning the disposal of the victim’s remains.

He later repeated his admissions in the presence of a

second officer at the police station. After a confronta-

tion with the victim’s husband, who was also held at

the station as a suspect, defendant made a tape record-

ed statement describing the murder. On Sunday even-

ing, the two were taken to defendant’s residence and

21

videotaped in a reenactment of the events. Defendant

made additional statements on Monday, March 13.

Upon being indicted and entering a plea of not

guilty, defendant moved to suppress all statements

taken from him while in custody as well as the

videotape of the reenactment of the crime. After an

omnibus hearing, ORS 135.037, Judge Spencer denied

the motion in its entirety. Subsequently, by agreement

between the prosecution and the defense, defendant

waived a jury and proceeded to trial before Judge

Beckett on an oral stipulation which reserved his right

to challenge by appeal Judge Spencer’s earlier ruling

on the motion to suppress. The stipulation was that the

prosecution could show facts, which a trier of fact

would believe beyond a reasonable doubt, that would

result in defendant’s conviction for murder, subject

only to defendant’s right to appeal the matters earlier

heard before Judge Spencer. In accordance with the

stipulation, Judge Beckett pronounced judgment of

conviction and imposed a sentence of life imprison-

ment. As previously stated, the Court of Appeals af-

firmed the judgment by an evenly divided court.

At the outset we hold, as the Court of Appeals

implicitly did, that the stipulation was effective to

save defendant’s right to appeal. The prosecution and

the trial court clearly accepted the stipulation on that

understanding, and we need not speculate what the

defendant might have done without this assurance.

Defendant asserts a general claim that all his state-

ments made to the police while in custody were the

product of police coercion and involuntary as a matter

of law. The claim is based primarily on the facts that

after his arrest, defendant was questioned from 7:00

p.m. to midnight and at about 2:30 a.m. was taken to

view the previously mentioned knives, and that he was

questioned on nine separate occasions for approxi-

mately twenty hours foliowing his arrest. On the other

hand, the prosecution stresses that defendant was

repeatedly reminded of his rights to remain silent and

22

to have the aid of the attorney, and that defendant

acknowledged that he understood these rights, as

Judge Spencer found to be a fact. Of course, knowledge

of these rights is not conclusive on the separate issue

of voluntariness. However, Judge Spencer also found

that defendant “was not threatened or promised any-

thing, that his statements were freely and voluntarily

made in the traditional pre-Miranda sense.” While

this finding binds us only as to historical facts, not as

to the legal standard of “voluntariness,” the record

adequately supports that finding during the entire

time pertinent to our decision of this issue, that is,

until Mr. Morrow sought access to defendant at the

Springfield police station. That event gave rise to a

different issue.

On this second issue, the consequences of the fail-

ure of the police to tell defendant that Mr. Morrow was

coming to the police station to represent him and of

their failure to keep defendant at the station for this

purpose, defendant urges that the correct rule is the

one applied in New York as well as in some other

states. Beginning with People v. DiBiasi, 7 NY2d 544,

166 NE2d 825, 200 NYS2d 21 (1960), People v. Dono-

van, 13 NY2d 148, 193 NE2d 628, 243 NYS2d 841

(1963), People v. Arthur, 22 NY2d 325, 239 NE2d 537,

292 NYS2d 663 (1968), which were reaffirmed in Peo-

ple v. Hobson, 39 NY2d 479, 348 NE2d 894, 384

NYS2d 419 (1976), the New York Court of Appeals

established the rule that “[o]nce an attorney enters the

proceeding, the police may not question the defendant

in the absence of counsel unless there is an affirmative

waiver, in the presence of the attorney, of the defend-

ant’s right to counsel.” 39 NY2d at 483. See Note, 5

Ford Urb L J 401 (1977). The same court recently

applied the rule to suppress a confession when, much

as in the case before us, an attorney retained by the

arrested person’s family repeatedly telephoned the

police department, identified himself, and sought ac-

cess to the arrested person but was erroneously told

that the police did not “have” this person. The court

stated:

23

“As this case illustrates, the right to counsel is of

little value if the attorney cannot communicate with

the defendant or with the officials holding him in

custody or can only reach them after extended delay

when the investigation is, in effect, completed. The

police, of course, must recognize this and must also

realize that even though the defendant may not have

retained counsel prior to being taken into custody, an

attorney, later retained by friends or family or other-

wise representing him . . . may wish to consult with

him while he is being questioned by the police. And

when an attorney does not know where the defendant

is being held, there is little doubt that the police are

better equipped than he is for locating the defendant

or the officers immediately or ultimately responsible

for the investigation. Indeed if the police have a

person in custody they should be charged with knowl-

edge of his whereabouts.

“In sum, once a person has been taken into cus-

tody, the burden is on the police to keep track of him

and to establish and maintain procedures which will

insure that an attorney representing him may com-

municate with him and with the officials responsible

for the investigation, without unreasonable delay

People v. Pinzon, 44 NY2d 458, 464, 377 NE2d 721, 406

NYS2d 268 (1978).

The Supreme Judicial Court of Massachusetts

reached the same result in Commonwealth v. McKen-

na, 355 Mass 313, 244 NE2d 560 (1969). Upon being

arrested at their homes for murder, McKenna and

Riley had been advised of the pertinent rights. McKen-

na asked his aunt to call Mr. Collins, an attorney

representing him on another charge. He made no re-

quest of the police, and at the station declined an offer

to use the telephone. While McKenna was being ques-

tioned, Collins called the police station and told the

sergeant conducting the investigation that he was

counsel for McKenna and that McKenna had a right to

have him present before any interrogation. The

sergeant gave evasive answers and continued the in-

terrogation that led to the incriminating statements

24

before the attorney was able to speak with McKenna.

Similarly, Riley’s uncie, who was a lawyer, was kept

waiting at the police station and the sergeant did not

inform Riley of their presence before Riley made the

inculpatory statements that he sought to suppress.

The Massachusetts court stated:

“(W]e hold that when Mr. Collins identified himself

to Sergeant Gannon and invoked on McKenna’s be-

half his right to counsel and stated that he wanted to

be with McKenna wherever the interrogation was to

be held, it was Gannon’s duty immediately so to

inform McKenna. Sergeant Gannon’s failure to do so

denied rather than afforded McKenna the opportu-

nity to exercise his right to counsel at that stage of

the interrogation if in fact the interrogation had

commenced. The legal consequence of the denial of

the opportunity to reconsider whether he wanted

counsel is that whatever ‘waiver’ there may have

been up to the time Mr. Collins made his request to

Sergeant Gannon that he be present became then

inoperative. Conceivably, McKenna might have cho-

sen to go on with the interrogation. But he was

entitled to know of his counsel’s availability and,

with that knowleage, to make the choice with intelli-

gence and understanding... .”

244 NE2d at 566. The same applied to Riley’s state-

ments:

“His uncle and an associate arrived at the police

station twenty minutes after Riley who in the interim

was held incommunicado and had remained silent.

His counsel insistently demanded that they see him.

They had the right to see Riley and Riley had the

right at once to know of their presence, even though

after the Miranda warnings he had not asked to see

them. The ‘implied waiver’ of his-right to counsel did

not survive the refusal of the police to admit counsel

to him or their failure to inform him that counsel

were present... .”

244 NE2d at 566-567.

In a recent Pennsylvania decision, Commonwealth

v. Hilliard, 471 Pa 318, 370 A2d 322 (1977), the

oa

© nee aE

25

Supreme Court of that state reached the same conclu-

sion on facts much like the present, when an attorney,

retained by the arrested suspect’s wife, appeared at

the police station and was repeatedly told that the

person he asked to see was not being held. The court

held that the suspect’s failure to request counsel when

an attorney has been denied access to him and he has

not been informed of the attorney’s availability cannot

support a finding of a waiver of counsel.

In response, the state make’ two arguments. First,

it maintains that defendant’s admissions were volun-

tary in the traditional sense that defendant’s will was

not overborne by threats or promises or by circum-

stances that were intrinsically coercive to one of his

age, intelligence, experience, physical condition, or

other pertinent characteristics. As stated above, the

court conducting the omnibus hearing so found, and

the record supports this finding. The statements ob-

tained from defendant prior to Mr. Morrow’s cali to the

Springfield police headquarters were admissible.

Second, the state maintains that Oregon should not

follow the holdings of the cases we have quoted above.

Our past decisions record these developments. In 1961,

immediately afte: the New York court’s decision in

People v. DiBiasi, supra, this court stated that it was

not prepared to follow that decision so far as to vitiate

all admissions obtained by questioning a suspect in the

absence of his attorney. State v. Kristich, 226 Or 240,

248, 359 P2d 1106 (1961). That opinion was much

qualified in recognition of the changes then occurring

in protecting the constitutional rights of suspects, stat-

ing that “it is now clear that criminal convictions may

be jeopardized on appeal by the failure to provide or

permit access to counsel at preliminary stages of the

criminal process as well as upon trial.” 226 Or at 247-

248, 250.” That was before the decisions of the United

?The court also pointed out that the defendant’s statements were

admissions but did not admit the offense for which he was tried; thus “[t]his

case does not present the problem that may be raised when a confession is

obtained before an accused has had any opportunity to consult with an

attorney.” 226 Or at 249-250.

26

States Supreme Court in Massiah v. United States, 377

US 201, 84 S Ct 1199, 12 L Ed 2d 246 (1964), and

Escobedo v. Illinois, 378 US 478, 84 S Ct 1758, 12 L Ed

2d 977 (1964). In 1965, this court noted that those

decisions had substantially undercut the premises on

which State v. Kristich, supra, was decided. State v.

Neely, 239 Or 487, 499-501, 395 P2d 557, 398 P2d 482

(1965).

The following year, in State v. Atherton, 242 Or 621,

410 P2d 208 (1966), the court affirmed the admission

into evidence of otherwise voluntary statements made

by a suspect in custody, after proper warnings, in the

absence of counsel whom the suspect was known to

have retained but who, without any police interfer-

ence, had not yet found time to consult with his client.

The court stated defendant’s position on appeal as

proposing “to extend the holding in State v. Neely,

supra, to hold, as a matter of law, that any police

interrogation after arrest is illegal.” 242 Or at 625.

The court rejected that position. It held that even a

suspect already represented by counsel can validly

waive the presence of counsel and voluntarily respond

to police questions if this is done with knowledge that

he or she may remain silent or may end the dialogue

and ask to consult counsel at any time. This was also

held in State v. Sanford, 245 Or 397, 421 P2d 988

(1966). In both cases, two justices, the authors of Neely

and Kristich, supra, dissented on the ground that

without a firm rule against questioning suspects in the

absence of counsel, both the voluntariness of a confes-

sion obtained by such questioning and also the defend-

ant’s freedom from secret interrogation and right to

resist it and to consult counsel were left too much to

subsequent judicial belief or disbelief of the police

testimony concerning the circumstances of defendant’s

“waiver” of these rights. 242 Or at 632-633.°

3 The dissenters in Atherton quoted the trial court’s finding as charac-

teristic of the result when the court must choose between the testimony of a

(Continued on following page)

27

We recognize that these practical considerations

are not without force. However, we need not in this

case go so far as to accept the New York rule urged by

the defendant, and we do not do so. As in Atherton, we

do not hold that an arrested person, not yet indicted or

formally charged with the crime, cannot voluntarily

and after proper warnings waive consultation with

counsel and make voluntary statements which will be

admissible against him. We hold only that when un-

known to the person in this situation an identified

attorney is actually available and seeking an opportu-

nity to consult with him, and the police do not inform

him of that fact, any statement or the fruits of any

statement obtained after the police themselves know

of the attorney’s efforts to reach the arrested person

cannot be rendered admissible on the theory that the

person knowingly and intelligently waived counsel.

It should be noted that the rules applied by the New

York court developed from two distinct premises, the

right to consult counsel and the right not to incrimi-

nate oneself, and in two distinct situations, upon ar-

rest and after a suspect becomes a defendant formally

charged with a crime. It is not disputed that an arrest-

ed person has a right to have access to counsel when

taken into custody and thereafter, subject only to the

practical necessities of custody that may temporarily

prevent ‘immediate communication with counsel. We

know nothing in Oregon law, nor did counsel for the

state when asked, that would authorize the police to

prevent or delay communication between an arrested

person and a lawyer who is, or who is asked to become,

that person’s attorney. Certainly nothing of the kind

(Continued from previous page)

police officer and a defendant whose confession to a crime the court is asked

to suppress:

“"THE COURT: Well, it boils down to whether or not the Court

believes Officer Wold or whether the Court believes this defendant. I

have to believe the

ane nemeer other, and between the two of them, I believe

242 Or at 632, n. 2. A similar choice had to be made by the court in the

present case.

28

follows from the simple fact of an arrest.‘ To the

contrary, police officers in Oregon are told expressly to

inform an arrested person of his or her right to legal

counsel, and the present defendant was so informed.

However, the issue of a suspeci’s access to counsel

enters cases like the present as an aspect of his right to

answer questions or provide incriminating testimony

only voluntarily. Or Const art I, § 12, U S Const amend

V. It is the incriminating evidence so obtained that

defendant seeks to suppress in this case as in all the

cases we have cited. No one so far has suggested that

interference with an arrested person’s access to a

lawyer, however improper and subject to other re-

medies, would itself lead to a reversal of a subsequent

conviction if defendant in fact said nothing and no

evidence was obtained as a result nor other harm done

to his eventual defense. Thus it is not a generalized

right to counsel that the decisions we have quoted

enforce but, more concretely, the derivative right to

the benefit of counsel’s efforts to forestall involuntary

and incriminating disclosures. But the law does not

impose the benefit of those efforts on a defendant who

rejects them. They may be waived just as the right to

‘Cf. the American Law Institute’s Model Code of Pre-Arraignment

Procedure, section 140.7 (1975):

“Access, Consultation and Telephoning Rights

“(1) Access to an Arrested Person. An attorney undertaking to act

as counsel for an arrested person shall have prompt access to such

person, by telephone, and in person on counsel’s arrival at any place

where such person is detained. Counsel for an arrested person shall not

be prevented from staying at any such place and being allowed access

to the arrested person whenever such person requests his presence. If

no counsel for the arrested person is present, similar privileges must be

accorded to a relative or friend of the arrested person.

“(2) Consultation and Telephoning Rights. An arrested person shall

be given reasonable opportunity from time to time during his detention

to consult in private with counsel or any relative or friend present in

lieu of counsel, and, upon request, to use the telephone.”

An accompanying note explains that this section “expresses the principle

that at no time may an arrested person be held incommunicado in order to

facilitate the investigation.” Before there is any necessity for an attorney

or an arrested person to show that these elementary rights have been

enacted by statute, let alone imposed by federal constitutional law, the

(Continued on following page)

a .

29

remain silent itself may be waived. There is no law

that a person in custody may not speak if he so

chooses, and without a lawyer’s advice. The crucial

point is that it must be a knowing choice as well as

voluntary in the sense of not being coerced. As the

United States Supreme Court recently stated in Brew-

er v. Williams, 430 US 387, 404, 97 S Ct 1232, 51 LEd

2d 424 (1977), when the state claims waiver it has the |

burden to show “an intentional relinquishment or

abandonment of a known right or privilege,” quoting

Johnson v. Zerbst, 304 US 458, 464, 58 S Ct 1019, 82 L

‘Ed 1461 (1938).

To pass up an abstract offer to call some unknown

lawyer is very different from refusing to talk with an

identified attorney actually available to provide at

least initial assistance and advice, whatever might be

arranged in the long run. A suspect indifferent to the

first offer may well react quite differently to the

second. If the attorney appears on request of one’s

family, that fact may inspire additional confidence.®

He, too, will perhaps be sent away. We do not hold with

the New York court that this decision can be made

only in the attorney’s presence, although in practice

this would obviate the recurring problems of proof that

have been mentioned.® But we agree with the Massa-

chusetts and Pennsylvania decisions cited above that

(Continued from previous page)

burden is first on the state to show legal authority for denying them. Cf.

State v. Spada, 286 Or 305, 594 P2d 815 (1979), and see State v. Classen,

285 Or 221, 225-232, 590 P2d 1198 (1979).

5 For these reasons, it is immaterial that Mr. Morrow “was not then and

did not become at any time thereafter the Defendant’s attorney,” as the

circuit court found. Morrow came to the Springfield jai) prepared at ‘east to

assume the initial responsibility of an attorney, and defendant was denied

the opportunity to decide whether he would retain Morrow in that role or

proceed without him. Cf. People v. Pinzon, supra.

®The following procedures have been proposed to establish that the

arrested person’s rights have in fact been safeguarded, particularly with

respect to waiver of counsel and of the right not to answer questions:

“Conditions on Questioning Arrested Persons

(Continued on following page)

30

when law enforcement officers have failed to admit

counsel to a person in custody or to inform the person

of the attorney’s efforts to reach him, they cannot

(Continued from previous page)

“(1) No Questioning Prior to Warning or Access to Telephone. No

law enforcement officer shall question an arrested person after he has

been brought to the police station or otherwise attempt to induce him to

make a statement unless he has been advised by the station officer in

plain understandable language

“(a) that he is not obliged to say anything and that anything he

says may be used in evidence against him;

“(b) that he will not be questioned unless he wishes, and that

he may consult a lawyer before being questioned and may have a

lawyer present during any questioning; and

“(c) that if he wishes to consult a lawyer or to have a lawyer

present during questioning, but is unable to obtain one, he will not

be questioned until a lawyer has been provided for him; such

advice shall also include information on how he may arrange to

have a lawyer so provided.

No law enforcement officer shall question any arrested person who has

been brought to a police station until he has been afforded an opportu-

nity to use the telephone pursuant to Subsection 130.1(5).

“(2) Waivers. Unless an arrested person is represented by counsel,

and his counsel is present or he and his counsel have consented thereto,

such person shall not be questioned after he has been brought to the

police station unless he waives his right to counsel in accordance with

the following procedures:

“(a) After giving the warnings of rights required by Subsection

(1), the station officer may then inquire whether the arrested

person wishes to waive his right to counsel and to make a state-

ment or consent to questioning in the absence of counsel.

“(b) If the arrested person in response to such inquiry indicates

that he wishes to make a statement or consents to questioning in

the absence of counsel, he shall be asked to sign a writing to that

effect which the station officer shall countersign.

“(c) The arrested person shall be informed that any waiver

given hereunder may be revoked by him at any time.

“(d) No waiver shall be sought from an arrested person at any

time after he has indicated in any manner that he does not wish to

be questioned or that he wishes to consult counsel before submit-

ting to questioning.”

American Law Institute, Model Code of Pre-Arraignment Procedure, §

140.8 (1975). Thus the Model Code would allow police station questioning

of an arrested person who is represented by counsel only with counsel’s

consent, and require waivers by one not represented by counsel to be in

writing.

31

thereafter rely on defendant’s “waiver” for the use of

his subsequent uncounseled statements or resulting

evidence against him. We believe this rule protects the

suspect’s right under article I, section 12, and the

federal fifth and 14th amendments not to testify

against himself, and also that it suffices to satisfy the

statement quoted by defendant from Miranda v. Ari-

zona, supra, that police interference with consulta-

tions between defendant and an attorney “constitutes

a violation of the Sixth Amendment right to the assist-

ance of counsel and excludes any statement obtained

in its wake.” 384 US at 465, n. 35.”

It is plain that on the facts before us the rule

requires suppression of defendant’s statements after

Mr. Morrow’s telephone call informing the Springfield

police that he had been asked to represent defendant

and was coming to the police station to see him, as well

as the videotape made after defendant’s admissions to

his participation in the homicide. As stated above, the

court hearing the motion to suppress found that the

police officers knowingly frustrated defendant’s oppor-

tunity to meet with Morrow when they removed

’ The court there referred to the facts in Escobedo v. Illinois, supra,

which, like Massiah v. United States, supra, was decided on grounds of the

6th amendment right of an “accused . . . to have the Assistance of Counsel

for his defence,” a right which is part of the due process required of the

states under the 14th amendment.

We do not here have the issue whether a defendant may, in the absence

of counsel, be asked to waive counsel and answer questions after a “crimin-

al prosecution” has formally begun by charging defendant with a crime. See

Or Const art I, § 11; Brewer v. Williams, supra; Massiah v. United States,

supra; People v. Meyer, 11 NY2d 162, 182 NE2d 103, 227 NYS2d 427 (1962);

People v. Waterman, 9 NY2d 561, 175 NE2d 445, 216 NYS2d 70 (1961);

People v. DiBiasi, supra; Kamisar, Brewer v. Williams, Massiah, and

Miranda: What Is “Interrogation”? When Does It Matter?, 67 Georgetown L

J 1 (1978); White, Police Trickery in Inducing Confessions, 127 U Pa L Rev

581, 590-593 (1979); Annot., 90 ALR2d 726.

See aisu Code of Professional Responsibility, DR 7-104(A)(1)(proscribes

communicating or causing another to communicate with a party known to

be represented by counsel without counsel’s consent), cited in People v.

Hobson, supra; United States v. Thomas, 474 F2d 110, 111-112 (10th Cir

1973); United States v. Springer, 460 F2d 1344, 1354-1355 (7th Cir 1972)

(Stevens, J., dissenting); Note, 53 Ind L J 313 (1977-1978).

32

defendant from jail and that the overwhelming impli-

cation was that this was their intent. When the oppor-

tunity to consult counsel is in fact frustrated, there is

no room for speculation what defendant might or

might not have chosen to do after he had that opportu-

nity. Accordingly, the decision of the Court of Appeals

must be reversed and the case returned to the circuit

court for trial.

Reversed and remanded.

DENECKE, C. J., specially concurring.

I concur in the court’s decision. I specially concur

because of the dictum in the court’s opinion to the

effect that there is no law authorizing the police to

delay or prevent communication between an arrested

person and his or her lawyer. This dictum, stated in

connection with the New York exclusionary rule, may

create the inference that any evidence obtained as a

result of an officer delaying or preventing communica-

tion is inadmissible. I would not concur in such a

principle.

I also do not necessarily concur in the dictum stated

in footnote 4.

“Q

*A

“Q

a

“Q

"_

“Q

“A

“Q

a! |

“Q

"A

“Q

“-—

“Q

“A

“Q

"A

33

Appendix B

From State v. Haynes Transcript

(BY PROSECUTOR):

“You were taken to the Springfield Police

Department, given your constitutional rights

again, and you signed that card we’ve offered

into evidence; is that right?

(BY MR. HAYNES):

“Yes.

Did anybody threaten you to do that?

There were never any physical threats made

to me at eny time.

Did anybody promise you anything to get you

to sign it?

No. I signed it on my own free will.

Did you give the taped statement of your own

free will?

Yes.

Without any threats?

Yes.

Without any promises being made?

Yes.

Without any coercion being placed on you?

I done it completely voluntary in all respects.

So your statement on that tape, when asked if

the statement was given to the officer freely

and your answer was yes, was a true answer?

Yes.

And when he made the statement, ‘In other

words, you volunteered the information that

you've given me right here?’ you answer, “Yes,”

that was true?

Yes. (Tr 218-219).

* * *

“Q

a.

“Q

“A

“Q

“-

“Q

a

“Q

“A

“Q

"A

“Q

“A

“Q

“A

“Q

34

Did you know you had a right to remain silent

if you did not have a lawyer?

Yes * * *

So you knew regardless of the fact of a lawyer

being there, you had a right to keep your

mouth shut essentially?

Yeah. Can you sit there and be quiet when

somebody’s yapping in your ear and saying all

kinds of dirty, cruel things?

Your answer is yes, you knew you had a right

to remain silent?

I knew I had a right, yes.

And you knew you had a right, if you could not

afford a lawyer, that one would be appointed

for you by the Court? Do you know what that

means?

Yes.

Did you know at that time what that meant?

Yes.

What did it mean to you at that time?

It means all I had to do was stand there and

keep my mouth shut until I was brought over

here and given a lawyer.

Did you know you had a right to talk to a

lawyer and have him present with you while

you were being questioned?

Yes * * *” (Tr. 220-222).

Do you recall when you were present with

your wife making several statements to her on

the Sunday night to the effect that: ‘Try to

remember, it will feel better if you can get it

out’?

Yes.

Did you also make a statement (to her) that it

would make you feel better if you just come

out and talk about it?

* * *K *K *

1

35

“A Yes. (Tr. 230-231).

* kK *

“Q (BY MR. BILLINGS)

“Mr. Haynes, you had previously been ad-

vised of your Miranda rights, is that correct?

“A Yes.

“Q Did you understand one of those rights to be

that you had a right to a court-appointed at-

torney?

“A Yes. I knew that I would be appointed one

Monday morning, so I did not (have to) say

anything to him.” (Tr. 195).