State v. Austin

Court of Appeals of Oregon

State v. Austin

465 P.2d 256, 1 Or. App. 556, 1970 Ore. App. LEXIS 723

CourtCourt of Appeals of Oregon

DecidedFebruary 5, 1970

StatusPublished

Cited by7 cases

This text of 465 P.2d 256 (State v. Austin) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Austin, 465 P.2d 256, 1 Or. App. 556, 1970 Ore. App. LEXIS 723 (Or. Ct. App. 1970).

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Opinion

FOLEY, J.

Defendant was found guilty by a jury of attempted burglary. He appeals claiming violation of his constitutional right against self-incrimination.

Defendant was arrested near the scene of a reported burglary. He was twice given the Miranda warnings (Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974 (1966)), and he declined to say anything. Five or ten minutes later, after defendant had been booked, an officer asked him if he wanted to make a phone call. The officer testified that he answered by saying that he did not, and then proceeded to volunteer to the policeman “that we ‘had him’ that he knew that he had done wrong by breaking into the Pastime * * This statement by defendant was admitted in evidence over defendant’s objection and he assigns this as error.

If an accused indicates at any time prior to or during questioning that he wishes to remain silent, the interrogation must cease. Miranda v. Arizona, supra. However, “Volunteered statements of any kind are not barred by the Fifth Amendment * * *" Miranda v. Arizona, supra, 384 US at 478; State v. Joseph, 252 Or 610, 451 P2d 468 (1969); State v. Hill, 245 Or 510, 422 P2d 675 (1967).

Here the question asked defendant was not designed to elicit incriminating evidence but to remind *558 defendant of one of his rights. The incriminating part of his answer was not responsive to the question and was purely voluntary. There was no error in admitting the statements.

Affirmed.

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FOLEY, J.

Defendant was found guilty by a jury of attempted burglary. He appeals claiming violation of his constitutional right against self-incrimination.

Defendant was arrested near the scene of a reported burglary. He was twice given the Miranda warnings (Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974 (1966)), and he declined to say anything. Five or ten minutes later, after defendant had been booked, an officer asked him if he wanted to make a phone call. The officer testified that he answered by saying that he did not, and then proceeded to volunteer to the policeman “that we ‘had him’ that he knew that he had done wrong by breaking into the Pastime * * This statement by defendant was admitted in evidence over defendant’s objection and he assigns this as error.

If an accused indicates at any time prior to or during questioning that he wishes to remain silent, the interrogation must cease. Miranda v. Arizona, supra. However, “Volunteered statements of any kind are not barred by the Fifth Amendment * * *" Miranda v. Arizona, supra, 384 US at 478; State v. Joseph, 252 Or 610, 451 P2d 468 (1969); State v. Hill, 245 Or 510, 422 P2d 675 (1967).

Here the question asked defendant was not designed to elicit incriminating evidence but to remind *558 defendant of one of his rights. The incriminating part of his answer was not responsive to the question and was purely voluntary. There was no error in admitting the statements.

Affirmed.

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465 P.2d 256, 1 Or. App. 556, 1970 Ore. App. LEXIS 723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-austin-orctapp-1970.

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