State v. Brewton

422 P.2d 581, 247 Or. 241, 1967 Ore. LEXIS 468

• Court: Oregon Supreme Court
• Decided: January 18, 1967
• Status: Published

Opinions

GOODWIN, J.

This is an appeal from a conviction of first-degree murder. Background facts beyond those essential for this appeal are substantially outlined in State v. Brewton, 220 Or 266, 344 P2d 744 (1959), and in 238 Or 590, 395 P2d 874 (1964).

The only issue here is whether it was error to permit the state to impeach the defendant with statements that were elicited from him by police interrogation which, the state concedes, rendered the statements inadmissible as a part of its case in chief. The interrogation, which took place in November 1957, was not preceded by the warnings and advice concerning Fifth and Sixth Amendment protection that are now required by State v. Neely, 239 Or 487, 503-504, 395 P2d 557, 398 P2d 482, 486-487 (1965), and by subsequent decisions of this court.

After the state had rested without offering Brew-ton’s admissions in evidence, Brewton took the stand in his own defense. He told a story which, if believed, might have been consistent with his theory that he was not a principal in the crime. Brewton’s courtroom story, however, was wholly inconsistent with the statements he had given the police shortly after his arrest.

After hearing the defendant’s testimony, the state offered his police-station admissions for the limited purposes of impeachment, and they were so received over a timely objection. (The trial court earlier had held a hearing upon the issue of voluntariness, and had found as a fact that the admissions which Brewton made to the police were voluntary, at least in the sense that they were not coerced in any manner. The statements fell under the exclusionary rule only because they did not meet the constitutional requirements of State v. Neely.)

A number of state and federal decisions tend to support the trial court in receiving such evidence for impeachment. Tate v. United States, 283 F2d 377 (DC Cir 1960), deals with the conflict between the McNabbMallory exclusionary rule and a desire for truth provable by trustworthy evidence. The case holds that when one set of these interests must yield it is better that the exclusionary rule yield than to stand upon that rule and invite perjury. See also State v. McClung, 66 Wash2d 654, 404 P2d 460 (1965), cert. denied, 384 US 1013, 86 S Ct 1967, 16 L Ed 2d 1031 (1966). It might be noted that the federal procedural rationale for the McNabb-Mallory rule has recently been replaced by constitutional rules now binding on the states. Escobedo v. Illinois, 378 US 478, 84 S Ct 1758, 12 L Ed 2d 977 (1964).

This court has not been faced with the identical question decided in Tate v. United States, but State v. Smith, 242 Or 223, 408 P2d 942 (1965), is instructive. In State v. Smith, we held that a confession not shown to be voluntary was just as untrustworthy when used to prove the defendant a liar as when used to prove that he committed the crime for which he was on trial. It has been pointed out in the case at bar that Brewton’s admissions to the police were voluntary, at least in the pre-Escobedo sense that they were not obtained by threats or promises.

While an argument can be made that “voluntary” unconstitutional confessions can be distinguished from “involuntary” unconstitutional confessions, solely for the purposes of impeachment, this dichotomy does not appeal to us as constitutionally meaningful.

Since the decision in State v. Neely, supra, this court has consistently applied the exclusionary rule when the facts established interrogation which was held to violate the constitutional rights of the defendant as interpreted in State v. Neely. See, e.g., State v. Ervin, 241 Or 475, 406 P2d 901 (1965); State v. Keller, 240 Or 442, 402 P2d 521 (1965). In these eases we have recognized the inherently coercive character of police interrogation of a suspect in custody who has not been advised of his rights. Even in cases in which we have affirmed convictions following custodial interrogation, we have done so only upon express findings supported by credible evidence that there was an intelligent waiver of rights. See, e.g., State v. Atherton, 242 Or 621, 410 P2d 208, cert. denied 384 US 1025, 86 S Ct 1982, 16 L Ed 2d 1030 (1966).

Whether or not Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694, 714 (1966) is binding upon Oregon courts with reference to trials concluded before the Miranda decision was published, we are satisfied that any attempt in the future to restrict the exclusionary rule to the state’s case in chief would be inconsistent with the constitutional principles which are inherent in the Miranda case as well as in our own earlier decision in Neely.

The United States Supreme Court under the Fourteenth Amendment has attempted to achieve uniformity between the state and federal systems in the interpretation of Fourth, Fifth, and Sixth Amendment rights. It has done so upon the assumption that the exclusionary rule is a necessary procedural device to implement the substantive rights written into the Fourth, Fifth, and Sixth Amendments. This court, accordingly, has adopted the assumption that without the procedural aid of the exclusionary rule those substantive rights would be empty promises instead of constitutional guarantees. We so held in State v. Neely, and we have followed that view in cases coming before us since Neely.

If we should today adopt a restrictive application of the exclusionary rule, the result could be a major step backward. This court would in effect be saying to the overzealous that police officers will be free in the future to interrogate suspects secretly, at arms length, without counsel, and without advice, so long as they use means consistent with threat-or-promise voluntariness, and so long as they understand that they may file the information only for use to keep the defendant honest. Thus the police could, at their option, take a calculated risk: By giving up the possibility of using the suspect’s statements in the state’s case, they could obtain by unconstitutional means and store away evidence to use if the defendant should elect upon trial to take the stand. As commendable as it may be to prevent perjury, the price of such prevention could be to keep defendants off the stand entirely. In some cases, the temptation to silence a suspect of dubious probity might very well outweigh the desire to conduct a constitutionally valid interrogation. We have concluded that to introduce such a rule could undo much of the recent progress that has been made in upgrading police methods to preserve the rights guaranteed under the Fifth and Sixth Amendments, and would be inconsistent with the trend of our recent decisions.

We are also unable to follow the “middle ground” suggested in Tate v. United States, supra, to the effect that if a defendant merely takes the stand and denies his part in the crime he may not be impeached by the fruits of unconstitutional interrogation, but if he testifies about collateral matters he may be so impeached. Such a rule would be virtually unworkable. The usual reason a defendant chooses to take the stand is to give the jury a comprehensive statement of his side of the story. Any story that would be responsive to the questions raised by the state’s case would tend to open up collateral matters and would invite impeachment if the tools of impeachment were at hand. The state should be free to impeach, but it ought to come by its impeachment as legally as it accumulates its other evidence.

If the choice is to exclude all illegally obtained evidence or to silence the defendant as a witness, it is better to exclude the illegal evidence. As we have said before, circumvention of constitutional liberties is not to be encouraged by permitting illegally obtained evidence to come in “through the back door.” State of Oregon v. Goodwin, 207 Or 642, 645, 298 P2d 1024 (1956).

Other assignments of error have been briefed and argued, but since they present questions that are not likely to arise upon another trial they need not be discussed at this time.

The case is reversed and remanded to the trial court for a new trial.