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State v. Clifton

Oregon Supreme Court
May 12, 1965
240 Or. 378 (Or. 1965)

Summary

holding that the failure to object at trial to the testimony of police officer about the defendant's incriminating statements on constitutional grounds did not constitute a waiver of the right to assert those grounds on appeal in light of intervening case law

Summary of this case from State v. Cruz-Aguirre

Opinion

Argued March 1, 1965

Reversed and remanded May 12, 1965

Appeal from Circuit Court, Multnomah County.

J.J. MURCHISON, Judge.

Lawrence A. Aschenbrenner, Public Defender, Salem, argued the cause and filed a brief for appellant.

John D. Burns, Deputy District Attorney, Portland, argued the cause for respondent. On the brief were George Van Hoomissen, District Attorney, and Harold J. Blank, Deputy District Attorney, Portland.

Before McALLISTER, Chief Justice, and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, Justices.


IN BANC


REVERSED AND REMANDED.


Defendant appeals from a judgment of conviction of the crime of assault while being armed with a dangerous weapon. It is contended that defendant's constitutional rights to counsel and to remain silent were violated.

Defendant made incriminating statements during interrogation by police officers. Defendant was not informed of his constitutional rights before the interrogation. When the police officers testified no objection was made to their testimony relating to the incriminating statements. The state concedes that if objection had been made there would be reversible error. The only question on appeal is whether defendant's failure to object constitutes a waiver of his constitutional rights to counsel and to remain silent.

At the time of the trial Escobedo v. Illinois, 378 U.S. 478, 84 S Ct 1758, 12 L Ed2d 977 (1964) had not been decided. It is probable that if it had been decided at the time of defendant's trial appropriate objections would have been made. Under these circumstances we believe that the failure to object to the testimony of the police officers did not constitute a waiver of defendant's constitutional rights.

We express no opinion as to whether a failure to object would constitute a waiver in a case tried after Escobedo v. Illinois, supra.

The fact that the present case was tried prior to the decision in Escobedo v. Illinois, supra, does not present a question of the retroactive effect of the Escobedo case because it is our view that a newly pronounced principle of constitutional law is operative with respect to all cases being tried or upon direct appeal in the courts of this state at the time of the pronouncement. See People v. Stewart, 43 Cal Rptr 201, 400 P.2d 97 (1965). It is not necessary to decide whether the principle in Escobedo is to be given effect in cases where a judgment of conviction together with final disposition on direct appeal preceded the decision in Escobedo. See In re Lopez, 42 Cal Rptr 188, 398 P.2d 380 (1965); State v. Johnson, 43 NJ 572, 206 A.2d 737 (1965); and compare U.S. ex rel Durocher v. LaValle, 330 F.2d 303 (2d Cir 1964).

Judgment reversed and cause remanded for a new trial.


Summaries of

State v. Clifton

Oregon Supreme Court
May 12, 1965
240 Or. 378 (Or. 1965)

holding that the failure to object at trial to the testimony of police officer about the defendant's incriminating statements on constitutional grounds did not constitute a waiver of the right to assert those grounds on appeal in light of intervening case law

Summary of this case from State v. Cruz-Aguirre

In State v. Clifton, 240 Or. 378, 401 P.2d 697 (1965) we said that no question of retroactivity arose in a case which had not been finally disposed of on appeal at the time the new rule was announced.

Summary of this case from State v. Fair

In State v. Clifton, 240 Or. 378, 401 P.2d 697, decided in May 1965, we held that on appeal the defendant could successfully urge that it was error to admit admissions of the defendant when he was not informed of his constitutional rights although no objection to the testimony of such admissions had been made at trial.

Summary of this case from Haynes v. Cupp
Case details for

State v. Clifton

Case Details

Full title:STATE OF OREGON v. CLIFTON

Court:Oregon Supreme Court

Date published: May 12, 1965

Citations

240 Or. 378 (Or. 1965)
401 P.2d 697

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