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-AguirreOpinion
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.