STATE of Oregon, Respondent,
v.
Jacinto Hernandez LOPEZ, Appellant.
C9310-97CR; CA A87311.
Court of Appeals of Oregon.
Argued and Submitted August 28, 1996. Decided March 26, 1997.Louis R. Miles, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.
Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.
Before RIGGS, P.J., and LANDAU and LEESON, JJ.
LANDAU, Judge.
Defendant appeals his murder conviction, arguing that the trial court erred in failing to suppress the confession that he gave to police officers, because his confession was involuntary. The state contends that the conviction must be affirmed, because at trial defendant took the stand and admitted that he committed the murder for which he was charged and, consequently, has waived any right to object to the admission of his earlier confession. We agree with the state and affirm on that basis, expressing no opinion *387 on the matter of the voluntariness of the confession.
Defendant was interviewed by police officers investigating the stabbing death of Sixto Ramirez Morales. The officers informed defendant of his rights against self-incrimination, and defendant responded that he knew and understood those rights. One of the officers then told defendant that it was "important [to] get [defendant's] side of the story." Defendant then confessed to the officers that he had stabbed Morales to death. Defendant was charged with the murder. Before trial, he moved to suppress the confession on the ground that the officer's statement that it was "important [to] get [defendant's] side of the story" rendered the confession that followed involuntary as a matter of law. The trial court denied the motion. Defendant then waived a jury trial, and the case was tried to the court. At trial, defendant testified and admitted that he stabbed Morales to death. The trial court rendered a verdict of guilty. On appeal, defendant's sole assignment of error is that the trial court should not have denied his motion to suppress his confession to the investigating officers.
The Supreme Court has held categorically that a defendant who chooses to take the stand and testify about certain facts cannot be heard to complain about the trial court's failure to grant a pretrial motion to suppress evidence of the same facts. In State v. Dotson, 239 Or. 140, 396 P.2d 777 (1964), for example, the defendant attempted to challenge the admissibility of his pretrial confession even though he later testified at trial to the same facts. The court refused to hear his objection:
"When defendant elected to repeat to the jury his pretrial admissions, we think he waived every objection he might have urged to other proof by the state of the same or similar admissions."
Id. at 143, 396 P.2d 777. Similarly, in State v. Unsworth, 240 Or. 453, 402 P.2d 507 (1965), cert den 382 U.S. 1014, 86 S.Ct. 626, 15 L.Ed.2d 529 (1966), the defendant confessed his crime to investigating officers prior to trial. When evidence of the confession was admitted at trial, he took the stand and admitted the same facts. Following trial, the United States Supreme Court decided Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), in which it announced a requirement that defendants be advised of their right to remain silent and the right to counsel before making any incriminating statements. On appeal, the defendant asserted that his confession should not have been admitted, because he was not advised of his constitutional rights. The Supreme Court held that, whether or not the defendant was advised of his constitutional rights, when he
"took the witness stand and repeated in substance the same admissions contained in his statement, he waived any right to object to the admission of the statement * * *."
Unsworth, 240 Or. at 460, 402 P.2d 507. To the same effect is State v. Frazier, 245 Or. 4, 418 P.2d 841 (1966), in which the court held that it was unnecessary to consider the voluntariness of a confession because the defendant later took the stand and testified that the statements in the confession were true. Id. at 9, 418 P.2d 841. Most recently, in State ex rel. Juv. Dept. v. Cook, 325 Or. 1, 932 P.2d 547 (1997), the court held that, "[w]hatever label is usedunpreserved error, harmless error, or waiver," a defendant's choice to take the stand and testify as to evidence he or she earlier attempted unsuccessfully to suppress precludes that defendant from challenging the failure of the trial court to suppress the evidence.
Unfortunately, our own cases have not been so consistent. On the one hand, in State v. Williams, 7 Or.App. 579, 492 P.2d 513 (1972), we held that, even conceding for the purposes of argument that the defendant's inculpatory pretrial statements were not admissible, "the error was rendered harmless when defendant later took the stand * * * and recounted the entire incident * * *." Id. at 582, 492 P.2d 513. On the other hand, in State v. Poole, 31 Or.App. 925, 572 P.2d 320 (1977), we took precisely the opposite position. We noted the Supreme Court's "apparently contrary" holding in Unsworth, but nevertheless held that, *388 once the contested confession is admitted into evidence,
"there is no reason to require defendant to ignore it for the remainder of the trial in order to preserve his right to appeal. The defense is entitled to attempt to explain its version of what happened without forfeiting its right to challenge the error on appeal."
Poole, 31 Or.App. at 931, 572 P.2d 320. We followed that with a somewhat more apologetic explanation in State v. McKendall, 36 Or.App. 187, 584 P.2d 316 (1978). In that case, we attempted to distinguish Unsworth and Frazier on the ground that
"Frazier and Unsworth dealt with situations where the defendant asserted a constitutional right on appeal that was not defined at the time of trial and therefore not raised at that level."
McKendall, 36 Or.App. at 193-94, 584 P.2d 316. The asserted distinction, however, flatly contradicts the Supreme Court's decision in Unsworth, in which the court expressly held that it did not matter whether the confession was admitted in violation of newly defined constitutional rights, because defendant had testified to the same facts at trial. Unsworth, 240 Or. at 460, 402 P.2d 507. It is also contrary to Frazier, in which the Supreme Court made no mention of whether the defendant asserted at trial his right to advice of his constitutional rights before making incriminating statements to investigating officers. It is also contrary to Dotson, which was argued before the United States Supreme Court even announced Escobedo.
The fact is, Poole and McKendall cannot be reconciled with the Supreme Court's cases and must be overruled. Accordingly, under controlling Supreme Court authority, defendant in this case has waived any right to object to the admission of his pretrial confession that he stabbed Morales to death, having chosen to take the stand and testify to the same facts at trial.
Affirmed.