State v. Parker, 36262

• Citation: 180 Neb. 707,144 N.W.2d 525
• Decision Date: 29 July 1966
• Docket Number: No. 36262,36262
• Parties: STATE of Nebraska, Appellee, v. Darrel F. PARKER, Appellant.
• Court: Supreme Court of Nebraska

Page 525

144 N.W.2d 525

180 Neb. 707

STATE of Nebraska, Appellee, v. Darrel F. PARKER, Appellant.

No. 36262.

Supreme Court of Nebraska.

July 29, 1966.

Syllabus by the Court

1. The case of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, affects only those cases in which the trial began after June 22, 1964.

2. In the absence of a showing of real miscarriage of justice, the question of whether a confession was obtained unlawfully cannot to raised under sections 29--3001 to 29--3004, R.S.Supp., 1965, where the facts relied on by the petitioner have been the subject of and decided in a former appeal to this court from conviction.

Schrempp, Lathrop, Rosenthal & Bruckner, Omaha, for appellant.

Clarence A. H. Meyer, Atty. Gen., H. G. Hamilton, Asst. Atty. Gen., Lincoln, for appellee.

Heard before CARTER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ., and MURPHY, District Judge.

BROWER, Justice.

The appellant, Darrel F. Parker, was convicted of the first degree murder of his wife, Nancy Parker, and sentenced to life imprisonment by the district court for Lancaster County on June 2, 1956.

From his conviction and sentence appellant timely brought error to this court, which affirmed the judgment of the trial court in Parker v. State, 164 Neb. 614, 83 N.W.2d 347. His motion for rehearing was overruled. A petition for certiorari to the Supreme Court of the United States was denied April 14, 1958. Parker v. State of Nebraska, 356 U.S. 933, 78 S.Ct. 775, 2 L.Ed.2d 763.

Appellant, in 1962, filed his petition for a writ of error coram nobis in the district court for Lancaster County, which was dismissed by that court. On appeal to this court, the judgment of the trial court was affirmed. Parker v. State, 178 Neb. 1, 131 N.W.2d 678.

A petition for a writ of habeas corpus was filed by appellant in the United States District Court for the District of Nebraska. This petition was dismissed after the passage of the law relating to post conviction procedure, sections 29--3001 to 29--3004, R.S.Supp., 1965, because the petitioner had not exhausted his state remedies.

On June 10, 1965, the appellant filed his verified motion for relief under sections 29--3001 to 29--3004, R.S.Supp., 1965, in the district court for Lancaster County. A hearing was there held at which the transcript of the evidence and exhibits at appellant's preliminary hearing and the transcripts, bills of exceptions and exhibits, both at the original trial at which appellant was convicted and sentenced and the hearing on his petition for a writ of error coram nobis, were received in evidence. No further evidence was offered. At the conclusion of this trial the district court denied his motion and the appellant appeals to this court from an order overruling a motion for a new trial.

The facts surrounding the murder of Nancy Parker on December 14, 1955, and the actions of the appellant following her death are set forth in the opinion of this court in Parker v. State, 164 Neb. 614, 83 N.W.2d 347. The interrogation of appellant by John E. Reid alone, leading to his confession, and the preparation and reduction thereof to writing by the court reporter and its signature by the appellant before witnesses is there related. The oral confessions to law enforcement officers immediately following the interrogation is also discussed.

The appellant's assignment of errors is repetitious, but the questions which they pose will be considered in this opinion.

Several of the errors urged by appellant relate to the appellant's interrogation leading to his confession without the presence of his attorney. It affirmatively appears from the record that appellant was not represented by counsel during several hours of questioning. Neither was he advised of any right to the presence of an attorney, nor that any statement he made might be used against him. The contentions of the appellant here asserted were raised in the trial court at the hearing on the present motion and there related by his counsel to the rules laid down by the Supreme Court of the United States in the case of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. It was asserted that the doctrine of Escobedo must be considered retroactively and governed the interrogation of the appellant which preceded his confessions in December 1955. Subsequently the Supreme Court of the United States, in Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, held that the case of Escobedo v. State of Illinois, supra, affects only those cases in which the trial began after June 22, 1964. It has no application to appellant's confession and his contentions based upon that case cannot be sustained.

Appellant contends his written and oral confessions were involuntary and were procured in violation of the due process clause of the Constitutions of the United States and the State of Nebraska. At all of the trials and hearings, from this preliminary to and including the consideration of the present motion, appellant was represented by able counsel. All questions now raised concerning whether his confession and oral statements made immediately thereafter were voluntary or involuntary were hotly contested at length in the trial when he was convicted and sentenced, which continued over 17 days. He then had four attorneys of his own choice. The evidence then given and received is very voluminous, particularly on the issue of the voluntariness of his confessions. The evidence with respect to the written confession was presented to the court in the absence of the jury. The trial court thereafter held that the writiten confession was voluntary before it was permitted to be heard by the jury. Even more extended testimony presented both by the State and the appellant was thereafter heard before the jury on the written and oral confessions. After the issue was presented to the jury under the trial court's instructions, the jury by its verdict found the confessions voluntary as a matter of fact. It was again reviewed by the trial court on considering a motion for a new trial. It was considered by this court and reviewed in its opinion in Parker v. State, 164 Neb. 614, 83 N.W.2d 347. Certiorari to the Supreme Court of the United States was denied in Parker v. State of Nebraska, supra. It was reviewed by another judge of the trial court at the hearing of the motion now before us on appeal.

Objection at one time was made to the oral confessions because separate and independent evidence as to their being voluntary was not first produced before the court in the absence of the jury. This objection, however, was thereafter in effect withdrawn, as stated in our opinion in Parker v. State, 164 Neb. 614, 83 N.W.2d 347. The oral confessions followed immediately after the written one and much of the evidence with respect to the voluntariness of the written confession applied to the oral ones also.

The law relating to post conviction procedure, sections 29--3001 to 29--3004, R.S.Supp., 1965, is quite new. In many of its aspects it is similar to the federal statute, Title 28 U.S.C.A. § 2255, p. 563. The case of Hodges v. United States, 108 U.S.App.D.C. 375, 282 F.2d 858, certiorari denied, 368 U.S. 139, 82 S.Ct. 235, 7 L.Ed.2d 184, was one where the accused made a confession of guilt. Like questions as to the confession being voluntary were heard in the cited case first by the trial court alone and by it held to be voluntary and thereafter submitted to the jury. The jury found the confession voluntary and the defendant in that case was convicted. The accused, without appealing, attempted by motion filed under 28 U.S.C.A. § 2255, to have the issue redetermined. The United States Court of Appeals, District of Columbia Circuit, in its opinion stated: 'It may be that less than 4% Of such petitions ultimately prove meritorious. Yet we must scrutinize all of...