Gladden v. Unsworth

• Decision Date: 01 May 1968
• Docket Number: No. 21738.,21738.
• Citation: 396 F.2d 373
• Parties: Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Appellant, v. William Edward UNSWORTH, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

396 F.2d 373 (1968)

Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Appellant, v. William Edward UNSWORTH, Appellee.

No. 21738.

United States Court of Appeals Ninth Circuit.

May 1, 1968.

Helen B. Kalil (argued), Asst. Atty. Gen., Robert Y. Thornton, Atty. Gen., Salem, Or., for appellant.

Edward J. Murphy, Jr., (argued) of Wheelock, Richardson, Neihaus & Baines, Portland, Or., for appellee.

Before HAMLEY and ELY, Circuit Judges, and WEIGEL, District Judge.

HAMLEY, Circuit Judge:

Clarence T. Gladden, Warden of Oregon State Penitentiary, appeals from a district court order granting a writ of habeas corpus to William Edward Unsworth. The district court opinion is reported. Unsworth v. Gladden, D.C.Or., 261 F.Supp. 897.

Unsworth is in Oregon State penal custody under a life sentence, following his conviction for second degree murder. The conviction grew out of an incident which happened in the cabin of Unsworth and his wife at Beatty, Oregon, about midnight, April 15, 1962. At that time one Tony Moore was visiting the Unsworths in their cabin when Unsworth shot Moore with a rifle. The state prosecuted on the alternative theories that Unsworth either intended to kill Moore, or accidentally killed him while attempting to kill Mrs. Unsworth.

One of the grounds relied upon by the district court in granting the writ relates to the reception in evidence at the state trial of a transcribed question and answer statement, signed by Unsworth, containing the admission that he shot Moore. Unsworth made this statement in the office of the district attorney about 5 p.m., April 16, 1962, seventeen hours after the shooting. Those present during the interrogation were, in addition to Unsworth, James Murray Brittan, sheriff of Klamath County, Oregon, John R. Thomas, deputy district attorney, Delbert Sommers, deputy sheriff, and Sue Cromwell, a stenographer. The questioning of Unsworth was, for the most part, conducted by Thomas.

The district court held, in effect, that Unsworth had been denied due process of law when, after counsel for Unsworth objected to reception of the statement in evidence on the ground that it was not given voluntarily, the trial court overruled the objection without first granting Unsworth a hearing, out of the presence of the jury, on the question of voluntariness. Examination of the transcript of the state trial, however, indicates that Unsworth was accorded a hearing on that question outside the presence of the jury. Apparently what the district court meant to say was that the state trial court, after conducting such a hearing, declined to rule on the question of voluntariness. Instead the trial court said: "The Court feels that this is a jury question."

In Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, the Supreme Court of the United States held that, as a matter of due process, where the voluntariness of a confession is brought into question, the trial judge should solely and finally determine the voluntariness of the confession in proceedings outside the presence of the jury, or should permit the jury to pass upon that question only after the judge has fully and independently resolved the issue against the accused in proceedings outside the presence of the jury.¹ Under this rule, before a confession, challenged as to voluntariness, may be introduced in evidence, the trial court's conclusion that it is voluntary must appear from the record with "unmistakable clarity." Sims v. State of Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 17 L.Ed.2d 593.

While Jackson v. Denno dealt with a confession rather than an admission such as we have here, we think the same constitutional principle is nevertheless applicable.² Insofar as admissibility in evidence is concerned, the cases treat confessions and admissions on the same footing. See Jones v. United States, 111 U.S.App.D.C. 276, 296 F.2d 398, 402. In Miranda v. State of Arizona, 384 U.S. 436, 476, 86 S.Ct. 1602, 16 L.Ed.2d 694, dealing with procedural safeguards to be followed in taking statements from persons in custody, the Court said: "No distinction can be drawn between statements which are direct confessions and statements which amount to `admissions' of part or all of an offense."

Jackson v. Denno was decided on June 22, 1964, but it is to be applied retroactively. See Johnson v. State of New Jersey, 384 U.S. 719, 727-729, 86 S.Ct. 1772, 16 L.Ed.2d 882. Thus, although the case now before us was commenced prior to the decision in Jackson v. Denno, the principle there announced is nevertheless applicable.³

The warden concedes that Jackson v. Denno is applicable to this case, and was not complied with. He points out, however, that after the question and answer statement had been received in evidence at the state trial over Unsworth's objection, Unsworth took the witness stand and testified to substantially the same effect as his written statement. Under these circumstances, the warden argues, Unsworth waived any objection based on the trial court's failure to make a determination as to voluntariness of the written statement. The warden also argues that, in any event, Unsworth was not prejudiced by the reception in evidence of the statement in question.

The warden cites six state court decisions which hold, in effect, that where a defendant takes the witness stand and repeats, in substance, the admissions contained in his pre-trial statement, he waives the objection that the statement was not given voluntarily.⁴ However, the question of whether a federal constitutional right has been waived is a federal question and we must therefore be guided by federal precedent.

The Supreme Court of the United States has always set high standards of proof for the waiver of constitutional rights. Miranda v. State of Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694. The federal courts are to indulge every reasonable presumption against waiver of such fundamental rights. Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 81 L.Ed. 1177. The guiding principle to be applied in determining whether there has been a waiver of a constitutional right is whether there was an intelligent relinquishment or abandonment of a known right or privilege. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461.

The precise constitutional right in question here is not, as in most of the state cases cited by the warden, the right to exclude from evidence a confession or admission not voluntarily given. Rather, it is the right to exclude from evidence a confession or admission which, upon being challenged as involuntary, has not first been determined by the trial court to be voluntary in a hearing conducted outside the presence of the jury. When this trial was held in November 1963, neither Unsworth nor his counsel could have known of that right since Jackson v. Denno was not decided until June 22, 1964. Under Johnson v. Zerbst, one cannot waive a then unknown constitutional right. See Grosso v. United States, 390 U.S. 62, 71, 88 S.Ct. 716, 19 L.Ed.2d 906; Greenwood v. United States, 4 Cir., 392 F.2d 558, decided February 9, 1968.⁵

For the reasons indicated we hold that Unsworth did not waive his constitutional right to the Jackson v. Denno procedure.

In arguing that, in any event, Unsworth could not have been prejudiced by introduction of the written statement, the warden contends that without the written statement and without Unsworth's testimony at the trial, the jury would still have found Unsworth guilty. He also urges that since, in his view, Unsworth's testimony was substantially the same as the recitals contained in the statement, the reception of the statement in evidence added no element of prejudice.

In passing upon the warden's contention that the failure to follow the procedure made mandatory by Jackson v. Denno was, in any event, harmless error, the decision in Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L. Ed.2d 705, provides the guidelines to be followed. It was there held that, before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. 386 U.S. at 24, 87 S.Ct. 824.

The Court further indicated, in Chapman, that error in admitting evidence is not harmless if the evidence complained of might have contributed to the conviction. Tightening the principle still further, when applied to constitutional error in the admission of evidence, the Court added: "An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot, under Fahy Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 be conceived of as harmless." 386 U.S. at 23-24, 87 S.Ct. at 828.⁶

The evidence here in question — the transcript of Unsworth's interrogation at the jail — was plainly relevant. It is true, as the warden argues, that Unsworth admitted the shooting of Moore in his written statement and again in his direct testimony at the trial. However, the dispute at trial centered on the question of whether the shooting was accidental, as testified to by Unsworth, or whether Unsworth intended to kill Moore or his wife, as contended by the prosecution. The evidence on this question was necessarily circumstantial, and the statement in question, although not intended by Unsworth to indicate an intent to kill Moore, contains recitals which might possibly have led the jury to so infer.

Referring in that statement to his mental state when enforcement officers came to the Unsworth cabin shortly after the shooting, Unsworth said: "* * * I know I was kind of belligerent and I told you I wasn't going to talk. * * *" Referring to the distance between Unsworth and Moore at the time of the shooting, Unsworth said, in his statement: "Well, I guess it was only about a foot from him where I killed him." At a later point in his statement, Unsworth conceded that the end of the rifle "could...