State v. Dills

• Decision Date: 14 July 1966
• Citation: 244 Or. 188,416 P.2d 651
• Parties: STATE of Oregon, Respondent, v. Wanda DILLS, Appellant. STATE of Oregon, Respondent, v. Chester Leon STICE, Appellant.
• Court: Oregon Supreme Court

Page 651

416 P.2d 651

244 Or. 188

STATE of Oregon, Respondent, v. Wanda DILLS, Appellant.

STATE of Oregon, Respondent, v. Chester Leon STICE, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted June 8, 1966.

Decided July 14, 1966.

Donald W. Monte, Eugene, argued the cause and filed a brief for appellant in each case.

John E. Moore, Deputy Dist. Atty., Eugene, argued the cause for respondent in each case. With him on the briefs was William F. Frye, Dist. Atty., Eugene.

Before McALLISTER, C.J., and PERRY, SLOAN, HOLMAN, and LUSK, JJ.

LUSK, Justice.

The defendants, Wanda Dills, and Chester Leon Stice, her son, were indicted separately for the crime of first degree arson, the unlawful setting of fire to and burning a dwelling house: ORS 164.020. By agreement they were tried together, were convicted, and have appealed.

Since the defendant Wanda Dills assigns error to the court's denial of her motion for a directed verdict of acquittal based on the ground that the sole evidence of her guilt was furnished by an accomplice, it is necessary to set forth the evidence in some detail.

The accomplice is Carolyn (also referred to as Marilyn) Sergeant. She was a friend and close associate of the defendant Wanda Dills.

In May of 1964 Mrs. Dills and Mrs. Sergeant occupied adjoining apartments in a house in Glenwood, a suburb of Eugene, Oregon. As a witness for the state, Mrs. Sergeant testified that about May 21, 1964, she helped Mrs. Dills move her household effects and furnishings to a house on Coburg Road, located about four miles from downtown Eugene, which Mrs. Dills had rented from the owner, David Pruitt. This is the house that was burned. Mr. Pruitt's home was on adjoining property some fifty feet away from the rented house. The fire occurred in the early morning hours of May twenty-fourth. At the same time that Mrs. Dills moved from the Glenwood house Mrs. Sergeant also moved to a house in a place called Pleasant Hill in the Eugene area. On the afternoon before the fire she and Mrs. Dills 'took a whole trailerload of stuff up and put it in the (Pleasant Hill) house and locked it up.' The 'stuff' referred to consisted of clothing and household furnishings and equipment belonging to Mrs. Dills which had previously been moved into the Coburg Road house, together with a lamp that belonged in the Coburg Road house and which Carolyn Sergeant admitted she stole. They removed this property because the house was to be set afire. In furtherance of this purpose, before going to Pleasant Hill they left an iron plugged in on an ironing board. Later, they returned to the Coburg Road house and found that the hot iron had scorched a dress left on the ironing board and the ironing board cover, but, as nothing had caught fire, Mrs. Sergeant ignited some clothes hanging over the ironing board with a cigarette lighter, saying to Mrs. Dills she 'thought that this would take.' Mrs. Sergeant, Mrs. Dills and Stice then left in Mrs. Dills' car, driven by Stice, for a nightclub called 'Bimbo's,' located about midway between Eugene and Springfield. Stice dropped the other two off at Bimbo's, with the understanding that he would pick them up later. He returned about 2:30 a.m. In the meantime, however, Mrs. Dills had gone to the Coburg Road house (accompanied, as she testified, by a man named Donovan). On her return to Bimbo's she told Mrs. Sergeant that the house was full of smoke and she could not stay there. When Stice returned to Bimbo's the three of them drove to the Coburg Road house by a back road with the lights of the car out, and upon their arrival there Stice went into the house and came back to the car saying he had started the fire again. They thereupon drove to a restaurant called 'Snappy's Service' in downtown Eugene. Looking back, they saw that the house was in flames. They were joined at Snappy's Service by Mrs. Dills' daughter, Glenda, and her girl friend, and had been there about an hour and a half when Steve Dooley--who had helped with the moving and was staying at the Coburg Road house--came by and said the house was on fire. They raced to the fire. By the time they got there the house was 'completely enveloped.' The Pruitt home had also caught fire, but the firemen had succeeded in putting it out.

Cecil Davis, a witness for the state, who had known Mrs. Dills and her son for about four years and is a cousin of Mrs. Dills' husband, brought his car and helped with the moving from the Glenwood house to the Coburg Road house. He testified:

'Q In moving in, do you recall an occasion when a closet door was open and a discussion concerning the burning of that house took place?

'A Yes.

'Q Who was present?

'A There was me, and Wanda, and Marilyn.

'Q What was that conversation?

'A Well, Marilyn opened the door and said (sic) was looking through some old papers because the closet was full of old papers and stuff, and she said this would be a good place for a fire, and Wanda said, 'Yeah,' and so she said, 'I will give anybody five hundred to burn it.'

'And then she looked at me and says, 'Do you want the job?' And I said, 'Why yeah,' just joking, you know, and that was all that was said.

'Q Did you burn it?

'A No.'

On cross-examination Davis testified that he thought Mrs. Sergeant was joking. His testimony continued:

'Q (By Mr. Monte) Did she have a joking manner?

'A Yeah.

'Q And was your answer in a joking manner?

'A Yes, sir, it was.

'Q Did the other people laugh about it too?

'A Well, as far as I know they did.

'Q Do you remember what--

'A I mean was just all joking around in the house.

'Q As a matter of fact, you were just investigating the house when you discovered these things, weren't you?

'A Well, no, I wasn't looking around in the house. I was putting up stuff, and Carolyn found them.

'Q Carolyn found the papers?

'A That lady back there (indicating).

'Q What did she say when she found the papers?

'A Well, she said that it would be a good place to start a fire.

'Q She is the one that said that?

'A Yeah.

'Q And was it after this statement that Mrs. Dills said 'Yeah, I will give you five hundred dollars for someone to do it. Do you want the job?' Was it after this statement that she said that?

'A Yeah.

'Q Was there ever anything more said about that?

'A No, sir, there wasn't.

'Q Just dropped there, is that it?

'A Yeah.'

Davis was not an accomplice. We think his evidence is sufficient to satisfy the requirement of ORS 136.550 that '(a) conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence that tends to connect the defendant with the commission of the crime.' The defendant Dills would have us disregard the evidence because the words were uttered in jest, but the weight and effect of the evidence are matters committed to the determination of the jury, not the court: ORS 17.250. Arson is not ordinarily considered funny, and the jury might well have found that the 'joking manner' to which Davis testified was of a kind that sometimes goes with a wicked or unlawful purpose.

There was other corroborating evidence, but, in view of Davis' testimony, it is unnecessary to set it forth.

The motion for a directed verdict was properly denied.

The other assignments of error relate to an incriminating statement made by defendant Stice to police officers, and recorded on tape. Both defendants, who were represented by the same counsel, objected to the admission of the statement, though the defendant Dills has a ground of objection in addition to that urged by her co-defendant.

The objection made on the trial common to both defendants was that the confession was involuntary because of an implied threat, that no Corpus delicti had been established, and that the tape was not a clear and complete statement.

The objection on behalf of the defendant Dills alone was that the statement was not admissible as to her because there was no independent evidence of a conspiracy.

In the briefs, however, counsel for defendants has gone beyond the objections made below and has argued that Stice's Fifth and Sixth Amendment rights, as enunciated in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and State v. Neely, 239 Or. 487, 395 P.2d 557, 398 P.2d 482, were violated. ¹ This case was tried in April, 1965, long after the decisions in the Escobedo and Neely cases, and, in accordance with the firmly established rule of appellate procedure, we decline to consider objections made for the first time in this court: State v. Evans, Or., 407 P.2d 621; State v. Clifton, 240 Or. 378, 401 P.2d 697. And see Schmerber v. California, June 20, 1966, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, Footnote 9.

On January 16, 1965, the defendant gave the statement in question under interrogation by State Police Officer Benninghoff, who was accompanied by State Police Officer Veteto. As stated, the interview was recorded on a tape, but the latter part of the recording was unintelligible, apparently due to a mechanical failure caused by the motor in a Coca-Cola dispensing machine on which the recorder rested. The court, having first listened to a playback of the record out of the presence of the jury, admitted in evidence the intelligible part of the tape, and Officer Benninghoff testified to the remainder of the statement.

The evidence shows without contradiction that before the statement was taken Stice was warned by the officers of his right to remain silent, that anything he said might be used against him, and of his right to an attorney, and that he expressed his willingness to proceed with the interrogation. Upon the conclusion of the statement he was placed under arrest, taken before a magistrate, who fixed his bail, and lodged in jail. No claim was made on the trial of any invasion of Stice's constitutional rights, other than that his statement was involuntary.

There was the usual preliminary hearing out of the presence of the jury to determine this...