Ball v. Gladden

• Decision Date: 17 July 1968
• Citation: 443 P.2d 621,86 Adv.Sh. 1159,250 Or. 485
• Parties: Osborn Lee BALL, Appellant, v. Clarence T. GLADDEN, Warden of the Oregon State Penitentiary, Respondent.
• Court: Oregon Supreme Court

Page 621

443 P.2d 621

250 Or. 485

Osborn Lee BALL, Appellant, v.Clarence T. GLADDEN, Warden of the Oregon State Penitentiary, Respondent.

Supreme Court of Oregon, In Banc.

Submitted on Briefs April 1, 1968.

Decided July 17, 1968.

Louise Jane, Portland, for appellant.

Robert Y. Thornton, Atty. Gen. and Helen B. Kalil, Asst. Atty. Gen., Salem, for respondent.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE, and HOLMAN, JJ.

HOLMAN, Justice.

Petitioner filed a post-conviction relief proceeding to set aside his conviction of second degree murder for killing his wife.He appeals from a judgment, rendered after a hearing, which denied him relief and dismissed his petition.

At petitioner's trial for murder the chief of police of Chiloquin testified that defendant admitted to him that he shot his wife.It is petitioner's claim that his federal constitutional right of due process was violated because his admission was coerced.This is a pre-Escobedo ¹ and Miranda ² case, the petitioner's conviction having occurred in 1957.

It has been called to the court's attention in this case and another presently pending before it, ³ that the scope of review by this court of questions concerning voluntariness of admissions and confessions has not always been consistent.As a result, it would appear appropriate to discuss in some detail what we consider our proper scope of review of questions concerning the voluntariness of admissions and confessions.

What actually transpired is a question of fact for the trial court or jury.If the evidence sustains such historical factual findings they will not be disturbed by this court.If findings are not made on all such facts, and there is evidence from which such facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the ultimate conclusion, e.g., voluntariness or lack thereof, made by the trial court or jury.Whether these historical facts as found are sufficient to sustain a finding of voluntariness which meets state and federal constitutional concepts of due process is another question, and one which falls within our proper scope of appellate review.The federal court also exercises this scope of review.Clewis v. State of Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423, 426(1967);Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895, 898--899(1966);Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513, 522(1963);Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037, 1058--1059(1961).In other words, we are not bound by a trial judge or jury's finding of voluntariness if we believe the historical facts upon which such finding is based are insufficient to meet constitutional standards of due process.This is pursuant to our duty to interpret constitutional standards and require conformance thereto.

We will now analyze the historical facts to see if they are sufficient to justify the trial court's finding of voluntariness.All matters upon which the evidence is in dispute are recounted as if found in a manner favorable to the trial court's finding of voluntariness unless the trial court found them otherwise.Added to these are the matters upon which the evidence is undisputed or of which the court can take judicial notice.

At the time of the alleged crime petitioner was 51 years of age and possessed a fifth grade education.After the shooting he was taken into custody at his home late in the afternoon or early evening by the chief of police of Chiloquin, a small community in a thinly populated part of the state.He was taken to the city jail and then permitted to go outside alone to get some air.He walked unattended around the block and came back to the jail when summoned for the purpose of being told that his wife had died from her wounds.Later in the evening he was questioned about two hours by the chief of police, the district attorney and a deputy sheriff.They told petitioner that he did not have to answer questions and that he was entitled to the advice of counsel.Petitioner...