Dorsciak v. Gladden

• Decision Date: 15 March 1967
• Citation: 246 Or. 233,425 P.2d 177
• Parties: Alfred Charles DORSCIAK, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.
• Court: Oregon Supreme Court

Page 177

425 P.2d 177

246 Or. 233

Alfred Charles DORSCIAK, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Jan. 3, 1967.

Decided March 15, 1967.

Lawrence A. Aschenbrenner, Public Defender, Salem, argued the cause and filed briefs for appellant.

David H. Blunt, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen., Salem.

Before PERRY, C.J., and McALLISTER, O'CONNELL, GOODWIN, DENECKE, HOLMAN ^* and REDDING, JJ.

DENECKE, Justice.

In 1962 the plaintiff pleaded guilty to the crimes of rape of daughter and contributing to the delinquency of a minor. He subsequently filed a petition for post-conviction relief contending, among other things, that his confession and plea of guilty to the rape charge were not voluntarily or understandingly made. He does not seek relief from the contributing conviction. The post-conviction court held a hearing and denied the petition.

We hold that the confession was not voluntarily made.

The defendant was 43 years old at the time of his conviction; he had a seventh grade education. He had no prior criminal record.

The defendant was arrested on March 28, 1962, under a warrant issued pursuant to an indictment for rape of daughter. He was taken to the county courthouse and interrogated for approximately one hour by a deputy district attorney and a deputy sheriff. The interrogation was taped; therefore, there is no dispute as to what was said. Ultimately, the defendant stated he had sexual relations with his daughters.

The defendant remained incarcerated until April 2, 1962, when he was arraigned and pleaded guilty to both charges. During his incarceration only a minister visited him; however, there is no evidence that others could not have communicated with him. He was never brought before a magistrate as ORS 133.550 requires. He never had the advice of counsel.

At the arraignment the court informed him that if he desired the court could appoint an attorney for him. The defendant stated he did not want an attorney. When the defendant indicated he wanted to waive the time given to him to plead and make his plea at that time the court asked, 'Do you do that of your own free will and without any promises of any kind?' The answer was, 'Yes.' The trial court informed the defendant that 'this is a serious charge.' The district attorney made a statement of the charged crime and thereafter the defendant said he did not care to make any statement.

Before the interrogation commenced defendant was advised of his right to remain silent and to have counsel; however, when the defendant asked for counsel, for following occurred:

'Dorsciak: I think that maybe I see a lawyer and then if he tells me to, you know, that the judge does that, well that's different, but I've got to know, I've got to know for sure.

'Conn: Well, I'm certain that the attorney will tell you that--

'Dorsciak: If I could just talk to one just for a minute, he don't have to take the case, or anything like that, if I could just talk to him and ask him some questions--

'Conn: Well, you'd have to go through proceedings for that or else make arrangements for yourself.

'Tankersley: Well, you understand that you are talking to an attorney now?

'Dorsciak: Yes.

'Conn: I'm the prosecuting attorney and I'm not trying to be unfair and I don't care whether I have convictions or don't but I want to be convicted (sic) (convinced) in my own mind that--* * *.'

The defendant repeatedly told the interrogators he did not want any publicity to embarrass his daughters. He was told there would be a lot of publicity if there were a trial; however, this could be avoided if he would tell what happened. ¹

The interrogators also told the defendant that if he both confessed and pleaded guilty the judge would be easier on him than if he did not plead guilty or if he would not tell what happened. ²

The interrogators told the defendant that 'it was up to us to a degree' to determine if the defendant were to receive any psychiatric assistance and that to make this determination he would have to tell them what happened. ³

The interrogators repeatedly told the defendant they were trying to help him but they could not do so unless he told them what happened. ⁴ The fact that the defendant's request for counsel was ignored may be enough to vitiate the conviction if Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), were applicable, but it is not applicable as the conviction in this case was several years before Miranda and its precursors. Guse v. Gladden, Or., 414 P.2d 317 (1966). However, '* * * (the fact) that a defendant was not advised of his right to remain silent or of his right respecting counsel at the outset of interrogation, as is now required by Miranda, is a significant factor in considering the voluntariness of statements later made.' Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895, 898 (1966). In the present case defendant was advised of his right to counsel; however, Miranda elaborated upon this right as follows: 'If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.' 86 S.Ct. at 1612, 16 L.Ed.2d at 707. It appears that this mandate was violated by the law enforcement officers.

Likewise, the voluntariness of a confession is suspect if it stems from an interrogation which was substituted for the statutory procedure requiring an accused to be taken before a magistrate without delay. ORS 133.550.

In State v. Ely, 237 Or. 329, 334, 390 P.2d 348, 350 (1964), we summarized:

'Taken as a whole, the evidence put on by the state tended to prove that the teacher, when confronted by charges that he had molested a child, agreed to sign a confession. However, he was told that, while the confession would be used to keep him from teaching again, his employers and the parent of the wronged child planned no criminal prosecution.

'The defendant could have believed that if these three men would not prosecute him no one else was likely to do so. The state's own testimony, therefore, would support a finding that the confession was induced by an express or implied promise of immunity from prosecution. Such a confession, if so given, would be involuntary as a matter of law. State v. Bodi, 223 Or. 486, 491, 354 P.2d 831 (1960).'

In this case there were no representations of immunity, but there was a representation that the court would be more lenient if defendant confessed and pleaded guilty.

In State v. Schwensen, 237 Or. 506, 521, 392 P.2d 328, 336 (1964), we stated in effect that if the interrogating officer's testimony was that 'he held out to the defendant the false hope that if he changed his previous statement he would not be charged with murder, but only with rape', the statement made in response to such representation would be considered involuntary.

We further stated in State v. Schwensen, supra: 'The rule is well-established in this state that a confession of guilt is prima facie involuntary, and, therefore, a burden is placed upon the state to show that it was voluntarily made Without the inducement of either fear or hope.' (Emphasis added.) 237 Or. at 522, 392 P.2d at 336.

The state's own evidence establishes that the statement was not made 'without the inducement of either fear or hope.' The hope of leniency from the judge if the defendant made a statement was held out. The fear of publicity about his daughters if he did not make a statement was emphasized by the interrogators. These tactics by the interrogators, occurring in the context previously described, lead us to the conclusion that the defendant has failed to overcome the prima facie involuntariness of the confession. The post-conviction court's finding to the contrary is not supported by the uncontradicted evidence.

The remaining question is whether the 'plea of guilty was fatally tainted by' the involuntary confession. Gladden v. Holland, 366 F.2d 580, 583 (9th Cir. 1966). In Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956), the court stated:

'Our prior decisions have established that: (1) a conviction following trial or on a plea of guilty based on a confession extorted by violence or by mental coercion is invalid under the Federal Due Process Clause; * * *.' 350 U.S. at 118, 76 S.Ct. at 224.

In that case the state court had not held a hearing upon the petition for a writ of habeas corpus. The court ordered it remanded for a hearing and observed: 'It is entirely possible that petitioner's prior confession caused him, in the absence of counsel, to enter the guilty plea.' 350 U.S. at 122, 76 S.Ct. at 226.

In Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940), two of the defendants pleaded guilty two days after a coerced confession had been obtained. Two other defendants allegedly involved in the same crime pleaded not guilty and subsequently one of these changed his plea to guilty. The other was tried, the coerced confession was introduced, and he was convicted. On certiorari to the state supreme court the court held that the confessions were coerced and reversed all the cases without remanding. The court did not discuss whether the coerced confessions induced the plea of guilty; apparently, it assumed they did.

Richardson v. Williard, 241 Or. 376, 406 P.2d 156 (1965), it not contrary to these decisions. In that case the defendant was represented by counsel. He gave a confession. 'He now claims that he would not have plead guilty if he had then known that the confession might have been inadmissible because of our later decision in State v. Neely, 1965, 239 Or. 487, 395 P.2d 557, 398 P.2d 482.' 241 Or. at 378, 406 P.2d at 157. We held: 'Whether or not defendant knew the...