Hurt v. Cupp
| Decision Date | 25 March 1971 |
| Citation | 5 Or.App. 89,92 Adv.Sh. 451,482 P.2d 759 |
| Parties | Lasco Lavaun HURT, Respondent-Cross-Appellant, v. Hoyt C. CUPP, Warden, Oregon State Penitentiary, Appellant. |
| Court | Oregon Court of Appeals |
Jacob B. Tanzer, Sol. Gen., Salem, argued the cause for appellant. With him on the brief was Lee Johnson, Atty. Gen., Salem.
Ken C. Hadley, Deputy Public Defender, Salem, argued the cause for respondent. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.
This is an appeal by the defendant-warden in a suit for post-conviction relief. After a hearing the post-conviction court vacated petitioner's conviction for sodomy and for contributing to the delinquency of a minor, and ordered petitioner remanded for a new trial on the sodomy charge. The appeal does not challenge the vacation of the conviction for contributing to the delinquency of a minor.
The question presented here is whether a defendant in a criminal case is denied his constitutional right to confrontation when the court, trying the case without a jury, intentionally views, without the knowledge or consent of the defendant, irrelevant and prejudicial material not offered in evidence by either party before determining the guilt or innocence of the defendant.
The petitioner, Hurt, had previously been tried, convicted and sentenced to 20 years in prison for the crime of rape upon his wife's daughter. While free on appeal bond he allegedly committed sodomy upon a 15-year-old daughter of his wife and this gave rise to the case at hand. The trial judge found him guilty and sentenced him to 10 years on the sodomy charge and five years on the contributing charge, both sentences to run concurrently with the sentence previously imposed as a result of the rape conviction. The petition for post-conviction relief alleged that during the course of the trial and while the petitioner's counsel was out of the courtroom the trial judge requested and was given an envelope containing 33 photographs which had not been offered in evidence and which he then proceeded to view. These photographs showed the petitioner, his wife, his stepdaughters and stepson in the nude and in various sexual poses.
The petition for post-conviction relief also alleges that during the course of the trial, the trial judge saw the pre-sentence report which had been submitted to the judge (not the judge who tried the case at hand) who presided over petitioner's earlier trial for rape.
The post-conviction judge, after taking testimony, including testimony of the trial judge, in giving his oral opinion in the presence of the petitioner, stated:
The defendant-warden contends that the review of the report was at most harmless error, pointing to testimony of the trial judge, uncontroverted by any other testimony, to the effect that he did not rely upon any information contained in the pre-sentence report in arriving at his finding of guilt. 2 The defendant cites numerous cases standing for the proposition that the hearing or seeing of inadmissible evidence by a trial judge sitting as trier of fact is not per se prejudicial error. Such instances are relatively commonplace. For example, in the course of a trial a judge is not infrequently called upon to rule upon the admissibility of evidence. He may have to see or hear the evidence in order to rule intelligently on its admissibility. In such a case, in the absence of evidence to the contrary, we presume that the judge, in the course of performing his official duty, will not consider that evidence, if inadmissible, when making his decision. There is a logical basis for invoking this presumption when the prejudicial material comes to the judge's attention in the course of the proper exercise of his judicial function. Logic dictates a contrary presumption when a judge obtains prejudicial information by his affirmative extra-judicial action taken in the absence and without the knowledge of the parties.
In United States v. Hamrick, 293 F.2d 468 (4th Cir. 1961), a trial judge sitting without a jury reopened the trial and heard the testimony of a witness in the absence of the defendant. The appellate court said:
'* * * No authority need be cited in support of our conclusion that the admission of testimony in the absence of the defendant was a direct violation of his right to be confronted with the witnesses against him as guaranteed by the Sixth Amendment to the Constitution of the United States * * *.' 293 F.2d at 470.
The situation here is similar to that in State v. Shirley, 1 Or.App. 635, 465 P.2d 743 (1970). Shirley was a direct appeal, and, although not expressly so stated, turned on ORS 136.040. 3 In that case the trial judge sitting as trier of fact, without the knowledge of defendant or his counsel, sent for and read a pre-sentence report made in connection with a prior conviction. Because the trial judge did this prior to finding that defendant guilty, we reversed, even though the trial judge announced to the parties what he had done.
The defendant-warden argues that Shirley is distinguishable, because in Shirley, unlike here, the trial judge did not say that he had not considered the pre-sentence report in arriving at his judgment. We do not believe that the testimony of the trial judge concerning his memory of what considerations were in his mind in reaching judgment a year earlier was sufficient to overcome the presumption of prejudice. 4
We cannot say that the evidence...
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State v. Davis
...has come to his attention * * *.' State v. Voshell, 247 Or. 534, 537, 430 P.2d 1010, 1011 (1967). As we noted in Hurt v. Cupp, Or.App., 92 Adv.Sh. 451, 482 P.2d 759 (1971), it is relatively common for the trial judge sitting as trier of fact to hear or see inadmissible evidence, but in the ......
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State v. Burgess
...without the knowledge or consent of the defendant. We also held that a somewhat similar occurrence was prejudicial error in Hurt v. Cupp, Or.App., 482 P.2d 759, decided March 25, 1971. A significant distinction between the case at bar and those cases is that here the trial judge did not see......