Mares v. Hill

• Decision Date: 07 October 1950
• Docket Number: No. 7353,7353
• Citation: 118 Utah 484,222 P.2d 811
• Parties: MARES, v. HILL.
• Court: Utah Supreme Court

Page 811

222 P.2d 811

118 Utah 484

MARES, v. HILL.

No. 7353.

Supreme Court of Utah.

Oct. 7, 1950.

McCullough, Boyce & McCullough, Salt Lake City, for plaintiff.

Clinton D. Vernon, Atty. Gen., Andrew John Brennan, Asst. Atty. Gen., Bryce E. Roe, Asst. Atty. Gen., for defendant.

WADE, Justice.

Plaintiff instituted this original Habeas Corpus proceeding claiming he is being held without due process of law by the warden of the state prison. He was tried and convicted of murder in the first degree wherein oral and written confessions were used against him and we affirmed his conviction on appeal. Thereafter, he instituted this proceeding claiming (1) that after his arrest he was not taken before a magistrate without unnecessary delay, as provided by Sec. 105-13-17, U.C.A.1943; (2) that while he was so held without the advice of counsel, family or friends, he was questioned and made the confessions complained of; (3) that under the surrounding facts and circumstances, these confessions were the result of pressure and coercion and therefore not voluntary. He contends that under such circumstances he is being deproved of his liberty and his life threatened without due process of law under Article 1, Section 7, Constitution of Utah, and Section 1 of the Fourteenth Amendment to the Federal Constitution.

Plaintiff argues the same points now that he argued in his case on appeal. He then claimed they were prejudicial errors but now claims they constitute a lack of due process of law. If there was no error in the trial, there cannot be a lack of due process of law for a trial which is so lacking in the fundamentals of justice that it does not constitute due process of law must contain error. But plaintiff contends that since our decision the Supreme Court of the United States has construed the Federal Constitution so as to require a holding here that there was lack of due process of law in his trial. See Watts v. Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801; Turner v. Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810; and Harris v. South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815. This court is bound by the construction of the Federal Constitution placed thereon by the Supreme Court of the United States, and if our previous decision is contrary to that construction, we are anxious to correct it.

We adopt the special referee's findings, together with all additional statements of facts in this opinion. For a more detailed statement of the facts, see State v. Mares, Utah, 192 P.2d 861.

To present a picture of the situation as it existed at the time of plaintiff's arrest, a review of the facts as they were then known is necessary. About June 18, 1946, Jack D. Stallings, an ex-navy man, left his home in Corning, Ohio, in a gray 1937 Ford two-door sedan for California for the purpose of marriage. On July 9, 1946, his body was found in an irrigation canal near the transcontinental highway in the mountains east of Salt Lake City. He had a bullet hole in his forehead and appeared to have been dead for about two weeks. Shortly thereafter, his car was located in Ogden, Utah, in the possession of a bicycle shop operator named Wistisen, who on June 25, 1946, purchased the car from a stranger claiming to be Stallings who acknowledged the transfer of the car before the desk sergeant of the Ogden City Police Department. It was also discovered that on that same day a Western Union money order for $35.00 sent to Stallings from San Jose, California, by his fiancee had been cashed at Ogden by a person using Stallings' identification papers and tags. On August 16, 1946, Wistisen saw plaintiff in Ogden and recognized him as the man who had sold Stallings' car to him. In response to Wistisen's call, the police department took plaintiff into custody, whereupon plaintiff denied Wistisen's accussations that plaintiff had sold him Stallings' car, claiming that he had never seen Wistisen before. That night, plaintiff was booked at the police station and told they wanted to do a little investigating.

Stallings' body was found in Summit County about fifty miles southwest from Weber County in which Ogden City is located where plaintiff was arrested. Morgan County is located between those two counties. Mr. Neeley, County Attorney of Summit County was notified of the arrest and the next day, a Saturday, came to Ogden and brought to the jail some people who, on June 25th, had met the person who sold Stallings' car to Wistisen to see if they recognized plaintiff as the person who sold the car. Mr. Neeley had plaintiff walk from a side room where these people could see him. A sixteen year old boy hesitatingly identified him, whereupon plaintiff swore, and the boy then said, 'Now I know you are the man that sold that car.' Neeley then told plaintiff he would have to charge him with stealing that car. Neeley further testified:

'* * * We sat there. It was late. I got up and said: 'Have you anything further to say?' He said 'No;' and when we were ready to leave he said to me: 'Come here.' * * * I went over there and he said: 'I stole that car."

'I said: 'Wait a minute, my boy. Let me get your parents. Let me get your father and you mother and a lawyer, a friend. Haven't you somebody?' I said: 'Don't tell that to me, because I will use it against you;' And he said: 'No,' he did not want anybody to know anything about it. He did not want a lawyer. He did not want his father or mother; and after that he at times said he did not want them to know a thing about it.'

'As I remember, on the 22nd of August, against his will, I wrote to his father and told him the predicament that his son was in.'

The statement by plaintiff that he stole that car was not only voluntary but volunteered. The next day, a Sunday, two FBI men came and interviewed plaintiff about stealing the car. They told him that he did not have to talk but if he wished to they would reduce what he said to writing, to which plaintiff agreed. According to these agents, the ensuing conference lasted at most four and one-half hours. One agent said from 2:30 to 7:00 p. m.; the other from 2:00 to 5:30 or 6:00 p. m. The details of what happened during that conference are somewhat meager. Neither at the trial nor the preliminary hearing did plaintiff object, on the grounds that they were not voluntary, to the introduction of these confessions, so the state had no occasion to prove them to be voluntary by showing the detailed surrounding facts and circumstances under which they were made. At the trial, plaintiff was a witness on his own behalf and both at the trial and preliminary hearing, by counsel, he extensively cross-examined each and every witness to any part of these confessions but he did not develop the detailed facts or circumstances under which they were given. He emphasized over and over again that plaintiff was a young boy without the advice of counsel, family or friends.

On cross examination of agent Dunn, plaintiff developed that Dunn had taken 17 pages of long hand notes on what plaintiff said during this interview. These notes were preserve and plaintiff had them read into the record at the trial. Mr. Dunn testified that the first part of these notes consisting of 10 pages was taken before plaintiff admitted the killing, and the last 7 pages thereof covered his statements after he had admitted the killing and had stated that his previous statements were in part untrue. From the notes covering plaintiff's statements prior to admitting the killing, he told of his birth, childhood, schooling, registration for the draft, marriage, induction into the army, birth of his child, and absence without leave from the army on April 29, 1946. He also gave many names of employers and places of employment, both before and after he was drafted. This part is covered by ten pages of the notes. The last page of the first part of notes covers his coming to Ogden looking for a car to steal, finding Stallings' car with the keys and identification papers in it and selling that car to Wistisen, and cashing the Western Union money order, by posing as Stallings and using his papers for identification. At this point, according to the evidence, he broke down and confessed the killing. Thereafter, the notes follow closely the written confession. There is nothing in the notes or any of the evidence in this case indicating that his confessions were the result of urging, cross examination or other pressure after plaintiff told of selling the car and cashing the money order before he admitted the killing.

The interview with the FBI agents covering a possible four and one-half hours was divided into three periods: (1) while alone with two FBI agents he told his story before the confession; (2) he revised his version after he had confessed the crime; and (3) the FBI agents dictated the confession with plaintiff's collaborations to a stenographer in the presence of County Attorney Neeley, Officer Keeter and Sheriffs Fisher and Dahlquist. If these confessions were the result of coercion, it occurred during the first of those three periods which were obviously only a small fraction of the four and one-half hours of the interview.

After the confession had been transcribed, plaintiff and the persons who had witnessed it reassembled at the Ogden police station where the confession was handed to plaintiff which he signed after appearing to read it. Plaintiff then agreed to take the officers the next day over the road travelled by him from the place of the shooting until he reached Salt Lake City. This he did the next morning, pointing out the various places wherein important incidents occurred. Plaintiff argues that because this trip was not authorized by a court order, the confessions which he made to the officers at that time are not admissible in evidence. There is no statute or rule of practice which requires an order before taking a prisoner to the scene of his crime. At that time it...