Nunn v. Cupp

• Decision Date: 18 September 1972
• Citation: 10 Or.App. 528,500 P.2d 1237
• Parties: Billy Junior NUNN, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.
• Court: Oregon Court of Appeals

Page 1237

500 P.2d 1237

10 Or.App. 528

Billy Junior NUNN, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.

Court of Appeals of Oregon, Department 1.

Argued and Submitted July 28, 1972.

Decided Sept. 18, 1972.

Ken C. Hadley, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

John W. Osburn, Sol. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Robert L. Misner, Asst. Atty. Gen., Salem.

Before SCHWAB, C.J., and FORT and THORNTON, JJ.

SCHWAB, Chief Judge.

In this post-conviction proceeding petitioner alleges it was error to admit his confession into evidence in his 1956 murder trial because (1) as a procedural matter the admissibility of the confession was not determined under the proper standard, and (2) as a substantive matter his confession was not voluntary. The lower court decided these contentions adversely to petitioner and he has appealed.

During petitioner's 1956 trial the state offered both a confession petitioner had personally written shortly after his arrest in California and an oral confession petitioner had made to police officers while being driven back to Oregon the next day. The trial judge ruled that the written confession was inadmissible, but that the oral confession was admissible.

On direct appeal from the resulting conviction petitioner argued it was error to admit his oral confession. The Supreme Court, noting both confessions should stand or fall together, held that both confessions should have been admitted under the procedures and standards that were applicable as of that date. State v. Nunn, 212 Or. 546, 321 P.2d 356 (1958).

The procedure and standard then used in Oregon left the question of the voluntariness of a confession to the jury.

'* * * (I)t has been settled that the province of the trial judge is not to determine finally whether the confession was voluntary or not, but merely whether a prima facie showing has been made to warrant a finding that it was voluntary, in order to become admissible. Then, if it is admitted, the ultimate question of voluntariness is submitted to the jury as a part of their determination of the weight to be given to it. (Citations omitted.)' 212 Or. at 554, 321 P.2d at 360.

In making such a prima facie determination it was permissible for the trial judge to hear only part of the evidence bearing on the voluntariness question. See, State v. Allen, 239 Or. 524, 528, 398 P.2d 477 (1965). And the trial judge was not expected to resolve conflicts in the evidence concerning voluntariness. State v. Brewton, 238 Or. 590, 599, 395 P.2d 874 (1964).

In Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the United States Supreme Court held the procedures and standards used in Oregon at the time of petitioner's trial to be unconstitutional. The court concluded that due process requires a prior, separate and independent determination of the voluntariness of a confession before it is submitted to a jury. Whether this independent determination should be made by the trial judge, another judge or another jury was left to the individual states.

In State v. Brewton, supra, the Oregon Supreme Court implemented the requirements of Jackson v. Denno, supra, by holding that the independent determination of the voluntariness of a confession should be made by the trial judge out of the presence of the jury. Under Brewton, before a confession can be admitted the trial judge must consider all the evidence relevant to the voluntariness question, resolve any conflicts in the evidence thereon, and determine that the confession was, in fact, voluntary.

It is apparent that the standards employed in determining the admissibility of a confession are substantially different in the post-Brewton era (judge must determine confession was voluntary) than in the pre-Brewton era when petitioner was tried (judge need only determine confession was prima facie voluntary). Whether any error was committed in petitioner's 1956 trial first presents the question of whether Jackson v. Denno, supra, and State v. Brewton, supra, are to be applied retroactively.

On several occasions the United States Supreme Court has either assumed or stated that Jackson v. Denno, supra, is retroactive. See, McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Gerberding v. Tahash, 387 U.S. 91, 87 S.Ct. 1506, 18 L.Ed.2d 588 (1967), rev'ing State ex rel. Gerberding v. Tahash, 275 Minn. 195, 146 N.W.2d 541 (1966); Johnson v. New Jersey, 384 U.S. 719, 727--728, 86 S.Ct. 1772, 16 L.Ed.2d 882, reh. den. 385 U.S. 890, 87 S.Ct. 12, 17 L.Ed.2d 121 (1966); Tehan v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 15 L.Ed.2d 453, reh. den. 383 U.S. 931, 86 S.Ct. 925, 15 L.Ed.2d 850 (1966); Linkletter v. Walker, 381 U.S. 618, 639 and n. 20, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Since State v. Brewton, supra, is an implementation of Jackson v. Denno, supra, it follows that Brewton is also retroactive.

This reasoning leads to the conclusion that during petitioner's 1956 trial the court used an improper standard in determining the admissibility of petitioner's confession.

However, both Jackson v. Denno, supra, and State v. Brewton,supra, recognize that it is unnecessary to order a new trial merely because an improper procedure was followed in determining the voluntariness of a confession, if the confession was in fact voluntary and therefore properly submitted to the jury. In a case of this type it is appropriate that the post-conviction court hear evidence on the voluntariness of the confession. See, State v. Thomas, 248 Or. 283, 433 [10 Or.App. 533] P.2d 814 (1967). If the post-conviction court determines the confession was in fact voluntary the error committed in the original trial was harmless. If the post-conviction court finds that the confession was not voluntary,

'* * * it shall make an appropriate finding and enter an order allowing the state a reasonable time in which to elect to again try the defendant * * * or to release him from custody.' State v. Brewton, supra, 238 Or. at 604, 395 P.2d at 881.

No such evidentiary hearing was held in the post-conviction court in this case. Instead, both petitioner and the state argued that the voluntariness of the confessions had been finally determined in the earlier criminal proceedings--the petitioner arguing the confessions had been found to be involuntary by the trial judge and the state arguing they had been found to be voluntary by the Supreme Court. The post-conviction court adopted the state's theory, and concluded the prior determination of voluntariness in petitioner's appeal, State v. Nunn, supra, was res judicata.

We do not agree that the Supreme Court in petitioner's direct appeal decided that his confessions were in fact voluntary. The court stated its conclusion in language consistent with the legal standard applicable as of that...