Nunn v. Cupp

• Decision Date: 05 November 1973
• Citation: 15 Or.App. 212,515 P.2d 421,97 Adv.Sh. 2108
• Parties: Billy Junior NUNN, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.
• Court: Oregon Court of Appeals

Page 421

515 P.2d 421

15 Or.App. 212

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

Court of Appeals of Oregon.

Argued ans Submitted Aug. 21, 1973.

Decided Nov. 5, 1973.

Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the briefs was Gary D. Babcock, Public Defender, Salem.

William R. Canessa, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.

Before LANGTRY, P.J., and FOLEY and THORNTON, JJ.

FOLEY, Judge.

Petitioner, convicted of first degree murder in 1956, sought to have his 1956 confession declared involuntary by the post-conviction court. That court found his confession voluntary 'beyond a reasonable doubt' and denied him any relief. He appeals.

Petitioner was convicted by jury of first degree murder and sentenced to death in 1956 in Jackson County. His conviction was affirmed in State v. Nunn, 212 Or. 546, 321 P.2d 356 (1958). ¹ In that case the trial court had excluded the written confession on the ground it was procured by inducement. There the trial court had said:

"I think upon the whole record the defendant was led to believe that he might get off with a plea of second degree murder." 212 Or. at 551, 321 P.2d at 359.

The Supreme Court reversed, saying:

'* * * (W)e think that the state satisfied the burden of making a prima facie showing that the written confession was voluntary * * *.' 212 Or. at 564, 321 P.2d at 365.

Thereafter, petitioner instituted a post-conviction proceeding asking that his conviction be vacated because the voluntariness of his confession had been determined by an improper standard and, in fact, his confession was involuntary. In Nunn v. Cupp, 10 Or.App. 528, 500 P.2d 1237 (1972), this court found that an improper standard had been used in determining voluntariness of petitioner's confession and remanded the case to the post-conviction court for a hearing on voluntariness, at which the proper standard was to be applied. As aforesaid, the post-conviction court found petitioner's confession voluntary 'beyond a reasonable doubt.' The scope of review by this court of the post-conviction court's findings is a determination of whether the evidence sustains this historical, factual finding and whether the historical facts as found are sufficient to sustain a finding of voluntariness under the state and federal constitutions. Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968).

In State v. Shipley, 232 Or. 354, 362, 375 P.2d 237, 240 (1962), the Supreme Court held:

'The only permissible test for determining the admissibility of a pretrial confession is whether it was freely and voluntarily made. As said by the Supreme Court in Culombe v. Connecticut, (367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961)) at 602, 81 S.Ct. (1860) at 1879:

"The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.'

Voluntariness is the test which has been consistently applied in this state. (Citing cases.)'

Recently, in the case of Schneckloth v. Bustamonte, 412 U.S. 218, 83 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the court reaffirmed the test for voluntariness set forth in Culombe.

In determining whether a person's will has been overborne in a particular case, the totality of all the surrounding circumstances, including the charactristics of the accused and the details of the interrogation, must be assessed, Schneckloth v. Bustamonte, supra; Greenwald v. Wisconsin, 390 U.S. 519, 88 S.Ct. 1152, 20 L.Ed.2d 77 (1968); Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 426 (1967); Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Frye v. Gladden, 1 Or.App. 629, 465 P.2d 716 (1970). For these purposes we review the circumstances.

On April 29, 1956, the body of Alvin Eacret, a 14-year-old boy from Klamath Falls, Oregon, was found lying in a small clearing in Tub Springs State Park in Jackson County, Oregon. On May 1 the police issued an all-points bulletin requesting that petitioner be detained for questioning in regard to the murder. The following day the petitioner was arrested in Alturas, California. He was taken to the county jail where he waived extradition proceedings. No charges were filed against him. The Oregon authorities were notified of petitioner's arrest and two state police officers and a deputy sheriff arrived in Alturas on the morning of May 3.

Petitioner was questioned in the trusties' quarters of the county jail. These quarters consisted of several rooms and were furnished with bed, table and chairs. The room used for questioning was approximately 8 feet by 10 feet in dimension and was equipped with regular light fixtures. The windows in these rooms had no bars. Both breakfast and lunch were made available to petitioner but he did not eat.

The questioning was in three sessions, lasting from 7:52 to 8:50 a.m. and then from 9 to 10:50 a.m. and, finally, from 5:36 to 6:30 p.m., covering a total of approximately four hours, all on the day of May 3, 1956.

In the morning sessions officers questioned petitioner about his personal history, that is, employment, family status, educational background, residence and what he was doing on the day the victim disappeared. He was also asked whether he knew the Eacret boy. He was shown a photograph of the boy and he denied that he had ever seen him. He told the officers that he knew he would be picked up for this crime. Near the end of the morning session officers advised the petitioner that he had been seen with the boy at the time and place near that of the crime. To this petitioner remarked, 'It looks like you've got it wrapped up.' During the morning sessions there was some discussion about the penalties for the crime of murder and the availability of psychiatric examinations for petitioner.

During the morning sessions petitioner requested counsel and stated that he did not wish to make any further statements but continued to answer and converse with the officers. He was advised of his right to counsel and, in fact, knew about his right to counsel. He was told that 'we didn't have the facilities to provide him with an attorney there * * *,' but '* * * we would ask the local district attorney to talk to him and advise him of such rights as he had * * *.' Petitioner was advised of the capacity of the district attorney. Petitioner then said he wanted to and did talk to the district attorney. ² In the afternoon session petitioner asked the officers about the difference between first and second degree murder. At this time petitioner's questions related more to the possible penalties involved than the crime itself. He was told the degree of murder would depend upon a review of all the facts. He discussed with the officers, on a hypothetical basis, whether certain facts constituted first or second degree murder. The officers undertook to explain in layman's language the meaning of premeditation. They advised him, in substance, that if he planned the killing in advance, that he was guilty of first degree murder. If, on the other hand, the killing were on the spur-of-the-moment, then it would only be second degree murder and he would get life imprisonment with a possibility of parole. The officers informed petitioner that it looked like second degree murder to them and to the district attorney on the basis of the information they had, but without all the facts they did not know whether it was first or second degree murder. At no time was any indication given to the petitioner of the nature of the charge which would ultimately be placed against him. He was informed that he would be entitled to a psychiatric examination and if he wanted such an examination or treatment, that the district attorney would provide it. The availability of a psychiatric examination was not held out as a condition for his giving a statement.

During the oral questioning petitioner made no admission of the crime. There was no abuse of petitioner and no threats of violence or promises made to petitioner. At the end of the afternoon session petitioner asked for pencil and paper and agreed to make a statement. He was advised that any statement he made could be used against him and that his statement must be voluntary, although the testimony of one officer conflicts with this. While petitioner was writing his statement he stopped and showed it to Officer Tichenor and asked whether it appeared that he had planned the crime. The officer replied that he could not tell until the statement was complete. The officer did not read the statement at that time. After petitioner completed his statement he again asked the officers whether it appeared to be first degree or second degree murder and was told that they couldn't tell definitely; that it would be up to the district attorney to determine what charge should be brought.

Petitioner was lodged at the Alturas jail overnight and the next day, May 4, he was transported back to Oregon. During this trip petitioner made additional incriminating oral statements.

Examining now the subjective characteristics of the petitioner and the facts surrounding the interrogation itself, we note that petitioner was a mature adult. He had had previous dealings with the police and had been previously convicted of sodomy. During the interrogation he was alert and aware. He was conscious of his predicament and also that the authorities wanted a statement. He knew that he faced a possible death sentence. He had concluded not to...