Patton v. Cupp

• Decision Date: 21 September 1971
• Citation: 485 P.2d 644,6 Or.App. 1
• Parties: James A. PATTON, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.
• Court: Oregon Court of Appeals

Page 644

485 P.2d 644

6 Or.App. 1

James A. PATTON, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.

Court of Appeals of Oregon, Department 1.

Argued and Submitted April 23, 1971.

Decided May 28, 1971.

Rehearing Denied June 29, 1971.

Review Denied Sept. 21, 1971.

J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Jim G. Russell, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.

Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.

FOLEY, Judge.

Petitioner appeals from a judgment dismissing his petition for post-conviction relief. The petition asserted two causes for relief, both arising out of petitioner's 1956 trial for armed robbery which resulted in a conviction and life sentence: (1) that the trial court's failure to submit to the jury alternative verdicts on lesser included offenses, over petitioner's exception, was a denial of due process and of the right to jury trial on those lesser offenses; and (2) that the in-court identifications of petitioner by three witnesses were tainted by unfair pre-trial identification procedures, thereby denying petitioner due process of law. The state demurred to the petition, contending that it failed to state facts sufficient to justify exercise of jurisdiction or to authorize the relief demanded. The court, without stating on which ground, entered an order sustaining the demurrer as to petitioner's first cause of action but overruling it as to the second. After a hearing on the second cause of action, the circuit court entered the judgment now appealed from.

ORS 138.550 provides in part:

'(2) When the petitioner sought and obtained direct appellate review of his conviction and sentence, no ground for relief may be asserted by petitioner in a petition for relief under ORS 138.510 to 138.680 (the Post-Conviction Hearing Act) unless such ground was not asserted and could not reasonably have been asserted in the direct appellate review proceeding. * * *

'(3) All grounds for relief claimed by petitioner in a petition pursuant to ORS 138.510 to 138.680 must be asserted in his original or amended petition, and any grounds not so asserted are deemed waived unless the court on hearing a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition. * * *'

The state contends that petitioner, whose conviction and sentence were reviewed and affirmed on appeal to the Oregon Supreme Court in State v. Patton, 208 Or. 610, 303 P.2d 513 (1956), and whose original petition for post-conviction relief filed in 1961 was dismissed, has failed to show that the assertion of his first cause of action is not precluded by these provisions. The petition states that this ground for relief, raised for the first time, 'could not reasonably have been asserted' in petitioner's direct appeal or in his original post-conviction proceeding because Braley v. Gladden, 403 F.2d 858 (9th Cir. 1968), was not decided until November 21, 1968.

The unusual facts in Braley do not match those present here. In reversing an Oregon conviction for first degree murder because of the trial court's failure to submit to the jury a not guilty verdict form the Court of Appeals said this:

'* * * (I)t is equally reasonably to assume that the jury inferred that the judge intended that only one verdict was possible, a verdict of guilty upon the one and only form which he supplied.

'All recognize that a trial judge's influence upon the jury is profound. * * * Hence, the oversight in not furnishing the not guilty verdict form along with the opposite form constituted, in effect, a severely adverse comment by the trial judge, an impermissibly grave insinuation of judicial attitude toward the ultimate issue of guilt or innocence. Accordingly, we hold that the influence exerted by the trial judge * * * was so significantly irregular as to require a new trial.' 403 F.2d at 860.

Whether or not it was error, the trial court's failure in petitioner Patton's case to submit alternative verdicts on lesser included offenses could in no way have been interpreted as a comment on petitioner's guilt or innocence of the charge of armed robbery. Petitioner's reliance upon Braley v. Gladden, supra, is not a showing that his first cause of action is based upon a new constitutional principle not recognized at the time of his direct appeal or of his original petition. Cain v. Gladden, 247 Or. 462, 430 P.2d 1015 (1967); ORS 138.530(1)(a). Whatever the circuit court's reason for sustaining the state's demurrer, it could properly have done so for the foregoing one.

Petitioner also assigns as error the post-conviction court's finding that in-court identifications of petitioner made by three named witnesses were neither the products of nor tainted by any suggestive pre-trial identification procedures. The basis for petitioner's due process challenge is the second of two rules of law enunciated by the United States Supreme Court in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). ¹ The court succinctly restated the rule in Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969):

'* * * (W)e recognized (in Stovall) that, judged by the 'totality of the circumstances,' the conduct of identification procedures may be 'so unnecessarily suggestive and conducive to irreparable mistaken identification' as to be a denial of due process of law. * * *' 394 U.S. at 442, 89 S.Ct. at 1128. See also, Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

We must then judge the totality of the circumstances as they appear on the record.

The findings of fact made by the Marion County Circuit Court following the postconviction hearing are informative on this issue. The court found that:

'1. At the trial, James Higgins identified petitioner as the man who ran by him from the direction of the store at the time of the robbery. Higgins was at the jail the night before trial to make a pre-trial identification. His attention was drawn to a man other than ...