State v. Ellis

• Decision Date: 06 September 1962
• Citation: 374 P.2d 461,232 Or. 70
• Parties: STATE of Oregon, Respondent, v. Arlie Day ELLIS, Appellant.
• Court: Oregon Supreme Court

Page 461

374 P.2d 461

232 Or. 70

STATE of Oregon, Respondent, v. Arlie Day ELLIS, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted June 5, 1962.

Decided Sept. 6, 1962.

Elmer M. Amundson, Salem, argued the cause and submitted the brief for appellant.

Collis L. Marsters, Deputy Dist. Atty., Salem, argued the cause for respondent. With him on the brief was Hattie J. Kremen, Dist. Atty. for Marion County, Salem.

Before McALLISTER, C. J., and ROSSMAN, GOODWIN and LUSK, JJ.

ROSSMAN, Justice.

This is an appeal by the defendant, Arlie Day Ellis, from a judgment of the circuit court which adjudged him guilty of the crime of kidnapping (ORS 163.610) and imposed sentence. The defendant was one of three persons indicted for the crime. Since the other participants pleaded guilty, our only concern on this appeal is with Ellis.

ORS 163.610 provides:

'Every person who without lawful authority forcibly seizes and confines, inveigles or kidnaps another, with intent to cause such other person to be secretly confined or imprisoned in this state against his or her will, or to cause such other person to be sent out of the state against his or her will, shall be punished * * *.'

The indictment charged that the defendant:

'* * * did then and there, without lawful, or any, authority, unlawfully, willfully, feloniously and forcibly seize, confine and kidnap another, to-wit: one Thomas A. Hedgecoke, in said county, with intent * * * unlawfully and feloniously to cause the said Thomas A. Hedgecoke, against his will, to be secretly confined and imprisoned in the State of Oregon, contrary to * * *.'

On the evening of February 20, 1961, the defendant Ellis and his co-defendants, Lawrence Morrow and Darlene Wood (an 18 year-old girl) were riding in an automobile operated by Morrow. They stopped at a service station in Salem where Morrow intended to purchase gasoline. When he noticed a state police car pull up directly behind him he drove out of the station without refueling and headed southerly at a high rate of speed. For some reason which is not divulged by the record Morrow preferred to avoid the police. Officer Hedgecoke, the driver of the police car, followed closely behind Morrow. A few miles south of Salem Morrow, realizing that he was almost out of fuel, stopped his car at the side of the road. Officer Hedgecoke stopped behind the Morrow car and ordered its occupants to get out. They complied. After having ordered Morrow and the girl to stand in front of the car, Hedgecoke proceeded to frisk Ellis for weapons. While Hedgecoke was thus occupied the girl produced a pistol and pointed it directly at him telling him to 'hold it right there.' A few moments later Morrow took Darlene's pistol and trained it on the officer. Then Morrow relieved the officer of his pistol and handed it to the defendant Ellis, who immediately held it on the officer, apparently at Morrow's request. At that juncture Morrow ordered Officer Hedgecoke into the driver's seat of his (Morrow's) car. The defendant Ellis took a seat immediately behind the officer and for a while at least kept a gun pointed at him. Morrow and the girl sat in the front seat with the officer. Officer Hedgecoke, obedient to Morrow's order, put the car into movement. About this time the three alleged kidnappers spoke of driving into California. Whatever may have been their plans as to their ultimate destination the officer drove the car at the command of Morrow, if not that of all three, along the country roads south of Salem until he was forced to slow down by a police barricade some twenty minutes later. Although the officer was ordered by Morrow to circumvent the road block, he stopped the car and, after jumping out, made a dash for cover.

The foregoing, apart from the confession to which we will presently proceed, is a synopsis of the evidence which bears upon the issue of kidnapping.

We will now review the evidence which bears upon the issue as to whether the confession was a voluntary utterance. When it became apparent that the state would undertake to establish that the defendant confessed his guilt, defendant's counsel made this objection:

'I would object to the admission of this evidence as not being a voluntary statement on the part of the defendant because of the type of treatment he reported just prior to the statement being taken. I feel that Sergeant Huffman was kind and gentle, but the kind of treatment just prior to that was not.'

Sergeant Huffman, mentioned in the objection, was the police officer who received and transcribed on a typewriter the confession. The defendant signed it. It will be noticed that the objection described him as 'kind and gentle.' The defendant testified that the sergeant was fair and solicitous of his comfort. The defendant does not claim that any force or threats were employed by Sergeant Huffman or anyone else while he was telling the sergeant of his participation in the alleged kidnapping. He expressly acknowledged that no promise of any kind was made to him as an inducement for him to speak. Since the confession was given in the evening of the alleged kidnapping and within an hour--possibly less--of the arrest, the rule which is employed by some courts that a confession which is obtained at a time when the defendant should be before a committing magistrate has no application to this case. There is no claim that the defendant lacked sleep. The hour when the confession was given was not late.

When defendant's counsel made the above quoted objection the trial judge excused the jurors and heard all the evidence which the state and the defendant offered upon the issue as to the confession's admissibility. At the close of the evidence the trial judge suggested that 'some of the matter' in the typewritten confession should be removed from it. His suggestion was adopted and the matter was removed. The trial judge then ruled that the confession was admissible.

Since no one claims that the paper which the defendant signed does not constitute, if admissible, a confession of the crime charged in the indictment, we will speak of it as a confession.

The defendant makes no contention that any force, violence, promises or threats were employed by Sergeant Huffman. Nor does he claim that anything whatever occurred in the room where the sergeant interviewed him that affected the confession's admissibility. But the defendant claims that in events which occurred before he was interviewed by Sergeant Huffman he became fearful of the police. We will now take note of those events.

As Ellis, Morrow and the girl emerged from the car they were ordered to lie down on the ground with their hands stretched above their heads. While thus prone they were handcuffed and searched by the state police officers who had stopped them. Ellis complains that the officers treated him rather roughly. The 'rough' treatment consisted of pulling him up by the hair into a semi-standing position and of then letting him down only to pull him to his feet by the handcuffs. The prisoners were then placed in police cars and were taken to State Police headquarters in Salem. Morrow was immediately separated from the other two and did not see them again that evening. While Ellis and the girl were in the waiting room of the headquarters building an incident occurred which Ellis claims engendered in him fear of the officers.

Ellis claims that the incident just mentioned is important because a few minutes after it was over he was taken into another office of the police headquarters building where he was interviewed by Sergeant Huffman and shortly signed the confession. Ellis says that the incident made him fearful of police officers and that, therefore, the confession is inadmissible. According to him, while he and the girl were in the waiting room the girl 'started to spout out, wising off. * * * She was boasting of herself; she called him very dirty names.' By the pronoun 'him' the defendant referred to one of the police officers. The captain of police, who was in charge of the headquarters office, in dealing with the situation just mentioned 'back-handed me on the face and darned near knocked me down' so the defendant testified. He also described the captain's action in these words: 'That is just about all I can remember right now. They pushed me in the chair and told me to sit down. * * * I don't remember saying nothing to anyone of the officers in that front room, except this one officer that told me to laugh which I did. I just chuckled and he back-handed me and said something else which I don't remember.'

Although the defendant described Sergeant Huffman as fair, kind and solicitous of his comfort, he said nothing to him about having been struck in the face while in the nearby waiting room.

Sergeant Huffman testified that he typed the defendant's statement 'as he told it to me.' We have mentioned the fact that the defendant makes no claim that anything was promised to him in order to induce him to speak, and that there was held out to him no hope of leniency. Sergeant Huffman likewise swore that no promises of any kind were made. We quote the following from the sergeant's testimony:

'Q. Officer, at any time during the taking of the statement did the defendant show any attitude of not wanting to talk?

'A. No, he was very cooperative and answered my questions quite friendly.'

The defendant does not challenge that answer.

Captain Raymond G. Howard, the individual who the defendant says 'backhanded me,' denied that he had slapped the defendant. His words were: 'No, sir, not a slap in the mouth. I pushed the defendant into a chair.' He also testified that no officer slapped the defendant. He explained: 'It is my best recollection the defendant was standing up and said 'dirty cocks' and I shoved him down and told him to shut up and as I pushed him down, it is my recollection I pushed him in the face when I pushed him down.'

The foregoing discloses...