State v. Nunn

• Decision Date: 29 January 1958
• Citation: 321 P.2d 356,212 Or. 546
• Parties: The STATE of Oregon, Respondent, v. Billy Junior NUNN, Appellant.
• Court: Oregon Supreme Court

Page 356

321 P.2d 356

212 Or. 546

The STATE of Oregon, Respondent, v. Billy Junior NUNN, Appellant.

Supreme Court of Oregon.

Argued and Submitted Nov. 20, 1957.

Decided Jan. 29, 1958.

A. E. Piazza and Sam B. Harbison, Medford, for appellant.

A. Allan Franzke, Deputy Dist. Atty., Medford, for respondent. With him on the brief were Thomas J. Reeder, Dist. Atty., and John C. Anicker, Jr., Deputy Dist. Atty., Medford.

Before PERRY, C. J., and ROSSMAN, LUSK, BRAND, WARNER and KESTER, JJ.,

KESTER, Justice.

This is an appeal by defendant from a conviction of first degree murder and judgment of death. Since the jury did not recommend life imprisonment, the sentence of death was mandatory (ORS 163.010).

The charging part of the indictment is as follows:

'The said Billy Junior Nunn on the 19th day of April, 1956, in the said County of Jackson and State of Oregon, then and there being, did then and there unlawfully, wilfully, feloniously, purposely, and of deliberate and premeditated malice, choke and strangle Alvin William Eacret with his hands and with a narrow belt, and did then and there kill the said Alvin William Eacret by such said choking and strangling, * * *.'

No question is raised as to the sufficiency of the evidence to sustain the conviction, and no useful purpose would be served by detailing the revolting facts surrounding the homicide. It is sufficient to say that the evidence amply supported the state's theory that the defendant committed sodomy upon the decedent (a 14-year-old boy), and then killed him to prevent his telling of it. Apparently defendant choked the boy with his hands and then used the boy's own belt to strangle him.

The principal question on appeal relates to the admission in evidence of an oral confession given by the defendant to two police officers. Defendant was arrested in Alturas, California, on May 2, 1956, and after questioning in the local jail by members of the Oregon State Police and of the Jackson county sheriff's office, he made a written confession. The next day defendant was returned to Medford, Oregon, in an automobile by two of the officers who had participated in the questioning. During the course of the trip, in conversation with the officers, defendant again confessed the crime and discussed it in some detail. He also took the officers to the scene of the crime, and he showed them where, after the killing, he had disposed of articles of personal property belonging to the Eacret boy.

The trial court excluded the written confession, on the ground that it was procured by inducement. In stating his ruling, the trial judge 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.'

However, the police officers were permitted, over defendant's objection, to relate the oral confession made during the course of the automobile trip. Defendant did not take the stand, so the officers' testimony was not denied.

The state and the defendant are agreed upon the principle, established in Oregon since 1881, that when a prior confession is obtained by improper inducement, a presumption arises that any subsequent confession is also the product of such inducement, and the second confession is not admissible unless the presumption is overcome by an affirmative showing that before the second confession was made the hopes or fears which induced the former one had been dispelled. State v. Wintzingerode, 9 Or. 153, 164.

This is the general rule. 20 Am.Jur. 424, Evidence § 487; 22 C.J.S. Criminal Law § 835, p. 1461; 3 Wigmore on evidence (3d ed.) § 855. Compare Lyons v. State of Oklahoma, 322 U.S. 596, 88 L.Ed. 1481, 64 S.Ct. 1208.

The parties are also agreed, and we find no evidence to the contrary, that nothing transpired between the first and second confessions (except the passage of time) which would change the effect of any inducement that may have existed with respect to the first one. Therefore, if the first confession was in fact obtained by inducement, it follows that error was committed in admitting the second one.

The state contends, however, that no such inducement existed as to the first confession, and that it too should have been admitted. No other ground is offered to sustain the second confession. Therefore, although the question before us relates to the second confession, in order to determine that question we are required to determine whether the trial court was right in excluding the first confession. The question is presented in a novel setting, because ordinarily the state is not in a position to claim error because of the exclusion of a confession. It can do so here only because it relies upon the alleged error in excluding the first confession as justification for admitting the second.

This court has had occasion many times to discuss the rules of law relating to confessions. It is settled that a confession (as distinguished from an admission, State v. Howard, 102 Or. 431, 452, 203 P. 311) is prima facie involuntary, and before it can be admitted the state has the burden of showing that it was voluntarily made, without the inducement of either fear or hope. E. g., State v. Linn, 179 Or. 499, 507, 173 P.2d 305; State v. Henderson, 182 Or. 147, 172, 184 P.2d 392, 186 P.2d 519; State v. Nagel, 185 Or. 486, 518, 202 P.2d 640, certiorari denied 338 U.S. 818, 70 S.Ct. 60, 94 L.Ed. 495.

A confession is not inadmissible merely because the defendant is in custody (State v. Folkes, 174 Or. 568, 580, 150 P.2d 17, certiorari denied 323 U.S. 779, 65 S.Ct. 189, 89 L.Ed. 622), nor uninformed of his rights (State v. Henderson, supra, 182 Or. at page 173, 184 P.2d 392), nor unrepresented by counsel (State v. Layton, 174 Or. 217, 231, 148 P.2d 522, certiorari denied 323 U.S. 728, 65 S.Ct. 64, 89 L.Ed. 584), nor because he was not taken promptly before a magistrate (State v. Leland, 190 Or. 598, 627, 227 P.2d 785, affirmed 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302, rehearing denied 344 U.S. 848, 73 S.Ct. 4, 97 L.Ed. 659), nor because the confession is made in answer to questions which are accusatory or which assume defendant's guilt (State v. Blodgett, 50 Or. 329, 335, 92 P. 820; State v. Howard, supra, 102 Or. at page 452, 203 P. at page 317; State v. Henderson, supra, 182 Or. at page 173, 184 P.2d at page 403). It has even been said that a confession may be admitted which is procured by trick or artifice, so long as the deception is not of such a character as is likely to produce a false acknowledgment of guilt because of hope of fear (See State v. Green, 128 Or. 49, 60, 273 P. 381).

The test, so far as one can be formulated, is: 'Was the inducement held out to the accused such as that there is any fair risk of a false confession? For the object of the rule is not to exclude a confession of the truth, but to avoid the possibility of a confession of guilt from one who is in fact innocent.' State v. Green, supra, 128 Or. at page 62, 273 P. at page 385; State v. Folkes, supra, 174 Or. at page 580, 150 P.2d at page 21; State v. Linn, supra, 179 Or. at page 507, 173 P.2d at page 308.

In approaching this subject, we are faced with the preliminary question: What effect, if any, shall we give to the trial court's ruling excluding the first confession? The state contends that we should disregard it entirely and examine the record de novo, determining the question of inducement, vel non, as if we were sitting in place of the trial judge. The defendant, on the other hand, contends that the trial court's exclusionary ruling imports a finding of fact that the first confession was not voluntary, and that such finding should be sustained if there is any substantial evidence to support it. Of course the ruling admitting the second confession imports a contrary finding that it was voluntary. The parties' present agreement, to the effect that both confessions should stand or fall together, puts the trail court in the position of having made inconsistent rulings.

Since the able analysis by Mr. Justice Harris in his concurring opinion in State v. Morris, 83 Or. 429, 450, 163 P. 567, it 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. State v. Rathie, 101 Or. 339, 350, 199 P. 169, 200 P. 790; State v. Green, supra, 128 Or. at page 51, 273 P. at page 382; State v. Bouse, 199 Or. 676, 701, 264 P.2d 800.

When a confession has been admitted, and the trial court's preliminary finding of voluntariness is based upon conflicting evidence, it will not be disturbed on appeal unless there is clear and manifest error. State v. Rogoway, 45 Or. 601, 607, 78 P. 987, 81 P. 234; State v. Layton, supra, 174 Or. at page 230, 148 P.2d at page 527; State v. Linn, supra, 179 Or. at page 508, 173 P.2d at page 309; State v. Henderson, supra, 182 Or. at page 168, 184 P.2d at page 402; State v. Nagel, supra, 183 Or. at page 519, 202 P.2d at page 654.

But where the evidence is undisputed, the matter of voluntariness is reviewable as a legal matter, since the question arises on the legal sufficiency of the evidence. State v. Garrison, 59 Or. 440, 445, 117 P. 657; State v. Green, supra, 128 Or. at page 51, 273 P. at page 382; State v. Linn, supra, 179 Or. at page 508, 173 P.2d at page 309.

In the present case the evidence of the circumstances surrounding the confessions is not disputed, and we may consider its legal sufficiency without regard to the findings of the trial court. The evidence consists of the uncontradicted testimony of the officers and also tape recordings of the interrogation at Alturas which preceded the written confession. While the trial court had the...