State v. Rollo

• Decision Date: 27 April 1960
• Citation: 351 P.2d 422,221 Or. 428
• Parties: STATE of Oregon, Respondent, v. Joseph F. ROLLO, Appellant.
• Court: Oregon Supreme Court

Page 422

351 P.2d 422

221 Or. 428

STATE of Oregon, Respondent, v. Joseph F. ROLLO, Appellant.

Supreme Court of Oregon.

Argued Feb. 11, 1960.

Reargued April 14, 1960.

Decided April 27, 1960.

Dan M. Dibble, Portland, argued the cause and filed a brief for appellant.

David Robinson, Jr., and Oscar D. Howlett, Deputy Dist. Attys., Portland, argued the cause for respondent. On the brief was Charles E. Raymond, Dist. Atty., and David Robinson, Jr., Deputy Dist. Atty., Portland.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, JJ.

SLOAN, Justice.

Defendant was convicted of third degree arson. He appeals. A resume of the facts is necessary before consideration of the assignments of error.

For several days prior to May 8, 1958, a number of small fires occurred in an area of Portland just east of the Morrison Street bridge. Investigations for the fire department believed the fires to have been man-made. During the early morning of May 7, 1958, such a fire was started in some discarded paper bags piled on the loading dock of the Peyton Bag Company situated on East Water Street. The fire department investigators decided to set a trap or stake out at the bag company. It was arranged with bag company employees to have similar paper bags piled on the dock on that night, May 7, 1958.

Two investigators of the fire department stationed themselves in a nearby car to await results. To avoid being detected by anyone approaching, it was necessary for the two investigators to park their car at a spot which precluded them from actually seeing the paper bag decoy. About 1:00 a. m. of May 8, 1958, the person later identified as defendant was seen, by the investigators, in the area under surveillance. At about the same instant the bags were observed to be on fire. Defendant was the only person seen in the vicinity. He was apprehended.

A short time later, about 2:00 a. m., after the fire was put out, defendant was questioned by the two fire investigators at the east side police station. Except for a coffee break for the two interrogators, defendant was questioned until about 5:30 that morning. At that time he signed a statement admitting that he had dropped a match on the paper bags. Defendant was then taken to the west side police station and booked for arson. On the way there the investigators and defendant stopped for coffee at a restaurant. They arrived at the west side station about 7:00 a. m.

At 9:00 a. m. of that day defendant was further questioned by two detectives of the police department. At about 11:30 a. m. he signed a further admission. The second alleged admission contained a statement that 'I have known for some time that I have a homesexual problem, which I have suppressed.' He attributed the fire starting to frustrations or tensions created by resisting the tendency.

We mention the last admission for two reasons. One is that defendant assigns as error the admission into evidence of the written statements made by defendant. The admissibility of the last statement, in particular, presents a problem. To question a person at such length is enough to cast doubt on the voluntary character of the statement. In this instance, however, the experienced trial judge did not admit the statements until the officers responsible and defendant were questioned at considerable length in chambers. Our consideration of the 'totality of the circumstances' of the entire record, Fikes v. State of Alabama, 1957, 352 U.S. 191, 197, 77 S.Ct. 281, 284, 1 L.Ed.2d 246 rehearing denied 352 U.S. 1019, 77 S.Ct. 553, 1 L.Ed.2d 561, convinces us that the trial judge did not commit 'manifest error' in admitting the statements. State v. Nunn, 1958, 212 Or. 546, 554, 321 P.2d 356. The jury was correctly instructed with reference to its consideration of the statements made by defendant.

An issue is made that the two statements in question were merely admissions and not confessions. We agree that the first statement made by defendant to the two investigators of the fire department was no more than an admission. The second statement presented a more serious question. The trial court treated it as a confession. There is no occasion now to determine if the statement was actually a confession. Any distinction previously existing between receiving into evidence an admission or a confession was abolished by the 1957 legislative assembly. In that session ORS 136.540(1) was amended to require the same limitations on the admission into evidence of either an admission or a confession.

The pertinent subsection of the statute now reads:

'(1) A confession or admission of a defendant, whether in the course of judicial proceedings or otherwise, cannot be given in evidence against him when it was made under the influence of fear produced by threats; nor is a confession only sufficient to warrant his conviction without some other proof that the crime has been committed.'

Prior to the amendment the statute was limited to confessions. This case was tried in July, 1958.

Our second reason for mentioning the statements is to settle questions that may be raised on retrial. It has been mentioned that defendant, at the trial, denied the voluntary character and truthfulness of the admissions made. It then became proper for the prosecution to attempt to prove the truth of the statements made in the alleged admissions. This included, of necessity, cross-examination of defendant to determine if it were true that defendant had admitted to the officers that he was subject to a homosexual tendency. When defendant was being cross-examined he was asked:

'Q. 'It says, [referring to the alleged written admission] 'I have known for some time I have a homosexual problem which I have suppressed;' is that true?

'A. Not necessarily. That is their assumption.

'Q. Didn't you state in open Court in Judge Redding's Court, that you were a boy lover?'

Objection was made and the objection sustained.

We think the objection should not have been sustained. Defendant's denial of the statements made in the alleged admissions put the truth of the statements contained therein in issue. The question and the answer which it invoked did degrade defendant; nevertheless, this was a proper mothod of testing the witness' credibility.When defendant challenged the accuracy of the written confession it became proper to introduce similar statements made upon other occasions. If, upon retrial, defendant against denies that he made that statement to the officers it would be proper to show that such an admission was made. It would not be proper to inquire into the extent of the alleged homosexual tendency or the form or character the inclination may take. The subject is a touchy one and any reference to the subject should be limited to proving the truth or falsity of the alleged admission. The matter of homosexuality should not be extraneously mentioned during the course of the trial as it was in the trial of this case. In fact, the court was obliged to admonish the prosecuting attorney more than once to refrain from mention of the subject. That should not be necessary. Defendant should be tried for the crime of arson, not a sexual offense.

The decisive assignment of error involves unwarranted questions asked of defendant on cross-examination. When the prosecutor cross-examined defendant, he attempted to impeach defendant by proof of prior convictions. Earlier in the trial objections had been made and sustained to the police officers' mention of defendant's criminal record. During the later examination of one of these officers the prosecutor made the unprovoked statement that he could not inquire into defendant's previous 'capers' with the law.

The record we will recite is only a part of all of the questions asked defendant about prior convictions. Before the following part of the trial occurred the prosecutor had questioned defendant at some length about a burglary conviction in New York state. There was some confusion in the questioning and in the manner by which the record of this conviction was offered. The court then called the attorneys to the bench and, out of hearing of the jury, advised: 'Certified copies of records of conviction are admissible, not hearsay.' Then followed a running discussion between the prosecutor and defendant, as a witness, about certain conversations which apparently occurred between defendant and the prosecutor in preliminary matters prior to trial. After unsuccessful attempts to get defendant to admit certain offenses, the most serious of the prosecutor's errors occurred:

'Q. (By Mr. Robinson) Do you recall of being convicted of a crime in Red Bank, New Jersey? A. I was not convicted.

'Q. What happened?

'The Court: Let's not go into that. Do you have a record here?

'Mr. Robinson: Your Honor, I was given this case about a week ago and we have written for records.

'The Court: Unless you have it, it is not proper inquiry.

'Mr. Jordan: I did ask the court to watch the district attorney, he was attempting to bring in such evidence and not having the record here is highly prejudicial.

'The Court: The Court just indicated that it isn't proper.

'Mr. Robinson: I believe, your Honor, the defendant has indicated some incident in Red Bank, New Jersey.

'The Court: He has indicated he was not convicted. If you have evidence to the contrary, you may show it.

'Mr. Robinson: Will counsel stipulate to the admission of this FBI sheet?

'The Court: Record of conviction, gentlemen, is either by admission, if an admission is given, or by a certified copy of record with a three-way certificate. Isn't that what the law says?

'Mr. Jordan: Without looking at this, your Honor, I will not stipulate to accept it. I do not know what it says.

'The Court: The FBI record, how does that become admissible to establish prior convictions?

'Mr. Robinson: I thought if counsel could stipulate that the FBI record is a true record of the defendant's activities, he...