State v. Whiteman, Cr. 258

• Citation: 67 N.W.2d 599
• Decision Date: 18 December 1954
• Docket Number: Cr. 258
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Oscar WHITEMAN, Jr., Defendant and Appellant.
• Court: United States State Supreme Court of North Dakota

Page 599

67 N.W.2d 599

STATE of North Dakota, Plaintiff and Respondent, v. Oscar WHITEMAN, Jr., Defendant and Appellant.

Cr. 258.

Supreme Court of North Dakota.

Dec. 18, 1954.

Syllabus by the Court.

1. A judgment of conviction obtained by fraud, duress or coercion will be set aside upon motion supported by evidence thereof instituted in the action in which the judgment of conviction was rendered.

2. Where original confession was induced by intimidation, and violence, or other improper influence, presumption arises, in absence of proof to the contrary, that a subsequent confession was the product of the same influence.

3. Evidence in this case is examined and considered, and it is held for reasons stated in the opinion: that the defendant's plea of guilty was obtained by fraud, duress and coercion and that under all the circumstances the defendant did not freely and understandingly waive counsel.

W. C. Lynch, Associate of Strutz, Jansonius & Fleck, Bismarck, N. D., for defendant and appellant.

Paul Benson, Atty. Gen., J. K. Murray, Sp. Asst. State's Atty., Bismarck, and H. L. Malloy, State's Atty., Dunn County, Halliday, N. D., for plaintiff and respondent.

JOHNSON, Judge.

On January 17, 1953, at ten o'clock a. m., the defendant, Oscar Whiteman, Jr., entered a plea of guilty to murder in the first degree before the district court of Dunn County, North Dakota. After the entry of this plea, the court questioned the defendant concerning the facts and circumstances involved in the crime charged against him of murder in the first degree of Cynthia Starr. Upon the conclusion of the questioning of the defendant, he was sentenced for the crime of murder in the second degree and ordered to serve thirty years in the state penitentiary at Bismarck, North Dakota.

On March 10, 1954, this defendant filed a motion to set aside the judgment of conviction rendered against him, to allow him to plead anew, enter a plea of not guilty, and to defend the action. The motion came on for hearing on March 19, 1954, before the Honorable Harvey J. Miller, District Judge, Dunn County, North Dakota, who had imposed sentence on the defendant January 17, 1953.

After consideration of the motion and the evidence introduced in support thereof and consideration of briefs, on March 31, 1954, the court entered an order denying the motion. The instant appeal is from the denial of the motion. The grounds upon which the defendant asks relief are:

'1. That the judgment of conviction in the above captioned action was obtained by reason of fraud and coercion, deceit, duress and other actions prejudicial to and overriding and destroying the free will of said defendant, and was perpetrated upon said defendant by the law enforcement officials of Dunn County, North Dakota, by mob violence, and other individuals; that therefore such judgment and decree was and is absolutely void.

'2. That new evidence has been discovered which is material to the defendant, and which the defendant could not, with reasonable diligence, have discovered and produced at the trial.

'3. That the defendant, Oscar Whiteman, Jr., was not furnished legal counsel, as guaranteed by the constitution of the United States, and the constitution of the State of North Dakota, and that therefore the imprisonment of the defendant is illegal and void.'

A similar motion had been heard before the same court in the case of North Dakota against Donald Malnourie, defendant, on May 27 and 28, 1953.

It was stipulated at the hearing on the motion in the case at bar:

'That all of the evidence and testimony introduced and received at the said hearing on the motion of Donald Malnourie and as submitted as a part of said motion, shall be considered as having been introduced and shall be received without objection at the said hearing on the motion of Oscar Whiteman, Jr., on March 19, 1954, and that the said testimony of witnesses given at the Malnourie hearing would be the same if called upon to testify in the instant hearing on the motion of Oscar Whiteman, Jr.

'That the following documents shall be received without objection of counsel for the State of North Dakota on the motion of Oscar Whiteman, Jr., defendant in the above captioned action:

'1. Affidavit of Oscar Whiteman, Jr.;

'2. Affidavit of Charlotte Logan;

'3. Certified copy of Pathological Report of the examination by Dr. Kling;

'4. Certified copy of Autopsy Report of A. R. Gilsdorf, M.D.;

'5. Signed statement of Samuel Meyers, duly witnessed;

such certified copies of pathological report and autopsy report having each been certified to by M. A. Olson, Dunn County Coroner.'

On the basis of the above stipulation, all of the proceedings and evidence in the case of State of North Dakota against Donald Malnourie is considered in connection with the motion of the defendant in this case.

There are primarily two contentions to be considered in this case:

1. Whether the judgment of conviction was obtained by fraud, coercion, deceit, duress, or other actions prejudicial to and overriding and destroying the free will of the defendant perpetrated by the law enforcement officials of Dunn County by mob violence and by other individuals, thereby rendering the judgment of conviction void.

2. Whether the defendant, Oscar Whiteman, Jr., was denied counsel as guaranteed by the constitution of the United States and the State of North Dakota, and that therefore his conviction is illegal and void.

This last consideration involves examination of the entire record to determine whether the defendant freely and understandingly waived counsel.

The procedure on this motion is not challenged. It is similar to the procedure that was used and approved in State v. Magrum, 76 N.D. 527, 38 N.W.2d 358.

In order to dispose of the first contention of the defendant, it is necessary to examine in detail the basic facts in the treatment of the defendant which resulted in an alleged confession by him dated January 10, 1953.

This defendant was arrested on January 7, 1953, and brought to Halliday, North Dakota, where he, together with Donald Malnourie, was subjected to extensive questioning. Late in the afternoon of January 9, 1953, this defendant and Donald Malnourie were taken by the sheriff and other law enforcement officers of Dunn County to a place known as the 'Big Flat Schoolhouse'. The State's Attorney of Dunn County had no part in the questioning of this defendant at Halliday, nor was he present or involved in the incident that took place at the Big Flat Schoolhouse.

The questioning of Malnourie and this defendant had been conducted by three or four men. One of the participants was highway patrolman, Lynn Amsden, who assisted the officers of Dunn County in the investigation of the death of Cynthia Starr and the location of her body. The officers of Dunn County principally involved in the investigation were Jack Pavlenko, sheriff, Dunn County, Leo Lesmeister, his deputy, Ben Kills Thunder, chief of police on the Berthold Indian Reservation, and M. A. Olson, Dunn County Coroner. They were all present at the incident at the Big Flat Schoolhouse. It is apparent from the testimony that little, if any, progress had been made to procure any information from either Malnourie or Whiteman concerning the death of Cynthia Starr up to and including the late afternoon of January 9, 1953.

Although the evidence is not clear as to how much information had been obtained by the officers of Dunn County from Whiteman by the afternoon of January 9th, there must have been some indication during the questioning that the body of Cynthia Starr might be located near the Big Flat Schoolhouse.

In an effort to attempt to locate her body, these two men had been taken eight or ten miles south of Halliday to a foundation designated as 'Big Flat Schoolhouse.' Mr. Amsden testified that he estimated that the crowd present there, somewhere between four and five o'clock on the afternoon of that day, numbered from ten to thirty people. There were quite a number of cars at the scene. Just as Mr. Amsden parked, 'there was quite a fuss broke out'. At a distance of some seventy-five to one hundred feet he saw the sheriff, Jack Pavlenko, strike Malnourie. He also saw that Mr. Olson, the coroner, held Malnourie by the shoulders, was shaking him, pulling him, and hollering at him. He saw the sheriff strike Malnourie twice. A wrecker was out at the scene which belonged to a garage at Halliday. A chain was produced. The wrecker was equipped with a winch cable. The winch cable was tied to one arm of the defendant, Oscar Whiteman, Jr., who goes by the nickname of 'Tony'. His other arm was tied with the chain to a post. In connection with the chain incident, the testimony of Mr. Amsden at one point indicates that there may have been some movement to procure the tightening of the winch cable after Whiteman's arms had been tied to it. Statements were made to Whiteman to tell where the body of Cynthia Starr was located or they would tighten the cable. As Mr. Amsden put it, he, referring to Whiteman, 'was told that he had better talk or he would be torn apart.' Apparently Mr. Amsden thought that this was going too far and he claims that he told the fellows that they better stop, 'these two boys were going to the penitentiary anyway and there was no use of some of them going with.' He also stated that in addition to striking Malnourie twice, the sheriff, in an effort to hit him, missed once; that he saw Malnourie fall down once. After Mr. Amsden interceded in connection with this incident, the sheriff and his party took Malnourie and Whiteman back to Halliday to the city hall where they were both extensively questioned. The questioning was in the presence of the same officers and the others who had exhibited hatred and hostility towards the prisoners at the incident on January 9 at the Big Flat Schoolhouse.

After the incident mentioned, and during the subsequent questioning at the city hall, Mr. Amsden...