McWilliams v. Gladden , 242 Or. 333 ( 1965 )

PERRY, J.

On June 25,1958, Evan McWilliams entered a plea of guilty to murder in the second degree and was sentenced to life imprisonment in the Oregon State Penitentiary. On June 12, 1964, he commenced in the circuit court of Marion county proceedings under ORS 138.510-138.680, alleging that his imprisonment was illegal in that;

“A. That petitioner was denied his right to counsel under the Sixth and Fourteenth Amendments of the Constitution of the United States, and Article I, Section 11 of the Constitution of tiie State of Oregon, in that petitioner did not voluntarily and understandingly waive his right to counsel.

“B. That petitioner was denied due process of law under the Fourteenth Amendment of the Constitution of the United States, in that he did not voluntarily and understandingly enter a plea of guilty to the charge for which he is imprisoned.”

The defendant denied the allegations of the petition and a trial of the issues was had.

The circuit court of Marion County found that under the facts the constitutional rights of the petitioner had not been invaded. From the judgment of the trial court denying the petitioner relief, petitioner has appealed.

The record discloses that petitioner was arrested on the 21st day of June, 1958; that on June 23rd he was arraigned in the district court of Klamath county and bound over to await the grand jury of that county. On June 25th he appeared in person and without counsel in the circuit court of Klamath county where it was stated to the court that he desired to waive indictment by the grand jury. At this time the trial court records disclose the following proceedings were had:

“THE COURT: Your name is Evan M. McWilliams ?

“THE DEFENDANT: Yes, sir.

“THE COURT: Let the record show the defendant appears in court in person. Do you have a lawyer to represent you in this case?

“THE DEFENDANT: No, sir.

“THE COURT: Do you have any money or property with which to hire the services of a lawyer?

“THE DEPENDANT: No, sir.

“THE COURT: It is indicated here that you are to be charged with Murder in the Second Degree, and it is the duty of the Court to appoint a lawyer to represent you should you so request.

“THE DEPENDANT: No, I don’t care for a lawyer.

“THE COURT: The matter of the appointment of a lawyer is a right you have that only you can waive. You understand that?

“THE DEPENDANT: Yes, sir.

“THE COURT: Do you refuse the appointment of a lawyer by the Court?

“THE DEPENDANT: Yes, sir.

“THE COURT: Have you been promised any reward or immunity for waiving that right?

“THE DEPENDANT: No, sir, I haven’t.

“THE COURT: Have you been threatened or coerced into waiving that right?

“THE DEPENDANT: No, sir.

“THE COURT: The matter of waiving a lawyer is your free and voluntary act?

“THE DEPENDANT: Yes, sir.

“THE COURT: Have you been influenced to waive this right?

“THE DEPENDANT: No, sir.

“THE COURT: By any person? Any person whomsoever?

“THE DEPENDANT: No, sir, I haven’t.

“THE COURT: It is also indicated here that you desire to waive indictment by a grand jury of this county; is that right?

“THE DEPENDANT: Yes, sir.

“THE COURT: You understand the purpose of the grand jury, a grand jury in this county or any other county in this state, do you not?

“THE DEFENDANT: Yes, I do.

“THE COURT: So there is no question, the purpose of a grand jury is to investigate any and all crimes happening within the particular county. Now, you have a right to have your case examined and investigated by a grand jury of this county; do you understand that?

“THE DEFENDANT: Yes, sir, I do.

“THE COURT: That is a right that you have that only you can waive. Do you understand?

“THE DEFENDANT: Yes, sir.

“THE COURT: And it is your desire to waive that right you say?

“THE DEFENDANT: Yes, sir, it is.

“THE COURT: Have you been promised any reward or immunity for waiving that right?

“THE DEFENDANT: No, I haven’t.

“THE COURT: Have you been threatened or coerced into waiving that right?

“THE DEFENDANT: No, sir, I haven’t, sir.

“THE COURT: Has anyone influenced you in any way in waiving that right?

“THE DEFENDANT: No, sir.

“THE COURT: The waiving of that right has been your free and voluntary act; is that right?

“THE DEFENDANT: Yes, sir.

“THE COURT: Now again, your refusing an attorney, the appointment of an attorney by the Court is your free and voluntary act?

“THE DEFENDANT: Yes, sir.

“THE COURT: And yonr waiving investigation of yonr case by a grand jury of this county is also your free and voluntary act?

“THE DEFENDANT: Yes, sir, it is.

“THE COURT: Uninfluenced by any person or persons?

“THE DEFENDANT: Yes, sir.

“THE COURT: Upon your reading and signing this waiver of indictment and consent to the filing of an information the Court will make an order.

“MR. BEDDOE: Read that (handing waiver to the defendant). (Defendant reads waiver.)

“MR. BEDDOE: Just sign that right here at the bottom. (Defendant signs waiver.)

“THE COURT: You have signed this waiver of indictment and consent to the filing of an information?

“THE DEFENDANT: Yes, sir.

“THE COURT: The Court orders the district attorney to file an information charging the defendant Evan M. McWilliams with the crime of murder in the second degree.

(District attorney files information with the Clerk.)

“THE COURT: Go ahead with the arraignment.

“(District attorney reads Information of District Attorney on Waiver of Indictment.)

“MR. BEDDOE: Mr. McWilliams, I hand you a certified copy of the information (handing same to the defendant).

“THE COURT: Is your true name Evan M. McWilliams?

“THE DEFENDANT: Yes, sir.

“THE COUET: How old are yon ?

“THE DEFENDANT: Forty-seven.

“THE COUET: Amd yon are the defendant in this proceeding?

“THE DEFENDANT: Yes, sir.

“THE COUET: Yon have heard the reading of the information by the district attorney charging yon with the crime of mnrder in the second degree?

“THE DEFENDANT: Yes, sir, I have.

“THE COUET: Are yon ready at this time to enter a plea to that charge?

“THE DEFENDANT: Yes, sir.

“THE COUET: What is yonr plea, Gnilty or Not Gnilty?

“THE DEFENDANT: I plead Gnilty.

“THE COUET: A plea of Gnilty is received. The Conrt will set Jnne 30, 1958 at the honr of 10:00 o’clock for the passing of sentence.

“THE DEFENDANT: Yonr Honor, if I may I wonld like to have my sentence now. I wonld like to waive that and have my sentence now.

“THE COUET: The law reqnires that the Conrt wait forty-eight honrs before passing sentence nnless it is waived by the defendant. The reason for that rnle, it creates a cooling period. It wonld be hard to nnderstand a cooling period in this type of case becanse the cooling period wonld be npon the part of the Jndge. That is what it is meant for, the one who passes the sentence. And in this case there is bnt one sentence that I can give. I cannot give yon one day more or one day less than life in prison. Now, yon are asking the Conrt to pass sentence at this time; is that right?

“THE DEFENDANT: Yes, sir.

“THE COUET: Now again, it is yonr desire?

“THE DEFENDANT: It is my desire.

“THE COURT: It is your free and voluntary act?

“THE DEFENDANT: Yes, it is.

“THE COURT: In asking for this sentence at this time?

“THE DEFENDANT: Yes, sir.

“THE COURT: You have not been coerced into asking for this time?

“THE DEFENDANT: No, sir.

“THE COURT: You have not been threatened?

“THE DEFENDANT: No, sir.

“THE COURT: And you have not been promised anything?

“THE DEFENDANT: No, sir, I haven’t.

“THE COURT: Have you any reason to give this Court why sentence should not be passed upon you?

“THE DEFENDANT: Pardon?

“THE COURT: Have you any reason to give this Court why sentence should not be passed upon you at this time?

“THE DEFENDANT: No, sir.

“THE COURT: It is the judgment and order of the Court that you spend the rest of your natural life in the Oregon State Penitentiary. You are remanded to the Sheriff.”

The petitioner does not claim that the record of the above proceedings is not accurate, but contends he did not “voluntarily” and “understandingly” waive counsel and enter a plea of guilty.

As a factual basis for his contention, petitioner testified that he is a Caucasian and was 47 years of age at the time of his conviction; that he had an eighth grade education; that he had never been arrested before for a crime; that he had served in World War II and been honorably discharged as a staff sergeant; that he had been steadily employed as a logger for a number of years; that in 1941 he married an Indian girl, Patricia SchoeMn, but they were separated prior to his arrest because “she got to running around too much * * * with different ones. The last one was Charlie Bobinson,” (who was killed by the petitioner) .

The petitioner also testified as to his version of what occurred at the time he killed Bobinson, stating that he had been drinking at the time and only his wife was present. He further stated that after he had notified a deputy sheriff he had killed Bobinson he was taken to the. county jail. This was on a Saturday and on Monday morning the petitioner states that he was taken to the office of the district attorney, Mr. Beddoe, where the district attorney told him that he had a good first degree murder charge against him, but that if he wanted to plead guilty to second degree murder he would reduce the charge. Petitioner also testified he was told by the district attorney the following :

“ ‘There is a new law passed.’ He told me I would get a life sentence for pleading to second degree but he says there is a new law just passed. He said, ‘Now I don’t promise you you will be paroled within six months,’ but he said, ‘You probably won’t do over two years at the most.’

“He said he should know that that was the law because he had been on the parole board for two years.”

Petitioner further testified that he did not see an attorney while he was in jail, and that before he was taken before the circuit judge on the 25th the district attorney came to his cell and said:

“* * * ‘When we go to this little court/ he says, ‘You waive that/ he says, ‘That don’t amount to anything.’ Then he says, ‘When we go to the Circuit Court/ he said, ‘The judge will ask you certain questions and you tell him, no for this and that. He will ask you if you want an attorney and you tell him no.’ I don’t remember all just what he told me the judge would ask me, but he told me the answers to tell him, and he said, ‘If you don’t tell him that/ he said, ‘everything will be lost.’ ”

Petitioner also stated he did not know at the time he waived counsel and entered his plea of guilty what elements constituted voluntary manslaughter, involuntary manslaughter, justifiable or excusable homicide.

The evidence of the state contradicts the testimony of the petitioner. The district attorney testified that the petitioner requested the sheriff to take him to the district attorney’s office for the purpose of asking to be permitted to enter a plea of guilty to the lesser degree of homicide, and that it was at this meeting, while the district attorney was considering the offer, that he told the petitioner he thought he had a good first degree murder charge against him. He also advised petitioner of the elements constituting first and second degree murder. The district attorney stated that he did not agree to the reduced charge at this time, but later, after petitioner had been returned to the jail, did advise him that he would accept his proposition. The district attorney also denied telling petitioner what to do at the proceedings before the cireuit court other than when asked by the petitioner he told bim what the procedure would be.

The district attorney further testified that the petitioner asked him about a parole and he told him that he had to be confined for a period of seven years before he would be eligible unless they had changed the rule. He could not remember whether this conversation took place before or after the petitioner was sentenced, but he was positive that the matter was not discussed prior to the petitioner’s request to have the charge reduced.

The petitioner in his brief states:

“If the very definition of waiver is the ‘intentional relinquishment or abandonment of a known right or privilege,’ (emphasis his) and if the defendant had no idea what an attorney would have advised him, then he did not waive a (emphasis ours) known (emphasis his) right. He waived an unknown right which is the same as no waiver at all.” (Emphasis his.)

As a basis for this assertion the petitioner points out that he was not advised of the following:

“1. What elements constituted voluntary manslaughter, involuntary manslaughter, justifiable or excusable homicide.

“2. The law of self-defense or the facts and circumstances requisite to establish that defense.

“3. That intoxication is a defense to the ‘premeditation and deliberation’ element of first degree murder.

“4. That the only [eye] witness, his wife, could not testify against him without his consent.

“5. That his written statement taken by the District Attorney was inadmissible against him because he was not advised of his right to counsel and Ms privilege against self-incrimination prior to maldng the statement.”

It is apparent from the petitioner’s statement and the listing of these points that he is under the impression that the standard by which a defendant’s waiver must be judged is to be the ability of the prosecution to prove its case.

The test proposed by the petitioner is not one which gives an individual an opportunity to weigh thé acts wMch he knows he either committed or did not commit against his own consciousness of guilt or innocence, but to weigh his chances of avoiding the legal consequences of his acts. We are unable to accept such a test.

The purpose behind constitutional requirements of due process are not to protect the guilty from the consequences of their crime, but to prevent a conviction by use of methods which are inconsistent with the American theory of fair play.

We have researched numerous authorities and have reached the conclusion that in considering the question of waiver by a defendant in a criminal case the legal principles which must guide the trial court are as follows: (1) The individual waiving his rights must have the mental capacity to understand fully the nature of the right he is waiving, and (2) his choice must be free of oppressive tactics to induce that choice.

Whether or not these legal requirements are met must depend upon the facts of each individual case.

While the trial court in this proceeding did not make a specific finding of fact that this petitioner had the mental capacity at the time he waived counsel and entered his plea of guilty to understand the nature of Ms act, the record before us fully supports the trial court’s general findings in tMs regard.

The record discloses that the petitioner was of mature age and there is no contention that he suffered mental retardation. It is true he had not received a formal education beyond the eighth grade, but his rise from a private to a sergeant in the army, and his years as a logger clearly indicate that his worldly education did not stop with the eighth grade. The petitioner does not and could not, in view of the record, contend he did not know he had a right to legal representation.

A more difficult problem arises when these principles of an undertanding waiver are applied to the waiver of trial on the merits by the entry of a plea of guilty. Certainly this petitioner knew, and the record discloses he knew, that if he entered a plea of guilty there would be no trial and all that remained was the assessment of the penalty.

The petitioner testified that at the time he entered his plea of guilty he did not “understand the elements” of second degree murder. No attempt was made by the petitioner to state what, if any, “elements” of this crime he knew about or did not know about, and his knowledge or lack of knowledge of these “elements” is left unansAvered in the record.

It must be conceded, if petitioner did not understand the elements of the crime of second degree murder, he could not understandingly measure against his inner conscience his acts and his mental attitude to determine his guilt or innocence of crime.

Second degree murder, insofar as is applicable, is defined in ORS 163.020 as follows:

“Any person who lulls another purposely and maliciously * * * is guilty of murder in the second degree.”

We cannot believe that this petitioner as a reasonably intelligent person would not understand the general meaning of the word “purposely” to mean “intentionally” or the word “maliciously” to mean with an “evil intent.” This especially in view of the fact that the district attorney testified he had explained the elements of murder in the first degree and murder in the second degree to the petitioner.

Since there is ample evidence to sustain the trial court’s ruling of an understanding waiver, there remains only the question of it being voluntary.

This again raises a question of fact. The petitioner wishes to convey by his testimony the thought that he was induced to waive his rights and enter his plea of guilty because of fear created by the district attorney in informing him that he thought he had a good first degree murder case against him; and also the inducement that if he would plead guilty he could be paroled at the end of two years.

While the petitioner’s testimony might support such an inference, in our opinion, the record as a whole is such that a trier of fact would reasonably reach an opposite conclusion.

The trial court in this proceeding went fully into the merits of the factual claims advanced by the petitioner and its findings are fairly supported by the record as a whole.

The judgment is affirmed.