Castleberry v. State

BRETT, Judge

(dissenting) :

I feel compelled to dissent to this decision because I believe defendant’s confession resulted from psychological coercion; and as I review the record, that confession remains unsupported by any of the State’s evidence. Consequently, I believe defendant is entitled to receive a new trial.

*279 I

The majority decision quotes from the United States Supreme Court decision in Culombe v. Connecticut, supra, as follows:

“Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. (Citations omitted) The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession.” 367 U.S. at 602, 81 S.Ct. at 1879.

Following that quotation, the majority decision quotes from this Court’s decision In re Pate’s Petition, supra, by stating:

“A confession is inadmissible if obtained under any form of compulsion, so that to receive it in evidence would violate the defendant’s constitutional privilege against self-incrimination and is inadmissible if made under such circumstances of hope or fear as to create a fair probability of its testimonial untrustwor-thiness.”

The decision then attempts to distinguish the Culombe decision from the instant case by reiterating that Culombe was “a 33-year-old mental defective with an I.Q. of 64 and a mental age of 9½ years [who] was detained in effective custody by the police for a period of four days.” Certainly subnormal intelligence is one mental condition which might make an individual more than normally “suggestible and subject to intimidation”, (Culombe v. Connecticut, 367 U.S. at 625, 81 S.Ct. 1860 ) and hence readily susceptible to over-reaching on the part of investigating officers. There are, however, other weaknesses which may produce the same ready susceptibility, and there are other methods of coercing an accused to confess which, while perhaps more subtle, are equally as effective in playing upon such weaknesses as lengthy detention or sustained and hostile questioning. See Spano v. New York, 360 U.S. 315 , 79 S.Ct. 1202 , 3 L.Ed.2d 1265 (using a police officer intimate with accused to falsely play upon his sympathy); Davis v. United States, 9 Cir., 32 F.2d 860 , (nocturnal trips to morgue to view mutilated body); McKinley v. State, 37 Wis.2d 26 , 154 N.W.2d 344 (trip to morgue to view body ostensibly for identification); see also Williams v. State, 89 Okl.Cr. 95 , 205 P.2d 524 , disapproving similar tactics. The real question is whether under the totality of the facts and circumstances of this particular case the statement of Kenneth Castleberry was the “product of an essentially free and unconstrained choice,” or the result of his will having been “overborne and his capacity for self-determination critically impaired.” (Culombe v. Connecticut, supra, 367 U.S. at 602 , 81 S. Ct. at 1879 .)

It is my opinion that the tactics of the two officers who interrogated Castleberry brought overwhelming psychological pressure to bear upon this defendant and that his statement was the involuntary product of that pressure.

On the evening of the day the bodies of his wife and children were discovered defendant was taken to the police station for routine inquiry. It was during that time that the Elders of defendant’s church “Jesus Christ Church of Latter Day Saints,” went to the police station to visit with the defendant and offer him spiritual strength. So, it is doubtful that the Tulsa detectives were unaware of defendant’s religious affiliation. The Elders were required to wait for fifteen or twenty minutes until defendant was brought out to visit with them.

On the next day, February 17th, Detective Sergeant Larry Johnson again questioned the defendant in the detective division of the Tulsa Police Department. Sergeant Johnson testified that it was on the 17th that he began to suspect defendant of being the person guilty of the crime. However, on the promise that defendant would get in touch with him upon his re *280 turn to Tulsa, Sergeant Johnson permitted defendant to go to Kansas to bury his wife and two children. Defendant returned from Kansas on February 22nd and attempted to get in touch with Sergeant Johnson. After the defendant telephoned for him several times, Sergeant Hunt responded to the call and later went to where defendant was staying and picked him up in the unmarked police car to go to the police station where they could talk in private.

En route to the police station Sergeant Hunt took the defendant to his former residence, where the bloody stains were left untouched, and they entered the front door. Defendant testified that they went to the kitchen, where his wife’s blood stains remained about the room, and they stood there for several minutes while the detective asked defendant if it reminded him of anything. Defendant related that it reminded him of finding his wife there. They then proceeded to each of the two other rooms where each of the two children were found; they stood in each room for several minutes with the officer asking if those sights reminded defendant of anything. Defendant repeated each time that it reminded him of finding the bloody bodies of his two children. After being in the house for some twenty minutes, the two men proceeded to the police station where Sergeant Hunt continued to question the defendant. Later that night, defendant was returned to where he was staying.

The next day, February 23rd, Sergeant Johnson and Sergeant Hunt picked up the defendant about 5:00 p. m. to go to the police station for further questioning. En route to the police station, Sergeant Johnson asked defendant if he would like to go to see a minister. Defendant testified that he answered, “I told him it didn’t make me no difference.” So, Sergeant Johnson, who had already gained defendant’s complete confidence, called his own minister and arranged for the minister to talk to the accused man. They proceeded to the minister’s office where certain scriptures were read to defendant.

Detective Johnson’s minister, Reverend Harley D. Pieratt of the Carbondale Assembly of God Church, testified concerning that visit. He related that he read to defendant from Romans Gospel, 10th Chapter, 9th verse, 10th verse, and the 13th verse, as follows:

“That if thou shalt confess with thy mouth the Lord Jesus and shalt believe in thine heart that God hath raised him from the dead, thou shalt be saved.

“For with the heart man believeth unto righteousness and with the mouth confession is made unto salvation. For whosoever shall call upon the name of the Lord shall be saved.

******

“If we confess our sins he is faithful and just to forgive us our sins and to cleanse us from all unrighteousness.”

Reverend Pieratt testified that he then prayed with the defendant and that defendant repeated the prayer, which Reverend Pieratt said was a prayer “similar to the one I pray with sinners.” Reverend Pier-att was then asked, “Did Ken Castleberry make any statements ?” The Reverend answered, “The only statement I remember Kenneth Castleberry making, he said, Tf I did kill my family I do not remember it.’1”

When the three men left the church, Sergeant Johnson placed defendant under arrest for the crimes and advised him of his Miranda Rights. Then, in order to assist* the defendant to “clear things up,” the officers again took defendant to visit the scene of the crime where they again followed much the same procedure defendant and Sergeant Hunt had followed the day before. However, this second visit lasted for some one hour, during which time the two detectives suggested their theory of the case to defendant and further interrogated him. The pathologist later testified that the deaths could have occurred between midnight of February 16 and a twelve hour period going to twelve o’clock noon. The officers, however, informed defendant that the time of death was prior to 7:00 a. m. This time was *281 premised upon the doctor’s “probable conclusion” that the death of defendant’s wife occurred prior to 7:00 a. m. Nonetheless, defendant was made to believe that the time of his wife’s death was definitely determined to have occurred prior to the time he left for work at 7:00 a. m. of the morning of February 16. During the same period of time, the two officers discussed with defendant the possibility of temporary insanity and other possible consequences of such condition, and led him to believe their intent was only to help him, if he committed the crime.

Upon leaving the scene of the crime, the three men stopped and bought hamburgers while Sergeant Johnson called the district attorney and Sergeant Hunt called Dr. Fo-gel, the pathologist, to meet them at the district attorney’s office. They arrived at the district attorney’s office about nine o’clock p. m. and waited some twenty minutes for the others to arrive. When all parties arrived, including Chief of Detectives Sollars, defendant was questioned further. About 11:55 p. m. the district attorney commenced to tape record defendant’s statement, which was concluded about 12:25 a. m. on Feburary 24th. This confession, or admission, was introduced into evidence over vigorous objections of defense counsel.

At the hearing on defendant’s Motion to Suppress the Confession, the Judge denied the Motion, but stated during his ruling, “ a conversation ensued and the defendant was taken to the detective’s preacher. The testimony would seem to be that that was not at the insistence of the detective. Had it been at the insistence of the detective then I think that your (defense counsel’s) point would be well taken.” Notwithstanding, on the question of mental duress, Judge Green denied defendant’s Motion to Suppress. At trial, a hearing was again held outside of the hearing of the jury and the trial judge again denied defendant’s objections to the introduction of the alleged confession. I believe both decisions were erroneous, and that the confession should not have been admitted into evidence. This fact is critical because there is an absence of any other substantial evidence that defendant committed these crimes.

II

There is no evidence in this record which directly supports the confession given by defendant. Reference is made to circumstantial evidence supporting the confession, but those circumstances consist of such facts as the time defendant arrived home, that he kicked in the back door, etc. The only other circumstance as discussed in the majority decision is the single witness, “a next door neighbor,” who testified that on February 14th, she and Mrs. Cas-tleberry “discussed money and sex, Mrs. Castleberry complaining that her husband would not seek a better paying job or part-time employment and that her husband did not enjoy sex as much as she did.” In my opinion, this story became the foundation of the psychological pressures exerted upon defendant which ultimately resulted in the confession.

Every witness who knew the defendant testified that he was susceptible to suggestion, passive in nature, and never engaged in fights. Dr. Salvatore Russo, a qualified psychologist who administered a battery of nine universally accepted psychological evaluation tests to the defendant, described him as being “quiet, soft-spoken, shy individual with average intelligence who was some passive, dependent and submissive, who did not give any evidence of hostility or violence or sexual preoccupation and who was not neurotic, psychotic or psychopathic.” He then was asked to summarize defendant’s personality in one word, which he gave as “submissive.”

During the direct examination of Dr. Salvatore Russo, over the objection of the State, he was asked the following hypothetical question, and gave the following answer:

Question: “Doctor, do you have an opinion, based upon your experience and training as to whether a man who exhibits those personality traits that you have *282 described in your testimony would have a propensity to commit a multiple murder involving physical mutilation of the victims? Do you have such an opinion, sir?”

Answer: “In my opinion I think it is very, very unlikely that a person with the type personality that we have talked about would or could commit this type of crime and I think it is highly improbable that this kind of crime could have been committed by this type of personality.”

It is my opinion that the evaluation of defendant’s personality is equally as acceptable as the pathological report offered by the pathologist. Each such evaluation is premised upon certain facts derived from known test factors, which provided probable results subject to professional evaluation. Consequently, I believe that the psychological evaluation of the defendant as a submissive individual supports the contention that defendant was highly vulnerable to psychological coercion prior to the time he was called upon to make the tape recorded confession. It is completely clear that defendant was questioned on at least three different days and was subjected to some fifteen hours of suggestions and questions prior to the time the tape recording was made.

With reference to the unusual visit to the minister’s office, Sergeant Johnson testified that, “on the 17th when we talked we had discussed the fact that he would even —that he wanted to see a minister and talk to a minister at a later date and he brought up the fact again that I had told him on the 17th that I would go with him to a minister if he wanted me to. And so, I asked, I said, ‘Do you want to see a minister ?' And he stated, yes, that there was some things that he would like to talk about. So, at that time, I said, well, Kenneth, I attend regularly at Carbondale Assembly of God Church over on the West side of town, I have a minister out there who I have confidence in, he is a good man, he is a good minister; I said, would you like to talk to him. And he replied that he would, that that would be fine. So, I believe at that time we were proceeding down Eleventh Street and I just asked Sergeant Hunt if he would find a pay phone, I wanted to call the minister and see if he was in and make an appointment with him.” This occurred on February 23rd, while the officers were on the way to the police station to further interrogate the defendant.

The question immediately arises: Why didn’t the officer ask defendant if he wanted to talk with his own minister? A corollary question might be: Was the minister prepared in some manner to discuss defendant’s “sins” with him at this time. Then immediately following the minister’s “chat” with defendant, why was it necessary to return to the “bloody residence” again for an hour. Was this part of a scheme or plan to inculcate in defendant’s mind that he must have been the one who committed the murders ? Up until this time defendant had constantly denied that he committed the murders; and at the conclusion of his visit with the minister he said, “If I did kill my family, I do not remember it.” But within a couple of hours after the three men entered the “bloody residence” defendant was taken to the District Attorney’s office where for an hour or more the five men, including pathologist Dr. Fogel further “reasoned with him.” There are too many inferences in this record for me to accept defendant’s confession as being entirely voluntary.

In People v. Leyra, Court of Appeals of New York, 302 N.Y. 353 , 98 N.E.2d 553 (1951), that court was confronted with a similar situation which involved the use of a psychiatrist who questioned, suggested and hypnotized the defendant until he made a confession. That court found that the confession was inadmissible. With reference to using a psychiatrist to aid in obtaining the confession, the New York Court stated:

“If a physician may be thus used, then why not a lawyer or clergyman? The essential fairness which is supposed to form the warp and woof of our fabric of justice would certainly be wanting if *283 practices such as these were to be approved. See People v. Levan, 295 N.Y. 26 , 64 N.E.2d, 341 .”

I note, only parenthetically, that in the instant case the police, as well as employing the services of Officer Johnson’s clergyman also utilized the services of Dr. Fogel, the pathologist who determined the time of death, in questioning the defendant prior to taking his tape recorded statement. The extent of Dr. Fogel’s participation, however, is not shown by the record.

In the case of McKinley v. State, 37 Wis.2d 26 , 154 N.W.2d 344 , the Supreme Court of Wisconsin held inadmissible a confession obtained an hour and a half after the defendant had been taken to view the body of the man she was suspected of having murdered. In so holding the court stated:

“In situations such as we have here, where a confession is made within an hour and one-half or an hour and 40 minutes after the police have taken the accused into the morgue to view the body of the deceased, the issue of the volun-tariness of a confession should not be permitted to turn on a finding of the trial judge that such morgue viewing had no psychological effect in inducing the questioned confession. Rather, we deem that where the confession follows the morgue viewing as closely in time as occurred here it should be held as a matter of law that the confession is the result of such psychological pressure as to render the same involuntary.”

In the instant case the defendant was transported from his session with Officer Johnson’s clergyman back to the scene of the crime where the officers and defendant again toured each bloody room of the house. According to Officer Johnson’s testimony, they remained at the scene thirty to forty-five minutes while the officer posed hypothetical questions to the defendant about how the crime might have been committed. From there the defendant was transported by the officers to the Tulsa County Courthouse where three hours later, at midnight, the tape recording of his confession was made.

There is no doubt that torture of the mind is just as contrary to inherent fairness and basic justice as is torture of the body. It is not so much a question of whether or not defendant was advised of his constitutional rights in this case, as it is a question whether or not he was capable of utilizing those rights in face of the over-powering circumstances confronting him. The record reflects that this defendant was twenty-one years old at the time, had only a tenth grade education, had never before been arrested, and had never been confronted by police authority. At the conclusion of defendant’s alleged confession, Sergeant Johnson asked defendant: “Why have you given this, [recorded statement] Kenneth?” The defendant answered : “Because I feel that I need some kind of medical help and I think that you people here in this room could give it to me."

III

In view of the lack of physical evidence offered at this trial, I believe the Public Defender offered sufficient evidence at the hearing on the motion for new trial to warrant the granting of such new trial. It must be borne in mind that the Public Defender’s office does not enjoy the benefit of the Tulsa Police Department, nor the assistance of the District Attorney’s investigator’s staff to obtain evidence for him. The Public Defender had only the assistance of his limited staff including legal interns, law students who are permitted to participate on a limited basis, to rout out evidence. Notwithstanding, there was more testimony at that hearing implicating one Jackie Dean Tandy with the commission of these homicides than was offered against the defendant at his trial. At the hearing on the motion for a new trial, defense counsel was required to call Tandy as his own witness instead of the trial court calling the witness as the court’s witness, as defense counsel had requested. Consequently, defense counsel was denied *284 cross-examination of the witness. It seems apparent that the prosecution would have no desire to develop any testimony on cross-examination which would refute its earlier case. Consequently, I cannot agree with the majority decision which recites: “However, in the instant case Tandy was available and did testify on behalf of the defendant and the defense was given reasonable latitude in its examination of the witness.” To say that Tandy testified “on behalf of the defendant” is an over-statement. Defendant was asserting that Tan-dy may have committed the murders because the witnesses testified that they saw Tandy on the day of February 16th, with blood on his pants, shirt and shoes. Why then would Tandy testify in behalf of the defendant? I would have granted the motion for new trial and then called upon the police investigators to rout-out the truth of the matter.

IV

I also question the propriety of admitting into evidence the fingernail scrapings which were admitted as states exhibit No. 26. Witness Caveny, the laboratory expert, testified that ten vials of substance were submitted to him. After he examined them under a microscope he determined that two might be worthy of being examined for blood content, one vial marked L-2 and the other marked R-5. So he conducted two tests to determine whether or not blood might be contained in the scrapings. He related the Benzidine Test and the Phenolphthalein Test both indicated the presence of blood. But on cross-examination, Mr. Caveny related that he could not determine whether the blood was human or animal, nor was there sufficient content to determine the blood type. He also admitted that other substances such as milk and certain fruit juices could interfere with the test results. In substance, the testimony of Mr. Caveny was far from being conclusive that the substances obtained from only two of defendant’s fingernails was blood. Notwithstanding, the prosecutor stated in his closing argument. “[W]e found blood evidence under fingernails of each of his hands .... So, how did they get those minute scrapings of blood out from underneath his fingernails, where did they come from ? Connecting Kenneth Ray Castleberry? I think so. To the killings? I think so under the evidence.”

Notwithstanding the argument of the attorney general’s brief, this evidence is of such inconsequential nature that it should not have been offered, let alone admitted. It is to be remembered that this defendant worked with his hands in a tire shop. The possibilities of finger injury sufficient to cause his own bleeding was great, but that was apparently not considered. Admittedly, had blood been found under several fingernails of each hand, or even several fingernails of one hand, the scrapings would have borne more significance. But instead, with such a minute example, the prosecution presumed to tie defendant into these murders where great amounts of blood were available. This appears to be one of the types of evidence the State relies upon to support the alleged voluntary confession. I disagree. I believe the evidence should not have been admitted, and that such admission constituted prejudicial error. See Young v. State, Okl.Cr., 373 P.2d 273 , 284:

“Criminal Court of Appeals will not reverse a case for ruling on evidence occurring at the trial unless the record discloses a miscarriage of justice, or that the error relied on constituted substantial prejudice to defendant’s rights.”

In his closing argument, the prosecutor relied to considerable extent upon this finding to overcome the reasonable doubt. As I review this limited bit of evidence, I find it constituted substantial prejudice to defendant’s rights.

V

I question the validity of introducing all the photographs into evidence, and especially those of the two children. Some validity may exist for the introduction of the photographs of Mrs. Castleberry’s body, *285 because as the assistant district attorney explained, the position in which her body was found revealed something, but the only purpose the photographs of the two children could have fulfilled was to inflame the jury’s prejudices. Two black and white photographs were introduced of the children, as well as two color slides showing them on their respective beds. Their conditions had already been described by several witnesses including the pathologist who described in detail the lacerations found on their bodies. Consequently, I believe prejudicial error occurred when those photographs were introduced, notwithstanding the fact that numerous other photographs were eliminated from the total offered. I fail to see what they proved, beyond what had already been proved, except to visibly show that the bodies were found in a gruesome condition, and to stimulate the prejudices of the jury.

T believe the citation taken from Commonwealth v. Peyton, 360 Pa. 441 , 62 A.2d 37, 41 , wherein the Supreme Court of Pennsylvania provided the following, best states the proper position of any court:

“Admission of photographs in a homicide case showing the body of the deceased is largely within the discretion of the trial judge and error will not be predicated by this court on the admission of such exhibits unless there is a flagrant abuse of discretion. The practice of admitting such exhibits unless they have essential evidentiary value is condemned. When the facts that these exhibits would tend to prove can be proved by testimony without the use of photographs which tend the excite the emotions of those who view them, such testimony should be used exclusively and photographs should not be admitted.”

The prosecutor asserted to the trial court that the photographs of the children showed that they were carried back to their own individual rooms; but I fail to see the verity of such statement. I can see instead how they must have aroused the jury’s passions and prejudices. Their only purpose was to prejudice defendant in the interest of securing a conviction by any means. Pictures of objects which no normal or reasonable person could view without revulsion and hatred for the one who had, allegedly committed an act bringing about such a vile result could only insure the result desired by the prosecution — to arouse the prejudice of the jury against the defendant.

VI

I think the time has come when this Court should review its position with reference to polygraph tests when such tests are found to have been administered by competent operators. In the instant case defendant did not offer the polygraph test results to show that he was not guilty; but instead to show the involuntariness of the confession presented on the tape recording. For this limited purpose and under the facts of the instant trial, I believe those tests should have been admitted for what probative value they might have had. That proof would have been subject to attack by the prosecution as any other scientific or expert testimony. Henderson v. State, supra, was decided in 1951, and since that time considerable improvement has been made in this area. Dr. Lynn P. Marcy, who is imminently qualified as a polygraph operator, explained in detail the scientific approach he made in preparing for the tests, which included evaluating the psychological tests to which defendant had been subjected, as well as administering other such tests.

In Vetter v. State, Okl.Cr., 506 P.2d 1400 (1973), in which I concurred, this Court recited:

“The Court can find no Oklahoma case in which the results of a polygraph test have been admitted into evidence and the Court finds no reason for the results of such a test to have been admitted in this case.”

Of course, so long as this Court — and other appellate courts — rely solely upon *286 stare decisis in the matter of scientific evidence, a test such as the polygraph will never be admitted at trial however, great the advances made in the particular field. I believe' — under tHe facts of this case— that the test results should have been admitted for what probative value they might have and for the limited purpose of testing the voluntariness of the alleged confession. This is especially true since the most convincing evidence against defendant was the confession.

Therefore, for the reasons stated herein, I feel compelled to dissent to this decision and believe defendant should be granted a new trial. Having read the transcript of the expert testimony of the findings of the scientific tests which were admitted into evidence in this case, I am convinced that the evidence of the results of the polygraph test administered to defendant could not have been less uncertain than the scientific evidence which actually was admitted.