Escute v. Delgado, 5543.

• Citation: 282 F.2d 335
• Decision Date: 23 September 1960
• Docket Number: No. 5543.,5543.
• Parties: Fernando Rivera ESCUTE, Petitioner, Appellant, v. Gerardo DELGADO, Warden of The Penitentiary of The Commonwealth of Puerto Rico, Respondent, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

282 F.2d 335 (1960)

Fernando Rivera ESCUTE, Petitioner, Appellant, v. Gerardo DELGADO, Warden of The Penitentiary of The Commonwealth of Puerto Rico, Respondent, Appellee.

No. 5543.

United States Court of Appeals First Circuit.

September 23, 1960.

Santos P. Amadeo, Rio Piedras, P. R., with whom Gerardo Ortiz del Rivero, Gilberto Concepcion de Gracia, San Juan, P. R., and Francisco Garcia Quinones, San Juan, P. R., were on brief, for appellant.

J. B. Fernandez Badillo, Solicitor Gen., San Juan, P. R., with whom Genoveva R. De Carrera, Asst. Solicitor Gen., San Juan, P. R., was on brief, for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

WOODBURY, Chief Judge.

This is an appeal under § 1293 of Title 28 U.S.C., from a judgment of the Supreme Court of Puerto Rico denying a petition addressed to it for issuance of a writ of habeas corpus. The facts are not in dispute.

During the evening of July 16, 1943, Philip M. Houston's dead body with the head brutally beaten in was found beside his car parked near a beach in Santurce, Puerto Rico. About midday on July 21, five days later, the petitioner below and appellant here was taken into police custody for questioning with respect to Houston's murder. On four separate occasions during the afternoon, to different officers and at different places where he was held in custody, Rivera confessed to participation in the crime. There was never any credible evidence of coercion,¹ and Rivera does not now contend that he was subjected to any physical or psychological pressure during his incarceration or that any promises of any kind were made to induce him to confess.

About 4:00 or 4:30 in the afternoon of the same day the District Attorney and his stenographer arrived at the police station where Rivera was held to question him in order to determine whether there was probable cause to file an information charging him with the crime. Before questioning began the District Attorney warned Rivera of his rights as follows:

"You are accused of the crime of murder, consisting in that on July 16, 1943, and in Santurce, P. R., and together with El Pulga, you killed Philip M. Houston, a human being, with malice and premeditation. You are not obliged to testify and if you do testify, your testimony may be used against you when this case is heard. I wish to warn you that if you testify, your testimony must be free, voluntary and spontaneous, free from duress, threats or intimidation and without any promise to improve your condition as a defendant."

Immediately after this warning Rivera confessed again to the District Attorney. This time his confession was taken down in shorthand by the stenographer and when later transcribed Rivera signed it. The substance of the confession is covered by the following questions and answers:

"Q. Do you know a citizen nicknamed `The Pulga\'? A. Yes, sir.

"Q. How long have you known the Pulga? A. I met him about two months ago in the market place in Santurce and I saw him in the Municipal Jail, that is, in the cooler on Stop 8, jailed in.

"Q. On July 16, 1943, Friday of last week, what did you do during all hours of the day? A. That day I was locked in the cooler on Stop 8 serving a sentence and I came out at 10 o\'clock in the morning and went to the market place of Santurce, where I met The Pulga at about 11 o\'clock in the morning. We went up to the water bridge and from there we went to the Condado Vanderbilt and at the Condado Vanderbilt the Pulga asked for food at about twelve o\'clock and they gave it to him and we both ate behind the hotel in front of the beach. From there we went along the Condado beach, walking towards Borinquen Park and in Borinquen Park we sat down to take some fresh air and we remained there until about three o\'clock in the afternoon. Then we got up from there and went straight ahead and sat down where there are two walls in front of the beach and we remained there until about six o\'clock in the afternoon. The Pulga told me, `Let the people go away and let\'s remain sitting here a while longer\', and we stayed there until seven o\'clock. Later the Pulga remained seated and I kept on walking and The Pulga took a pipe from among some shrubs and was hitting a cocoanut and walking along the shore. Then, when we got to a wall in which there was a large pipe, we both sat down, the Pulga looking up and I looking towards the beach. We both lay down there to sleep. When we got to that place and before the Pulga hit the cocoanut with the pipe, we saw, close to the wall, where there is a pole and where we later sat down, an automobile facing the beach and on the other side of the automobile an American lying down. The Pulga had told me that the one asleep there was an American. The right front door of that car was open and the American was lying down on an automobile seat cover, face up with his head towards the houses and the feet towards the shore. A short while later the American fell asleep and the Pulga told me, `This man has dough\', and said, `Go there to the corner and watch out for any cops\'. It was already about 7 o\'clock at night, between dark and light, and I began to watch in the corner of Taft Street. I saw that the Pulga hit him three times with the pipe and then took out a wallet from the back pocket of the trousers and another small wallet, and gave me three dollars in one-dollar bills and told me, `Beat it, I\'m going to the Savoy now\' and I went to Borinquen Park and from there I went home."

Efforts to locate "El Pulga," or even to identify him by his real name, having come to naught, an information was filed on September 21, 1943, in the former District Court of San Juan charging Rivera with the first degree murder of Philip M. Houston. At arraignment Rivera, who was then, and at every subsequent stage of the proceeding has been, represented by diligent and competent counsel, pleaded not guilty. A trial by jury followed at which he was found guilty and sentenced to life imprisonment. Rivera appealed to the Supreme Court of Puerto Rico which affirmed the judgment of sentence. People v. Rivera, 66 P.R.R. 207 (1946).

Rivera filed his present petition for a writ of habeas corpus in the Supreme Court of Puerto Rico on June 23, 1958. In it he raised some of the same points he had raised at his trial in the District Court and on his subsequent appeal. Nevertheless, the Supreme Court of Puerto Rico issued the writ, held a hearing and wrote an exhaustive and carefully prepared and documented opinion on the basis of which it entered the judgment denying the petition for habeas corpus from which this appeal has been taken.

The extensive briefs and the oral arguments cover a wide range. Actually, however, only two questions are presented, and both of them have to do with Rivera's right to representation by counsel at the time he gave his confession. These questions are: (1) whether under the Sixth Amendment or § 2 of the second Puerto Rican Organic Act known as the Jones Act,² Rivera was entitled as of right to representation by counsel when he confessed, and (2) whether the failure to provide Rivera with counsel at the time he confessed deprived him of his right to due process of law under either the Fifth or the Fourteenth Amendment, whichever properly applied at the time.

Johnson v. Zerbst, 1938, 304 U.S. 458, 468, 58 S.Ct. 610, 82 L.Ed. 1089, is authority for the proposition that if in any criminal prosecution in a federal court an accused is not represented by counsel and has not competently and intelligently waived that right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or liberty. And the Supreme Court of Puerto Rico in the instant case, Rivera v. Delgado, Warden, 80 P.R.R. 800, 805, 806 (1958), on the basis of cases cited, clearly held that § 2 of the Jones Act, supra, stood as a similar jurisdictional bar to any valid criminal conviction and sentence in the courts of Puerto Rico in 1944 when Rivera was tried, convicted and sentenced. But no case has been cited to us nor have we found any holding that an accused's right to counsel under the Sixth Amendment arises prior to the initiation of judicial proceedings. On the contrary, the Supreme Court of Puerto Rico has repeatedly held that there is no absolute constitutional requirement in that jurisdiction that an accused be represented by counsel...