Leighton v. Cox, 8640.

• Decision Date: 12 August 1966
• Docket Number: No. 8640.,8640.
• Citation: 365 F.2d 122
• Parties: Rex L. LEIGHTON, Appellant, v. Harold A. COX, Warden, New Mexico State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

365 F.2d 122 (1966)

Rex L. LEIGHTON, Appellant, v. Harold A. COX, Warden, New Mexico State Penitentiary, Appellee.

No. 8640.

United States Court of Appeals Tenth Circuit.

August 12, 1966.

W. F. Robinson, III, Denver, Colo., for appellant.

L. D. Harris, Albuquerque, N. M., (Boston E. Witt, Santa Fe, N. M., with him on brief), for appellee.

Before MURRAH, Chief Judge, and PICKETT and HICKEY, Circuit Judges.

MURRAH, Chief Judge.

Having exhausted his remedies in the courts of New Mexico, petitioner applied to the federal district court for a writ of habeas corpus alleging that the New Mexico state conviction and sentence he is now serving is a constitutional nullity because (1) he was not represented by counsel at his preliminary hearing in the state proceedings against him, (2) he had not been properly advised of his right to remain silent and to the assistance of counsel before making the confession used against him, and (3) such confession was coerced because of prolonged examination by state police officers.

After a full evidentiary hearing during which appellant was represented by counsel, the trial court found that while the petitioner did not have counsel at his preliminary hearing, he was in no way prejudiced because he entered a plea of not guilty before the state district court while represented by counsel, and nothing transpiring at the preliminary hearing was used against him. And see Haier v. United States, 10 Cir., 357 F.2d 336. The court further found that although petitioner was interrogated intermittently while in custody, he had been arrested for an offense other than the one for which he was ultimately tried and convicted and much of the interrogation concerned other offenses; that petitioner was fully advised by the questioning officers of his right to remain silent and to have the assistance of counsel. From this the court concluded that the confession was knowingly and voluntarily made and, moreover, no objection was made to its use on trial of the case.

Following Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, we have said that while an accused may voluntarily, intelligently and knowingly waive his privilege against self-incrimination and right to counsel either at the pre-trial or trial stage of the proceedings against him, the absence of counsel at these stages raises a rebuttable presumption against the voluntariness of statements made pursuant to in-custody interrogation during these critical stages. In these circumstances the burden is on the state to show that the accused intelligently waived his constitutional rights. See Haier v. United States, supra, and cases cited.

Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, decided since this case was decided in the trial court and briefed here, has reaffirmed and illuminated Escobedo. It specifies the necessary procedures for effectuation of the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to the assistance of counsel in the exercise of that privilege. But, we need not delineate here the full sweep of the prerequisites to admissibility of in-custody statements laid down in Miranda, for they are made expressly inapplicable to this 1950 conviction by Johnson v. State of New Jersey, 384 U.S. 757, 86 S.Ct. 1772, 16 L.Ed. 2d 882.

We judge the admissibility of this confession in the context of its voluntariness as delineated by pre-Escobedo-Miranda decisional law according to which voluntariness is made to depend upon the observance of Fourteenth Amendment due process, i. e. see Johnson v. State of New Jersey, supra, 86 S.Ct. 1780. Long before this confession...