419 F.2d 95 (6th Cir. 1969), 19405, Whitsell v. Perini

Docket Nº:19405.
Citation:419 F.2d 95
Party Name:Charles E. WHITSELL, Petitioner-Appellant, v. E. P. PERINI, Superintendent, Marion Correctional Institution, Respondent-Appellee.
Case Date:December 09, 1969
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 95

419 F.2d 95 (6th Cir. 1969)

Charles E. WHITSELL, Petitioner-Appellant,

v.

E. P. PERINI, Superintendent, Marion Correctional Institution, Respondent-Appellee.

No. 19405.

United States Court of Appeals, Sixth Circuit.

December 9, 1969

Charles E. Whitsell in pro. per.

Paul W. Brown, Atty. Gen., Stephen M. Miller, Asst. Atty. Gen., Columbus, Ohio, on brief for respondent-appellee.

Before EDWARDS and CELEBREZZE, Circuit Judges, and CECIL, Senior Circuit Judge.

PER CURIAM.

This is an appeal by Charles E. Whitsell, petitioner-appellant, from an order of the United States District Court for the Northern District of Ohio, Western Division, denying his petition for a writ of habeas corpus. The appellant is confined in the Marion Correctional Institution at Marion, Ohio, serving a sentence of one to fifteen years. He was tried before a jury and found guilty of forcibly breaking and entering an uninhabited building in the night season with intent to steal property of value.

The appellant claims that he was questioned without an attorney being present in violation of his constitutional rights, that an incriminating statement which was admitted in evidence was elicited during this questioning, that because his counsel refused to object to the admission of this statement his counsel was ineffectual, and that he was arraigned without the benefit of counsel.

The trial judge decided the case without an evidentiary hearing but he had before him the trial transcript as do we.

If there was any questioning of the appellant in the absence of counsel it was without prejudice to his right to a fair trial unless the specific incriminating statement of which he complains was prejudicial to him. See Crooker v. California, 357 U.S. 433, 439-440, 78 S.Ct. 1287, 2 L.Ed.2d 1448; Escobedo v. Illinois, 378 U.S. 478, 491, 84 S.Ct. 1758, 12 L.Ed.2d 977.

Page 96

Except for this one statement the appellant makes no other complaint that any damaging statements brought out in questioning were introduced in evidence.

The testimony to which the appellant objects involves the statement that he did not try to shoot the officer and came about in the following manner:

'Q Did you have any conversation with this defendant at a later date?

A Yes, i did.

Q And what did that conversation consist of?

A That was on October...

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