Barnett v. State

• Decision Date: 16 October 1968
• Docket Number: Nos. A--14698,A--14727,s. A--14698
• Citation: 446 P.2d 89
• Parties: Marvin E. BARNETT, Petitioner, v. STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 89

446 P.2d 89

Marvin E. BARNETT, Petitioner, v. STATE of Oklahoma, Respondent.

Nos. A--14698, A--14727.

Court of Criminal Appeals of Oklahoma.

Oct. 16, 1968.

Syllabus by the Court

1. The guidelines of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, are applicable only to those trials begun after June 13, 1966.

2. The rule that a juror cannot be challenged for cause on the sole ground that he is opposed to capital punishment and that a death sentence cannot be executed if imposed by a jury from which prospective jurors have been removed for cause who, without more, are opposed to capital punishment is not applicable in a case where the jury has recommended a life sentence.

3. Where a habeas corpus petitioner was represented by counsel of his choice at his preliminary hearing, at his arraignment in district court, and at his trial, he cannot successfully claim the denial of representation by counsel due to the absence of counsel when petitioner was taken before a magistrate after arrest without a showing that prejudice resulted thereby.

4. Where a penitentiary inmate seeks a speedy trial or removal of a detainer lodged against him on a charge pending against him he should make application for a writ of habeas corpus ad prosequendum in the court in which the charge is pending and if such application be denied he should then institute such a proceeding in the Court of Criminal Appeals.

Original proceedings in which Marvin E. Barnett seeks his release from confinement by writ of habeas corpus. Writ denied.

Marvin E. Barnett, pro se.

G. T. Blankenship, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., for respondent.

PER CURIAM:

This is an original proceeding where we have combined for disposition the two separate petitions of Marvin E. Barnett, each of which seeks a writ of habeas corpus.

In his first petition, Case No. A--14,698, Petitioner alleges that a detainer has been placed upon him at the Oklahoma State Penitentiary where he is presently incarcerated by the officials of Oklahoma County for the charges pending against Petitioner in Case No. 29361, District Court, Oklahoma County. Petitioner requests that he either be given a speedy trial on this charge or that the same be dismissed.

In his subsequent petition, Case No. A--14,727, Petitioner requests habeas corpus release based on several grounds, namely: (1) Improper selection of a jury at his trial where prospective jurors were dismissed because they did not believe in capital punishment; (2) Petitioner was not advised of his rights at the time he was arrested; (3) Petitioner was not represented by an attorney when he was taken before a magistrate, the Justice of the Peace, after his arrest; (4) Petitioner was not represented by an attorney when he was questioned by the police; (5) Petitioner was denied the right of an appeal; (6) and Petitioner's attorney was incompetent.

Petitioner acknowledges that he was represented by counsel at his preliminary hearing before the Justice of the Peace. The record of the District Court of Oklahoma County reflects that on October 16, 1964, Petitioner was represented by counsel at his arraignment in District Court. On February 4, 1965, Petitioner's motion for a continuance was granted on the basis that his counsel, Archibald Hill, was a member of the Oklahoma Legislature then in session. On June 14 through 26, 1965, Petitioner was tried and at that time represented by counsel, Mr. Hill and Albert Alexander. On June 26, 1965, the jury returned a verdict of guilty as charged. On July 3, 1965, Petitioner came on for sentencing where his motion for new trial was overruled and notice of appeal was given in court. Approximately three months later, on October 19, 1965, the record indicates that Petitioner's motion for a casemade at public expense was overruled by the District Court.

As regards the allegation that the selection of a jury violated Petitioner's constitutional rights, it would appear that Petitioner seeks to take advantage of the recent ruling of the United States Supreme Court in the case of Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In that decision the court held that a juror could not be challenged for cause on the sole ground that he is opposed to capital punishment and a death sentence could not be executed if imposed by a jury from which prospective jurors have been removed for cause who, without more, are opposed to capital punishment. On the same date of the Witherspoon decision the United States Supreme Court handed down Bumper v. State of North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), in which the Court held:

'Our decision in Witherspoon does not govern the present case, because here the jury recommended a sentence of life imprisonment.'

Since Petitioner received a life sentence as opposed to the death penalty, he is unable to receive relief for the reason that prospective jurors at his trial were excused because they did not believe in the death penalty.

Next we consider Petitioner's allegations (2) that he was not advised of his rights when he was arrested, (3) that he did not have an attorney when he was taken before the Justice of the Peace, and (4) that he was not furnished an attorney during police interrogation. At the outset we would note that this case took place prior to Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974. In Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, the United States Supreme Court held that the Miranda guidelines were available only to those trials not begun as of June 13, 1966. Accordingly, said guidelines would not apply in Petitioner's case.

Furthermore, it appears that any prejudicial errors occurring in these preliminary proceedings could have been raised by Petitioner in district court before he entered a plea or at his trial where he was represented by counsel. While an accused in Oklahoma is entitled to an attorney at all stages of the proceedings against him, absence of couns...