Carrizosa v. Wilson

• Decision Date: 23 July 1965
• Docket Number: No. 43323.,43323.
• Court: U.S. District Court — Northern District of California
• Parties: Joe CARRIZOSA, Petitioner, v. Lawrence E. WILSON, Warden, California State Prison, San Quentin, California, Respondent.

244 F. Supp. 120

Joe CARRIZOSA, Petitioner, v. Lawrence E. WILSON, Warden, California State Prison, San Quentin, California, Respondent.

No. 43323.

United States District Court N. D. California, S. D.

July 23, 1965.

Arlene N. Heath, San Francisco, Cal., for petitioner.

Albert W. Harris, Jr., Asst. Atty. Gen., Edward P. O'Brien, Deputy Atty. Gen., San Francisco, Cal., for respondent.

ZIRPOLI, District Judge.

Petitioner, a prisoner at San Quentin, was convicted after a court trial in March 1958 of one count of robbery in the first degree in violation of California Pen.C. 211 and one count of murder in the first degree in violation of California Pen.C. 187. He was sentenced to the state prison for the term prescribed by law, the sentences on each count to run concurrently. A petition for writ of habeas corpus was filed in this Court on February 18, 1965 in which petitioner alleged that at the time of his arrest and interrogation he was not advised of his right to counsel or right to remain silent. Statements made during the interrogation were introduced at petitioner's trial by the People. This Court issued an order to show cause on February 18, 1965 and appointed Arlene Heath, Esq., to represent petitioner in these proceedings. Respondent's return was filed on March 12, 1965. Following the hearing on the order to show cause an evidentiary hearing was ordered for April 29, 1965. After a two day hearing the Court made findings of fact, which will be discussed below, and allowed both parties to file closing briefs. On June 1, 1965 after closing briefs were filed by both parties, the case was submitted for decision.

At the conclusion of the evidentiary hearing this Court made the following findings of fact: (1) petitioner did not at any time after his arrest or during his interrogation make a request for counsel; (2) at no time after his arrest or during the subsequent interrogation was petitioner advised of his right to counsel, his right to remain silent or that any statements made by him could be used against him; (3) there was no evidence of any threats, promises or coercion of any kind; and (4) the statement made by petitioner to the police during the interrogation was used against him at his trial.

In Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) the Supreme Court of the United States held that when an investigation by the police begins to focus on a particular suspect, the suspect has been taken into custody, and a process of interrogation carried on for the purpose of eliciting incriminating statements, no statement made by the accused under these circumstances may be used against him at a criminal trial if the accused has not been permitted to consult with his lawyer and the police have not advised him of his absolute constitutional right to remain silent. The Court's findings of fact bring the petitioner's case within the rule announced in Escobedo with the exception that, unlike Escobedo, petitioner did not retain or request counsel.

The Court has reviewed the petition, respondent's return, the memoranda filed by the parties and the Court's findings of fact and concludes that the decision in this case depends on the answers to two questions: (1) Does Escobedo v. State of Illinois, supra, require that petitioner request and be denied the assistance of counsel at the accusatory stage of the proceedings in order that statements made to the police be excluded at trial? (2) Assuming a request for counsel is not necessary and petitioner has not been advised of his rights under Escobedo, does the constitutional principle announced in that case operate retroactively?

For the reasons to be set forth below this Court concludes that although a request for counsel is not necessary Escobedo may not be applied retroactively to affect decisions which became final prior to the date Escobedo was rendered.

Whether the right to counsel at the accusatory stage of the proceedings depends on a request for counsel is a vexing question. Although in Escobedo the accused made the request, that opinion offers no certain guide as to whether the request is necessary. There has been a split of authority on this question.¹ Indeed, the Supreme Court has denied certiorari in a case where a state court held the request was necessary² and in another case where a state court held it was not necessary.³

In the absence of a definitive answer by the United States Supreme Court, this Court must turn to the decisions of the Court of Appeals for the Ninth Circuit. In Wright v. Dickson, 336 F.2d 878, 882 (9th Cir. 1964), the Court said in analyzing Escobedo:

"As Justice White pointed out in dissent, it makes no difference whether appellant asked to consult retained counsel or to be provided with the assistance of appointed counsel, nor, indeed, whether he requested counsel at all, except as the latter fact might bear upon waiver."

This language has not been expressly repudiated by the Court of Appeals.⁴ Therefore, this Court concludes that in petitioner's case his failure to request counsel was not fatal.

A suggested short answer to whether Escobedo is retroactive is that the Supreme Court framed the rule of that case in terms of the Right to Counsel guaranteed by the Sixth and Fourteenth Amendments citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). (See Escobedo v. State of Illinois, supra, 378 U.S. at 491, 84 S.Ct. 1758.) Gideon has been applied retroactively by the Supreme Court in several instances. See Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed. 2d 650 (1964); Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed. 2d 41 (1963); see also United States ex rel. Durocher v. LaVallee, 330 F.2d 303 (2d Cir. 1964). Therefore, it would appear that Escobedo is also retroactive. Indeed, the Court of Appeals for the Ninth Circuit has apparently concluded as much in United States ex rel. Walker v. Fogliani, 343 F.2d 43 (9th Cir. 1965).

In Walker, petitioner was convicted in 1961 by a Nevada state court of first degree murder. The conviction was affirmed by the Supreme Court of Nevada in November 1962 Walker v. State of Nevada, 78 Nev. 463, 376 P.2d 137 and certiorari was denied by the United States Supreme Court in October 1963, 375 U.S. 882, 84 S.Ct. 153, 11 L.Ed.2d 112. In a petition for writ of habeas corpus filed in the federal district court, petitioner alleged, inter alia that at the time of his interrogation by Nevada authorities he had requested to no avail the assistance of counsel. The district court denied the petition in February 1964 approximately four months before the decision in Escobedo was rendered. The Court of Appeals reversed and remanded the case to the federal district court directing that court to stay the proceedings pending a determination by the Nevada state courts on the applicability of Escobedo to the allegations raised by the petitioner. And in this connection the Court concluded:

"* * * the courts of Nevada are entitled, in our judgment, to have the first opportunity to consider the problem which has now arisen on account of the decision in Escobedo, which, analyzed in connection with the decision in Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, should, without doubt, operate retroactively in the federal courts to protect a right which is assured by the Federal Constitution." (343 F.2d at 47).

This decision would seem to foreclose any argument that Escobedo was not intended to operate retroactively — at least in this circuit.

The recent decision of the United States Supreme Court in Linkletter v. Walker, 85 S.Ct. 1731 (1965), however, precludes the facile invocation of the right to counsel language in Escobedo and the dictum in United States ex rel. Walker v. Fogliani, supra. In Linkletter the Court held that Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), rendering inadmissible in state courts evidence seized in violation of the Fourth and Fourteenth Amendments, did not operate retroactively so as to vitiate convictions final before Mapp. Linkletter is the most recent pronouncement of the Supreme Court on the retroactivity of overruling constitutional decisions. This Court cannot ignore its dictates insofar as they have a bearing on the retroactivity of Escobedo.

In Linkletter, the Court adopted the premise that the Constitution neither requires nor prohibits retroactive application of new constitutional rules. Linkletter v. Walker, supra, 85 S.Ct. at 1738. "Once the premise is accepted * * * we must then weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." Linkletter v. Walker, supra, at 1738. Elsewhere the Court said: "* * * we must look to the purpose of the Mapp rule; the reliance placed upon the Wolf doctrine; and the effect on the administration of justice of a retrospective application of Mapp." Linkletter v. Walker, supra, at 1741.

After a review of the history of search and seizure law the Court concluded that the purpose of the exclusionary rule announced in Mapp was "* * * to deter the lawless action of the police and to effectively enforce the Fourth Amendment." Linkletter v. Walker, supra, at 1742. Recognizing that it had given retroactive application to constitutional interpretations of relatively recent vintage e. g. Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the Court thought that giving Mapp retroactive application would not serve the purposes of the rule announced in that case. The misconduct of the police could not be repaired; the victim's privacy could not be restored. There being no likelihood that illegally seized evidence...