Delano v. Crouse, 7532.

• Decision Date: 12 March 1964
• Docket Number: No. 7532.,7532.
• Citation: 327 F.2d 693
• Parties: Buddy Joe DELANO, Appellant, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

327 F.2d 693 (1964)

Buddy Joe DELANO, Appellant, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellee.

No. 7532.

United States Court of Appeals Tenth Circuit.

February 3, 1964.

Rehearing Denied March 12, 1964.

William Schoeberlein, Denver, Colo. (John H. Bennett, Denver, Colo., was with him on the brief), for appellant.

Arthur E. Palmer, Asst. Atty. Gen., of Kansas (William M. Ferguson, Atty. Gen., and Park McGee, Asst. Atty. Gen., were with him on the brief), for appellee.

Before PICKETT, LEWIS and SETH, Circuit Judges.

SETH, Circuit Judge.

Appellant is confined in the Kansas State Penitentiary under a thirty-five year sentence upon a conviction in 1960 by a jury for murder in the second degree. His conviction in the District Court of Barber County, Kansas, was affirmed by the Supreme Court of Kansas in State v. Delano, 188 Kan. 687, 366 P.2d 294.

Appellant filed a petition for a writ of habeas corpus in the United States District Court for the District of Kansas. He asserted that his rights under the United States Constitution were violated by reason of the fact that he was held forty-nine days without being charged, and that he did not have counsel until after he had waived a preliminary hearing. He further argued that there were erroneous instructions, but this point is not urged on appeal.

The trial court held a hearing on the petition for the writ with appellant present and with appointed counsel. The court made a finding that appellant made no confessions during the period of confinement before charge, and that he was not coerced into waiving a preliminary hearing. Appellant at the hearing below had appointed counsel as indicated, and was given an opportunity to introduce evidence as to the alleged unlawful confinement, but he did not do so. The trial court found that an illegal confinement alone, without an admission by the accused and without the state obtaining evidence as a result of such detention does not vitiate the proceedings. This result is supported by Blood v. Hunter, 150 F.2d 640 (10th Cir.); Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541, and United States ex rel. Sproch v. Ragen, 246 F.2d 264 (7th Cir.). The first two cases cited concern persons charged with federal offenses, and under the Fourteenth Amendment the states would not be subject to more stringent requirements. Frisbie v. Collins, supra, was concerned more with the question as to how jurisdiction over the accused was obtained, but it did stand for the proposition that pre-charge seizure, control, and detention by state authorities does not in itself provide grounds for relief in the federal courts.

The record indicates that appellant, a resident of Louisiana, was held by Kansas officers incommunicado, in solitary confinement, and was not allowed tobacco nor to shave. It shows that information was filed and counsel was appointed on April 5, 1960, the arraignment was on April 25, 1960, and the trial began the following day. The information contained the list of prosecution witnesses. Appellant was found guilty by the jury on April 28, 1960.

As to appellant's argument that he did not have counsel until after the preliminary hearing, and this was a violation of his constitutional rights, the record shows that there were no confessions or incriminating statements made by the appellant. The Kansas statutes provide that if a preliminary hearing is held, the state must put on witnesses and evidence to support its case, if requested, and the accused may cross-examine. Kansas Gen.Stat.1949 Ann. §§ 62-614, 62-615. The appellant voluntarily waived such a hearing and the next day the information was filed. The information had endorsed on it the names of the witnesses for the prosecution, and thereupon counsel was appointed. This court decided in Latham v. Crouse, 320 F.2d 120 (10th Cir.), a case arising from a conviction in the state court of Kansas, that the United States Constitution does not guarantee appointed counsel at a preliminary hearing where the accused does not enter a plea at such time and where he does not then testify or say anything of an incriminating nature. The failure to furnish counsel prior to such hearing does not violate the fundamental constitutional rights of the accused. This cited case considered Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and the earlier case on the same subject, State of Utah v. Sullivan, 227 F.2d 511 (10th Cir.), cert. den. sub nom. Braasch v. Utah, 350 U.S. 973, 76 S.Ct. 449, 100 L.Ed. 844. The court in Latham v. Crouse also...