Grimes v. State, A--18188
| Decision Date | 02 July 1973 |
| Docket Number | No. A--18188,A--18188 |
| Citation | 512 P.2d 231 |
| Parties | Billy E. GRIMES, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Billy E. Grimes, hereinafter referred to as appellant, was arrested on December 9, 1959. On December 11, 1959, appellant was brought before a magistrate in Cotton County, Oklahoma, on a complaint for Murder. At this proceeding appellant was informed of his rights including right to counsel and informed that the present proceeding could be adjourned in order to allow appellant time to obtain counsel, either of his own choosing or in the event appellant was unable to secure counsel, to be provided with such. Appellant asked for and received a suspension of the December 11, 1959, proceeding. Subsequently, appellant engaged counsel of his own choosing and proceedings were again conducted on the 14th of December, at which time appellant was represented by counsel and a date for a preliminary hearing was set. At the preliminary hearing, the appellant was bound over for trial which was held on March 28 through 31, 1960. As a result, appellant was found guilty of Murder and sentenced to life imprisonment in the State Penitentiary at McAlester. A duly perfected appeal was brought before this Court and on October 18, 1961, judgment and sentence was affirmed. (Grimes v. State, Okl.Cr., 365 P.2d 739 (1961)) On October 18, 1972, the appellant filed an application for post-conviction relief with the District Court of Cotton County. This application was dismissed. From this denial for post-conviction relief, the appellant now appeals to this Court.
Appellant first contends on appeal that the trial court erred in not ordering an evidentiary hearing as provided for in 22 O.S.1971, § 1084, and erred in not providing counsel for appellant's application. The appellant's application for post-conviction relief raised issues of law and not issues of fact. Appellant claimed that he was not given the Miranda warnings before making a statement to the authorities; that he was denied the use of the telephone upon his arrest; that he was denied counsel during an in-custody interrogation; that he was denied a fair trial by reason of systematic exclusion of certain groups of jurors; and that appellant was denied his right to be brought before a magistrate without unnecessary delay. Because these complaints are not matters of fact but of law, the trial court was able to summarily decide appellant's allegations on the application and the available portions of the record. Title 22 O.S.1971, § 1084, provides in part:
'If the application cannot be disposed of on the pleadings and record, Or there exists a material issue of fact, the court shall conduct an evidentiary hearing at which time a record shall be made and preserved.' (Emphasis added)
In this case, none of the appellant's complaints required hearing additional factual evidence.
Turning to appellant's original allegations, he first raises the question of receiving no Miranda warnings before making a statement to police. Appellant relies on the Miranda and Escobedo cases to support his right to the warnings. However, appellant's statement was made in 1959, prior to Miranda and Escobedo, and these landmark decisions, not being retroactive (Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); and Story v. State, Okl.Cr., 452 P.2d 822 (1969)), have no applicability to the case before us. In considering the possible denial of due process aside from Miranda and Escobedo, we find that this was passed on by this Court in its opinion on the appeal from judgment and sentence. At that time this Court held appellant was advised of his rights before giving his statement (Grimes v. State, Okl.Cr., 365 P.2d 739) and consequently, the matter is res judicata and barred from being claimed here. Harrell v. State, Okl.Cr., 493 P.2d 461 (1972).
Appellant's second complaint alleges denial of access to a telephone upon his...
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...cert. denied, --- U.S. ----, 116 S.Ct. 214, 133 L.Ed.2d 146 (1995); Coleman v. State, 693 P.2d 4, 5 (Okl.Cr.1984); Grimes v. State, 512 P.2d 231, 233 (Okl.Cr.1973); Harrell v. State, 493 P.2d 461, 462 (Okl.Cr.1972). We have also determined that the plain language of § 1086 makes it applicab......
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