King v. State, 9952

Citation456 P.2d 254,93 Idaho 87
Decision Date19 June 1969
Docket NumberNo. 9952,9952
PartiesEdward Albert KING, Plaintiff-Appellant, v. STATE of Idaho, Defendant-Respondent.
CourtUnited States State Supreme Court of Idaho

John L. Runft, Boise, for appellant.

Robert M. Robson, Atty. Gen., and Klaus Wiebe, Asst. Atty. Gen., Boise, Hugh C. Maguire, Pros. Atty., Bannock County, Pocatello, for appellee.

McQUADE, Justice.

This was a habeas corpus proceeding in which the evidence tended to show the following facts. On July 16, 1964, the petitioner, Edward Albert King, was arrested in connection with an attempted burglary in which a law officer was killed. On July 17, 1964, a criminal complaint charging petitioner and five others with first degree murder was signed. Records of the justice court and the testimony of R. Don Bistline, justice of the peace, shows that petitioner was arraigned on July 17, 1964. However, petitioner testified at his habeas corpus hearing that he was not arraigned until July 20, 1964.

At arraignment petitioner was advised of the charge against him and of his right to a preliminary hearing and to the assistance of counsel provided by the State. Petitioner requested a continuance to procure his own counsel. On July 20, 1964, and again on July 22, 1964, petitioner requested more time to procure his own counsel, but petitioner failed to do so. Though there is some confusion in the record, it appears from petitioner's testimony at his habeas corpus hearing that the justice of the peace did not refuse to offer assistance of counsel to petitioner unless he waived his right to a preliminary hearing. Rather, the justice apparently stated that counsel could be appointed through the district court for purposes of a preliminary hearing in justice court.

In any event, no preliminary hearing was held because on July 23, 1964, Judge Oliver, a district judge, issued an order for drawing a special grand jury; on July 24, 1964, the grand jury was drawn; on August 6, 1964, the grand jury returned an indictment against petitioner and five others for first degree murder. All of these actions were taken without notice to petitioner. On August 10, 1964, petitioner was arraigned in district court on the indictment and requested the assistance of court-appointed counsel. The court appointed B. A. McDevitt to represent four of the defendants, including petitioner, in their defense against a charge of first degree murder.

As to petitioner's plea of guilty to the charge of second degree murder entered on January 4, 1965, the day before trial was set to begin, petitioner states in his application for habeas corpus the following:

'THE DAY BEFORE THE PETITIONERS GRAND (Sic) JURY WAS TO BE SELECTED HIS ATTORNEY CAME TO SEE HIM AND THE OTHER CO-DEFENDANTS IN THE COUNTY AND TOLD HIM THAT THIS WAS HIS LAST CHANCE TO PLEAD GUILTY TO A LESSER CHARGE OF SECOND DEGREE MURDER AND IF HE WOULD DO THIS THE PROSECUTOR WOULD HAVE ALL OTHER CHARGES DROPED (TWO COUNTS OF GRAND LARCENY) AND HE WOULD RECEIVE A LIFE SENTENCE AND AS SUCH WOULD BE ELEGIBLE FORE PAROLE IN TEN YEARS AND IF THE PETITIONER DID NOT DO THIS HE (THE PROSECUTOR) WOULD SEEK THE DEATH PENELTY AND IF HE DID NOT GET THAT HE WOULD PROSECUT HIM ON THE TWO OTHER CHARGES AND WITH THE TWO OTHER CONVICTIONS HE WOULD PROSECUTE THE PETITIONER AS A PRESISTENT VIOLATER THE PETITIONER UNDER THIS PRESSURE COULD DO NOTHING BUT PLEAD GUILTY TO THE LESSER CHARGE AND TAKE HIS LIFE SENTENCE BUT EVEN THIS WAS CHANGED AFTER 'CHOPPING OUT' HE WAS NOT GIVEN WHAT HE WAS PROMISED HE WAS GIVEN A SIXTY YEAR SENTENCE WHICH MAKES HIME ELIGIBLE FOR PAROLE IN TWENTY YEARS, IT IS MY CONTNTION THAT THIS PRESSURE TO GET ME TO PLEAD GUILTY AND THE NOT GETTING WHAT I WAS PROMISED IS A VIOLATION OF THE 14 AMENDMENT WHICH GUARENTIES DUE PROCESS OF LAW.'

In this respect, petitioner stated that he and the other four defendants were allowed one hour to come to a decision rather than 'several days' as stated in a letter from their counsel some five months after the event.

At the habeas corpus hearing, petitioner sought to subpoena his attorney for the purpose of exploring these matters, but was unable to do so because the attorney was in Europe. Thus, petitioner was unable to submit further evidence upon prosecutorial threats or promises made to induce a plea of guilty. Nor was a transcript available for the purposes of determining whether or not the court confused the identity of petitioner at sentencing and whether petitioner's counsel stated that petitioner had been an orphan ward of the court and had been in and out of prison all his life when in fact petitioner had had only one arrest on a 'CCW' charge (carrying a concealed weapon?) and no convictions.

On October 3, 1966, the district judge quashed petitioner's writ of habeas corpus, finding that petitioner had been ably represented by counsel and had voluntarily pleaded guilty. Petitioner thus was remanded to the custody of the warden of the state penitentiary.

We note preliminarily that appellant assigns error to the district court's finding that there was no violation of petitioner's right to due process of law where no notice was given to petitioner regarding the calling and impaneling of the grand jury. No authority is cited for this proposition and no argument is advanced in support of the contention. We are aware of no provision of law requiring that such notice be given to a prospective defendant. I.C. § 19-1002(2) states as a ground for challenging a grand jury panel '(t)hat notice of the drawing of the grand jury was not given.' However, this provision refers to I.C. § 2-402, which requires the clerk of the district court to give notice of the drawing to the sheriff and the probate judge, not to prospective defendants. Thus, we find no merit in this contention.

Appellant makes several major assignments of error which we view as falling into four general categories. The first two of these categories deal with an alleged denial of assistance of counsel contrary to the requirements of the sixth amendment to the United States Constitution. Appellant first argues that we must reverse the decision below because appellant was without counsel until after he was indicted by the special grand jury. Appellant argues that all stages of a capital case should be viewed as 'critical' for the purposes of the sixth amendment without the necessity of showing specific prejudicial effects resulting from an absence of counsel. Alternatively, appellant argues that certain specific prejudicial effects were indeed created by the absence of counsle and that those effects require a reversal.

However, we believe these two contentions are adequately answered by the record of the proceedings below as emphasized by the State. The record shows that the justice court offered appellant the assistance of court-appointed counsel for the purposes of a preliminary hearing. Appellant alleged in his petition that the justice court required him to waive his right to a preliminary hearing before counsel would be appointed. However, at the habeas corpus hearing below, the district judge specifically inquired into this allegation as follows:

'Q. I am not interested in the exact words, I am asking you (appellant) if you will state under oath that the justice, Mr. Bistline, told you that you had to waive your preliminary hearing before you could get an attorney?

'A. No.'

Appellant further stated that he did not waive his right to a preliminary hearing and that the justice gave him extra time to procure his own counsel. It thus appears that the State did not deny appellant assistance of counsel.

For this reason, certain of the allegedly prejudicial effects created by the absence of counsel were not imposed upon appellant through illegal State action but rather arose from circumstantial delay created by appellant's choice to refuse courtappointed counsel and seek his own private counsel. Moreover, certain of the alleged specific prejudicial effects cannot be viewed as rising to the level of a deprivation of the constitutional right to the assistance of counsel under the sixth amendment. It is true that the police took numerous incriminating statements from appellant while he was in custody on a first degree murder charge and without counsel. These statements, if taken in contravention of Escobedo rights could have been excluded from evidence which might have been used to establish appellant's guilt at trial. However, the case cited by appellant 1 are not autority for the proposition that the mere acquisition of incriminating statements requires reversal of a conviction. As we stated in State v. Reyna, 2 these cases establish an essentially exclusionary rule applicable to the fruits of illegal interrogation. If no trial is held to establish a defendant's guilt or if none of the incriminating evidence is used against a defendant at trial (either because the prosecution does not choose to use it or because the defendant succeeds in excluding it), then a defendant's constitutional right to the assistance of counsel is not infringed. Thus, we conclude that the absence of counsel does not in itself require reversal.

A plea of guilty 'shown to have been unfairly obtained or given through ignorance, fear or inadvertence' 3 will not withatand judicial scrutiny. If a guilty plea is induced by some form of deception or threat by officers of the state or government, the plea may be collaterally attacked on habeas corpus. 4

In his petition, appellant alleged that the day before trial was set to begin his attorney visited him in jail and conveyed the last offer of the prosecutor to accept a plea of guilty. The attorney allegedly told appellant that if he pleaded guilty, the prosecutor would drop all other charges and arrange a life sentence with parole eligibility in ten years. If he did not plead guilty, the attorney allegedly said, the prosecutor would seek the death penalty and prosecute appellant...

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