Lester v. Wilson

• Citation: 363 F.2d 824
• Decision Date: 01 August 1966
• Docket Number: No. 20524.,20524.
• Parties: Junior Ray LESTER, Appellant, v. Lawrence E. WILSON, Warden, California State Prison, San Quentin, California, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

363 F.2d 824 (1966)

Junior Ray LESTER, Appellant, v. Lawrence E. WILSON, Warden, California State Prison, San Quentin, California, Appellee.

No. 20524.

United States Court of Appeals Ninth Circuit.

June 29, 1966.

Rehearing Denied August 1, 1966.

Junior Ray Lester, in pro. per.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., Jackson L. Smith, Deputy Atty. Gen., San Francisco, Cal., for appellee.

Before CHAMBERS, Circuit Judge, MADDEN, Judge of the Court of Claims, and HAMLEY, Circuit Judge.

HAMLEY, Circuit Judge.

Junior Ray Lester, in custody under a California state judgment of conviction and sentence entered on February 19, 1963, appeals from a district court order denying, without hearing, his application for a writ of habeas corpus.

Lester asserts that a tape-recorded confession was obtained while he was in police custody and without first advising him of his right to remain silent, and his right to retained or appointed counsel. Admission of this tape recording in evidence against him, Lester contends, therefore deprived him of due process.

The right to such a warning prior to police interrogation while in custody was specifically recognized by the Supreme Court for the first time in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. It has since been decided, however, that the rules announced in those decisions are not to be applied retroactively. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. It follows that Lester is not entitled to habeas corpus relief on the described ground.

Lester further argues that, apart from the question of right to counsel, the admission in evidence of the tape-recorded confession deprived him of due process because the recording was obtained by the police secretly and deceptively. However, police secrecy and deception in obtaining a tape recording of incriminating statements, unassociated with a right to counsel problem or other circumstance which would render such statements inadmissible, do not present a constitutional violation. See Lee v. Wilson, 9 Cir., 363 F.2d 824, and cases there cited. While Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, relied on by Lester, involved the surreptitious transmission to police, by radio, of incriminating statements made by the defendant, the Supreme Court reversed on a right-to-counsel ground.

The state court trial was to the court without a jury. The trial judge took the tape-recorded confession to his home and listened to it before deciding that Lester was guilty. Lester argues that this constituted a denial of due process. We do not agree.

In his application for a...