North v. Koch, 23076
| Decision Date | 25 August 1969 |
| Docket Number | No. 23076,23076 |
| Citation | 169 Colo. 508,457 P.2d 915 |
| Parties | James Thomas NORTH, Plaintiff in Error, v. William KOCH, Manager of Safety and Excise and Ex-Officio Sheriff of the City and County of Denver, and Mose Trujillo, Under-Sheriff of the City and County of Denver, Defendants in Error. |
| Court | Colorado Supreme Court |
Edward H. Sherman, Public Defender, Truman Coles, Deputy Public Defender, Michael E. Bender, Asst. Public Defender, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., George E. DeRoos, Asst. Atty. Gen., Denver, for defendants in error.
This writ of error arises out of an extradition proceeding. Plaintiff in error, James Thomas North, seeks to set aside an order of the district court of Denver county, discharging his petition for a writ of habeas corpus.
North was accused under C.R.S.1963, 60--1--13, of being a fugitive from the state of California where he was charged with the commission of the felony of illegal use of a credit card between November 16, 1965 and December 1, 1965. North's petition for habeas corpus alleged he was not in the state of California during that period of time and was, accordingly, not a fugitive.
The habeas corpus issues were determined against North. His motion for a new trial was denied. Execution of the rendition order was stayed pending review by writ of error.
In December of 1966, North was charged with forgery in the Denver district court. An attorney was appointed for him in connection with that case. While in confinement in the Denver county jail awaiting final disposition of the forgery case, North was arrested on March 6, 1967, under the figitive warrant arising out of the California case. He was then transferred to the Denver police headquarters for interrogation concerning the California case.
Before North was questioned, an advisement of rights was read to him, which advised him he had a right to remain silent, that any statement he did make could be used as evidence against him, and that he had the right to the presence of an attorney, either retained or appointed. He then read the advisement and signed it in the presence of the two officers who conducted the interrogation.
One of the officers testified that he was not aware of the felony charge against North in the Denver district court or that North had an attorney in connection with that case. North, on the other hand, testified he told the officers that he did have an attorney and who his attorney was, and that he wanted his attorney present during the questioning. In any event, the questioning was conducted without the presence of an attorney.
During the course of the interrogation, North stated:
The foregoing statement was admitted into evidence without objection on the part of North's attorney. North disavowed the statement, contending that he was in the Republic of Mexico from September 1965 through March 1966, where he was engaged in the study of art and poetry.
The only evidence presented that North was in fact in California at the time of the alleged commission of the offense was his statement made to the officers. The court resolved this disputed issue against North.
North did not specify as error in his motion for a new trial the admission into evidence of the foregoing statement. However, he urges that we consider this alleged error, contending that he was deprived of the effective assistance of counsel during a critical stage of the extradition proceedings, in violation of the fifth and sixth amendments of the United States Constitution. North's theory of error is predicated upon his claimed right to have counsel present during the interrogation concerning the felony charge against him in California, particularly when he already had counsel appointed to represent him in the Denver criminal action which had not then been terminated. He argues that the Denver police engaged in an interrogation process designed to elicit incriminating and damaging information from him, deliberately by-passing his attorney and rendering the appointment of his attorney a nullity. Such a procedure, he argues, violates his rights announced in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974.
The sole question for our determination is: Was the statement made by the accused fugitive during the in-custody interrogation concerning his whereabouts at the time of the occurrence of the offense for which he was being extradited rendered inadmissible because he was not afforded counsel...
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