Pearce v. Cox, 8142
| Decision Date | 22 December 1965 |
| Docket Number | 8146,8148,8182,8261,8256,8240,8145,No. 8142,8252,8170,8151,8247,8239,8149,8213,8246,8267.,8186,8221,8142 |
| Citation | 354 F.2d 884 |
| Parties | Floyd Wayne PEARCE, Appellant, v. Harold A. COX, Warden, New Mexico State Penitentiary, Appellee. Frank WHITING, Appellant, v. Harold A. COX, Warden, New Mexico State Penitentiary, Appellee. Franklin Melvin ARCHIE, Appellant, v. Harold A. COX, Warden, New Mexico State Penitentiary, Appellee. Roy Dee DEAN, Appellant, v. Harold A. COX, Warden, New Mexico State Penitentiary, Appellee. Leopoldo GARCIA, Appellant, v. Harold A. COX, Warden, New Mexico State Penitentiary, Appellee. Billy K. McCOMBS, Appellant, v. Harold A. COX, Warden, New Mexico State Penitentiary, Appellee. Edward M. FRAZEE, Appellant, v. Harold A. COX, Warden, New Mexico State Penitentiary, Appellee. Frank EDWARDS, Appellant, v. Harold A. COX, Warden, New Mexico State Penitentiary, Appellee. Joseph M. LOVETT, Appellant, v. Harold A. COX, Warden, New Mexico State Penitentiary, Appellee. Ted VILLANUEVA, Appellant, v. Harold A. COX, Warden, New Mexico State Penitentiary, Appellee. Leonor VIGIL, Appellant, v. Harold A. COX, Warden, New Mexico State Penitentiary, Appellee. Raymond Gene PATTERSON, Appellant, v. Harold A. COX, Warden, New Mexico State Penitentiary, Appellee. Raymond ORTEGA, Appellant, v. Harold A. COX, Warden, New Mexico State Penitentiary, Appellee. Willard Morris FARRIS, Appellant, v. Harold A. COX, Warden, New Mexico State Penitentiary, Appellee. Harry Lee CHARLTON, Appellant, v. Harold A. COX, Warden, New Mexico State Penitentiary, Appellee. John Clinton ALLEN, Appellant, v. Harold A. COX, Warden, New Mexico State Penitentiary, Appellee. Joseph Coy WORDEN, Appellant, v. Harold A. COX, Warden, New Mexico State Penitentiary, Appellee. Julian Victor GAONA, Appellant, v. Harold A. COX, Warden, New Mexico State Penitentiary, Appellee. Carl Clayton GILSTRAP, Appellant, v. Harold A. COX, Warden, New Mexico State Penitentiary, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
Ancel W. Lewis, Jr., Denver, Colo., for appellant F. W. Pearce.
William B. Chasteen, Denver, Colo., for appellants F. Whiting, E. M. Frazee and C. C. Gilstrap.
Gordon D. Prinster, Denver, Colo., for appellant F. M. Archie.
Alan H. Bucholtz, Denver, Colo., for appellant R. D. Dean.
Roger W. Redman, Denver, Colo., for appellants L. Garcia and F. Edwards.
William D. Jochems, Denver, Colo., for appellant B. K. McCombs.
D. L. Glenn, Denver, Colo., for appellants J. M. Lovett and J. C. Allen.
E. Michael Canges, Denver, Colo., for appellants T. Villanueva, R. G. Patterson, R. Ortega, J. C. Worden and J. V. Gaona.
Walter J. Landin (Clark A. Floyd and D. L. Glenn, Denver, Colo., on brief), for appellant L. Vigil; for appellant W. M. Farris.
Clark A. Floyd, Denver, Colo., for appellant H. L. Charlton.
L. D. Harris, Sp. Asst. Atty. Gen. (Boston E. Witt, Atty. Gen., on brief), for appellee.
Before PHILLIPS, LEWIS and HILL, Circuit Judges.
These are appeals from orders denying relief on applications for writs of habeas corpus by persons confined under judgments and sentences of New Mexico state courts.
At the hearings below, each applicant was represented by counsel and was accorded an evidentiary hearing at which he testified in his own behalf.
The several appeals involve many common questions of law and like questions of fact and were consolidated for argument.
We shall first undertake to set forth the applicable principles of law and then deal with each case separately.
Section 14 of Article II of the New Mexico Constitution, in part here pertinent, provides:
Sections 41-3-1 to 41-3-16, inclusive, N.M.Stat.Ann.1953, prescribe the procedure and define the duties of the examining magistrate and of the district attorney at a preliminary examination of a person charged with a capital, felonious, or infamous crime.1
Section 41-3-10 provides that whenever in the discretion and judgment of the district attorney it is deemed advisable for the perpetuation and preservation of testimony introduced at the preliminary examination, he may employ a stenographer to take down the evidence, reduce the same to writing, duly certify the transcript under oath, and deliver it and his notes to the district attorney, and that he may present the same to the grand jury next convened.
Section 41-3-12 provides that if there is no probable cause for charging the defendant, the magistrate shall discharge him, but if it appears that an offense has been committed and there is probable cause to believe the defendant guilty, the magistrate shall bind the defendant over to the appropriate state district court.
Section 41-3-15 provides that the magistrate shall file the papers pertaining to the case with the clerk of the district court on or before the first day of the next term of such court.
Rule 43(a) (1) of the Rules of Civil Procedure of New Mexico (effective November 1, 1942), § 21-1-1 (43), N.M. Stat.Ann.1953, provides:
Section 45-407, N.M.Stat.Ann.1929, contained substantially the same provision, except it was limited to the testimony of a witness taken in a New Mexico state court. In State v. Moore, 40 N.M. 344, 59 P.2d 902, it was held that a transcript of the testimony of a witness given at a preliminary examination could be introduced by the state at a subsequent trial of the accused, where such witness was then absent from the state.
It is the practice at preliminary examinations in New Mexico for the magistrate to arraign the defendant and require him to enter a plea to the charge and to state whether or not he desires to waive a preliminary examination and to treat a plea of guilty as such a waiver.
We hold that the preliminary examination, from the arraignment of the defendant until the end of the examination, is a critical stage of the criminal proceedings against the defendant. This, because a defendant needs the advice and assistance of counsel at the time of his arraignment, the entry of a plea, and his announcement as to whether he desires or waives a preliminary examination, and because he needs the assistance of counsel in cross-examining the state's witnesses at the preliminary examination, since the transcript of the testimony of such witnesses may thereafter be presented to the grand jury next convened and under any of the three circumstances stated in Rule 43, supra, may be introduced in evidence against the accused at his trial in the state district court for the offense with which he is charged.
It is not necessary for an indigent defendant to request the appointment of counsel in order to preserve his right to counsel.2
Unless the right to be represented by counsel at a preliminary hearing is competently, intelligently, and voluntarily waived, the fact that the defendant was not so represented at the preliminary examination vitiates that hearing. But this does not mean that the defendant is thereby rendered immune from prosecution thereafter for the offense in the state district court in a proceeding in which he is accorded all of his constitutional rights and in which no acts or omissions at the preliminary examination prejudicially affect him.3
He may be charged by information in the state district court, notwithstanding he either has not had a preliminary examination or has not had a valid preliminary examination. Of course, he is entitled to be represented by counsel, either of his own choosing or appointed by the court, at every critical stage of the proceeding in the district court. He may challenge the right of the state to proceed against him until he has been accorded a valid preliminary hearing, unless he has theretofore waived his right thereto. Such challenge may be made by a plea in abatement or any other appropriate manner. When a violation of the defendant's constitutional rights in the proceeding before the magistrate is brought to the attention of the state trial court and found to exist, it is the accused's right to have the information abated, and the court's duty to abate it, until there has been a proper preliminary examination, and to remand the accused to the magistrate for such examination, unless the accused competently, intelligently, and voluntarily waives his right to such examination. But the state district court does not lose jurisdiction of the information theretofore filed by abating it and remanding the accused to the magistrate for a proper preliminary examination, nor is there any requirement for the filing of a new information after such preliminary examination has been held.4
The defendant may waive his right to have the proceeding on the information abated and to be remanded to a magistrate for a preliminary examination, and, under the New Mexico decisions, he does waive that right by competently, intelligently, and voluntarily entering a plea to the information.5
It is a general rule that the federal courts will follow the interpretation of the constitution and laws of a...
To continue reading
Request your trial