Pece v. Cox, 8105.
| Decision Date | 23 December 1965 |
| Docket Number | No. 8105.,8105. |
| Citation | 354 F.2d 913 |
| Parties | Cecil Alvin PECE, Appellant, v. Harold A. COX, Warden, New Mexico State Penitentiary, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Charles E. Graves, Cheyenne, Wyo., for appellant.
L. D. Harris, Special Asst. Atty. Gen. (Boston E. Witt, Atty. Gen., on the brief), for appellee.
Before PHILLIPS, LEWIS and HILL, Circuit Judges.
This is an appeal by Pece, confined under sentence of a New Mexico state court, from an order dismissing his application for a writ of habeas corpus.
Pece was arrested in Salt Lake City, Utah, on March 26, 1961, and transported to Roswell, New Mexico. A complaint charging him with rape was filed with a justice of the peace for Precinct One, Chaves County, New Mexico. On July 2, 1961, Pece was taken before the justice of the peace. Pece requested the appointment of counsel to represent him. The justice of the peace stated he had no authority to appoint counsel. Pece was then arraigned on the complaint and entered a plea of not guilty. He was returned to the county jail at Roswell, New Mexico. Jimmy Oldaker and Richard C. Lewis were also charged by complaint filed with the justice of the peace with the rape of the same female, at the same time and place.
On July 13, 1961, the Sheriff of Chaves County, New Mexico, transported Oldaker and Lewis to Lubbock, Texas, to undergo a polygraph examination, commonly called a "lie-detector test," to which they had voluntarily consented. Lewis had been advised by an attorney he had employed, and who later represented him at the trial in the district court, to take the lie-detector test. Pece testified that at the suggestion of the sheriff he went along for the ride. While at Lubbock, Oldaker and Lewis, after being fully advised that they were not required to make any statement, that any statement they made might be used against them at a trial for the offense, and that they were entitled to counsel, made confessions, which were reduced to writing, read and signed by them. Thereafter, Pece was advised that Oldaker and Lewis had made confessions and asked if he was willing to make a statement. Pece was informed the penalty for the offense with which he was charged was 99 years' imprisonment, that he was entitled to the advice of counsel before acting, that he was not required to make a statement, and that any statement he made could be used against him at a trial for the offense. No threats or promises were made to induce Pece to confess. He made no request for counsel. He made an oral confession, which was reduced to writing, read, and in some respects corrected by him and then signed by him. Thereafter, the three were returned to jail at Roswell.
Thereafter, on August 14, 1961, Pece, Oldaker and Lewis were taken before the justice of the peace for a preliminary examination. Lewis had employed an attorney, who was present at the preliminary examination. Oldaker had employed an attorney, but the attorney was not present at the examination. Pece again requested the appointment of counsel to represent him. He testified at the examination on the application for the writ that the justice made no answer to his request and counsel was not appointed for him.
At the preliminary examination, the district attorney offered in evidence the written statements of the three defendants. Pece was asked if he objected to his statement being admitted. He said he preferred not to answer until he could consult with an attorney, and he was not required to answer the question. All three statements were admitted at the preliminary examination and the defendants were bound over to the District Court for Chaves County. A two-count information was filed against Pece and his codefendants, the first count charging them with rape and the second with assault with a deadly weapon. Thereafter, Pece was taken before the district court, requested counsel, counsel was appointed to represent him, and pleas of not guilty were entered. He and Lewis were tried together. Oldaker had pleaded guilty. Verdicts of guilty were returned against Pece on both counts. He was sentenced to a term of not less than one nor more than 99 years on the first count and to a lesser concurrent sentence on the second count.
At the trial in the state court, the statements made by Pece and Lewis were offered in evidence. On objection to their admission, the trial court made a preliminary inquiry out of the presence of the jury, with respect to the voluntary or involuntary character of the confessions. Evidence was adduced to the effect that each of the defendants was advised he was entitled to counsel; that he was not required to make any statement; that any statement made could be used against him on a trial for the offense; and that no promises or threats were made to induce the confessions. Lewis testified that his statement...
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Mapys v. United States, 10143.
...lack of coercion as determined by all the attendant facts and circumstances.3 Anderson v. United States, 10 Cir., 399 F.2d 753; Pece v. Cox, 10 Cir., 354 F.2d 913, cert. denied, 384 U.S. 1020, 86 S.Ct. 1984, 16 L.Ed. 2d 1044; Latham v. Crouse, 10 Cir., 338 F.2d 658, cert. denied, 380 U.S. 9......
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Butterwood v. United States, 8757.
...To determine voluntariness, an examination must be made of all the "* * * attendant, pertinent facts and circumstances." Pece v. Cox, 10 Cir., 354 F.2d 913, 916. Such an examination of the record transcribed at the hearing on the motion to suppress appellant's signed statements reveals he c......
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Linebarger v. State of Oklahoma
...at which time counsel of his own choice was present. In these circumstances, his constitutional rights were not violated. Pece v. Cox, 354 F.2d 913 (10 Cir. 1965), cert. denied 384 U.S. 1020, 86 S.Ct. 1984, 16 L.Ed.2d 1044; Pearce v. Cox, 354 F. 2d 884 (10 Cir. 1965), cert. denied 384 U.S. ......
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Guerra v. Rodriguez, 9073.
...preliminary hearing were waived by Guerra's plea of not guilty and trial when he was adequately represented by counsel. See Pece v. Cox, 354 F.2d 913 (10th Cir. 1965). Guerra's assertion in his petition of the lack of a record of the judgment and sentence in the sentencing court is without ......