Pece v. Cox

• Decision Date: 02 November 1964
• Docket Number: No. 7750,7750
• Citation: 1964 NMSC 237,396 P.2d 422,74 N.M. 591
• Parties: Cecil Alvin PECE, Petitioner, v. Harold A. COX, Warden, New Mexico State Penitentiary, Respondent.
• Court: New Mexico Supreme Court

Page 422

396 P.2d 422

74 N.M. 591

Cecil Alvin PECE, Petitioner, v. Harold A. COX, Warden, New Mexico State Penitentiary Respondent.

No. 7750.

Supreme Court of New Mexico.

Nov. 2, 1964.

Myles E. Flint, Santa Fe, for petitioner.

Earl E. Hartley, Atty. Gen., Jay F. Rosenthal, Asst. Atty. Gen., Santa Fe, for respondent.

PER CURIAM.

The only new issue presented in this case and not passed upon in previous habeas corpus proceedings is related to whether petitioner's statement or confession introduced at his trial, had been ruled to have been voluntarily given by the trial judge before it was admitted in evidence, or did the trial judge leave this issue to the jury.

Petitioner relies on Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. However, we are impressed that the proper rule to be applied is that announced in Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448, distinguished in Escobedo, supra, on its facts. Here, petitioner had no attorney when the statement was given and claims that he had not been advised (contrary to what is clearly set forth in the form on which the confession was typed) that he did not have to make any statement at all, and that if he did make a statement it could be used against him on a trial. Also, when all the circumstances are weighed, not the least of which was the fact that a codefendant who was at the time represented by counsel also gave a statement which was admitted in evidence by the trial court after a foundation as to its voluntary character had been ruled on by the judge, just as was done in the case of petitioner, we are impressed that prejudice is not demonstrated. Crooker v. California, supra, is controlling.

Petitioner also argues that his constitutional rights were denied because the procedure followed for determining whether the confession was voluntary or involuntary was identical with that followed by the State of New York and held to deprive an accused of his constitutional rights in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.

Here, too, we must disagree with petitioner. It seems clear, as stated in Appendix A.I. to Justice Black's dissent in Jackson, supra, that this state does not follow the New York practice. We have examined our cases and so conclude. The procedure approved by this court is described in the mentioned appendix as the Wigmore or 'Orthodox' rule. It more nearly conforms to the Massachusetts procedure approved in Jackson, supra, and requires a determination of voluntariness of a confession by the court before being submitted to the jury under proper instructions requiring it to consider any questions concerning whether or not it was voluntary, as well as the truth or weight to accord it. The clearest statement by this court we think is that made in State v. Martinez, 30 N.W. 178, 230 P. 379. See also, State v. Ascarate, 21 N.M. 191, 153 P. 1036. The later...