Powers v. State
| Decision Date | 15 May 1965 |
| Docket Number | No. 44171,44171 |
| Parties | Wayne POWERS, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In a proceeding under K.S.A. 60-1507 a prisoner in custody under sentence of a court of general jurisdiction moved the court for an order vacating and setting aside the judgment and sentence upon the ground that the sentence was imposed in violation of the Constitution and laws of the United States, and the Constitution and laws of the state of Kansas, in that he was not represented by counsel at all stages of the criminal proceedings against him. The trial court, after hearing, overruled the motion and on appeal it is held: The trial court did not err in holding (a) that the petitioner, an indigent, was not entitled to the appointment of counsel at his preliminary hearing; (b) that the petitioner was adequately and fully advised of all his rights at the time of arraignment and was not prejudiced by his waiver of his right to a preliminary hearing; and (c) that the petitioner's rights were not violated at the trial of the criminal case by the admission into evidence of the petitioner's signed voluntary confession taken before arraignment and before petitioner was represented by counsel, all as more particularly set forth in the opinion.
2. Confessions, voluntarily made, are not inadmissible because made at a time when the accused in a criminal action did not have counsel.
Tudor M. Nellor, Kansas City, argued the cause, and was on the brief for appellant.
Robert D. Loughbom, Asst. County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and Leo J. Moroney, County Atty., were with him on the brief for appellee.
This is an appeal by the petitioner in a proceeding initiated pursuant to K.S.A. 60-1507, wherein he moved the court for an order vacating and setting aside the judgment and sentence of the court imposed upon him in a criminal action on June 25, 1962, on the ground that the sentence was imposed in violation of the Constitution and laws of the United States, and the Constitution and laws of the state of Kansas, in that he was not represented by counsel at all stages of the criminal proceedings against him. After hearing the trial court overruled the motion.
The underlying question in the case is whether the petitioner's constitutional rights have been violated.
The petitioner herein, an indigent, was permitted both in the trial court, and on appeal to this court, to proceed in forma pauperis, and pursuant to rule No. 121 of the Supreme Court counsel has been appointed to represent the petitioner throughout the proceeding. The necessary transcripts of proceedings both in the criminal case and in the instant proceeding have been supplied the petitioner.
The petitioner, appellant herein, was the defendant in criminal case No. 17,893--Cr., in the district court of Wyandotte County, Kansas. The record discloses he was taken into custody on March 15, 1962, investigated and accused by the police of the city of Kansas City, Kansas, of the crimes of burglary and larceny. A written confession was obtained by the police on March 15, 1962, and used in his jury trial. The complaint charging such felonies was filed on March 21, 1962, and a warrant issued thereon for his arrest on March 27, 1962. On the 10th day of April, 1962, the appellant, no counsel having been appointed for him, and without legal advice, waived preliminary hearing. On the 1st day of June, 1962, Edward W. Brunk was appointed to represent him as counsel.
The testimony given by a police officer at the hearing on the instant motion was to the effect that the appellant and Charles Wells had been in custody by the police for a period of twelve hours on the morning of March 15, 1962, when the witness questioned both of the defendants together sometime between 1:00 and 3:00 o'clock p. m. on that same day. He warned the appellant that the statement he asked him to give could and would be used against him in court, and that he had a right to consult an attorney before signing the statement. The appellant answered, 'Get along with it.' A written statement was then taken from both the appellant and another defendant. He testified no threats were made to the appellant, no physical violence was used on him, and that no promises were made to him of any favor to induce such statement. He said he presumed the statement was voluntary, and he presumed it was made because of a knowledge of guilt. The appellant informed the witness that he did not want to consult a lawyer because he figured it would not be of any use. He was then being accused of specific burglaries and larcenies which were later the subject of the criminal action which resulted in his arrest and conviction.
At the trial of the criminal action counsel representing the appellant objected to the use and admissibility of the confession. This objection was overruled and the confession was allowed to be used in evidence.
There is no evidence that an attorney advised or represented the appellant prior to the giving of the written statement or the furnishing of oral information to the police officer.
At the hearing on the instant motion in the trial court, counsel appointed for the appellant presented his motion. The appellant did not testify and he did not produce the testimony of any witness in support of his motion. Counsel made a statement presenting the grounds relied upon by the petitioner.
The grounds relied upon in the motion and the points designated on appeal to this court by the appellant are:
'1. Petitioner, an indigent person with very little formal education and now confined in the State Penitentiary, was denied the benefit of the advice and legal services of effective counsel as guaranteed to him by the United States Constitution, amendments 5, 6 and 14 and by Section 10 of the Bill of Rights of the Constitution of the State of Kansas at all times and places critical to the petitioner and needed by him.
'2. Petitioner had no counsel at his preliminary hearing or during the time he was being confined, investigated and accused by the police of burglary and larceny.
'3. Petitioner was compelled and coerced to be a witness against himself as he was required to make a written confession to the police which was used by the County Attorney in the jury trial of the petitioner over the petitioner's objections.
'4. The petitioner, without aid or advice of counsel, waived preliminary hearing without full knowledge of benefits being waived or lost by him.
'5. Petitioner charges that Mr. Edward W. Brunk, attorney, of the Wyandotte County Bar, appointed counsel for the petitioner in the District Court, did not fully perform his duties and services in that he did not advise petitioner of the charges and penalties.
'6. Written notice of intent to invoke the habitual criminal statute, 21-107(a), was not served on the petitioner or his attorney.
'7. Petitioner is being illegally confined and restrained in the State Penitentiary at Lansing, Kansas, under void sentence of the District Court of Wyandotte County, Kansas, in case No. 17,893-Cr., entitled State of Kansas v. Wayne Powers, all in violation of petitioner's constitutional rights and guarantees.'
The trial court, after hearing the motion, overruled it and found:
1. That petitioner was given notice in writing prior to the trial of the state's intention to invoke the habitual criminal act.
2. That the court-appointed counsel was competent and experienced to represent the petitioner in his defense of the criminal case and was not remiss in the discharge of his duties, and the petitioner was adequately represented.
3. That petitioner was adequately and fully advised of all his rights at the time of arraignment, and was not prejudiced by his waiver of his right to a preliminary hearing in view of his plea of not guilty; that the acceptance of the court of his waiver of his right to a preliminary hearing was in no way violative of petitioner's rights.
4. That none of petitioner's rights were violated at the trial of said cause in case no. 17,893--Cr. by the admission into evidence of petitioner's signed statement taken before arraignment and before petitioner was represented by counsel. Petitioner was adequately and competently represented at the trial of said cause by experienced counsel; the court heard the evidence relevant to the admissibility of said statement, the proper foundation laid for said admission, and the court subsequently admitted said statement into evidence. The court found petitioner's rights were fully protected in all respects thereto.
Thereafter the trial court permitted counsel who represented the appellant at the hearing on the motion to withdraw and appointed in his place Tudor M. Nellor, an attorney of the Wyandotte County Bar, to assist the appellant in perfecting and presenting his appeal to the Supreme Court.
In all candor counsel representing the appellant in this court concedes that findings No. 1 and No. 2 made by the trial court are supported by the record, and therefore abandons the points designated as No. 5 and No. 6, heretofore quoted. The appellant's counsel on appeal further concedes in all candor, if this court should adhere to...
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State v. Stubbs
...cert. den. 375 U.S. 959, 84 S.Ct. 449, 11 L.Ed.2d 317; Otney v. United States, 340 F.2d 696 (10th Cir. 1965.) In Powers v. State, 194 Kan. 820, 402 P.2d 328, a written confession was made by the accused prior to arraignment and before he was represented by counsel. The accused was advised o......
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...any circumstances. See, e. g., Morris v. State, 203 Kan. 249, 452 P.2d 840; Cox v. State, 199 Kan. 797, 433 P.2d 470; Powers v. State, 194 Kan. 820, 402 P.2d 328. We hold that a waiver of counsel may be effectively made after, as well as before, charges are filed. Cf. Holt v. State, 202 Kan......
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