Rivett v. State

• Decision Date: 17 September 1964
• Docket Number: No. 374,374
• Parties: John C. RIVETT, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 264

395 P.2d 264

John C. RIVETT, Appellant, v. STATE of Alaska, Appellee.

No. 374.

Supreme Court of Alaska.

Sept. 17, 1964.

E. E. Bailey, Ketchikan, for appellant.

Thomas E. Fenton, Dist. Atty., Ketchikan, for appellee.

Before NESBETT, C. J., and DIMOND and AREND, JJ.

AREND, Justice.

On August 9, 1962, John C. Rivett, as defendant in the superior court, pleaded guilty to charges of (1) being in possession of a concealable firearm as a convicted felon, (2) theft of two checks, and (3) two counts of forgery of these checks. Five days later he was given certain concurrent sentences requiring him to spend a total of five years in prison. He now attacks the sentences on a multitude of grounds, including charges of illegal search and seizure, involuntary confession, and confession rendered while under the effects of drugs. Additional details pertinent to the appeal are as follows:

Acting upon information that a person named John Rivett had stolen some checks and was about to leave Alaska by airplane from Ketchikan, two state police officers on August 1, 1962, proceeded to the Ketchikan Airport--actually a dock for float planes--where the defendant was pointed out to them. They identified themselves to the defendant as police officers and asked him his name. At first he claimed to be M. E. Brown and produced his airplane ticket issued to that name; but, upon being asked for further identification, he admitted that his name was Rivett.

Without placing the defendant under arrest, the officers told him that they would like to talk to him further and asked him to go to the state police office with them. He agreed to go and after a two-hour interview at the office he was placed under arrest for larceny and 'booked' at the jail on that charge. One of the police officers then proceeded to the magistrate's office and signed a complaint against the defendant for larceny.

After the police officers had taken the defendant to their office they called the airlines and requested that the defendant's bagage be taken off the flight. Later in the day, and subsequent to the defendant's arrest, the officers picked up the baggage--a suitcase--and took it to their office, where they searched it and found a .38 revolver and a hypodermic needle. The defendant admitted that both articles belonged to him.

There was evidently a second complaint filed against the defendant, for on August 2, 1962, he was arraigned before the magistrate at Ketchikan on two separate complaints, one charging him with grand theft of two checks and the other of being a convicted felon in possession of a concealable .38 revolver. The defendant was advised of his rights by the magistrate and stated that he wanted advice of counsel, whereupon the magistrate adjourned court. The proceedings in the magistrate court were later dismissed in favor of action in the superior court.

It appears that defendant obtained one Floyd Davidson to act as his attorney, as that person visited the defendant at the jail on August 6 and on August 9 informed the superior court that he was representing the defendant. On this latter date the defendant appeared in the superior court with his attorney, waived prosecution by indictment and consented that the proceedings against him be by information. An information charging the crimes mentioned in the first paragraph of this opinion was filed forthwith. The defendant waived the reading of the information and further time to plead and personally entered his plea of guilty to each of the four counts of the information. Four days later he was sentenced to five years of imprisonment on each of the forgery counts and one year on each of the two other counts, an sentences to run concurrently.

On April 2, 1963, the defendant moved in the superior court for permission to proceed in forma pauperis, with court appointed counsel, and for a writ of habeas corpus. The motion for a writ of habeas corpus was denied on April 11 and the defendant appealed to this court from the order denying him the writ. We remanded the case to the superior court with directions to grant the defendant a hearing 'and otherwise proceed in accordance with the provisions of Criminal Rules 35(b) and 32(d).' ¹ We also granted the defendant's motion to proceed in forma pauperis and directed the lower court to appoint counsel to represent him.

In compliance with our directions, the superior court held a hearing for the defendant on August 16, 1963, and denied the motion for habeas corpus. The defendant was not personally present at the hearing but was represented by his court appointed attorney, E. E. Bailey. In its findings of fact that trial court stated that the search in question was conducted after the arrest and incident thereto, that no force or coercion was used to obtain a confession from the defendant or his plea of guilty; that the defendant was not denied the right to counsel; and that he was not under the effect of drugs while in jail. The court also found that there had been no trial on the charges contained in the information filed against the defendant, for the reason that he had waived prosecution by indictment and consented to prosecution by information and then entered a voluntary plea of guilty. On September 3, 1963, the defendant filed a motion with this court to appeal in forma pauperis. We granted the motion and appointed the same Mr. Bailey to represent the defendant on appeal.

The defendant claims that the trial court erred in finding that no force or coercion was used to get a confession from him and alleges that 'only by the exertion of improper influences' were the police officers able to get him 'to admit adequate facts on which they could and did predicate an arrest.' He does not state what those 'improper influences' may have been other than to say that the police officers took him from the airport to their office and questioned him for two hours and then placed him under arrest because of what he had revealed to them.

We have searched the record ourselves and failed to find therein any evidence of threats, force, duress or promises of immunity. The two officers who interrogated the defendant before the arrest were called as witnesses by the defendant at the habeas corpus proceedings in the superior court. They both testified that the defendant accompanied them voluntarily to their office and was questioned there quite informally and without the employment by them of any threats, force or promises.

In his motion to the superior court for a writ of habeas corpus the defendant does allege that he was abusively handled and coerced and asked leading questions by the police officers prior to his arrest and that he was thereafter, while in jail, 'coaxed, coerced, promised favors and leniency, threatened, harrassed, brow beaten and intimidated all to the end, that PETITIONER [defendant] change his pleas from Not Guilty to Guilty.' These are very general charges and easily made; but they are without factual support in the record. They are specifically denied by persons who had contact with the defendant during his incarceration. Significantly, too, the defendant made no complaint of any abuse or mistreatment such as he urges here until more than seven months after his conviction.

Under these circumstances we cannot say that the trial court erred in its finding that no force or coercion had been used to obtain a confession from the defendant. Even if the confession had been illegally obtained, its use in this case would not have constituted such manifest injustice as to require the court to permit the defendant to withdraw his plea of guilty under Criminal Rule 32(d). The day he appeared in the superior court, with his attorney, and waived prosecution by indictment he could have stood trial on a plea of not guilty and moved to suppress the confession as evidence. ² Instead he chose to waive the defense available to him and plead guilty. He cannot now collaterally attack the judgment of conviction. ³

The defendant also specifies as error the trial court's finding that the search of the defendant's suitcase was legal. His contention seems to be that the search was conducted without a search warrant and not incidental to an arrest and that the revolver seized in the search was, therefore, taken illegally and could not be used as the basis for the count in the indictment charging possession of a concealable firearm by a convicted felon.

Here again, assuming without deciding that the search was illegal, a motion for the return of the gun and to suppress the evidence should have been made before trial or hearing, according to the provisions of Criminal Rule 37(c), 'unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing.' ⁴ The defendant does not claim that he had no opportunity to interpose the motion or that he was not aware of the grounds of the motion; so he has no cause now to complain of the use made of the gun by the prosecution. In fact, he waived his right to attack the search and seizure when he chose to plead guilty to the count based upon the allegation of his unlawful possession of the firearm. The defendant has failed to establish that he has any right at this stage of the proceedings to claim error in the trial court's finding that the search of his suitcase was legal. The issue as to the legality of the search and seizure became moot when he elected to plead guilty.

The defendant further contends that his plea of guilty should be considered involuntary as he was under the influence of narcotics when he made it. Such being the case, he claims that the trial court erred in finding that he was not under the influence of drugs during the time of his incarceration at Ketchikan and the court proceedings against him there.

The record does not indicate that the defendant was under the influence of...