Ruark v. People

• Decision Date: 13 September 1965
• Docket Number: No. 21633,21633
• Citation: 158 Colo. 110,405 P.2d 751
• Parties: Theodore C. RUARK, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 751

405 P.2d 751

158 Colo. 110

Theodore C. RUARK, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 21633.

Supreme Court of Colorado, En Banc.

Sept. 13, 1965.

Rehearing Denied Oct. 4, 1965.

Theodore C. Ruark, pro se.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Robert C. Miller, Asst. Atty. Gen., Denver, for defendant in error.

PRINGLE, Chief Justice.

This is another chapter in the saga of Theodore C. Ruark v. The People of the State of Colorado wherein we have detailed in our Reports the histories of the various violent crimes and subsequent trials of this defendant, and from past experience we have no doubt this will not be the last chapter. The present controversy arises out of a conviction of Ruark, in September of 1962, of armed robbery, for which he was sentenced to the penitentiary for a term of not less than ten years, nor more than twenty years.

Ruark was represented by counsel at the trial and contended that his confession was involuntary and should therefore not be admitted into evidence. The court, out of the presence of the jury, conducted a full and fair hearing and determined that the confession was voluntary. Ruark then sought and obtained a free transcript of the proceedings at the trial. He never sought writ of error to the judgment of the court at that trial.

Some two years later, after the announcement by the United States Supreme Court of its opinion in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, Ruark filed the present petition for post-conviction relief, under Rule 35(b), Colo. R. Crim. P., alleging that his confession was admitted in evidence in violation of his constitutional right to due process of law because (1) it was involuntary, and (2) at the time he made the confession he did not have the aid of counsel nor the advice of 'any learned person' as to his right not to make a statement.

The trial court held that (1) the remedy of Rule 35(b) was not available to Ruark with respect to the voluntariness of the confession, since that rule is not intended to substitute for a writ of error in matters which could have been effectively raised by writ of error, and (2) that the rule in Escobedo does not operate retrospectively. We hold that the trial court was correct on both points.

The record of Ruark's trial clearly shows that Ruark's contention that the confession was not voluntary was fully and fairly litigated in that trial. He was thereafter furnished with a transcript of those proceedings and was given every opportunity to seek writ of error. He did not do so. He states that his failure to seek writ of error came about because he was being tried for two other offenses in two other jurisdictions, during the period when the writ of error was required to be sought, and he therefore did not have time to request writ of error. Our records show that Ruark never requested an extension of time within which to sue out his writ of error, although such a request is freely granted by this Court. That he was busy with other matters does not expand the scope of relief granted under 35(b) into that available on direct appeal. Under the circumstances, Ruark is not entitled to another hearing on the question of the voluntariness of his confession. See Hudspeth v. People, 151 Colo. 5, 375 P.2d 518.

Ruark also contends that since he did not have counsel at the time he made his confession that judgment of the trial court in the original trial must therefore be set aside. He argues that this Court must apply Escobedo v. State of Illinois, supra, retrospectively. We do not agree.

We hold that the decision in Escobedo, which was handed down on June 22, 1964, more than eighteen months after Ruark's conviction became final, does not apply retrospectively to cases which have been determined before that date. See Taylor v. People, 155 Colo. ----, 392 P.2d 294; Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601; United States ex rel. Conroy v. Pate, D.C., 240 F.Supp. 237; Hayes v. United States, D.C., 236 F.Supp. 225; State v. Johnson, 43 N.J. 572, 206 A.2d 737; People v. Hovnanian, 22 A.D.2d 686, 253 N.Y.S.2d 241; Bell v. State of Florida, Fla.App., 175 So.2d 80; Levy, Realist Jurisprudence and Prospective Overruling, 109 U.Pa.L.Rev. 1.

We would apply to the situation before us the Austinian approach, as has the United States Supreme Court many times, that a decision is an existing jurisdical fact until overruled and intermediate cases finally decided under it are not to be disturbed. See Linkletter v. Walker, supra, for Mr. Justice Clark's penetrating discussion in relation to this point. Prior to Escobedo, the United States...