State v. Sullivan, 5128.

• Decision Date: 27 February 1956
• Docket Number: No. 5128.,5128.
• Citation: 227 F.2d 511
• Parties: STATE of UTAH, Appellant, v. Melvin LeRoy SULLIVAN and Verne Alfred Braasch, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

227 F.2d 511 (1955)

STATE of UTAH, Appellant, v. Melvin LeRoy SULLIVAN and Verne Alfred Braasch, Appellees.

No. 5128.

United States Court of Appeals Tenth Circuit.

October 27, 1955.

Writ of Certiorari Denied February 27, 1956.

E. R. Callister, Atty. Gen., and Walter L. Budge, Asst. Atty. Gen. (Ken Chamberlain, Sp. Asst. Atty. Gen., was with them on the brief), for appellants.

A. W. Sandack, Salt Lake City, Utah (Reid W. Nelson, Salt Lake City, Utah, was with him on the brief), for appellees.

Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.

Writ of Certiorari Denied February 27, 1956. See 76 S.Ct. 449.

BRATTON, Circuit Judge.

Verne Alfred Braasch and Melvin LeRoy Sullivan were tried in the state court of Utah upon a charge of murder. They were found guilty and sentenced to death. The judgment was affirmed, State of Utah v. Braasch, 119 Utah 450, 229 P.2d 289; and certiorari was denied 342 U.S. 910, 72 S.Ct. 304, 96 L.Ed. 681. Thereafter, they filed in the Supreme Court of Utah a pleading in which they sought a writ of habeas corpus. Without opinion, an order was entered disallowing the writ. On the next ensuing day, Sullivan and Braasch instituted in the United States Court for Utah this proceeding in habeas corpus. It was charged in the complaint for the writ that the detention of petitioners for execution was illegal and void because their rights under the Constitution of the United States had been violated. An amended complaint was subsequently filed. A motion was lodged to dismiss the proceeding for the reason that the amended complaint contained grounds of attack upon the judgment of the state court which had not been submitted to the state courts of Utah. The motion was taken under advisement and evidence was submitted. The court determined that certain grounds of attack then being leveled at the judgment of the state court had not been submitted to the state courts and that the submission of such issues to the state courts was an essential preliminary to the right of resort to habeas corpus in the United States Court. Instead of dismissing the proceeding, the court retained jurisdiction thereof and gave petitioners time within which to institute in the state court an appropriate proceeding for the determination of such issues, Ex parte Sullivan, D.C., 107 F. Supp. 514. A proceeding in habeas corpus was then filed in the Supreme Court of Utah. The application for the writ was denied, 253 P.2d 378; and certiorari was denied Braasch v. State of Utah, 346 U.S. 861, 74 S.Ct. 75, 98 L.Ed. 373. Thereafter the trial court granted the writ in this proceeding, Application of Sullivan, D.C., 126 F.Supp. 564; and the state appealed.

The trial court predicated its action in granting the writ upon multiple grounds, considered in their aggregate. One ground was the failure to furnish petitioners the assistance of counsel at the preliminary hearing in the state court. Petitioners were seasonably taken before a committing magistrate for a preliminary hearing. In the early part of the hearing and again near its conclusion, one of the petitioners — speaking for both of them — stated that they desired counsel. In response, petitioners were told in substance that there was no provision for the furnishing of counsel at the preliminary hearing but that counsel would be furnished them in the district court. The failure to furnish counsel for one charged in the state court with a capital offense constitutes the denial of due process guaranteed by the Fourteenth Amendment to the Constitution of the United States. Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61. But the right guaranteed by the constitutional amendment does not accrue until an indictment is returned or an information or other like charge is lodged against the accused. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110; Hawk v. Olson, supra; Gilmore v. United States, 10 Cir., 129 F.2d 199, certiorari denied 317 U.S. 631, 63 S.Ct. 55, 87 L.Ed. 509. The constitutional provision contains no express or implied command that an accused shall be furnished counsel at the preliminary hearing. Moreover, petitioners did not enter pleas of guilty at the preliminary hearing, did not make confessions, did not testify, and did not say anything of an incriminating nature. And in such circumstances, the failure to furnish them counsel at such hearing did not abridge their fundamental rights which rendered fatally infirm their conviction and sentence. Council v. Clemmer, 85 U.S.App.D.C. 74, 177 F.2d 22, certiorari denied 338 U.S. 880, 70 S.Ct. 150, 94 L.Ed. 540.

Another ground upon which the trial court predicated in part its granting of the writ was that the law of Utah required the furnishing of counsel at the preliminary hearing. On appeal of the criminal case, the Supreme Court of Utah determined in effect that under certain constitutional and statutory provisions of the state, counsel should have been furnished petitioners at the preliminary hearing but that under the circumstances the failure to furnish counsel did not constitute prejudicial error. That adjudication is conclusive in this proceeding in respect to the constitutional and statutory exactions of the state. Moreover, the jurisdiction of the trial court in this proceeding in habeas corpus was limited to the determination of questions relating to the denial of rights under the Constitution of the United States. It did not extend to the adjudication of non-federal questions of state law. In any event, even though the trial court had been clothed with jurisdiction to determine that the failure to furnish petitioners counsel at the preliminary hearing violated the requirements of the constitution and statutes of Utah, since petitioners did not enter plea of guilty at such hearing, did not make confessions, did not testify, and did not make any incriminating statements, the failure to furnish them counsel did not constitute any prejudicial abridgement of their rights under state law which rendered void their conviction and sentence in the district court.

The trial court rested in part the granting of its writ upon the failure to furnish petitioners counsel at the time of their arraignment upon the criminal charge. Petitioners did not have counsel at the time they were arraigned and entered their pleas of not guilty in the district court. But immediately thereafter, separate counsel were appointed for them, respectively. At no time after the appointment of counsel was any effort made to withdraw such pleas in order to attack the charge, or for any other purpose. And there is a complete failure of any showing that at any juncture of the criminal case were the petitioners denied any substantive or procedural right which might have been available to them except for such pleas. Petitioners did not suffer any proscription or disadvantage at any point in the criminal case arising out of their pleas of not guilty, entered without the aid of counsel. And, while it is the general rule frequently reiterated that an accused is entitled to the benefit of counsel at every step of the proceeding, where one enters a plea of not guilty and is immediately thereafter furnished counsel for the preparation for trial, for the trial itself, and for the post-trial proceedings, the sentence imposed is not void for violating due process under the Fourteenth Amendment or for impingement of fundamental rights. Council v. Clemmer, supra.

Another ground of attack which the trial court took into consideration in granting the writ was that the petitioners did not have the assistance of counsel at the time they made confessions which were introduced in evidence on the trial of the criminal case. When the confessions were offered in evidence on the trial of the criminal case, the court excluded the jury and took evidence and concluded therefrom that the confessions were voluntarily made. The...