United States ex rel. Magoon v. Reincke

• Decision Date: 19 September 1968
• Docket Number: Civ. No. 12566.
• Citation: 304 F. Supp. 1014
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES ex rel. Roy Alden MAGOON v. Frederick REINCKE, Warden, Connecticut State Prison.

304 F. Supp. 1014

UNITED STATES ex rel. Roy Alden MAGOON v. Frederick REINCKE, Warden, Connecticut State Prison.

Civ. No. 12566.

United States District Court D. Connecticut.

September 19, 1968.

Irving H. Perlmutter, New Haven, Conn., for petitioner.

Vincent J. Scamporino, State's Atty., Middletown, Conn., for respondent.

MEMORANDUM OF DECISION ON PETITION FOR A WRIT OF HABEAS CORPUS

BLUMENFELD, District Judge.

Roy Alden Magoon petitions for a writ of habeas corpus and for permission to proceed in forma pauperis. His basic allegation is that statements he had made while in police custody were admitted into evidence although when he made them he had not been adequately warned or permitted to consult with counsel under the rule enunciated in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). Upon the verified petition and the affidavit of indigency, leave to proceed in forma pauperis was granted and this court ordered a writ of habeas corpus to issue directing the respondent to produce the petitioner for a hearing. At the hearing, the record of the state proceeding was admitted and Magoon was permitted to testify. The following facts are all from the record on appeal in State v. Magoon, 156 Conn. 328, 240 A.2d 853 (1968).

Facts

In the winter of 1963-64, several summer cottages in the Lake Beseck area of Middlefield were destroyed by fires apparently started by an arsonist. Magoon, who lived in that neighborhood, was questioned at least eight times by police with respect to those fires. He lodged a complaint with Major Samuel Rome concerning the conduct of certain police officers, and an inquiry was undertaken. Thereafter, the petitioner indicated to Major Rome that he would talk with him at any time.

A few weeks later, on Friday, January 24, 1964, Major Rome picked up Magoon at work at 11:00 a. m. and took him to the Hartford police barracks. He, William Hickey, and other police officers questioned the suspect about the Lake Beseck fires until 9:00 p. m., at which time they formally placed him under arrest as the arsonist. He was then informed of his right to consult with counsel and of his right to remain silent.¹

Mrs. Magoon was brought to the police barracks and she and the petitioner discussed the need for a lawyer. They decided that one was not immediately necessary. Magoon requested his wife to contact Attorney Jacobs if she returned home before midnight, but she got home after that time and subsequently neglected to make the call. At no time on that Friday did Magoon ask to see an attorney.

On Saturday morning, the petitioner approached Major Rome in the officers' dining room, and, although there was no interrogation taking place at the time, Magoon volunteered information as to the possible motives for setting the fires. Major Rome then brought Magoon to his office in order to discuss this information further and to obtain a complete confession. Shortly thereafter, petitioner asked Major Rome to call Attorney Jacobs for him, which Rome promptly did. Jacobs talked to Magoon and to Rome, asking the latter to refrain from further interrogation of the suspect until he was present.

Rome disregarded this request and continued the interrogation. Rome testified at the hearing on the motion to suppress that he disregarded the request because "I don't take warnings from you, Mr. Jacobs." (Brief for Appellant, State v. Magoon, Appendix at 80a).

The interrogation continued through the morning and into the afternoon, with Magoon's wife present. Statements made by both Magoon and his wife at this time were later testified to at the trial. Around 2:30 p. m. Jacobs arrived and was permitted to talk with his client after a short delay.

The Trial

Magoon was tried on 13 counts of arson in violation of Conn.Gen.Stats. § 53-83. The jury found him guilty on 10 counts; the trial court accepted the verdicts on 6 counts but set aside the verdicts on the other 4 for insufficient evidence. The Connecticut Supreme Court affirmed the judgment on 3 counts and set aside the verdicts on the remaining 3, also because of insufficient evidence. State v. Magoon, supra.

During the trial, the defense moved to suppress the testimony of Major Rome and Sergeant Hickey. Rome, Hickey, and Mrs. Magoon testified in the absence of the jury on the issues of whether, under Escobedo, Magoon was denied the assistance of counsel and given a warning against self-incrimination. The hearing on the motion to suppress was held on September 29, 1964, and special findings of fact with respect to the ruling were subsequently filed. The trial judge found the factual circumstances as stated earlier in this opinion and concluded that the constitutional rights of the defendant were not violated in the police interrogation on January 24th and 25th, and that Magoon was informed of his right to counsel, his right against self-incrimination, and the availability of bail. He further found that the police promptly permitted Magoon to confer with his attorney when he so requested and that any statements made were given voluntarily.² The motion to suppress was denied, an exception was taken, and the trial continued.

Rome and Hickey thereafter testified that on Saturday, January 25, 1964, Magoon had stated the following: that the fires were not set by a pervert as Rome had surmised, but by someone with a profit motive; that he could not confess to all 13 fires but "more likely two"; that he had started two fires with cigarettes; and that he stated, "Keep quiet, you will send us both to jail" when his wife told the police that there was a change in Magoon's sexual activity at the time of the fires.

The Applicability of Escobedo

Petitioner bases his claim of the inadmissibility of his statements on Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), rather than on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). His trial was held in September 1964, subsequent to the Supreme Court's rendering of the former decision but prior to the latter; Miranda is not retroactive. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).

The holding of Escobedo is

"that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied `the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as `made obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainwright, 372 U.S., at 342, 83 S.Ct. at 795, 9 L.Ed.2d 799, and that no statement elicited by the police during the interrogation may be used against him at a criminal trial." (378 U.S. at 490-491, 84 S.Ct. at 1765)

The Warning to an Accused

Escobedo requires that the accused be "effectively warned" of his right to remain silent, but does not define "effective warning." Miranda holds that "the warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court." 384 U.S. at 469, 86 S.Ct. at 1625. Miranda, of course, does not apply to the present case; and the fact that Miranda included the explanation of the consequences of the failure to remain silent as an element in the required four-part warning, see 384 U.S. at 479, 86 S.Ct. 1602, separate from the warning of the right to remain silent, indicates that the explanation of the consequences of the failure to remain silent is not simply a gloss on the warning of the right to remain silent required by Escobedo, but rather is a separate and distinct requirement.³

With this in mind, the warning given Magoon was "effective." The trial judge found that Major Rome informed Magoon that he "had a right not to make any further statements or give any further information or evidence against himself * * *." (Finding 139). This warning was sufficient, under pre-Miranda standards, to make clear to Magoon that he had the absolute right to remain silent.

The Right to Counsel

Irrespective of the warning issue, Escobedo, forbids the police from denying the suspect the opportunity to consult with his lawyer. The police cannot justify the denial of this opportunity by showing that they gave an effective warning of the right to remain silent. The right to silence is guaranteed by the fifth amendment, distinct from the sixth amendment right to counsel. Although there is a "need for counsel to protect the Fifth Amendment privilege," Miranda v. Arizona, 384 U.S. at 470, 86 S.Ct. at 1625, the Supreme Court stated in United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (1967), that "nothing decided or said in the opinions in the cited cases including Escobedo links the right to counsel only to protection of Fifth Amendment rights. Rather those decisions `no more than reflect a constitutional principle established as long ago as Powell v. Alabama 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 * * *.'" (Emphasis added). The crucial question is, then, whether the police denied Magoon his right to the assistance of counsel.

Both the trial judge, in his ruling on the motion to suppress, and the Connecticut Supreme Court chose to define Escobedo too narrowly. They held that Magoon was not denied his right to the assistance of his lawyer because Major Rome allowed Magoon to speak on the telephone with Attorney Jacobs as soon as Magoon requested to do so.

To the extent that this ruling was based on the recognition that Magoon had become the accused and that his arrest and detention marked a stage in the criminal process where the sixth...