State v. Silvacarvalho

Oct 12, 1966

36245

Versions:145 N.W.2d 447

180 Neb. 755

1966 Neb. LEXIS 598

McCown, J.

This is а proceeding under the Post Conviction Act, sections 29-3001 to 29-3004, R. S. Supp., 1965.

June 2, 1964, an information and complaint wаs filed in Lancaster County charging Riccardo' Silvacarvalho with a robbery on May 30, 1964, and with being a habitual criminаl. He was bound over to the district court after waiving his right to a preliminary hearing. Counsel was appointed, аnd the defendant pleaded not guilty. Jury trial was had, and the defendant was found guilty by the jury and convicted of robbery. He was subsequently adjudged to be a habitual criminal and sentencéd.to 10 years imprisonment.

Substantially all of the issues presented in this post *757 conviction proceeding were raised by the defendant by pretrial ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍motions and motions for a new trial following conviction.

Thе district court in the current post conviction proceedings found from the defendant’s. motion and the reсords and files that there was no denial or infringement of the rights of the defendant as to render the judgment void or vоidable, under the Constitution of the State of Nebraska or the Constitution of the United States, and that the defendаnt was entitled to no relief. This appeal followed.

The defendant alleges that he was questioned by the Omaha police in connection with robberies in the City of Omaha. He alleges that he requested the оpportunity to consult with counsel and was refused; that he was never at any time advised of his right to remain silent, аnd that he answered all questions asked of him. His motion then states that members of the Lincoln city police department came to Omaha and returned him to Lincoln, and that the Lincoln police then carried оn an intensive interrogation of the defendant without advising him of his constitutional right to remain silent, and without allowing him to сontact or consult an attorney despite his requests that he be allowed to do so. This interrogation сoncerned the crime with which the defendant was charged. He does not assert that he answered any оf the questions of the Lincoln police. There is no allegation or contention in the motion nor in the defendant’s brief that he made any admissions, confessions, or statements which were used against him.

The contentiоn of the defendant is that he was denied the assistance of counsel during police interrogation cоnducted without warning of his right ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to remain silent, and that the denial of counsel was prejudicial error sufficient to vоid the conviction. He relies on Escobedo v. Illinois, 378 U. S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977. It is the defendant’s position that police interrogation within the area circumscribed by the Escobedo deci *758 sion gives rise to a constitutional right to counsel at the time of interrogation, even though no confessions, admissions, or statements were made or, if made, were not used in evidence at the trial.

The defendant’s theory is that any police interrogation aftеr 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, constitutes a violation of his constitutional right to counsel sufficient to void an otherwise valid conviction. We cannot agree.

Whilе the nature and extent of involvement of the constitutional right to counsel are not presently cleаr, the thrust of Escobedo and later cases, including Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, is directed at confessions, admissions, or stаtements obtained as a result of police interrogation aimed at securing a confession. Whether these redefined constitutional rights be grounded on the Fifth, Sixth, or Fourteenth Amendments to the Constitution of the United States, they relate to interrogation while in custody, and are enforced by rendering evidence obtained from the’ defendant in violation of the standards prescribed, inadmissible at the trial. They do not require the apрointment of counsel as a prerequisite to police interrogation, nor make the denial of сounsel at the time óf interrogation’ prejudicial error sufficient to void any subsequent conviction.

The othеrwise valid conviction of a defendant properly represented by counsel at a criminal trial is not rendered void or voidable solely ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍because at a pretrial police interrogation, the defendant was denied counsel, and was not warned of his absolute right to remain silent.'

Pretrial interrogation of а criminal suspect by police, without warning him of his constitutional right to- remain silent, and without granting his request for counsel, does not constitute prejudicial error, in the absence of *759 proof that a - confession, admission, or ■ statement ■ obtained from, the defendant as a result of such interrogation was uséd in evidence at the trial.

The records and files in this case establish that the defendant is entitled to no relief. The sentencing court hаs discretion to adopt reasonable procedures for determining ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍what the motion and the files and rеcords show, and whether any substantial issues are raised before granting a full evidentiary hearing. State v. Woods, ante p. 282, 142 N. W. 2d 339.

Post conviction remedies are intended to provide relief in those cases where a miscarriage of justice may have occurred, and are not to be a procedure to secure a routinе review for any defendant dissatisfied with his sentence. State v. Clingerman, ante p. 344, 142 N. W. 2d 765.

The judgment of the district court was correct and is affirmed.

Affirmed.