Before LUMBARD, Chief Judge, and SWAN and MOORE, Circuit Judges.
This is an appeal from an order of the United States District Court for the District of Connecticut denying, after a hearing, a writ of habeas corpus. 219 F.Supp. 733 (D.Conn.1963). Appellant was convicted in a Connecticut court after a jury trial for the felony of conspiracy to commit larceny. His conviction was affirmed and the Supreme Court denied certiorari. See State v. Devine, 149 Conn. 640, 183 A.2d 612, cert. denied sub nom. Cooper v. Connecticut, 371 U.S. 930, 83 S. Ct. 303, 9 L. Ed. 2d 237 (1962). On this appeal appellant contends that he was denied due process of law because he was not represented by counsel when he pleaded not guilty and waived examination in a hearing in probable cause, that he was incompetently represented by counsel at trial and on appeal, and that the information on which he was convicted did not apprise him of the exact nature of the charge against him.
Appellant was arrested in New York City and voluntarily consented to return to Connecticut where he appeared for what Connecticut calls a hearing in probable cause (or, "bindover hearing")*fn1 before the Trial Justice Court of the town of Essex. Bond was set at $10,000. The hearing was postponed several times to permit appellant to retain private counsel, but because of lack of funds he was unsuccessful. Appellant then requested the services of the Public Defender, but this request was denied because of no provision therefor in preliminary proceedings, except in capital and treason cases. At the hearing, appellant appeared without counsel, waived examination and pleaded not guilty to both counts of the complaint. He made no admission or confession or in any other way acted so as to prejudice his case. The State did not offer any evidence. The Trial Justice Court found that probable cause existed and bound appellant over to the Superior Court for trial. Thereafter, at appellant's request, the Public Defender for Middlesex County assumed the duties of defense counsel. At trial, each of appellant's co-defendants had separate counsel.
Coming as it does in the wake of Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), the right to counsel question here presented is of particular significance. Gideon overruled Betts v. Brady, 316 U.S. 455, 62 S. Ct. 1252, 86 L. Ed. 1595 (1942) and thereby abolished the distinction between the right to counsel in capital and non-capital cases in state prosecutions. It has already been established in this court that Gideon requires that absent a properly established waiver that an indigent defendant be represented by counsel at the time he pleads guilty in a state court to a felony charge and that such a requirement operates retrospectively. United States ex rel. Durocher v. LaVallee, 330 F.2d 303 (2d Cir.1964). The situation at bar is, of course, markedly different from that of the Gideon and Durocher cases. Well in advance of trial, counsel was appointed and he represented only the appellant throughout the trial; indeed, there were three lawyers for as many defendants. Nevertheless, apart from any assertion that he was not given a fair trial or that he was in fact prejudiced, appellant contends that his conviction is defective because he was not represented by counsel when he entered his plea of not guilty upon the hearing in probable cause. In support of this proposition, appellant relies on Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961) and White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050, 10 L. Ed. 2d 193 (1963).
Hamilton v. Alabama, supra, involved a state capital conviction where the petitioner had pleaded not guilty at his arraignment. At the time of entering this plea, petitioner was not represented by counsel, although he did have counsel at trial. The Supreme Court reversed his conviction, stating that "whatever may be the function and importance of arraignment in other jurisdictions * * in Alabama it is a critical stage in a criminal proceeding." 368 U.S. at 54, 82 S. Ct. at 158. The Court enumerated several defensive maneuvers which are waived in Alabama if not asserted at the arraignment: the defense of insanity, pleas in abatement and improper grand jury selection. What happens at arraignment in Alabama, therefore, may well affect the whole trial. "When one pleads to a capital charge without benefit of counsel," the Court continued, "we do not stop to determine whether prejudice resulted," citing three guilty-plea cases. "In this case, as in those, the degree of prejudice can never be known." 368 U.S. at 55, 82 S. Ct. at 159. The Court took care to indicate, however, the "differing consequences" that attached to arraignment in the various jurisdictions.
While White v. Maryland, supra, is factually distinguishable from Hamilton v. Alabama, similar principles governed. Petitioner had entered a guilty plea at a Maryland preliminary hearing when he was not represented by counsel. Later, at his arraignment, when he did have counsel, petitioner entered pleas of not guilty and not guilty by reason of insanity. The guilty plea made at the preliminary hearing was introduced in evidence at trial. Under these circumstances, the Court held that the preliminary hearing was a "critical" stage in the proceedings and there was no need to determine whether prejudice resulted from the absence of counsel. It is clear that what made the preliminary hearing "critical" was that a guilty plea had been entered and that the plea had been used against petitioner at trial. Thus, the Court commented: "[whatever] may be the normal function of the 'preliminary hearing' under Maryland law, it was in this case as 'critical' a stage as arraignment under Alabama law." 373 U.S. at 60, 83 S. Ct. at 1051 (Emphasis added.)
From Hamilton v. Alabama and White v. Maryland, it is plain that there is no arbitrary point in time at which the right to counsel attaches in pre-trial proceedings. Even in White, decided after Gideon, the Court did not refer to counsel "at every stage." Rather, the "critical" point is to be determined both from the nature of the proceedings and from that which actually occurs in each case. Our initial concern in the case at bar, therefore, is whether this Connecticut pretrial procedure was of such consequence that it was critical.
Section 54-76a, Conn.Gen.Stats. (1958 Rev.) the statute under which appellant entered his not guilty plea and waived examination provides:
"Procedure at hearings in probable cause .The defendant shall be called upon to plead in a hearing in probable cause. If the defendant waives examination, the judge shall forthwith hold him to answer in the appropriate court. If the defendant does not waive examination, the judge shall hear the evidence within a reasonable time. The defendant may cross-examine witnesses against him and may introduce evidence in his own behalf. If from the evidence it appears to the judge that there is probable cause to believe that an offense has been committed and that the defendant has committed it, the judge shall forthwith hold him to answer in the appropriate court; otherwise the judge shall discharge him. After concluding the proceeding the clerk of the court shall transmit forthwith to the clerk of the appropriate court all papers in the proceeding, any bail taken by him, and a transcript of the proceedings."
The Connecticut hearing in probable cause has been accurately characterized as a mere "'inquest' made to determine the existence of probable cause, and to discharge the accused if none exists." Walters v. Platt, 22 Conn.Supp. 1, 158 A.2d 255, 258 (Sup.Ct.1956). The finding of probable cause is not final and it cannot be used against an accused on the trial before the Superior Court. See State v. Wilson, 22 Conn.Supp. 345, 172 A.2d 902 (App.Div.1961); see also State v. Fox, 83 Conn. 286, 76 A. 302 (1910). The hearing in probable cause and appearance before a judge or committing magistrate can be readily dispensed with by the State since an original information may be filed in the Superior Court. In that event no hearing in probable cause is held. Conn.Gen.Stat. §§ 54-46, 54-42; see State v. Hayes, 127 Conn. 543, 18 A.2d 895 (1941).And, no such hearing is provided where the State's Attorney chooses in the first instance to obtain a bench warrant from the Superior Court. Conn.Gen.Stat. § 54-43; see State v. Annunziato, 145 Conn. 124, 139 A.2d 612 (1958).See generally Wright, The Rules of Evidence Applicable to Hearings in Probable Cause, 37 Conn.B.J. 561 (1963).
The Connecticut hearing in probable cause cannot, therefore, be characterized as critical as is arraignment in Alabama. Indeed, it can hardly be termed a proceeding against the accused; to the contrary, it appears to operate entirely for the accused's benefit. And the mere fact that an accused is required to plead does not in itself demand a contrary conclusion where the plea entered is a self-serving denial of guilt. At trial, appellant had every opportunity to present any defense that was available initially. Under these facts failure to supply counsel at this stage in the proceedings cannot be said to be a deprivation of a constitutional right. See In the Matter of DeToro, 222 F.Supp. 621 (D.Md.1963) (preliminary hearing not critical); United States ex rel. Spinney v. Fay, 221 F.Supp. 419 (S.D.N.Y.), aff'd, 325 F.2d 436 (2d Cir.1963) and cases there cited; United States ex rel. Hussey v. Fay, 220 F.Supp. 562 (S.D.N.Y.1963).
Our conclusion that absence of counsel at a Connecticut hearing in probable cause does not require reversal where a not guilty plea has been entered is bolstered by cases arising prior to Gideon, Hamilton and White, but uninfected with the Betts v. Brady element of unconstitutionality. While not specifically recognizing a critical stage at which time the right to counsel attaches, these cases are instructive as to the scope of the right to counsel where it has been traditionally guaranteed, in federal prosecutions and state capital cases.
In Council v. Clemmer, 85 U.S.App.D.C. 74, 177 F.2d 22, cert. denied, 338 U.S. 880, 70 S. Ct. 150, 94 L. Ed. 540 (1949), a federal prosecution, petitioner alleged a denial of right to counsel in violation of the Sixth Amendment at preliminary hearing and at arraignment. On both occasions, petitioner pleaded not guilty.In addition to holding that there was no constitutional ...