Subsequently, at trial, the court would not entertain any further motions by defense counsel to suppress, holding that the ruling by the Superior Court was dispositive of the matter. However, the Court did charge the jury with the task of resolving the question of voluntariness.
In passing upon the propriety of the Trial Judge's ruling, this Court is required to review the entire proceeding, and not just a specific step or portion thereof. Application of Stecker, 271 F. Supp. 406 (D.N.J.1966), affirmed, 381 F.2d 379 (3rd Cir. 1967). The entire proceeding would include consideration of the pre-trial motion to suppress and the appeal therefrom. Since this allegation of error is essentially asserted under the Due Process Clause, we can only observe that the relator was afforded the opportunity to fully litigate the matter. If anything, the relator's rights were scrupulously protected, since he had the advantage of pre-trial appellate review. The mere fact that the decision of the state appellate court was ultimately unfavorable does not alter the fact that a preliminary determination was made. This is all that due process requires. As previously noted, question of consent to the searches was also ultimately presented de novo to the jury.
Counsel have also alluded to Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964) as authority for their stated position that the trial judge was required to preliminarily pass upon the admissibility of the aforementioned evidence. Jackson, however, specifically dealt with voluntariness of confessions - not with the propriety of searches. In any event, there was indeed compliance with the rationale of Jackson in the form of the pre-trial motion to suppress.
Finally, the relator contends that the failure of the police to inform him that he could remain mute; that he was entitled to counsel; and that anything he said would be held against him, was error, alluding to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) and Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964).
Initially, we note that the Supreme Court has decreed that Escobedo and Miranda are to be applied only to cases where the trial commenced after the dates of the respective decisions. See Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966).
In the instant case, the relator's second trial commenced on April 19, 1966. Miranda was decided on June 13, 1966. Thus, consideration will be limited to the application of Escobedo.
Briefly Escobedo held that where a police investigation has progressed from the general investigatory stage to the accusatorial stage, the accused must be afforded the opportunity to consult with counsel, and must be warned of his right to remain silent. Unless this is accomplished, no statement elicited by the police may be introduced against the accused at his trial.
However, there has been no assertion by the relator, or any indication from an examination by the various (and voluminous) transcripts that the relator ever requested the assistance of counsel in the instant case. Recently the U.S. Court of Appeals for the Third Circuit held that:
* * * the rule of Escobedo can only be invoked by a defendant who has requested and been denied counsel.