Opposition Brief — Liverman v. Virginia

f

8 ” ¥ GQ 3 8 Supreme Court, U.S.

FILED

SEP 5 1989

JOSEPH F. SPANIOL, JR.

CLERK

ae

NO.

-———.

IN THE

SUPREME COURT OF THE UNITED STATES

Term, 1989

MELVIN ALLEN LIVERMAN, JR.,

Petitioner -

Vv.

COMMONWEALTH OF ViRGINIA,

Respondent

TO THE SUPREME COURT OF VIRGINIA

BRiEF IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORAR:

C. Phillips Ferguson

Commonwealth's Attorney

City of Suffolk

P. O. Box i8il

Suffolk, Virginia 23434

(804) 934-3111, Ext. 300

STATEMENT OF THE CASE

REASONS FOR DENYING THE WRIT AND ARGUMENT

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waiver of his right to counsel. However,

in tne body of the petition and in the

state courts, petitioner focused iis

argument upon the reinitiation issue.

This Court should not grant a writ of

certiorari to review a claim that has not

been passed upon Dy the appropriate

appellate court. Because the issue was

not addressed to Supreme Court of Virginia

or the Court of Appeals of Virginia, the

record 1s not fully developed and petitioner

nas bypassed an available remedy. In

keeping with established practice, the

Court should refuse "to decide federal

constitutional issues raised here for the

ci rat time on review of state court

decisions." Cardinale v. Louisiana, 394

‘

U.S. 437, 438 (1969).

B. Tne issue presented in this case

is not of sufficient importance

tO warrant exercise of this Court's

certiorari jurisdiction.

Petitioner's claim fails to caise

an issue which is worthy of this Court's

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exercise of certiorari jurisdiction.

Presumably, petitioner woulda argue that,

pursuant to Rule 17.l(c) of the Rules of

the Supreme Court of the United States,

the state courts decided a federal question

in a way in conflict with applicable

decisions of this Court. Certainly, no

other considerations governing review on

certiorari are applicable in this_ case.

However, there is; int LSC. ne: -ceaneLict

and therefore this is not an appropriate

case to be considered by this Court. This

1s not a Situations such as Oregon v.

Mathiason, 429 U.S. 492 (1977), in which

certiorari was granted because the state

court had "read Miranda too broadly."

id. at .@9a4,

Rather, this case involves nothing

more than petitioner's disagreement with

tne state court's resolution of factual

matters. ge is well settled that this

Court will not exert its jurisdiction merely

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to review a decision of a state court upon

a question of fact except "where a federal

right has been denied as the result of

a finding shown by the record to be without

evidence to suppurt it; or where conclusion

of law as to a federal right and a finding

of fact are so intermingled as to make

it necessary, in order to pass upon the

federal question, to analyze the facts."

Fiske v. Kansas, 74s UA. 380, 385-86

(1927). Indeed, "this Court has frequently

noted its reluctance to disturb findings

of fact concurred in by two lower courts."

Rogers v. Lodge, 458 U.S. 613, 623 (1982).

A court of law, such as this Court

is, rather than a court for correction

of errors and factfinding, cannot

uncertake to review concurrent findings

of fact by two courts below in the

absence of a very obvious and

exceptional showing of error.

Graver Tank & Manufacturing Company ov.

Linde Air Products Company, 336 U.S. 271,

7a (1949). in this case, as will be

discussed below, there was ample evidence

- 19 -

he had requested an attorney. The

police advised the defendant of his

Miranda rights and he executed a

written waiver of these rights. During

the interview, the defendant denied

any “involvement in the crime being

investigated. The police informed

the defendant. that several witnesses

had seen his car at the scene of the

crime and that he killed the victim

~because of his jealousy concerning

his wife. At that point, the defendant

Said that he wanted to talk to an

attorney. The police ceased

interrogation and requested tnat the

defendant have his attorney contact

the police to discuss the possibility

of a polygraph examination. The police

seized two l12-gauge shotguns and told

the defendant hat they wanted to

have them tested. As the officer

was writing a receipt for one of the

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case. Ta.

During a custodial

interrogation, a a

suspect requests an

attorney, the

interrogation must cease

until an attorney is

present. (cites omitted).

Such a request, however,

does not protect a suspect

when he makes a

spontaneous admission

not induced or initiated

by the police, (cite

omitted), or when ‘the

accused himself initiates

further communication,

exchanges or conversations

with the police.' (cite

omitted). id. at 490.

The Court in Bradshaw held that the

statement was made voluntarily and

constituted "a Knowing and intelligent

relinquishment or abandonment of a known

Tights” id, (quoting Edwards v. Arizona,

451 U.S. 477, 482, reh'g denied, 452 U.S.

973 ee, Peer The Bradshaw case is

on all fours with the case at bar. Liverman

denied any involvement in the murder in

his first statement. After Detective

Creekmore explained the gun powder residue

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inguiry did not go as far as the inquiry

in Bunch which the Court held to be a

legitimate inquiry and not police-initiated

interrogation. After Liverman gave his

narrative statement about threats on his

life and various incidents involving G.

a Hopbs, Trip Hobbs and others, to

Detective Bangley, the detective merely

advised Liverman that if these chings were

true and if he. Liverman, wished to talk

about these matters in greater detail,

then he would listen. This statement was

the same statement the detective in Bradshaw

made to the defendant in that case and

which the Court held not to be

interrogation. Once Liverman re-initiated

communication with Detective Bangley, he

was no longer protected from interrogation.

Bradshaw, 228 Va. at 490.

The defendant cites Edwards v. Arizona,

51 U.S. 477, 101 S.Ct. 16860 (1981), in

support of his motion to suppress’ the

confession. in Edwards, the defendant

requested an attorney "before making a

deal" and the questioning ceased. the

/

defendant was taken to the jail and the

next morning, two detectives came to the

jail to talk to him. The guard tola Eawards

that "he nad" to talk and he then took

Fdwards to the detectives. Id. at 1882.

The Court held that an accused having

expressed his desire to deal with the police

only through counsel, 1s not subject to

further interrogation by the authorities

until counsel has been made available to

him, unless the accused himself initiates

further communication, exchanges, or

conversations with the _ police. id. at

1885 {emphasis added). The Court continued

by stating that had Edwards initiated the

meeting, nothing in the Fifth and Fourteenth

Amendments would prohibit the police from

merely listening to his voluntary,

volunteered statements and using’ them

- 29 -

The defendant also contends that the

police shoula have done more than give

the defendant two phone books. Detective

Bangley testified that he asked the

defendant if he had found an attorney

pecause if he had then he would have allowed

the defendant to contact one. The decision

in Miranda v. Arizona, 384 U.S. 436 (1966).

does not mean, as some have

suggested, that each police

station must have a "station

nouse lawyer' present at all

times to advise prisoners. it

does mean, however, that if police

propose to interrogate a person

they must make known to him that

he is entitled to a lawyer and

that if he cannot afford one,

a lawyer will be provided for

him prior to any interrogation.

ig. at 474,

At 7:09 p.m., Detective Bangley advised

Liverman of his Miranda rights and Liverman

executed a Suffolk Police Department Legal

Rights Advice Form. Liverman Knew that

he was entitled to a lawyer and in fact

invoked this right. He was provided with

two phone books so that he could find a

a IU

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period of time after reguesting an attorney,

he changed his mind and gave a voluntary

statement without any impropriety on the

part of the police whatsoever.

The issue of whether his constitutional

right to counsel was violated rests on

the credibility of the witnesses. The

evidence produced at the suppression hearing

clearly and convincingly establisned the

credibility of Detective Bangley and

Giscreditedad the defendant.

The Virginia Supreme Court has ruled

thet in testing the credibility and weight

to be ascribed to the evidence, trial courts

must be given the wide discretion to which

a living, rather than printed, record

logically entitles Les Bradley ws

Commonwealth, 196 Va. 1126, 1136, 86 S.E.2d

See. (i955). When this rule of law

is consiaeread with the Commonwealth's

evidence, it is clear that the trial judge

made his decision properly. It was based

CERTIFICATE

OF

SERVICE

y)

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hereby certify that a true copy of the

foregoing Brief in Opposition to the

Petition for Writ of Certiorari was this

BY) day of SETI , 1989,

mailed postage pre-paid to H. Woodrow Crook,

Jr., Esquire, Counsel for Petitioner, P.

G. Box 406, Smithfield, Virginia 23430,

and to The Honorable Mary Sue _ Terry,

Attorney General, Supreme Court Building,

i101 North Eighth Street, Richmond, Virginia

rae BE. Oe

ips “Ferguson

Commonwéalth's Attorney