Petition — Cunningham v. Virginia

la Supreme Court, U.S ~

FILED

SEP 13 1978

2 | anne CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

NO. 78-424

BEVERLY G. CUNNINGHAM,

Petitioner

V.

COMMONWEALTH OF VIRGINIA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

JOHN C. LOWE

CRAIG T. REDINGER

Lowe and Gordon, Ltd.

409 Park Street

Charlottesville

Virginia 22901

(804-296-8188)

FRED R. SURFACE & ASSOC. INC., HERITAGE BUILD: NG, RICHMOND, VA. (804) 643-7789

TABLE OF CONTENTS

TABLE OF CONTENTS. . . © «© © «© e e e i

TABLE OF CITATIONS. . . « © « «© « » ii

OPINION BELOW. . . . « «© © © «© « « 2

JURISDICBION. . «© © © © © «© o@ « « 2

QUESTION PRESENTED. . .....-e«- 2

STATEMENT OF THE CASE. ..... .- 3

REASONS FOR GRANTING CERTIORARI. . 6

1. The importance of

the question. ...... 6

2. The trial court's

action violates this

Court's ruling in

Herring v. Herring. .. . 9

CONCLUS ION . . s * s . iad Ld . e ad * 3 1 3

APPENDIX. * . ad Ld e ° id ° * s . * 14

I. MOTION FOR RETRIAL. . . 14

II. MOTION FOR ACQUITTAL. . 17

III. ORDER DENING THE APPEAL

FROM THE VIRGINIA

SUPREME COURT. ... . 19

IV. PORTION OF THE

TRANSCRIPT. . 1... co « 20

<=

V. NOTICE OF TIMELY APPEAL. 23

PROOF OF SERVICE « s e * ad * . s . ° 25

TABLE OF CITATIONS

Argensinger v. Hamlin, 407

U.S. 25 (1972). . . ° - . .

Gideon v. Wainwright, 372

U,B. 399 {L9OS}. 2 be 6

Herring v. Herring, 422 U.S.

SoS (Aes ele 2 0 6 HF ORs

Lee v. Commonwealth, 200 Va.

233, 105 S.E. 2d 152 (1958). .

OTHER

Sixth Amendment to the United

States Constitution. ...

Fourteenth Amendment to the

United States Constitution.

ie

[ii]

PAGE

9,10,11

2,6,10

2,6,10

IN THE

SUPREME COURT OF THE UNITED STATES

No.

BEVERLY G. CUNNINGHAM,

Petitioner

Vv.

COMMONWEALTH OF VIRGINIA,

Respondent

PETITION FOR A WRIT OF

CERTIORARI TO THE SUPREME

COURT OF VIRGINIA

The Petitioner prays that a Writ

of Certiorari issue to review the Judgment

of the Supreme Court of Virginia entered in

this matter on June 15, 1978.

OPINION BELOW

The Supreme Court of Virginia

entered an order dismissing Cunningham's

Appeal to that Court, finding no reversib e

error in the judgment of the trial court.

This order is set forth in the Appendix,

infra, at 19.

JURISDICTION

Jurisdiction of this matter is

conferred on the Supreme Court of the

United States by virtue of 28 U.S.C. §1257.

QUESTION PRESENTED

1. Whether the trial court

violated Cunningham's Constitutional rights

as guaranteed by the Sixth Amendment of the

Constitution as applied to the states by

the Fourteenth Amendment in deciding his

guilt prior to hearing defense counsel's

closing arguments?

(24

STATEMENT OF THE CASE

Beverly G. Cunningham was in-

dicted for breaking and entering and grand

larceny in Lynchburg, Virginia, on October

3, 1977. On October 21, 1977, the Honor-

able O. Raymond Cundiff, sitting without a

jury heard the evidence, which consisted

entirely of accomplice testimony and de-

fendant's alibi witnesses.

At the conclusion of the evid-

ence, and just as the Commonwealth's

Attorney had begun his summation the

trial judge interrupted with the suggestion

that the defendant submit to a polygraph

test. The colloquy between the judge and

Cunningham's defense counsel, Mr. Abbitt,

is found in the Appendix at p. 20 :

Mr. Petty [Commonwealth's

Attorney]: Your Honor,

the only thing... .

tas

The Court: Mr. Abbitt, let me make

a suggestion. If you want to do it request by the court for a polygraph test

I'll continue this case and have

this individual submit to a lie de- established that the court had reasonable

tector test and have it received as

evidence. doubt as a matter of law. Counsel further

Mr. Abbitt: I could not quite hear | argued that the trial judge had interfered

hear you. : .

with Cunningham's right to an impartial

The Court: I said if you want to

I'll continue the case if you want trier-of-fact by requesting polygraph

your client to submit to a lie de-

tector or polygraph test and let evidence which is completely inadmissible

that be received as evidence as to

whether he is guilty of that. under Virginia Law. Lee v. Commonwealth,

Mr. Abbitt: I told him Judge and 200 Va. 233, 105 S.E. 2d 152 (1958). The

he says that he is telling the

truth and he wants to submit to it. court overruled the motion, noting that it

The Court: Well, we will continue had already decided Cunningham's guilt at

it and have the lie detector test an

be set-up and be stipulated by both the time the court made the polygraph

of you and him on a stipulation that

the results will be received as Suggestion. (Appendix at p. 21):

evidence in the case.

The Court: I was convinced

The case was continued until December beyond a reasonable doubt that

he was guilty, but I wanted to

2, 1977. give him an opportunity to have

a polygraph test should he want

On December 2, 1977 Cunningham that and I would consider that

and it could change my mind,

appeared with his present counsel and filed | but I was convinced at the time

: I made the suggestion beyond a

a motion for acquittal and a motion for a | ere doubt that he was

guilty.

mistrial (Appendix at pp. 17, 14). Counsel

Defendant then moved for a

argued in support of the motion that the

[4]

mistrail which was also overuled. The

[5 ]

court then permitted defendant's counsel to

argue the case whereupon Cunningham was

found guilty on both counts and, on December

19, 1977, sentenced to twelve months in

jail on each count.

Timely Notice of Appeal was filed

(Appendix at p. 23).

REASONS FOR GRANTING CERTIORARI

1. The importance of the ques-

tion.

One of the most fundamental

principles of our system of criminal

justice is the accused's right to the

assistance of counsel. The Sixth Amendment

to the Constitution as applied against the

States by the Fourteenth Amendment promul-

gates and solemnifies this basic require-

ment. Gideon v. Wainright, 372 U.S. 335 (1963);

Argensinger v. Hamlin, 407 U.S. 25 (1972).

criminal defendant is entitled to have his

[6]

case heard by an unbiased trier-of-fact and

to have the assistance of competent counsel

during that presentation.

The events in the case at bar

pose a clear threat to the continued vi-

tality of this fundamental constitutional

principle. Cunningham was convicted upon

the testimony of alleged accomplices and he

offered alibi witnesses on his own behalf.

The importance of defense counsel's agru-

ment is paramount in such a case where the

issues are not technical legal ones, but

the basic credibility of the witnesses.

Such a case provides defense counsel with

the paradigm opportunity to exercise those

skills unique to the closing argument. His

ability to focus on specific characteristics

of the witnesses presentation and to per-

suade the judge of their importance in

support of his client's position ought not

to be infringed.

[7]

The effective assistance of

counsel requires that counsel be given the

opportunity to argue the case in the best

light for his client before the trier-of-

fact makes a decision, to point out infer-

ences to be drawn from the evidence which

might not appear at first hearing, to point

out particular portions of the evidence

which may not have impressed the trier-of-

fact and to argue the consequences of the

facts in light of the prevailing law. To

allow a trier-of-fact to find a defendant

guilty before final argument by counsel

destroys counsel's most effective defense

tool, the ability to persuade. Clearly,

the elimination of that opportunity by the

judge's premature decision impermissibly

restricts the function of defense counsel

and denies the defendant his constitutional

protections.

[ 8 ]

2. The trial court's action

violates this Court's ruling in Herring v.

New York.

In 1975, this Court decided

Herring v. New York, 422 U.S. 853 and

examined at great length the right of a

defendant to assistance of counsel. The

only difference between the case at bar and

Herring is that in Herring this Court

construed a New York State statute which

granted the trial court discretion to

permit the parties to deliver summations.

However, there is no fundamental difference

between the denial of the constitutionally

mandated privilege in Herring and the

denial which took place in the case at bar

by judicial fiat. In both instances,

the accused's right to counsel was uncon-

stitutionally violated.

The ruling in Herring was based

upon the constitutional requirements of

eg

the Sixth and Fourteenth Amendments.

Though in Cunningham's case, there was no

statute under which the judge acted, the

judges' actions in both the case at bar and

in Herring are analogous. They both denied

the defendants their right to counsel.

This Court in Herring found the

fundamental right to a closing summary of

the evidence inherent in the English

criminal system.

'In the Sixteenth and Seven-

teenth Centuries when notions

of compulsory process, con-

frontation and counsel were

in their infancy, the essence

of the English criminal trial

was argument between the

defendant and counsel for

the 'crown.'

Herring v. New York supra., at 360. The

American system has adopted that rule,

which prevails by the great weight of

authority in both federal and state juris-

dictions. This Court recognized the

[ 10 ]

pervasiveness and constitutional dimensions

of the rule, stating,

- « «(T]he overwhelming

weight of authority in both

federal and state courts

holds that a total denial

of the opportunity for

final argument in a non-

jury criminal trial is a

denial of the basic right

of the accused to make his

defense.

Herring v. New York, supra., at 859.

Defendant Cunningham was not denied the

Opportunity for closing argument by a

judge's action pursuant to a statute as in

Herring. However, there is no substantive

distinction between this case and that of

the defendant in Herring. This Court's

opinion in Herring was directed at the

denial of effective assistance of counsel,

a denial which is just as inimical and

equally violative of the Constitution

whether pursuant to statute or to judicial

fiat. The judge's decision as to Cunningham's

[ 11 ]

guilt prior to agrument totally foreclosed

the defendant's right to closing argument

just as if a statute had prevented it.

There is clearly a basic constit-

utional right to closing argument by de-

fense counsel. This right cannot be

abrogated by statute nor denied by judicial

intereference. The trial court precluded

Cunningham from exercising this fundamental

right, for which action Cunningham's

conviction should be reversed.

t 22:4

CONCLUSION

For the reasons set forth

above, a Writ of Certiorari should be

granted.

Respectfully submitted,

BEVERLY G. CUNNINGHAM

John

Craig T. Redinger

Lowe and Gordon, Ltd.

409 Park Street

Charlottesville, Virginia 22901

(804 296-8188)

September 1l, 1978

[ 13 ]

APPENDIX

be MOTION FOR A MISTRIAL

VIRGINIA

IN THE CIRCUIT COURT

OF THE

CITY OF LYNCHBURG

COMMONWEALTH OF VIRGINIA,

Plaintiff

V.

BEVERLY G. CUNNINGHAM,

Defendant

MOTION FOR A MISTRIAL,

NEW TRIAL AND RECUSAL

Comes now the defendant, Beverly

G. Cunningham, by counsel, and represents

unto this Honorable Court as follows:

1. At the trial of this case

on October 21, 1977, before the court with-

out a jury, and before the entry of judg-

ment, this Court requested that defendant

submit to a polygraph test.

[14]

2. Counsel for defendant and the

Commonwealth agreed to have the defendant

submit to such a test and to enter the

resuits in evidence.

3. The request for a polygraph

examination of the defendant in this ac-

tion seeks evidence which is inadmissible

under Virginia law and violates defendant's

rights under the Fifth, the Fourteenth

Amendments to the Constitution of the

United States. Skinner v. Commonwealth,

212 Va. 260 (1971); Barber v. Commonwealth,

206 Va. 241 (1965) and Lee v. Commonwealth,

200 Va. 233 (1959).

4. The request and acquiescence

in that request on the part of the defen-

dant has so tainted the proceedings before

this Court that the defendant can no long-

er be afforded a fair trial.

WHEREFORE, defendant moves this

Court for a mistrial and for the granting

[15]

of a new trial before another judge of

this Circuit.

Respectfully submitted,

BEVERLY G. CUNNINGHAM

By Counsel

{s/ Craig T. Redinger

John C. Lowe

Lowe and Gordon, Ltd.

409 Park Street is

Charlottesville, Virginia 22901

(804 296-8188)

/s/ Watkins M. Abbitt

Attorney at Law

Appomattox, Virginia 23522

MAILING CERTIFICATE

I hereby certify that on or

before the 2nd day of December , 1977,

I mailed or delivered a true copy of the

foregoing Motion for a Mistrial, New Trial

and Recusal to William Petty, Commonwealth

Attorney, Post Office Box 1360, Lynchburg,

Virginia, 24505.

/s/ Craig T. Redinger

[16]

——

II. MOTION FOR ACQUITTAL

VIRGINIA

IN THE CIRCUIT COURT

OF THE

CITY OF LYNCHBURG

COMMONWEALTH OF VIRGINIA,

Plaintiff

Vv.

BEVERLY G. CUNNINGHAM,

Defendant

MOTION FOR JUDGMENT OF ACQUITTAL

Comes now the defendant, Beverly

G. Cunningham, by counsel, and represents

unto this Honorable Court as follows:

1. This court upon hearing ev-

idence at the trial for this case and

upon entering judgment requested that

defendant submit to a polygraph examination.

2. This court's request indi-

cates as a matter of law that the court

has reasonable doubt after hearing all the

[17]

evidence as to defendant's guilt.

3. Therefore, this court should

have acquitted defendant on the day of

trial.

WHEREFORE, defendant requests

this court to enter a judgment of acquit-

tal.

Respectfully submitted,

BEVERLY G. CUNNINGHAM

By Counsel

/s/ Craig T. Redinger

John C. Lowe

Lowe and Gordon, Ltd.

409 Park Street

Charlottesville, Virginia 22901

(804 296-8188)

/s/ Watkins M. Abbitt

Attorney at Law

Appomattox, Virginia 23522

MAILING CERTIFICATE

I hereby certify that on or before

the 2nd day of December, 1977, I mailed or

delivered a true copy of the foregoing

[18]

Motion for Judgment of Acquittal to William

Petty, Commonwealth Attorney, Post Office

Box 1360, Lynchburg, Virginia 24505.

Craig T. Redinger

III. ORDER DENYING THE APPEAL FROM

THE VIRGINIA SUPREME COURT

VIRGINIA: In the Supreme Court of Virginia

held at the Supreme Court Building in the

City of Richmond on Thursday the 15th day

of June, 1978.

BEVERLY G. CUNNINGHAM, Appellant,

Record No. 780369

Circuit Court No. 32A

against

COMMONWEALTH OF VIRGINIA, Appellee.

From the Circuit Court of the

City of Lynchburg

Finding no reversible error in

the judgment complained of, the court

refuses the petition for appeal filed in

the above-styled case.

/s/

[19]

IV.

(T76)

MR.

THE

MR.

THE

MR.

THE

MR.

THE

PORTION OF THE TRANSCRIPT

we had to walk.

ABBITT:

COURT:

PETTY:

COURT:

PETTY:

COURT:

ABBITT:

COURT:

I believe that's all.

That's all. Any other

rebuttal?

No.

Do you gentleman want to

be heard on the matter?

Your Honor, the only

thing---

Mr. Abbitt let me make a

suggestion. If you want

to do it I'll continue

this case and have this

individual submit to a

lie detectors test and

have it received as evi-

dence.

I couldn't quite hear

you.

I said if you want to

I'll continue the case

if you want your client

to submit to a lie detect-

ors or polygraph test and

let that be received as

evidence as to whether he's

guilty of that.

[20]

MR. ABBITT:

THE COURT:

I told him Judge and he

says he's telling the

truth and he wants to

Submit to it.

Well we'll continue it

and have the lie detector

test be set up and be stip-

ulated by both of you and

him on a stipulation that

that the results be re-

ceived as evidence in the

coors Come back November

5.

(Transcript of motions pg. 4]

THE COURT:

MR. REDINGER:

THE COURT:

MR. REDINGER:

THE COURT:

it and---

I was convinced beyond a

reasonable doubt that he

was guilty, but I wanted

to give him an opportunity

to have a polygraph test

should he want that I

would consider that and it

would change my mind, but

I was convined at the time

I made the suggestion be-

yond a reasonable that he

was guilty.

Do I take it then that--

I'll deny your motion.

You deny the motion?

Yes sir.

[21]

MR. REDINGER: We have a second

motion Your Honor.

THE COURT: All right.

MR. REDINGER: The court has the

second motion.

THE COURT: All right, let me see.

MR. REDINGER: And that Your Honor is

that the polygraph evi-

dence is inadmissible

as a matter of law in

Virginia; that no cases

in Virginia have allowed

even a stipulation

between counsel that a

polygraph would be ad-

missible, therefore the

defendant would be

entitled to a mis-trial

or a new trial.

[22]

V. NOTICE OF TIMELY APPEAL

VIRGINIA

IN THE CIRCUIT COURT

OF THE

CITY OF LYNCHBURG

COMMONWEALTH OF VIRGINIA,

Plaintiff

Vv.

BEVERLY G. CUNNINGHAM,

Defendant

NOTICE OF APPEAL

Comes now the defendant, Beverly

G. Cunningham, by Counsel, pursuant to

Rule 5:6 of the Supreme Court of Virginia,

and notes his appeal from the judgment of

court entered this 19th day of Decmeber,

1977. A transcript will be filed with this

court pursuant to Rule 5:9 to become part

of the record in accordance with Rule 5:8.

BEVERLY G. CUNNINGHAM

By Counsel

[23]

/s/ Craig T. Redinger

John C. Lowe

Lowe and Gordon, Ltd.

409 Park Street

Charlottesville, Virginia 22901

(804 296-8188)

/s/ Watkins M. Abbitt

Attorney at Law

Appomattox, Virginia 24522

MAILING CERTIFICATE

I hereby certify that a true

copy of the foregoing Notice of Appeal was

mailed this 28 day of December, 1977, to

William Petty, Commonwealth's Attorney,

P. O. Box 1360, Lynchburg, Virginia 24505.

Craig T. Redinger

[24]:

i OTE TOIT

PROOF OF SERVICE

I, John C. Lowe, a member of

the Bar of this Court, do hereby certify

that on or before September 13, 1978, I

mailed, postage prepaid, three copies of

this Petition for Writ of Certiorari to

William Petty, Commonwealth's Attorney,

P. O. Box 1360, Lynchburg, Virginia 24505.

nC. Lowe

[25]