# Petition — Cunningham v. Virginia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1697%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 965 ## Text 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] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1697%3A1. Public record. Not legal advice.