Petition — Stewart v. Virginia

Supreme Court brief1979

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JUL 27 1979

ALLER NO IT <0 me CA Ae ARTUR Se

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1978

~~ 79-137

CHARLES DANIEL STEWART,

Petitioner,

COMMONWEALTH OF VIRGINIA,

Respondent.

| PETITION FOR WRIT OF CERTIORARI TO THE

CIRCUIT COURT FOR THE COUNTY OF

FAIRFAX, VIRGINIA

J. RONALD LYNCH

JOHN FRANK LEINO

HOWARD, STEVENS, LYNCH,

CAKE & HOWARD, P.C.

128 North Pitt Street

Alexandria, Virginia 22314

Counsel for Petitioner

Washington, 0.C. @ CLS PUBLISHERS « LAW PRINTING CO. © (202) 393.0625

(i)

TABLE OF CONTENTS

Page

IE are A > re ee 2

ELLIS ES ESSE IE EET 2

PUP Be IND cnc cecccccccsccccces 2

CONSTITUTIONAL PROVISIONS INVOLVED....... 3

STATEMENT OF THE CASE.............csccccccees 3

pee 8 og Ee ane 4

REASONS FOR GRANTING THE WRIT............. 8

A. MR. STEWARTS CONFESSION WAS

INVOLUNTARY AND ITS ADMISSION

INTO EVIDENCE AT HIS_' TRIAL

FOULED THE CONSTITUTIONALITY_.

gs 8 8

es ves e eee scccccess 52

APPENDIX:

REFUSAL OF PETITION FOR APPEAL BY

THE SUPREME COURT OF VIRGINIA........... la

FAIRFAX COUNTY GRAND JURY INDICT-

MENT OF BER. STEWART... oie c cece cc cece 2a

DENIAL BY FAIRFAX COUNTY CIRCUIT

COURT OF DEFENSE MOTION TO SUP-

| PRESS EVIDENCE AND DEFENSE EX-

ee eS eee ee 3a

ADMISSION INTO EVIDENCE OF MR.

STEWART’S STATEMENT BY FAIRFAX

COUNTY CIRCUIT COURT AND DEFENSE

EXCEPTION TO ADMISSION.................... 3a

pe AEE OE ee eee 4a

JURY’S FIXATION OF PUNISHMENT ........... Sa

SENTENCING ORDER BY FAIRFAX

RE MORIN MPEOUEE foes cscs sciscsce cee. 6a

(ii)

- TABLE OF CASES

Akers v. Commonwealth, rs i

216 Va. 40, 216 S.E.2d 28 (1975) ........ cece eee eee 21

Bouldon v. Holman,

394 U.S. 478, 89 S.Ct 1138, 22 L.Ed.2d 433

Brady v. United States,

397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747

es Te eML ERLE LES bused Ghose OARS sop kanes 12

Bram v. United States,

168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568

CRUE MOE Cs sn baciwe sips chensameyenesesegeesye® 8,12

Brewer v. Williams,

430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424

SEE Gee iain k ca cwen ¢OeeET FORE CINST OR ek eka 10

Burton v. Cox,

Fae Pie BOO LWA VO. TST). oii ciwinscenes 17

Burton v. Peyton,

210 Va. 484, 171 S.E.2d 822 (1970)................ 21

Cardwell v. Commonwealth,

209 Va. GB, 161 S.B.26 TET (1968) nc ccccescwsccvccs 21

Cortez v. United States,

BEF Fame ee Ge FOE) oo wbsvccrgediiceccncencys 17

Dailey v. Commonwealth,

208 Va. 452, 158 S.E.2d.731-(1968)... 0... eee eee 21

Dean v. Commonwealth,

209 Va. -666, 166 S.E.2d 228 (1969). ............... 21

Durham v. Commonwealth,

208 Va. 415, 158 S.E.2d 135 (1967)............,... 21

Escobedo v. Illinois, 3

378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977

CDG G) inn bc e's pace giddng Ube ETAL a A rewsndeee> 14

(iii)

Ferguson v. Boyd,

CED GREED. bp ccccovicscdsverencescets 16,17,24

Garrity v. New Jersey,

385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562

BE iis hich eans seen cddehst ree sa eves nab adie 14,24

Gibson v. Peyton,

262 F.Supp. 574 (W.D.Va. 1966) ................5. 17

Griffin v. Peyton,

284 F.Supp. 650 (W.D.Va. 1968) .................. 17

Hammer v. Commonwealth,

207 Va. 135, 148 S.E.2d 878 (1966)................ 21

Hunt v. Cox,

cree BM) Boke 7 nee 20

Hutto v. Ross,

429 U.S. 28, 97 S.Ct. 202, 50 L.Ed.2d 194 (1976)... 14

Jackson v. Commonwealth,

5G We, BR s ee ae. 29e CIDTS).. 0... ccc wessccss 21

Kent v. United States,

rer BP oh, Eee he Re, ee ener 17

King v. Warickshall,

I Leach C.L. 263-264, 168 Eng. Rep. 234 (KB.

Se ee ee ‘ Veeieee Wes ames au pues 8

LaBonte v. Commonwealth,

BAe Wee BE ie BOE Meee TOM CEPT. cece cs cecsesase 23

Michigan v. Mosley,

423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313

CRE era Cuceaeeet eee cevesb eres Nb cMeceesee 9,10,15

Owens v. Commonwealth,

218 Va. 69, 235 S.6.26 S31 CI9TT). oi ee ee 23

Redd v. Peyton,

303 F.Supp. 320 (W.D.Va. 1969) .................. 17

Scatterfield v. Zahradnick,

Die Ts PEPE civccccncccessveczcess 20

(iv)

Schneckloth v. Bustamonte,

412 U.S. 218, 93 S.Ct. 2041 36 LEd.2d 854

RED UO sk cows ccek Sebo nk cs veintzeeteren ar 11,12,17,19

Skinner v. Commonwealth,

212 Va. 260, 183 S.E.2d 725 (1971)................ 22

State of North Carolina v. Willie Thomas Butler,

cacasiun ; S.Ct . L.Ed.2d____

CAE Oh, SOTEE oc eegscunsscc$ckvksncnewomiankaet 15

Taylor v. Commonwealth,

212 Va. 725, 187 S.E.2d 180 (1972). ............... 22

United States v. Clark,

Sp Fie ee CO Ce TP) 6 oe either ines 18

U.S. Ex Rel. Sanders v. Rowe,

460 F.Supp. 1128 (N.D. Ill. E.D., 1978) ............ 17

U.S. v. Grant,

po Eg) ee tm ee a ee 15,22

U.S. v. Kim,

___._ F.2d____ , U.S. Ct. of Appeals D.C. Cir. No.

TERETE GROOe, FI edn sk RRs can Reieien Beda es car q

Word v. Slayton, ,

357 P.eem, SD CUT Va. ISTE oc kivcsaivedl. sacs 17

Witt v. Commonwealth,

Aas Fe GH ROE os 5 knee eee 23

IN THE —

Supreme Court of the United States

OCTOBER TERM, 1978

No.

CHARLES DANIEL STEWART,

Petitioner,

COMMONWEALTH OF VIRGINIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

CIRCUIT COURT FOR THE COUNTY OF

FAIRFAX, VIRGINIA

Charles Daniel Stewart, Petitioner, prays that a Writ of

Certiorari issue to review the judgment of the Circuit Court

for the County of Fairfax, Commonwealth of Virginia,

denying his Motion to Suppress Commonwealth’s evidence

entered, immediately after hearing, on September 8, 1978,

and, thus, to review the constitutionality of Petitioner’s

subsequent conviction at trial held by that same Court on

September 14 and 15, 1978.

2

OPINION BELOW

On May 31, 1979, the Supreme Court of the Common-

wealth of Virginia issued a refusal (Appendix 1a, infra)! of

Mr. Stewart’s Petition for Appeal, this refusal and the

judgments in the Fairfax, Virginia, Circuit Court referred to

above are not reported. | ;

JURIS DICTION

The refusal of the Petition for Appeal by the Virginia

Supreme Court was issued on May 31, 1979. (App. 1a) The

jurisdiction of this Court is invoked under 28 U.S.C.

1257(3).

QUESTIONS PRESENTED

A. Did the Circuit Court for Fairfax County, Virginia, err

in denying Mr. Stewart’s pretrial motion to suppress Com-

monwealth’s evidence after considering whether the conduct

of Fairfax County Police officials (from the time Mr. Stewart

voluntarily surrendered to authorities in Dade County,

Florida, on June 15, 1978, through the time the recording of

his alleged voluntary statement of confession was completed

in Fairfax County during the early morning hours of June 24,

1978) represented psychological and physical coercion

which overbore Mr. Stewart’s will of self-determination,

made his confession involuntary and denied his constitu-

tional rights as mandated by the Due Process and Self-

‘Hereafter noted as App.

3

Incrimination Clauses of the Fifth Amendment to the United

States Constitution and resulted in an unconstitutional

conviction for him; furthermore, and in a like manner, did this

same police conduct work to deny Mr. Stewart’s Sixth and

Fourteenth Amendments right to counsel. |

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth and Sixth Amendments to the United States

Constitution made applicable to state proceedings through

the Fourteenth Amendment to the United States Constitu-

tion.

STATEMENT OF THE CASE

A Grand Jury indictment was returned against Charles

Daniel Stewart on July 17, 1978, for one count of capital

murder (App. 2a), the indictment being based upon the

results of an investigation conducted by the Fairfax County

Police Department which included an alleged voluntary

statement of confession made by Mr. Stewart on June 23,

1978.

On September 8, 1978, the Honorable William G.

Plummer, presiding without a jury, denied Mr. Stewart's

motion (App. 3a) to suppress the alleged voluntary state-

ment of confession and admitted same into evidence on

behalf of the Commonwealth at trial. (App. 3a)

On September 14 and 15, 1978, Mr. Stewart was tried, by

a jury for capital murder in the Circuit Court for the County

of Fairfax, Virginia, the Honorable William G. Plummer

presiding. Mr. Stewart was found guilty of the charge (App.

4

4a) with the jury prescribing hi

Peedi yp g his sentence to be death.

On December 11, 1978, the Court entered an order

sentencing Mr. Stewart to a term of life imprisonment. (App.

5a) A Petition for Appeal from the order entered on

December 11, 1978, and from the denial of the motion to

suppress Commonwealth’s evidence on September 8, 1978

was duly made on March 2, 1979, to the Supreme Court of

Nr ite The Petition was denied on May 31, 1979. ( App.

a

STATEMENT OF FACTS

On the morning of June 15, 1978, Charles Daniel Stewart

voluntarily surrendered himself to the Federal Bureau of

Investigation’s resident agent, William Scarborough, in the

City of Homestead, Dade County, Florida. (S.T. 29;? T.T.

9/ 15, 18-19*) Mr. Stewart did this after learning of a warrant

which had been issued by Fairfax County, Virginia, au-

thorities for his arrest for murder. Mr. Stewart was processed

into the Dade County, Florida, jail that same day. Also on

that same day, Mr. Stewart was told by authorities at the

Dade County Jail that he was to call an Investigator Boggess

and a Sergeant Wilson in Fairfax County, Virginia, and he

did so. (S.T. 30, 113) During the course of this conversa-

tion, Mr. Stewart was asked if he wanted to make a

statement. (S.T. 113) When Mr. Stewart expressed ap-

prehension on this point, Sergeant Wilson told Mr. Stewart

?S.T. refers to the transcript of the heari +”

Suppress Commonwealth’s ticctzete Cina Sauk ear im.

*T.T. 9/15 refers to the trial transcript of Se

(Criminal Docket No. 27466). wre ae

5

that the authorities in Fairfax could convict him without his

statement and that the punishment in Virginia for the crime

with which he was charged was death in the electric chair.

(S.T. 31-33; 113-114). '

Following this telephone conversation, Mr. Stewart was

held in the Dade County Jail until June 23, 1978, when

Investigator Miles of the Fairfax County Police Department

arrived there at about 10:00 «.m. to return him to Virginia,

Mr. Stewart having waived his rights to try to prevent his

extradition. (S.T. 33-34; 92-93; T.T. 9/15, 3) At this time,

he was informed of his constitutional rights as defined by this

Court’s Miranda decision and was asked by Investigator

Miles if he wished to make a statement. Mr. Stewart

expressed uncertainty as to what he should do, however, he

did state that he wanted to speak to an attorney. (S.T. 93;

T.T. 9/15, 6-7, 9) According to testimony by Investigator

Miles, Mr. Stewart, later that day, requested to speak to

Investigator Boggess in Fairfax. (S.T. 98) Mr. Stewart,

however, denies this (S.T. 42), maintaining in his testimony

that he did not want to make a statement. (S.T. 38-39) Mr.

Stewart also testified that he requested that an attorney, the

resident FBI agent and the Commonwealth’s Attorney be

present at Fairfax before he would answer any questions.

(S.T. 42)

It is appropriate to note that in his testimony at the hearing

on his motion to suppress Commonwealth’s evidence, Mr.

Stewart testified that he had spent two sleepless nights in the

Dade County jail preceding the arrival of Investigator Miles

from Virginia, due to his concern for his circumstance and

because of what was said to him during the telephone

conversation on June 15, 1978, by Fairfax County Police

officials. (S.T. 34)

At about 2:00 p.m. on June 23, 1978, Mr. Stewart was

6

taken by Investigator Miles and officials of the Dade County

Police Department to Miami International Airport where he

was held in custody until a flight departure time of 4:45 p.m.

(T.T. 9/15, 8) During the flight from Miami to Washington,

D.C., he again stated to Investigator Miles that he did not

want to make a statement. (S.T. 39, 98)

Upon arrival at Washington’s National Airport at about

6:00 p.m., June 23, 1978, Mr. Stewart was immediately

taken by Investigator Miles to the Fairfax County Police

Department arriving there at about 7:00 p.m. (T.T. 9/15, 9,

33) Booking procedures were begun. During this time,

Investigator Boggess arrived at the police station (dressed in

a T-shirt, shorts and sneakers, it being his day off), in

response to a telephone call made by Investigator Miles.

(S.T. 41; T.T. 9/15, 9)

It is Investigator Miles’ testimony that at this time Mr:

Stewart and Investigator Boggess were alone in a small room

at Fairfax County Police Headquarters. (S.T. 102; T.T.

9/15, 9-10) However, Investigator Boggess testified that

Investigator Miles was with him (Boggess) in the small room.

(S.T. 121) What exchanges occurred between Mr. Stewart

and Investigator Boggess during this time is unknown,

however, it is Investigators Boggess’ and Miles’ testimony,

respectively, that shortly after this meeting it was ‘“de-

termined” that Mr. Stewart had “agreed” to make a

statement. (S.T. 121-122, 103) At this time, Mr. Stewart

was told by the investigators that his father could not be

present while his statement was being taken. No reason was

given. (T.T. 9/15, 23-24) However, after Mr. Stewart was

transferred to the Criminal Investigations Headquarters

Building, he was allowed to telephone his father immediately

before he began giving his statement. (T.T. 9/15, 23-24)

During this telephone conversation, Mr. Stewart’s father

7

allegedly tried to tell his son not to say anything. (S.T. 104)

At this time, prior to his making a statement, Mr. Stewart

again expressed apprehension about saying anything, It is

Investigator Boggess’ testimony that Mr. Stewart was told

that if he chose not to give a statement, then, in all likelihood

none would be taken since they (the investigators) did not

want to waste their time with him. (S.T. 52) Mr. Stewart was

also told, according to Investigator Boggess, that the au-

thorities in Fairfax could convict him without his statement

and if he spoke with an attorney no statement would be

sought because an attorney would not allow the taking of a

statement. (S.T. 122-124; T.T. 9/15, 26-27) Further, it is

Investigator Boggess’ testimony that Mr. Stewart was told

that his girlfriend and other companions could be implicated

in the case. (S.T. 132-133)

At about 9:30 p.m., June 23, 1978, the use recording of

Mr. Stewart’s statement was begun. (T.T. 9/15, 32) The

recording was com,.eted at about 11:40 p.m. that same

night. Mr. Stewart was made to read his statement, page by

page, as the stenographer completed the typing of each. This

procedure ended at approximately 1:36 a.m., June 24, 1978.

(S.T. 109) Mr. Stewart left the investigator's custody,

according to Investigator Miles’ trial testimony, at about

4:00 a.m., June 24, 1978, with him being admitted to the

Fairfax County Adult Detention Center at 7:00 a.m., June

24, 1978, according to that center’s records. (T.T. 9/15, 36)

It is appropriate to note that it is Investigator Boggess’

testimony which states that the taped transcript included

only those portions of what was said during the interrogation

that the investigators thought to be important. (S.T. 125-

126; 129-130) Further, Mr. Stewart had had very little or no

sleep prior to being taken into custody by the Fairfax County

Police, and he had been offered nothing to eat prior to his

being turned over to the Fairfax County Detention Center

officials after his statement was obtained. (S.T. 58-59)

At the conclusion of his statement, during the early

morning hours of June 24, 1978, Mr. Stewart requested that

he be allowed to compose a handwritten answer to the

question concerning whether any promises or threats had

been made to him concerning his statement. His answer

appears on page 61 of the transcript of his alleged voluntary

statement of confession. (S.T. 86-88; T.T. 9/15, 112)

It is admitted by Mr. Stewart that during the foregoing

events, he was shown printed forms of his constitutional

rights and instructed by police officials as to the possible

ramifications of his waiver of these rights. However, he

maintains that in his case, the form of the protection afforded

his constitutional rights is a whited sepulcher.

REASONS FOR GRANTING THE WRIT

A. MR. STEWART’S CONFESSION WAS

INVOLUNTARY AND ITS ADMISSION

INTO EVIDENCE AT HIS_ TRIAL

FOULED THE CONSTITUTIONALITY

OF HIS CONVICTION.

“To ‘a confession forced from the mind by the flattery of

hope, or by the tortue of fear. . . no credit ought to be given.

King v. Warickshall, I Leach C.L. 263-264, 168 Eng. Rep.

234, 235 (K.B. 1783).’”

From common law roots such as this, a standard formula-

tion of the voluntariness test began its development in the

United States as early as 1897, when this Supreme Court in

Bram v. United States, wrote:

“But a confession, in order to be admissible, must be

9

free and voluntary: that is, must not be extracted by any

sort of threats or violence, nor obtained by any direct or

implied promises, however slight, nor by the exertion of

any improper influence . .. A confession can never be

received in evidence where the prisoner has been

influenced by any threat or promise; for the law cannot

measure the force of the influence used, or decide upon

its effect upon the mind of the prisoner, and therefore

excludes the declaration if any degree of influence has

been exerted.” 168 U.S. 532, 542-543; 18 S.Ct. 183,

42 L.Ed. 468 (1897) [Emphasis added]

Charles Stewart relies on this “‘jealously guarded princi-

ple” for relief as others have more recently and successfully

relied. See United States of America v. Kim, __ F.2d

, U.S. Ct. of Appeals D.C. Cir. No. 77-1172, 7-8 (Nov. 15,

1978). In recent decisions, this Supreme Court of the United

_ States has reiterated the principle. In Michigan v. Mosley,

423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), though

this Court vacated a reversal of the defendant’s conviction by

the Court of Appeals of Michigan, this Court did state: ““We

therefore conclude that the admissibility of statements

obtained after the person in custody has decided to remain

silent depends under Miranda on whether ‘his right to cut off

questioning’ was ‘scrupulously honored.” 423 U.S. at 104.

In Mosley, the defendant was properly advised of his rights

on two occasions by two different officers within a period of

two hours, After these warnings were given, the defendant

was questioned concerning an unrelated holdup murder. At

no time did the defendant indicate that he did not want to

discuss this crime which was wholly unrelated to the crimes

with which he was charged. Also, the defendant did not, in

any manner, indicate that he wished to speak with an

attorney. This Court found determinative the fact that:

“This is not a case, therefore, where the police failed to

10

honor a decision of a person in custody to cut off

questioning, either by refusing to discontinue the inter-

rogation upon request or by persisting in repeated efforts

to wear down his resistance and make him change his

mind. In contrast to such practices the police here

immediately ceased the interrogation, resumed ques-

tioning only after the passage of a significant period of

time and the provision of a fresh set of warnings, and

restricted the second interrogation to a crime that had

not been a subject of the earlier inte ion.”

at 105-106, er interrogation.” 423 U.S.

In 1977 , this Court relied on the principles in Michigan v.

Mosely, in deciding tiie case of Brewer v. Williams, 430

U.S. 387, 97 S.Ct. 1232, 5i L.Ed.2d 424 (1977), thus:

“The reasons to keep the lines of communication

between the authorities and the accused open when the

accused has chosen to make his own decisions are not

present when he indicates instead that he wishes legal

advice with respect thereto. The authorities may then

communicate with him through an attorney. More to the

point, the accused having expressed his own view that

he is not competent to deal with the authorities without

legal advice, a later decision at the authorities’ in-

poe to ee a roomier prs counsel’s presence

r viewed wi icism.”

aa poops ead sided pticism.” 430 U.S. at

The resultant skepticism caused by the circumstances in

Brewer resulted in a granting of the defendant's petition for a

Writ of Habeas Corpus with this Court affirming the decision

of the United States Court of Appeals for the Eighth Circuit.

In Brewer, the defendant, charged with murder, made

incriminating statements to police while being transferred by

automobile. During the trip the defendant expressed no

willingness to be interrogated in the absence of his attorney

but instead stated several times that he would make a

11

statement after seeing his attorney. However, one of the

police officers, who knew that the defendant was formerly

under psychiatric care and was deeply religious, sought to

obtain incriminating admissions from the defendant by

stating to him during the drive that he felt the victim’s body

should be found because the victim’s parents were entitled to

a Christian burial for their little girl who was taken away from

them on Christmas Eve.

In considering these facts, this Court stated:

“We have said that the right to counsel does not depend

upon a request by the defendant, Carnley v. Cochran,

369 U.S. 506, 513, 8 L.Ed. 2d 70, 82 S.Ct. 884; cf.

Miranda v. Arizona, 384 U.S. at471, 16 L.Ed. 694, 86

S.Ct. 1602, 10 Ohio Misc. 9, 36 Ohio Ops. 2d 237, 10

ALR 3d 974, and that courts indulge in every

reasonable presumption against wavier, e.g., Brookhart

v. Janis, Supra, at 4, 16 L.Ed.2d 314, 86 S.Ct. 1245, 7

Ohio Misc. 77, 36 Ohio Ops. 2d 141; Glaser v. United

States, 315 U.S. 60, 70, 86 L.Ed. 680, 62 S.Ct. 457.

This strict standard applies equally to an alleged waiver

of the right to counsel whether at trial or at a critical

stage of pretrial proceedings. Schneckloth v. Busta-

monte, 412 U.S. 218, 238-240, 36 L.Ed.2d 854, 93

S.Ct. 2041; United States v. Wade, 388 U.S. 237, 18

L.Ed.2d 1149, 87 S.Ct. 1926.

We conclude, finally, that the Court of Appeals was

correct in holding that, judged by these standards, the

record in this case falls far short of sustaining [the

State’s] burden. It is true that [the defendant] had been

informed of and appeared to understand his right to

counsel. But waiver requires not merely compre-

hension but relinquishment. . .

His statements while in the car that he would tell the

whole story after seeing [his retained counsel] were the

clearest expressions by [the defendant] himself that he

desired the presence of an attorney before any interro-

12

gation took place . . . Despite [the defendant's] express

and implicit assertions of his right to counsel, [the

detective] proceeded to elicit incriminating statements

from [the defendant].”” 430 U.S. 404-405. [Emphasis

added].

Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25

L.Ed.2d 747 (1970), again confirmed the reliability of the

mandates of the Bram, supra, decision by relying on Bram to

determine the voluntariness of the guilty plea in Brady. This

Court wrote:

*‘Bram is not inconsistent with our holding that

Brady’s plea was not compelled even though the law

promised him a lesser maximum penalty if he did not go

to trial [life imprisonment versus a death penalty]. Bram

dealt with a confession given by a defendant in custody,

alone and unrepresented by counsel. In such cir-

cumstances, even a mild promise of leniency was

deemed sufficient to bar the confession, not because the

promise was an illegal act as suck, but because

defendants at such times are too sensitive to induce-

ment and the possible impact on them too difficult to

assess.

Brady’s situation bears no resemblance to Bram’s.

Brady first pleaded not guilty; prior to changing his plea

to guilty he was subjected to no threats or promises in

face-to-face encounters with the authorities. He had

competent counsel and full opportunity to assess the

advantages and disadvantages of a trial as compared

with those attending a plea of guilty; there was no

hazard of an impulsive and improvident response to a

seeming but unreal advantage.” 397 U.S. 759, 76.

[Emphasis added]

Schneckloth v. Bustamonte, 412 U.S. 218, 225-226, 93

S.Ct. 2041 36 L.Ed.2d 854 (1973), developed, further, the

relevant factors to be considered in determining the quality of

13

the voluntariness of any confession in this way:

“This Court’s decisions reflect a frank recognition that

the Constitution requires the sacrifice of neither security

nor liberty. The Due Process Clause does not mandate

that the police forego all questioning,.nor that they be

given Carte Blanche to extract what they can from

suspect. ‘The ultimate test remains that which has been

the only clearly established test in Anglo-American

courts for two hundred years: the test of voluntariness.

Is the confession the product of an essentially free and

unconstrained choice by its maker? If it is, if he has

willed to confess, it may be used against him. If it is not,

if his will has been overborne and his capacity for self-

determination critically impaired, the use of his con-

Session offends due process’, Culombe v. Connecticut,

supra, 602, 6 L.Ed.2d 1037.

In determining whether a defendant’s will was over-

borne in a particular case, the Court has assessed the

totality of all the surrounding circumstances - both the

characteristics of the accused and the details of the

interrogation. Some of the factors taken into account

have included the youth of the accused, e.g., Haley v.

Ohio, 332 U.S. 596, 92 L.Ed. 224, 68 S.Ct. 302... the

length of detention, e.g., Chambers v. Florida (309

U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716]; the repeated

and prolonged nature of the questioning, e.g. Ashcraft v.

Tennessee, 322 U.S. 143,88 L.Ed. 1192,64S.Ct.921; —

and the use of physical punishment such as the de-

privation of food or sleep, e.g., Reck v. Pate, 376 U.S.

433, 6 L.Ed. 2d 948, S.Ct. 1541.

The significant fact about all of these decisions is that

none of them turned on the presence or absence of a

single controlling criterion; each reflected a careful

scrutiny of all the surrounding circumstances. {Cita-

tions omitted]”” (Emphasis added, see also Bouldon v.

Holman, 394 U.S. 478, 480, 89 S.Ct. 1138, 22

L.Ed.2d 433 (1969).

14

This Supreme Court of the United States has also

recognized the unique insidiousness and effectiveness of

subtle and gentle coercion and its bearing on the constitu-

tional voluntariness of confessions. In Garrity v. New Jersey,

385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967),

confessions given by police officers concerning traffic ticket

fixing, under threat that silence might affect their job status,

were held by this Court to be unconstitutionally forced. In

arriving at its decision, this Court wrote:

“Coercion that vitiates a confession under Chambers v.

Florida, 309 U.S. 227, 84 L.Ed. 716, 60 S.Ct. 472,

and related cases can be ‘mental as well as physical;

‘the blood of the accused is not the only hallmark of an

unconstitutional inquisition.’ Blackburn v. Alabama,

361 U.S. 199, 206, 4 L.Ed.2d 242, 80 S.Ct. 274.

Subtle pressures (Leyra v. Denno, 347 U.S. 556, 98 |

L.Ed. 948, 74 S.Ct. 716; Haynes v. Washington, 373

U.S. 503, 10 L.Ed.2d 513, 83 S.Ct. 1336) may be as

telling as course and vulgar ones. The question is

whether the accused was deprived of his ‘free choices to

admit, to deny, or to refuse to answer.’ Lisenba v.

California, 314 U.S. 219, 241, 86 L.Ed. 166, 182, 62

S.Ct. 280.” 385 U.S. 496 [Emphasis added]

See also Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 50

L.Ed.2d 194 (1976); and see generally Escobedo v. Illinois,

378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1946).

Throughout the variables involved in these considera-

tions, the basic determinants of voluntariness remain un-

changed:

“The question is not one of form, but rather whether the

defendant in fact knowingly and voluntarily waived the

rights delineated in the Miranda case . . . The Courts

must presume that a defendant did not waive his rights,

the prosecution’s burden is great...

15

... the question of waiver must be determined on ‘the

particular facts and circumstances surrounding that

case, including the background, experience and conduct |

of the accused.’ ”’ (Citations omitted) State of North

Carolina v. Willie Thomas Butler, _. U.S. , :

ae ‘ L.Ed.2d___ (April 24, 1979).

It is found that the Federal Courts, for purposes of this

petition, those which preside in Virginia, maintain: an |

undistorted continuum of the constitutional interpretations

of this United States Supreme Court cited above. In the case

of United States v. Grant, 549 F.2d 942 (1977), the United

States Court of Appeals for the Fourth Circuit affirmed the

defendant’s conviction for armed bank robbery, finding his

confession to be voluntary and admissible. The court found

the confession to be spontaneous, developing from a con-

versaion initiated by the defendant with FBI agents. The

Court determined that the investigator’s conduct was beyond

reproach since they had immediately and completely ceased

all discussion about the robbery itself after the defendant had

requested an attorney, seeking only standard identification

information. The court wrote:

“It is true that when [the defendant] requested counsel,

Miranda imposed upon investigating officers the duty

to cease any questioning of the accused about the crime

under investigation and not to resume until the accused

had been given a reasonable opportunity to secure .

counsel or had been offered and refused counsel. This

does not mean, though, that the accused, may not later

waive his earlier request for counsel, though such

waiver is not to be lightly assumed . . . as Justice White

observed in Michigan v. Mosley [citation omitted]

waiver of an accused’s right to counsel, after such right

has been asserted ‘may properly be viewed with

skepticism’. And this ‘skepticism’ finds increased justi-

fication if there is no substantial lapse of time between

16

the request for counsel and its alleged waiver... the

conduct of the investigating officer after the right to

counsel is asserted must be scrutinized with special

care for any possibility of imposition, coercion or

unfair suggestion. . .

Nor does Miranda protect an accused, even though he

has requested counsel, from a spontaneous admission

made under circumstances not induced by the investi-

gating officers or during a conversation not initiated by

the officers.” 549 F.2d 945-946 [emphasis added].

More closely on point with Mr. Stewart’s situation in

Virginia is the Fourth Circuit, United States Court of

Appeals case, Ferguson v. Boyd, 566 F.2d 873 (1977),

where the defendant’s petition for a Writ of Habeas Corpus

was granted due primarily to what the court determined to be

the involuntariness of his confession. In that case, the Court

of Appeals maintained that involuntary confessions could

result from “mental coercion as well as physical abuse.” 549

F.2d at 877; that

“The ultimate question is whether the pressure, in

whatever form, was sufficient to cause the petitioner’s

will to be overborne and his capacity for self-

determination to be critically impaired. Culombe v.

Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6

L.Ed.2d 1037 (1961)... As the Supreme Court stated

in Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct.

274, 279, 4 L.Ed.2d 242 (1960):

‘A number of cases have demonstrated, if demon-

stration were needed, that the efficiency of the rack

and thumbscrew can be matched, given the proper

subject, by more sophisticated modes of per-

suasion...’

In as much as the degree of pressure necessary to crush

one’s will varies with the individual and the circum-

17

stances of the arrest and detention, a finding of coercion

and involuntariness must be based upon a careful

consideration of the totality of the circumstances.

Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93

S.Ct. 2041, 36 L.Ed.2d 854 (1973) [Emphasis

added].” ;

The defendant, in Ferguson, was held in custody for one

week without hearing, as was his girlfriend (as was Mr.

Stewart held in Florida), The Court of Appeals determined

that as a result of the manipulation of the defendant, his

girlfriend and his male companions by police authorities, the

defendant’s confession resulted from a desire to ease his

girlfriend’s dilemna and was therefore brought on by

psychological coercion and calculated pressures in violation

of due process. See generally Redd v. Peyton, 303 F.Sup.

320, 324-325 (W.D.Va. 1969) (Some elements considered

in Redd as part of the “totality of the circumstances” were:

the age, intelligence, education and background of the

individual; the atmosphere in which the individual was

placed; the length and demeanor of the interrogation; any

physical force or threats used; any psychological coercion

usedas promises and inducements; and incommunicato

detention). See also: Word v. Slayton, 337 F.Sup 19

(W.D.Va. 1972); Burton v. Cox, 312 F.Sup..264 (W.D.Va.

1970); Griffin v. Peyton, 284 F.Sup. 650 (W.D.Va. 1968);

Gibson v. Peyton, 262 F.Sup. 574 (W.D.Va. 1966); Cortez

v. United States, 337 F.2d 699 (9th Cir. 1964); Kent 'v.

United States, 272 F.2d 795 (1st Cir. 1959).

It is necessary to include here the United States District

Court case of United States Ex Rel. Sanders v. Rowe, 460

F.Supp. 1128 (N.D. Ill, E.D. 1978) because of its close

similarity to Mr. Stewart’s case on one point, vis.

“ After petitioner requested a lawyer, the detectives told

18

him that they had a strong case against him and that he

would almost certainly be convicted and sentenced to a

minimum of four years in prison. They described the

substance of their case to him, including the fact that

they had obtained an oral statement from [a second

defendant] and a written statement from [a third de-

fendant]. When the petitioner asked to see Manley’s

statement, the detectives refused to show it tohim... A

few minutes later, petitioner agreed to give a statement

and signed a written waiver form. This statement

admitted an involvement in the armed robbery . . .” 460

F.Sup. 1132.

In granting the petitioner’s Writ of Habeas Corpus, the

District Court quoted from Miranda as they declared a

violation of Due Process:

“*, .. [a] valid waiver will not be presumed sim

the silenceof the accused after varhtans are hen or

simply from the fact that a confession was in fact

eventually obtained. .. Any evidence that the accused

was threatened, trickered, or cajoled into a waiver will,

of course, show that the defendant did not voluntarily

waive his privilege.’ ” [460 F.Sup. 1135]

Finally, the Fourth Circuit case of United States v. Clark,

499 F.2d 802 (4th Cir. 1974) is most easily applicable and

contrastable to Mr. Stewart’s situation. In Clark, the

defendant was arrested for bank robbery, informed of his

rights and immediately taken before a magistrate for a bond

hearing and an indigency determination. Following, this

procedure, the two arresting officers informed Clark that

they wanted to interview him concerning the robbery. The

defendant was informed again of his rights and he stated “I

had better talk to a lawyer”, 499 F.2d at 805. The agents

then told Clark “that such a request effectively ended the

interview.” Ibid, and they left the place where Clark was

being held. Four hours later the two agents returned to the jail

19

to fingerprint Clark:

‘The three were in a small rectangular room with no one

else present. Agent Kenny, who admits that he was the

initiator of a conversation concerning interrogation,

asked Clark to submit to further questioning regarding

the bank robbery. Even though the agents knew that |

Clark only four hours earlier had expressed the desire

for the advice of counsel and he had no attorney ‘yet,

they continued their efforts to persuade him to answer

their questions. When Clark persisted with his claim of

mistake Agent Kenny made the following statement: |

‘If, in fact, you have nothing to do with any of this,

you have nothing to fear from us. In other words,

you have nothing to lose. On the other hand, if you ©

are involved, then it will come around you.’

Next the officers told Clark that his friend, English, had ~

made serious allegations against him in a confession.

Although Agent Kenny stated that he could not recall

with certainty, in all likelihood he stated that Clark

would be better off if he told the truth. The agents read

Clark his rights from the waiver form and had him read ,

them again. Clark refused to sign a waiver of his rights

but did consent verbally to submit to questioning

without an attorney present.” Jbid. The interrogation —

lasted fifty-six minutes. ,

In considering these facts the Court of Appeals asserted

that the issues. of the voluntariness of a confession and the °

voluntariness of the waiver of the right to counsel were

virtually impossible to separately analyze, with evidence on

one issue being relevant to the other. The Court also |

considered whether appropriate safeguards were taken to’

insure that the defendant’s statement was a product of free

choice, citing Miranda, 499 F.2d, 806-807. The “‘totality of

all the surrounding circumstances” principle in Schneckloth,

supra, was also quoted. 499 F.2d 807. The Court of Appeals

20

in Clark concluded that the defendant’s confession was

involuntary and reversed his conviction stating:

“We recognize the possibility that, under given

circumstances, an accused may later waive a right

which he previously asserted. Dillon v. United States,

391 F.2d 433, 437 (10th Cir. 1968). However, evi-

dence that an accused has previously asserted his right

to confer with counsel is a factor which weighs heavily

against a finding that a subsequent uncounseled con-

fession is voluntary. See United States v. Slaughter,

366 F.2d 833, 840-841 (4th Cir. 1966).” Ibid.

(In Slaughter, the defendant’s statement was held to be

involuntary though the second interview took place some

twenty-five hours after the first.) In the words of the Court of

Appeals addressing Clark’s situation: ‘At the very least, the

agents should have afforded Clark sufficient time to employ

and consult with counsel before they initiated any sub-

sequent interview.” Ibid. See generally Scatterfield v.

Zahradnick, $72 F.2d 443 (4th Cir. 1978); Hunt v. Cox,

312 F.Sup. 637 (E.D.Va. 1970).

The following passages and case citations are presented as

representative of the judicial consideration given the volun-

tariness question in Virginia, and as having had application

to Mr. Stewart’s case during judicial proceedings there:

“... Our accusatory system of criminal justice demands

that the government seeking to punish an individual

produce the evidence against him by its own inde-

pendant labors, rather than by the cruel, simple éx-

pedient of compelling it from his own mouth . ..

At the outset, if a person in custody is to be subjected to

interrogation, he must first be informed in clear ard

unequivocal terms that he has the right te remain silent.

. such a warning is an absolute prerequisite in

overcoming the inherent pressures of the interrogation

atmosphere .. .

21

"he umstances surrounding in custody inter-

cnttindie operate very quickly to overbear the will of

aT ney Ceo ight Wo have conti aoee

ref ave | prese:

ths interrogation is indispensible to the protection of the

Fifth Amendment privilege under the system we de-

lineate today...” Durham v. Commonwealth, 208

Va. 415, 419, 158 S.E.2d 135, 139 (1967); see

generally Cardwell v. Commonwealth, 209 Va. 68,

161 S.E.2d 787 (1968); Dailey v. Commonwealth,

208 Va. 452, 158 S.E.2d 731 (1968).

“* Miranda does not apply to ‘any soniaenee oan i

voluntarily without any compelling. ‘

‘Citation omitted}, But since (the defendant] confessed

after questioning by the police and while he was still in

custody, his confession was subject to compelling:

influences and should not have been admitted in evi-

dence [citation omitted].” Dean v. Commonwealth,

209 Va. 666, 668, 166 S.E.2d 228, 230 (1969). See

generally Hammer v. Commonwealth, 207 Va. 135,

148 S.E.2d 878 (1966); Jackson v. Commonwealth,

116 Va. 1015, 81 S.E. 192 (1914).

“If defendant had desired to end the interrogation, he

could have simply said, ‘I do not want to answer any

more questions’ [Citation omitted]. There was nothing

coercive or deceitful in the manner in which the officers

conducted the interrogation which caused defendant to

continue answering their questions, See Land v.

Commonwealth, 211 Va. 223, 229, 176 S.E.2d 586,

590 (1970). | “059

Moreover, defendant testified that when he made

statements to the officers . . . he had not been threatened

or offered any promises of reward or leniency... Akers

v, Commonwealth, 216 Va. 40, 46, 47, 216 S.E.2d28,

32 (1975); see also Burton v. Peyton, 210 Va. 484, 171

§.E.2d 822 (1970).

Commonwealth, 212 Va. 260, 263, 183 S.E.2d 725,

728 (1971); see also Taylor v. Commonwealth, 212

Va. 725, 187 S.E.2d 180 (1972). :

“At ‘one point’ in the interview, the defendant stated he

‘would like to talk to an attorney.” However, ‘im-

mediately after making request for an attorney’ but

so” sat teas fri UF oe dean

Indisputably, Miranda requires that if, during custodial

interrogations, ‘the individual states that he wants an

attorney , the interrogation must cease until an attorney

is present,’ 384 U.S. at 474. This does not mean,

however, ‘that the accused may not later waive his

earlier request for counsel, though such waiver is not to

one, requiring con

Grant, 549 F. ae 942, 945 (4th Cir. sahia (footnotes

omitted) . .

23

In affirming Grant’s conviction, the court stated that

Miranda does not ‘protect an accused, even though he

has requested counsel, from a spontaneous admission

made under circumstances not induced by the investi-

gating officers’ .

We agree tly this a AM _. .” LaBonte y.

Commonwealth, 217 Va. 677, 678-679, 232 S.E.2d

738, 738-739 (1977); see genrally Owens v. Com-

monwealth, 218 Va. 69, 235 S.E.2d 331 (1977).

“Factual findings of voluntariness are not disturbed on

review unless plainly wrong.’.

*mainfestly, a determination of voluntariness based —

upon a misapplication of constitutional standards is

plainly wrong.

One may infer, or pretend to infer, what another never

intended to imply. The defendant says he inferred

coercion from [the investigator's] statements. [The

investigator] says he intended no implication of

coercion. Even if [the defendant] in fact drew such an

inference, there would be no coercion proscribed by the

fifth Amendment, unless that inference were one a

reasonable man would draw.” Witt v. Commonwealth,

215 Va. 670 at 675 (1975).

Mr. Stewart submits that all of the case law cited above not

only provides the correct interpretation and application of

the particular Fifth, Sixth and Fourteenth Amendment rights

involved in each instance, but that it also provides sufficient

justification to recognize the prayer in this petition.

It is evident from the record of the testimony given by Mr.

Stewart and Investigators Miles and Boggess during the

suppression hearing held on September 8, 1978, and from

the record of the testimony given at trial by Investigator

Miles on September 15, 1978, that the following points

firmly support the contention that Mr. Stewart’s constitu-

24

tional rights to counsel and to remain silent were violated in a

manner which requires issuance of a Writ of Certiorari to

review the judgments in the Circuit Court “st the County of

rairfax, Virginia:

1. It is submitted that Mr. Stewart’s ienath dovsiitions' in

the Dade County, Florida, jail, from June 15, 1978, until

June 23, 1978, when he was transported back to Virginia,

was unreasonable and that this waiting period worked to

create and unduly amplify apprehension, worry and fear in

the mind of Mr. Stewart concerning his predicament. This is

where the element of subtle coercion, condemned most

effectively by Garrity and Ferguson, supra, began its

undermining effect on the will of self-determination of Mr.

Stewart:

“Q. And when had you been told to expect Investigator

Miles?

A. Wednesday [June 21, 1978]. First it was Monday

[June 19, 1978]. Then it was moved to Wednesday

[June 21, 1978] and then they didn’t get there until

Friday [June 23, 1978].

Q. In what emotional state were you when he finally

arrived on the morning of Friday, June 23rd?

A. I hadn’t had any sleep for over two days, two or

three days. I just couldn’t sleep in there, you know,

because I was worried about them coming down

and threatening me.” [S.T. 34]

2. It is submitted that what was said by Sergeant Wilson

of the Fairfax County Police Department, to Mr. Stewart

during the telephone conversation on June 15, 1978, (S.T.

30-33, 113-114) added to the unconstitutionally coercive

atmosphere of Mr. Stewart’s detention in Florida; it should

be noted, again, that Mr. Stewart was directed to make this

25

“call by a message sent to the Dade County Jail by authorities

in Fairfax County (S.T. 30):

“The Defendant: All right, the conversation with the

party up here, I said, ‘Hello, this is Mr. Stewart,’ and

they go ‘good I'm glad you called’, or something like.

that.

One of the two men said that if I didn’t tell them that

Jimmy Clark had pulled the trigger, that I would be

brought up here to trial and sentenced to the chair .

[S.T. 31-32]

Q. Now what did you tell the parties here in Fairfax

during that telephone conversation with regard to

making a statement?

I told them I had nothing to say.

And did that conclude the telephone conversation?

No, I said something else. I said ‘I don’t know why

you people are treating me like this’, and then I just

hung up on them. . . [S.T. 33]

[Investigator Boggess:]

Q. Do you recall what Sergeant Wilson said with

regard to whether or not he needed a statement

from Mr. Stewart to get a conviction?

A. I don’t recall precisely, Mr. Brent. I think it was

something along the line that we didn’t need the

statement or something like that.

Along the lines of what?

That we didn’t need his statement or something like

that.

That you could get him convicted even without a

statement?

I believe it was something like that. I can’t ciaall

exactly what Sergeant Wilson said. .

Was it something to the effect or could it have el )

something to the effect that he would go to the

POP

QD Fr DOD FA

26

electric chair whether or not he made a statement

or not?

A. I recall the word electric chair being used. I don’t

recall exactly what content it was used as to

whether or not we could get him convicted of first

degree murder which would — of capital murder

which would be the death penalty.

Q. Would it be fair *> say that you came away from

that telephone conversation and listening to Ser-

geant Wilson with kind of a negative feeling?

The Witness: When you speak of negative —

By Mr. Brent:

Q. I am talking about his comments over the tele-

phone.

A. I wouldn’t say negative in a sense. I don’t think I

would have handled it myself that way. . .

Q. Would it be fair to say that his remarks were

inappropriate?

A. That would only be an opinion of mine.” [S.T. 113-

114; 118-119].

It is further submitted on this point that discussion of the

probable execution of Mr. Stewart, even if he remained silent

(as is his constitutional perogative), and discussion of the

method which would be used to execute him, can only be

termed the most insidious form of coercion, remembering

that Mr. Stewart had been requested by Fairfax County

Police authorities to make the telephone call. Furthermore,

there could be found no indication in the record where either

Sergeant Wilson or Investigator Boggess advised Mr.

Stewart of his constitutional rights, as defined by the

Supreme Court’s Miranda decision, as the necessary pro-

logue to the meat of their telephone conversation.

3. It is submitted that it was at least irresponsibly, if not

intentionally, planned that Mr. Stewart be returned to

27

Fairfax County late on a Friday afternoon, to-wit: Mr.

Stewart remained in Florida from the eariy morning hours of

June 15, 1978 (S.T. 29, T.T. 9/15, 18-19) until a flight

departure time of 4:45 p.m. on Friday, June 23,-1978 (T.T.

9/15, 8); arriving at National Airport, Washington, D. C., at

about 6:00 p.m., June 23, 1978, and finally at Fairfax Police

Headquarters at 7:00 p.m. that day. (T.T. 9/15; 9, 33) At

this time of day no Circuit or District Courts are sitting; thus

was avoided the necessity of bringing Mr. Stewart im-

mediately before one of those Judges to formally inform him

of the charges against him and, if he desired, to have an

attorney provided for him; furthermore, there could be no

indication in the record that he was, in fact, ever brought

before even a magistrate to provide for these necessary

procedures. It is further submitted that immediate com-

mitment to the Fairfax County Adult Detention Center at

this point until the following Monday, when Mr. Stewort

could have been brought before a judge and provided with an

attorney, would have been the correct procedure to follow. |

This failure multiplied the coercive atmosphere surrounding

Mr. Stewart and also infringed upon his rights to Due

Process and Counsel.

4. It is submitted that Mr. Stewart was held under the

swelling, coercive influence of Fairfax County Police au-

thority from the time of the June 15th telephone conversation

until his commitment to the Fairfax County Adult Detention

Center (sometime after his alleged voluntary statement of

confession was completed) during the early morning hours of

June 24th. (T.T. 9/15, 36) This unduly coercive atmosphere

was maintained and allowed to build despite Mr. Stewart's

assertions that he did not want to make a statement and that

he thought he should speak with an attorney. It is alleged that

at times these assertions by Mr. Stewart were coupled with

indications of confusion as to just what he should do. Even if

this is true, the cases cited above confirm that any indication

that an individual wishes to remain silent and wishes to speak

with an attorney should be scrupulously honored, and any

later waiver of these protections, especially if made in an

environment which even slightly smells of undue influence,

should be the subject of skepticism, since the law cannot

measure the impact of such influence upon the will of self-

determination of a particular individual. The record provides

28

the following:

“Q. Now, what did you tell the parties here in Fairfax

DP PHP DP

during that telephone conversation with regard to

making a statement?

I told them I had nothing to say [S.T. 33]. . .

What did Investigator Miles say about Mr. Clark’s

statement or confession [in Florida]?

Basically —

To you?

He said he had done it. That he had pulled the

trigger and everything.

What did you think? What did you believe when he

said that they had enough evidence to convict you

even if you didn’t give a statement?

I believe that Jimmy Clark had said that I willfully

helped him [S.T. 37]. . .

Q. What impression did you have as a result of

Investigator Miles’ remarks?

That if I made a statement at that time of what

rm happened, that I would clear myself [S.T.

After you went over that warning and consent form

with Investigator Miles, what did you say to him?

I just told him I wasn’t going to make any kind of

statement at this time [S.T. 38]. . .

!

OrPOPrP 0

>

29

Mr. Miles on several occasions on the flight up, you

know, told me he thought personally that I was an

all right person and he thought I should go ahead

and give a confession in order to help the state with

their case against Jimmy and Jamie and Betty.

And this was after you told him that you didn’t want

to make a statement?

Right.

And you wanted to remain silent?

Uh-huh [S.T. 39]...

What did you think when he kept talking to you

about making a confession and telling you that you

ought to make a confession?

Well, he kept on saying he could get a conviction

anyway, so I thought at the time, you know, that

Jimmy had, you know, implicated me as, you

know, going along with everything willfully and

this, that and the other and I believed exactly what

the man said. [S.T. 39]. . .

The Defendant: Yes. I was fingerprinted and I guess

what you would consider booked. I was handed copies

of my charges.

By Mr. Brent:

POPPA POH PH

Charges or warrants?

Right, and photographed and also asked again

whether I would make a statement.

If you what?

If I would reconsider making a statement.

Who asked you that?

Mr. Miles.

What did you respond?

I said no. [S.T. 40-41]

QP

a)

rr DPA PH Pp

30

I [the defendant] told [Investigator Miles] that I

had left directions with the FBI in Homestead, Mr.

Scarborough down there, Bill Scarborough, that I

wanted a State’s Attorney present, a lawyer ap-

pointed and one of the local FBI agents there

before J answered any questions. [S.T. 42]

Now at [Fairfax] Police Headquarters you told

them you didn’t want to give a statement. Is that

right?

Correct. [S.T. 42]...

Now, where were you taken from police head-

quarters?

I was told I was being taken right to the jail but I was

taken to some urderground — it was a building that

was above ground, but they took me into like a

garage area and took me up a couple of floors to

Criminal Investigation Division.

Would you tell us what happened there.

Miles took me over and Mr. Boggess came in

shortly after that. They put me in this little room

and [I] kept on asking if I could call my father. . .

I asked them whether he could come over to see me

that evening.

And what was said in reply to that?

No.

Was there a reason for that?

They just outright said no at that time.

And what was your position at this point with

regard to giving a statement?

I had told them up until then no. [S.T. 42-44]

Well, Mr. Boggess had told me the same thing that

Mr. Miles had that they could get a conviction and

>

Pr OD PA

D PH PHO FP APA

31

the penalty for that is the death penalty, the electric

chair.

They kept on asking me, you know, that the only

way to clear myself if I am not guilty is to give them

a statement. .

What if anything did they say about other

individuals?

They just said that Jimmy had given a statement

and they pointed on the desk that was in the little

room they had me and they said it’s 48 pages and

there it is.

Did you read that statement?

No, I didn’t. I had a chance to glance at it a couple

of times when they had it open.

Did they mention what would happen to any other

people aside from Clark?

They asked me if — first they asked me where Lea

was, Lea Frazier which was my girlfriend at the

time and also what I thought would happen to her.

Anybody else?

No.

And what did you infer from their remarks about

Lea Frazier?

I figured they were going to try to charge her with

something. [S.T. 45-46]

What did you mean by that, you figured?

They asked me where was Lea and what I thought

would happen to her.

Okay.

Then I got the feeling that they were going to try to

charge her if I didn’t give a statement at the time.

What if anything was said about the electric chair?

>OPrPO P-

2

Q.

32

They told me that is the penalty in Fairfax County

for supposedly a murder for hire.

Did you eventually call your father?

Yes, I did. | |

What did you tell him?

I told him that I was over here and what time I had

arrived and everything and what had happened up

to that point and asked him whether Lea was okay

and I told him that — I told my father that I think I

better give a statement so they don’t charge Lea

and so I could clear myself.

What if anything was said by the investigator with

regard to a lawyer or your getting a lawyer?

They told me that there was no sense in even

bothering giving a statement with a lawyer because

lawyers would make me hide true facts and every-

thing in the case.

What was said about —

THE COURT: Who said that, sir?

THE DEFENDANT: Mr. Boggess.

BY MR. BRENT:

Q.

A.

What was said about your retaining a lawyer or

being able to get a court appointed lawyer?

They said that — they asked me whether I was

going to get my own lawyer or use one appointed by

the State and I told him I didn’t have the funds at

the time. That I had to use a Court appointed

lawyer and Mr. Boggess and Mr. Miles just smiled

at each other.

I didn’t know what it was for. Mr. Boggess said —

the feeling I got when he said it, I’m not sure exactly

what he said, but the feeling I got was that I wasn’t

going to get a good trial with any kind of Court

appointed lawyer.

33

I'm not sure exactly what he said about it. Some-

thing to the degree that they are all over-worked

and underpaid or something like that and they just

try to run through the cases as quick as they could.

THE COURT: Who said that, sir?

THE DEFENDANT: Mr. Boggess.

BY MR. BRENT:

Q. What if anything was said about your getting a lawyer

there to be with you?

A. They dold me that they wouldn’t even take a

statement unless I gave it to them right then and

there.

Q. Why did you get that impression?

THE COURT: Who said that? Let’s be sure we know

that.

THE DEFENDANT: Mr. Boggess [S.T. 47-49]

Q. What was said to you about whether or not a

statement would be taken if you got a lawyer to be

present with you?

A. They told me there is no sense in even bothering

taking a statement from me if they don’t take it right

now. That a lawyer would make me hide facts.

What did you think as a result of that remark?

I figured they weren’t — if I didn’t make a

statement right then and there they were going to

end up charging Lea with something and that I

could never have a chance of making a statement.

[S.T. 50]

A. Itold Mr. Miles I know at least a couple of handfuls

of times, you know, ten or fifteen times. I also told

Mr. Boggess when he came up here when we were

over in the little short building that I wasn’t going to

give a statement.

a)

POP

Q.

A.

34

What if anything did Investigator Boggess do when

you told him that you were not going to make a

statement after he had called in a typist? [S.T. 51]

After he called the typist in?

Yes.

He said Mr. Stewart — he got kind of upset. He

goes, “Mr. Stewart, please quit wasting our time.

Are you going to give a statement or not? I have

already called the girl and she is coming in from

home.”

Do you remember about what time that was?

That was about ten, fifteen minutes after I talked to

my father.

THE COURT: About what time was that?

BY MR. BRENT:

Q. About what time did you talk to your father?

A. I think it was about nine or 9:30, guess.

Q. So, you had been — you say you arrived at

National about six?

A. Right.

Q. And you had been in their custody for approxi-

mately three hours?

A. Right.

Q. Here in Northern Virginia?

A. Uh-huh.

Q. How many times had you told them that you were

not going to make a statement? [S.T. 52]

THE DEFENDANT: Probably two or three times to

Miles and at least two or three times to Investigator

Boggess.

BY MR. BRENT:

Q.

Now, did there come a time when you finally did

execute a warning and consent form?

PO POP

Q

35

Yes.

Why did you sign that document?

I didn’t have any other choice. It was either clear

myself then or, you know, be sent to the chair.

What do you mean by clearing yourself then?

Well, if I didn’t give a statement right then, they

weren't going to give me a chance to make a

statement at a later date. [S.T. 53-54]

What did he respond?

BY INVESTIGATOR MILES:

A.

yr Oo F&F DPA

At that time he stated he didn’t know ifhe wanted to

talk to me at that time or not. i advised him that I

was not here to play games with him or to trick him

or anything like that.

I said you are going to be transported back to

Virginia later on this afternoon. I said if you want to

give a statement, it’s up to you.

He said well, I think I want to talk to an attorney.

[S.T. 93]

So, he did not make a statement at that time?

No.

Did he tell you that he did want to make a

statement?

He stated he wasn’t sure what he wanted to do.

[S.T. 95]

Did you tell him or when did you tell him about

Clark’s confession or statement?

Prior to leaving and prior to ending the short

conversation we had there in the area. I advised

him, I said, “‘as I told you before, we are not going

to pull any wool over your eyes or lie to you.” I

said, ‘“‘Clark has been arrested. He is in California

and he has given a statement.”

> Or OP DO KP DPOPrP AP

r>O Ph

36

I told him I don’t know what the details of the

statement are but I just want ywu to know that this

_has occurred. [S.T. 96]

Mr. Stewart never gave a written statement.

Well, an oral statement that was transcribed and

signed.

Yes, sir.

You were present during all that?

That’s correct, sir.

And remember one of the last paragraphs

whore tis al that Detective Boggess had told him

that I can be convicted even if I don’t give a

confession? You don’t remember that?

At that time, yes, but now down in Florida, no such

statement was made.

I said at anytime. My question was at anytime did

you hear anybody tell him that?

Yes, I heard the statement. [S.T. 97]

So, it’s clear to you he didn’t want to give a

statement at that point?

That’s correct. [S.T. 98]

All right, sir. Why didn’t you take him to the jail

after Boggess appeared?

Because he wanted to talk to Investigator Boggess

and while I was arranging the necessary paper work

to be attached to the warrant for proper processing,

Investigator Boggess and Mr. Stewart went into

another room.

There at Police Headquarters?

Yes, sir.

And you were not present at that time?

I walked in later on.

> 0

QD rF DPA

37

What happened after you went into the room where

the two of them were?

It was just discussed whether or not Investigator

Boggess was talking to him and he decided at that

point that he would go over to CID Headquarters

and give a statement.

What time was that?

I don’t know what time it was. I don’t recall.

And you are saying that Stewart just volunteered to

give a statement at that point?

He agreed to go over to CID and give a statement

and talk to us, yes. [S.T. 102, 103]

Now, did you call — when did you first actually

meet the Defendant Stewart?

BY INVESTIGATOR BOGGESS:

rPOPO PAP

PO ~A

I believe it was on the evening of the 23rd.

And where was that?

At the Fairfax County Identification Section.

And where is that located?

In Police Headquarters.

What was he doing at that time?

I’m sorry. Investigator Miles had transported Mr.

Stewart back from Florida. I was off that day. I

made a telephone call to Investigator Miles and

from the conversation with him, I responded up to

the Police Headquarters.

You called Miles?

Yes, to see if he returned, you know, from what had

transpired while he was in Florida.

And what did Miles tell you if anything?

That I should come to the station. That Mr.

Stewart wanted to talk to me.

?- @ _- O28 @

>

rFOPO PH PD PH

38

Did Miles tell you that he had not given a

statement?

Yes. I asked Investigator Miles had he obtained a

statement from Mr. Stewart and he said no.

Did Miles tell you that Stewart, up until that point,

did not want to give a statement?

He said he would make a statement if I would come

in.

Miles told you that Stewart had told him that he

would give a statement if you came in?

Along those lines. In other words, he would make a

statement if he could talk to me. Now, that

statement didn’t include whether he would make a

statement. [S.T. 119, 120]

What happened when you got to the Identification

Section of the Police Department?

Well, they were in the process of fingerprinting and

photographing Mr. Stewart. This took a period of

time.

What happened after that?

We went into a small room there in headquarters.

From there we decided we’ll go over to our office.

Who went over to the small room in headquarters?

I think myself and Miles. I don’t know whether Mr.

Stewart did or not.

It was definitely you and Miles in that room?

Yes, just for two or three minutes. From there we

moved to the CID office.

What did you and Miles discuss at that time?

I don’t recall.

Why did you go to CID?

That was more convenient. It was more com-

fortable. After we determined he was going to make

Pr DOP DP

Pr Or DPA

39

a statement, we had to obtain the service of a steno.

This would take some time. She would be there.

She would have a typewriter there, the paper and

everything available. |

When did you find out there was going to be a

statement given?

I think I talked to him briefly there in ID and asked

him if he intended to make a statement. I think at

this time he said he would because I was not going

to stick around there if he wasn’t going to make any

statement. [S.T. 121-122]

Did you give him or did you tell him that if you

didn’t make a statement then that you weren’t going

to take a statement from him?

I may have said something along those lines.

Because it was your day off and as you said, you

didn’t want to be hanging around there?

Yes, sir.

And did you tell him that if he got a lawyer, you

probably wouldn’t take a statement from him

anyway?

I believe the way that went, I believe if he got an

attorney, the attorney wouldn’t let me get a

statement.

The lawyer would let you get a statement?

Would not.

So, you said it was either give us a statement now or

forget it?

We wouldn’t have a chance to get it.

That vou could convict him even without a

statement?

124 was my opinion at the time, yes, sir. [S.T.

Pr Or #0

40

Wasn’t there some mention about Lea or Rocky or

Beth?

In reference to what, Mr. Brent?

Well, with regard to what might happen to them if

he didn’t set the record straight?

No, He was — I think he was told that they stood a

chance of being charged as accessories if the case

could be proven against him and also if the

Commonwealth Attorney concurred with that

opinion. He was not told that for a statement we

would not charge these people. [S.T. 132-133]

BY INVESTIGATOR MILES:

A.

When I first walked in there, I identified myself to

him and told him that I was there for the purpose of

taking him back to Virginia.

I asked him at that time if he wanted to give me a

statement. He stated to me at that time that he

wasn’t sure. He said he thought he wanted to

consult with an Attorney, but he didn’t know

exactly what he wanted to do. [T.T. 9/15, 6]

He stated he wanted to know my opinion, what he

should do. He said, “‘I want to talk to a lawyer.”

[T.T. 9/15, 7]

When you talked to him, did he leave the ditinct

impression with you that he wanted to talk to a

lawyer before he gave a statement?

He gave me the impression from the way he

expressed himself that he wasn’t sure. He made

statements, in one way he wanted to talk and in

another way he didn’t know exactly what he

wanted to do. [T.T. 9/15, 19-20]

Well, did you not go any further in your questioning

in the morning on June 23rd because he told you he

didn’t want to give you a statement?

~

Dr OP

>

4]

He said he wasn’t sure whether he wanted to or not

and when he — he was not advised of his rights at

that point. I was just wondering whether or not he

was going to talk to me and when hé made the

statement that he wasn’t —

Now, are you saying that he never told you that he

wanted a lawyer?

He stated he wasn’t sure whether he wanted — he

didn’t know. One time he would say I feel like I

want to talk to you, but then — I don’t know, and it

finally got to a point where he said, “what do you

think I should do?” [T.T. 9/15, 20-21]

What was he told about whether or not his father

could be there?

I don’t recall the exact wording, but we said you are

the one that is involved in this and he came out

going over again with the Attorney and so forth and

that just went away.

He called his father. We let him call his father.

Well, would it be fair to say that the clear

implication from you and Investigator Boggess was

that his father couldn’t be there during this

questioning?

I would say that is correct, yes.

So, you weren’t going to allow his father to be there

during the questioning?

No. [T.T. 9/15, 23-24]

Did you tell him that if he gota lawyer, that you

were not going to take a statement or that his lawyer

would advise him not to make a statement.

I don’t recall how that occurred. Like I said, I was

in and out of the room. I believe I overheard

portions of the statement of that type, yes. [T.T.

9/15, 26]

42

. Well, are you saying that you did not tell him that if

< he sa) a bieves the lawyt would not let him make

a statement?

A. There was some wording. Like I said, I left the

room. When I came back in, there was some

wording — discussion taking place and I recall

something along ‘those lines about an Attorney

about talking, but that’s all I recall and when I sat

back down at the table, things proceeded. [T.T.

9/15, 27]

Q. And you talked about or you heard Investigator

Boggess talk about whether or not the lawyer would

let him give a statement?

Something along those lines, yes. [T.T. 9/15, 28]

Didn’t you and Investigator Boggess say or imply

that if he didn’t make a statement at that time you

weren’t going to take a statement from him?

A. No. What I recall is that if he didn’t make tne

statement at that time, he would be taken back and

we would wait. [T.T. 9/15, 29]

It is submitted further, on this point, that there exists in the

preceding excerpts sufficient correlation between Mr.

Stewart’s accounts of the events leading up to his statement

and what the investigating officers themselves testified to,

that it is not beyond reason that psychological coercion and

manipulation had their effect upon the will of Mr. Stewart.

Though it is conceded that warnings and waivers were

flourished at him, it remains that token recognition of

constitutional form cannot in this case overcome: sinister

references to electric chairs; inferences that friends may go to

jail; pompous dictates’ that court appointed attorneys will

provide inadequate and even harmful counsel; and the cruel

denial to have Mr. Stewart’s own father near. In effect, the

police, in the least, caused Mr. Stewart to believe that the

QO P

43

constitutional protections of silence and counsel, in his case,

could become liabilities. It is not up to police to advise

potential defendants what courts, jurys and lawyers might

do.

5. It is submitted that Mr. Stewart was the subject of

unconstitutional physical coercion due to a deprivation of

sleep (Schneckloth, supra) caused by the unwarranted delay

in the arrival of Investigator Miles in Florida after the June

15th telephone conversation, and as a result of being held

under the arduous, coercive custody of Investigators Miles

and Boggess in Fairfax from approximately 7:00 p.m., June

23, 1978, until he was turned over to Fairfax County Adult

Detention officials during the early morning hours (4:00

a.m.) of June 24, 1978. (T.T. 9/15, 36) Furthermore, there

could be found no indication in the record that Mr. Stewart

was Offered food while he was in the custody of the

investigators. This is also an element of unconstitutional

physical coercion (Schneckloth, supra). The following

appears in the record:

Q. What did you have to eat or drink during this period

of time?

BY MR. STEWART:

I had one cup of coffee at 3:00 in the morning.

What time did they finish with you?

rotten around 6:00 that following morning. [S.T.

1:30 or 2:00. And how long were you kept there at

the building where this interrogation took place?

From about nine, a little bit before 9:00, maybe like

8:45 until early that morning, six or 7:00 in the

morning.

How did you feel physically during this period of

time?

Pr OD POP

~

Dr OD PAP

A.

6. Itis submitted that even what was presented at trial as

the voluntary statement of confession of Mr. Stewart did not

I almost fell asleep.

Was this early on or in the middle, later?

Around 12:00 I felt like I was going to fall asleep

any minute.

What if any breaks did you take or were you

offered?

Hardly any, if any. I don’t recall any. [S.T. 58-59]

And you eventually went and signed it before a

ont Public and swore it was all true. Isn’t that

so?

Yes. I was also half-asleep when I read that thing.

[S.T. 82]

reflect Mr. Stewart’s own, complete accounting:

Q.

Did you ask any questions that did not appear on

the ‘enaweithen transcript of the tape recording?

BY INVESTIGATOR BOGGESS:

A.

Q.

A.

rOr

Reference to the case?

Yes.

if they weren’t important, they wouldn’t have

‘sn on ray If there were important, they would

have been on the statement. [S.T. 125-126]

[ Unfortunately, the importance of these excluded

portions of Mr. Stewart's statement can never be

determined. |

Were there occasions when the tape was stopped

and you would rewind parts of it and rerecord?

There were times —

In response to a question?

There were times when the tape was stopped in

order to clarify a point, yes, sir, which is not on the

tape.

Q.

45

And were there —was the tape recorder rewound

and did you start the response to the question over

again?

A. I think that may have happened once or twice.

[S.T. 130] :

BY INVESTIGATOR MILES:

Q. Was anything said about the Defendant’s involve-

ment in this case that was not tape recorded?

A. No. [S.T. 105]

Q. Did the Defendant say anything about his in-

volvement in this offense that is not covered or is

not included in the typed transcript?

A. Not that I recall, sir, no. [S.T. 106]

BY MR. STEWART:

Q. Was this being recorded?

A. No, it wasn’t. ;

Q. So, they asked you questions and you answered. Is

that correct?

A. Right, and they were making notes.

Q. And then what happened?

A. After they were done asking questions, Investi-

gator Boggess told Investigator Miles to go out and

get the tape recorder.

Q. Then what happened?

A. Then they ran through somewhat the same ques-

tions. Sometimes both of them were asking the

Same questions at the same time and they were

recording it, turning it off and on, erasing stuff out

of it.

Q. How long did this procedure take?

A. Two or three, two, three, three and a half hours.

Q. What kind of recorder was it? Was it reel'to reel or

cassette?

> DPAPAH PHD OPN P

>

> Or OY

46

No, it was a small pocket recorder with a real small

cassette in them.

You testified that it was stopped?

Stopped, run back, started over. [S.T. 54-55]

How frequently would the tape be stopped and

rewound and started up again?

Quite frequently.

What would occur when the tape recorder was off?

Was on?

Off.

Off.

Or being rewound?

Just more questioning, kind of like a rehearsal.

What did the investigators say to you during these |

periods when the tape recorder was off?

Things like watch what you say. Just go over how I

was supposed to answer it and everything and what

the next question was going to be.

What is your recollection of how long this took?

Total recording time, at least three hours, maybe

three and a half, four hours. Between three and four

hours.

And the cassettes were carried out as they were

completed for the typist. Is that right? ~

Yes.

When did you first start reviewing the transcribed

pages, if you can recall?

1:30, 2, 2:00.

1:30 or 2:00. And how long were you kept there at —

the building where this interrogation took place?

From about nine, a little bit before 9:00, maybe like

8:45 until early that morning, six or 7:00 in the

morning. [S.T. 57-58]

47

A most significant portion of the record is the following:

Q.

A.

Dr OD Pp

Have any threats or promises been made to you by

anyone?

No, no promises per se, however, but Detective

‘Boggess said that he could get a conviction of first

degree murder without a statement from me.

He also did not imply that in fact that my making a

statement would be better or worse for me. He did

say that if I make a statement now, that it would

make the Judge and the Jury look at me as if I were

sorry about this involvement which could be better

for me, but on the other hand, that if they, meaning

Judge and Jury, took my statement as some form of

a snow job, it could make it worse. [T.T. 9/15, 112]

And further down in the questions they asked you,

Mr. Stewart, “has any threats or promises been

made to you by anyone in reference to giving this

statement?” and your answer was, “‘no”, wasn’t it?

Yes, and they turned off the machine and we had an

extensive conversation about it. [S.T. 81]

Because you thought there was a mistake. Isn’t that

so?

I knew there was a mistake.

Now, Mr. Stewart, in light of all those, I wonder,

would you tell the Court why on page two where the

question was asked, “has any threats or promises

been made to you by anyone in reference to giving

this statement,” why didn’t you cross out that no

and put something else?

If you note on the back of my statement, I told them

that that had to be put. This statement, “no

promises per se. However, but Detective Boggess

said that he could get a conviction of first degree

murder without a statement from me. He also did

not imply that in fact that making a statement

would be better or worse for me. He did say that if I

Q.

A.

Q.

48

made a statement now, that it wold make the

Judge and the Jury look at me as was sOrry

shoot this involvement which could be better for

me, but on the other hand, if they, meaning if they,

the Judge and the Jury took my Statement as some

form of snow job, it could make it worse.

That’s right. Now, that statement —

Noting on here, “‘no, no promises per se. However,

but Detective Boggess said that he could get a

conviction of first degree murder without a state-

ment from me.”

Right.

THE COURT: You added that to the statement on the

back?

THE DEFENDANT: Right. |

BY MR. HORAN [The Commonwealth’s Attorney]:

Q.

DP P

And as a matter of fact, you had a great deal of

discussion about that and you wrote that out in

your own handwriting and then dictated that?

Right.

So it would be in the statement?

Right.

And they had no objection to that? They let you do

that. .

Now, I get back to my original question, Mr.

Stewart, with all the changes you made in this

document, why didn’t you cross this out in ref-

erence to the question, “had any promise or threat

been made to you?”

How can I prove any threats or promises have been

made to me?

Mr. Stewart, I am not asking you what you can

prove. I am asking you why you didn't cross it out

and put yes.

49

A. Because I couldn’t prove it either way. That’s the

only — the back of the page is the best I could do to

make it look like a threat was made to me and as far

as I am concerned, Your Honor, as far as I am

concerned, when they tell me they can get a

conviction for first degree murder on something

like this and give me the chair, I didn’t have any

choice but to make that statement to clear myself.

[S.T. 86-88] [Emphasis added]

For purposes of clarification, lines 7-20 of page 112 of the

September 15, 1978, trial transcript cited above, represent

the flounderings of a drowning soldier who, unknown to him,

has been tossed a line by the enemy and told “the line may or

may not save your life, it is up to you whether or not to reach

for it.” Mr. Stewart’s alleged voluntary statement of con-

fession represents no more than “an impulsive and im-

provident response to a seeming but unreal advantage.”

Brady, supra, see also Clark, supra. Mr. Stewart uses the

term “per se”, in line 9 on page 112 of the September 15,

1978, trial transcript to indicate that though no explicit

promise was made, an advantage has been insinuated as

resulting from his cooperation. The ciement of coercion is

represented by the assertions attributed to Investigator

Boggess that a conviction of first degree murder could be had

without Mr. Stewart’s cooperation. The rest of the paragraph

demonstrates, by itself, that Mr. Stewart had been made to

understand that, in effect, he should do now what he could to

help himself (grab the line while you can), and that by making

a statement that didn’t sound like a “snow job” he could

prevent thé wrath of judge and jury from ending his life. So,

with one hand the line is tossed to the drowning man and with

the other hand, it is slowly pulled away; Mr. Stewart reached

for the line with a confession implicating himself in capital

murder. The subtle torment which caused this act must now

result in that act’s nullification.

50

7, Finally, it is submitted that the trial court failed to

correctly apply the law to the facts developed at the

suppression hearing through the testimony of both the

investigating officers and the defendant. The court er-

roneously based its decision to allow Mr. Stewart's state-

ment into evidence at trial solely on the credibility of the

witnesses, completely ignoring the conflicts between the

investigator's testimony concerning the handling of Mr.

Stewart and, most fatally, ignoring the totality of the

circumstances and, thus, the unconstitutional assaults upon

Mr. Stewart’s will of self-determination revealed by that

same testimony. |

“Compare the events that occurred during this inter-

rogation with established interrogation practices critt

cized in Miranda vy. Arizona, 384 U.S. 436, 86 S.Ct

1602, 16 L.Ed.2d 694 (1966). The court referred to

police manuals and texts, then in general use, in its

discussion: : |

The officers are told by the manuals that the ‘principal

psychological factor contributing to a successful inter-

_. fogation is privacy — being alone with the person under

interrogation’. Miranda v. Arizona, 384 U.S. 436, 449,

86 S.Ct. 1602, 1615, 16 L.Ed.2d 694 (1966).

‘To highlight the isolation and unfamiliar surroundings,

the manuals instruct the police to display an air of

confidence in the suspect’s guilt and from outward

appearance to maintain only an interest in confirming

certain details . . . Perend roting age pc pel

subject in a psychological state where is

eee kate police purport to know already

— that he is guilty. Explanations to the contrary are .

dismissed and discouraged.’ Id. at 450, 86 S.Ct. at

1615.

In the event that the subject wishes to speak to a relative

or an attorney, the following advice is tendered:

51

‘[T]he interrogator should respond by suggesting that

the subject first tell the truth to the interrogator himself

rather than get anyone else involved in the matter. . . The

interrogator may also add, Joe, I’m only looking for the

truth, and if you’re telling the truth, that’s it. You can

handle this by yourself.’ Id. at 454, 86 S.Ct. at 1617.

The manuals also contain instructions for police on how

to handle the individual who refused to discuss the

_ matter entirely, or who asks for an attorney or relatives.

The examiner is to concede him the right to remain

silent. “This usually has a very undermining effect. . . .’

Id. at 548, 86 S.Ct. at 1617.

The Miranda Court, in condemnation of then current

police interrogation practices, practices similar to those

employed in this case, was concerned with the obvious

evils attendant upon such procedures.”” Clark, supra,

805, N1.

“*. . . For ye are like unto whited sepulchers, which

indeed appear beautiful outward, but are within full of

dead men’s bones. . .” St. Matthew 23:27.

52

CONCLUSION

i ition for a Writ of

It is respectfully submitted that the Petition Vri

Pelee to the Circuit Court for the County of Fairfax,

Commonwealth of Virginia should be granted for the reasons

set forth above.

This relief is respectfully prayed for.

J. RONALD LYNCH

JOHN FRANK LEINS

HOWARD, STEVENS,

LYNCH, CAKE &

HOWARD, P.C.

128 North Pitt Street

Alexandria, Virginia 22314

Counsel for Petitioner

APPENDIX A

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme

Court Building in the City of Richmond on Thursday the 31st

day of May, 1979.

Charles D. Stewart, Appellant,

against Record No. 790336

Circuit Court No. C-27466

Commonwealth of Virginia, Appellee.

From the Circuit Court of Fairfax County

Finding no reversible error in the judgment complained of,

the court refuses the petition for appeal filed in the above-

styled case.

And it is ordered that the Commonwealth recover of the

appellant the costs in the court below.

A Copy,

Testee:

Allen L. Lucy, Clerk

By: /s/illegible

Deputy Clerk

2a

' APPENDIX B

VIRGINIA:

IN THE CIRCUIT COURT OF FAIRFAX COUNTY

July 17, 1978

| COMMONWEALTH OF __ ) INDICTMENT FOR

VIRGINIA ) CAPITAL MURDER

) AND USING A FIRE-

- ) ARM IN THE

) COMMISSION OF A

CHARLES D. STEWART i+?) FELONY

COUNT I

The Grand Jurors of the Commonwealth of Virginia, in

and for the body of the County of Fairfax, and now attending

the said Court at its July Term, 1978 charges that: On or

about the 31st day of January, 1978 in the County of

Fairfax, Charles D. Stewart did feloniously, for hire,

willfully, deliberately, and premeditatedly kill and murder

George Harold Scarborough. Va. Code §18.2-31

COUNT II

The Grand Jurors of the Commonwealth of Virginia, in

and for the body of the County of Fairfax, and now attending

the said Court at its July Term, 1978 charges that: On or

about the 31st day of January, 1978 in the County of

Fairfax, Charles D. Stewart did display a firearm in a

3a

threatening manner while committing the murder of George

Harold Scarborough. Va. Code §18.2-53.1

A True Bill

No True Bill

FOREMAN

Witnesses subpoenaed, sworn and

available to testify before the

Grand Jury:

Inv. G. Boggess, Fairfax County Police Dept.

APPENDIX C

“On the basis of the credibility of the witnesses I find that

this statement was given in a voluntary manner after proper

warning and it was not forced nor were any promises or

inducements given.

Your exception is noted, sir.

(Exception noted.)” [S.T. 138]

APPENDIX D

THE COURT: I am going to tell them now, sir. I will

forget it later. I don’t think it’s going to hurt if I tell them now.

MR. BRENT: All right, sir. Please note my exception to

the admission.

THE COURT: Certainly, under the previous grounds

stated. |

4a

MR. BRENT: Yes.

(Exception noted.) %

(The Proceedings resumed within the hearing of the jury.)

MR. HORAN: Your Honor, I would offer Common-

wealth’s Exhibit No. 11. sa

THE COURT: It will be received. By agreement of both

parties, certain parts have been deleted as being irrelevant,

going to matters not related to this case. One small portion

the Court ruled on by agreement of the parties, but you will

have read to you the admissible parts of this.

You will also have by the time the case is submitted to you

a copy of it without the deletions. I am explaining this to you

because there may be some blank spaces here or there are

pages missing and that’s the reason the Court has ruled that

those parts have nothing to do with the case.

(The document referred to, heretofore

marked for identification as Common-

wealth’s Exhibit No. 11 was received in

evidence. )

MR. HORAN: Your Honor please, I would ask that it be

read to the Jury at this time.” [T.T. 9/15, 17-18]

APPENDIX E

VERDICT

‘“*THE CLERK: Mr. Brant and members of the Jury, have

you reached a verdict?

THE FOREMAN: We have.

THE CLERK: Is your verdict unanimous?

THE FOREMAN: Yes, sir.

THE CLERK: We, the Jury, on the issue joined in the

Sa

case of Commonwealth of Virginia versus Charles D.

Stewart, Defendant, find the Defendant guilty of capital

murder for hire as charged in the Indictment.” [T.T. 9/15,

162]

APPENDIX F

VERDICT

“‘THE CLERK: Mr. Brant and members of the Jury, have

you fixed a punishment?

THE FOREMAN: We have.

THE CLERK: Is your decision unanimous?

THE FOREMAN: It is.

THE CLERK: We, the Jury, on the issue joined in the

case of Commonwealth of Virginia versus Charles D.

Stewart, Defendant, having found the Defendant guilty of the

willful, deliberate and premeditated murder for hire of

George Harold Scarborough, and having found that the

Defendant’s conduct in committing the offense was out-

rageously or wantonly vile, horrible or inhuman in that it

involved a depravity of the mind or aggravated battery to the

victim, and having considered the evidence in mitigation of

the offense, we unanimously fix his punishment at death.”

[T.T. 9/15, 212]

6a

APPENDIX G

VIRGINIA:

IN THE CIRCUIT COURT OF FAIRFAX COUNTY

COMMONWEALTH OF ) CRIMINAL NUMBER

VIRGINIA ) 27466

)

VERSUS ) INDICTMENT - CAPI-

) TAL MURDER AND

CHARLES D. STEWART } USE OF A FIREARM

) IN A FELONY

‘ORDER

This 11th day of December, 1978, came the Attorney for

the Commonwealth, and CHARLES D. STEWART, who

stands convicted of a felony, to-wit: Capital Murder For

Hire, Virginia Code Section 18.2-31, as charged in Count I

of the Indictment, was led to the bar in the custody of the

jailer of this Court and came also A. Strode Brent, his

attorney heretofore appointed.

Whereupon the attorney for the defendant moved the

Court to set aside the verdict of the jury on grounds stated to

the record, which motion was DENIED and exception was

noted.

And the Probation Officer of this Court, to whom this case

has been previously referred for investigation, appeared in

open court with a written report, which report he presented to

the Court in open court in the presence of the defendant who

7a

was fully advised of the contents of the report and a copy of

said report was also delivered to counsel for the accused.

Thereupon the defendant and his counsel were given the

right to cross-examine the Probation Officer as to any matter

contained in the said report and to present any additional

facts bearing upon the matter as they desired to present. The

report of the Probation Officer is hereby filed as a part of the

record in this case.

Whereupon the Cour taking into consideration all of the

evidence in the case, the report of the Probation Officer and

such additional facts as were presented by the Attorney for

the Commonwealth, and it being demanded of the defendant

if anything for himself he had or knew to say why judgment

should not be pronounced against him according to law, and

nothing being offered or alleged in delay of judgement;

It is ADJUDGED and ORDERED that the defendant is

hereby sentenced to confinement in the penitentiary of the

Commonwealth Of Virginia for the remainder of his natural

life.

Thereupon the Attorney for the Commonwealth moved

the Court to enter a nolle prosequi to Count II of the

Indictment, which motion the Court GRANTED without

objection by the accused or his counsel.

After pronouncing sentence, the Court advised the de-

fendant of his right to petition for an appeal to the Supreme

Court Of Virginia and his right to proceed in forma pauperis

and to have the assistance of court-appointed counsel.

And the Court appoints A. Strode Brent, an able and

competent attorney at law to represent the defendant in said

appeal.

The Court certifies that at all times during the trial of this

case the defendant was personally present and A. Strode

8a

Brent, his attorney, was likewise personally present and

capably represented the defendant for which services he is

allowed an attorney’s fee of $400.00.

The defendant is remanded to jail to await transfer to the

penitentiary.

D O B: 11/29/56

JAIL CREDIT:

/s/ WILLIAM G. PLUMMER

JUDGE WILLIAM G. PLUMMER

A COPY TESTE:

JAMES E. HOORNAGLE, CLERK

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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