Petition — Stewart v. Virginia
Supreme Court brief1979
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" FILED
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BP Suprema Court, U. & |
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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.