Petition — Major Henry Johnson, Jr. v. Virginia

Supreme Court brief1981

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LICHTENSTEIN,

Wecestcim & Ranty

ROANOKE, VA. 24011

April 15,

dS GFF.CE OF THE CLERK

1981

“| RECEIVED

g\ APR 16 1981

SUPREME COURT, U.S.

icant

wo. 80-6519

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1980

MAJOR HENRY JOHNSON, JR., PETITIONER

COMMONWEALTH OF VIRGINIA, RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE

SUPREME COURT OF VIRGINIA

CLIFFORD R. WECKSTEIN

Lichtenstein, Weckstein & Raney

132 W. Campbell Avenue

Roanoke, Virginia 24011

(703) 344-3233

Counsel for Petitioner

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QUESTIONS PRESENTED

FOR REVIEW

1. Whether the Virginia Supreme Court improperly con-

strued United States v. Scott, in holding that a jury's directed

verdict of "not guilty” was not an “acquittal” for double jeopar-

dy purposes?

2. Whether this Court should settle a considerable

conflict among the Courts of Appeal and state courts of last re-

sort, and hold that the fifth and fourteenth amendments to the

Constitution require that a criminal defendant's confession be

excluded from evidence when, prior to making the confession, he

requested an attorney and thereafter, before he had the opportu-

nity to confer with his attorney, the police initiated a new cus-

todial interrogation session and obtained an inculpatory state-

ment?

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TABLE OF CONTENTS

Questions Presented for REVIEW... cece reece eer eveseesesseees

Table of CONCTENESe ccccceseeseceseseseseeeesesesseeecesseserese

Table of Authorities. occccccceerceseeeeeresesecseseveesesesese

Opinions BBLOWc cece Pees ceded eSeveeese SSH eSeseHeseHnndsseene

JUPASALCCIOM. ccccccereeevecc cesses eee eeeseesseeeseesesesesecee

Constitutional and Statutory Provisions Involved.....ceeeeees

Statement

OF Che CASE. ccccccsccervecsevesessecccreessesseevses

Reasons for Granting the writ--

Il.

The Virginia Supreme Ccurt improperly construed

United States v. Scott in holding that a jury's

directed verdict of "not guilty" was not an "ac-

quittal” for double jeopardy purpOSe@S....eeeeeeees

This Court should settle a considerable conflict

among the Courts of Appeal and state courts of

last resort and hold that the fifth and fourteenth

amendments to the Constitution require that a

crimina? defendant's confession be excluded from

evidence when, prior to making the confession he

requested an attorney and thereafter, before he

had the opportunity to confer with his attorney,

the police initiated a new custodial interrogation

session and obtained an inculpatory statement.....

CONCLUSION. cccccceccceceseceeseesesceseeseeseeesesesesseeeece

Appendix:

Opinion of the Virginia Supreme Court (June 8,

LWD79) co cccccvcccevvcccccesesscrseeseeeeesesesececs

Assignments of Error to Virginia Supreme Court....

Order of Virginia Supreme Court (July 15, 1979)...

Opinion of Virginia Supreme Court (January 16, 1981).....++.

iii

Al4

Al5

Al6

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Motion to proceed in forma pauperiS...sseeeeeeeees A26

TABLE OF AUTHORITIES

CASES

Biddy v. Diamond, 516 F. 2d 118 (Sth Cir. 1975).eceeeeeeeees 15

Blockburger v. United States, 204. 0.8. 299; 52 5.Ct;

Pe FG 8 BA. SOG LIDS ion ohh 5 440i tone en eo rebaees tenes. 4

Brewer v. Williams, 430°U.8s 367, 87 SiGe i2zoe. o

ee” eT ee eT ee ee ri ey ear ctatabe sees wee eee ae

Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.

ZA 187 (1977) ccccccccccsccccerscrcccesesesccsssecescccsecs 8

Coughlin v. United States, 391 F. 2d 371 (9th Cir.

a —

1968) cert. denied, 393 U.S. 870, 89 S.Ct. 159,

21 L.Ed. 2d 139 2 OGG). 5 ba 2 ob 0 6.68 68.6 600 0088684. OCS OSS 17

Dryden v. State, 535 P. 2d 482, (WYO. 1975). vcsccncstvecscsve 18

Finch v. United States, 433 U.S. 676, 97 S.Ct. 2909,

S53 L.Ed. 20 1048 (1977). ccccnccccncccescsesevesesesvesece 11

Fong Foo v. United States, 369 U.S. 141, 82 $.Ct.

S671 .. 7 Use 24 SZ (IVS 2Z) cs sccsceccvesvenesersseO, 105.11, 32

Harris v. Oklahoma, 433. U;8. 662, 97 S.Ct. 2932, SS

LEG. 20 1084 (1977). ccccccccvccccssccseceseesscces eovcee i)

Jarvis v. Knowlton, 459 F. Supp. 687 (ND. Tex.

SOTO rte t ets ence vesee a eiawe “ee eee Sree 2 ORE B.487 8:6 2's 8 8 8 8 8

Johnson v. Commonwealth, 220 Va. 146, 225 S.E. 2d

525 Go ye fee eee eee ee Oo Re eee ree ek ee Oe TE re ae ae 1

Johnson v. Commonwealth, — Va. __, 273 S.E. 2d 784

EXOBOL TS 6.0:0:6:6.0.0 C6 2.4 RS OE 6D ENS 6 OS Se UES CDA EE TROD She OOH EED 1

taw orrices

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Jones v. Commonwealth, 218 Va. 757, 240 S.E. 2d 658

(1978) cert. denied 435 U.S. OOVeccoceesevscessceseesoeovsece

Lamb v. Commonwealth, 217 Va. 307, 229 8:E.°3a 737

(1976) ccccccccccscccccccccvcccvcccccccevsscvscccssesossehey

Michigan Vv. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46

L.Ed. 2a 313 CIOSTS) cccesKeesesedecsenseescoresesecrs

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,

16 L.Ed. 2d 694 TIGR Doc ccasasdecessesssdssy S45 TR5

North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct.

2072, 23 Ls EG. 2a 656 (LQBO)cceccsesersccsseevreves

People Vv. Davis, 568 P. 2d 1175 (Colo.

Loy eS pare OR ee ek ee ee A A Sith deat hell dates

People v. Hobson, 39 N.Y. 2d 479, 384 N.Y.S. 2d 419,

348 N.E. 20 894 (1976) cccccecccveeeveseseseseses

Sanabria v. United States, 437 U.S. 54, 98 S.Ct.

2170, 57 L.Ed. 2d 43 (197TB)wweeeeeeevevseeersvecs

Cir. 1978) cert. denied, 439 U.S.1075, 99 S.Ct.

849, 59 L.Ed. 2d 42 C(1DTO) ccceccecocssoewsscsosevess

State v. Fossen, 255 N.W. 2d 357 (Minn.

COTS) soo 66k 85.8 OOO CTE EHS T OES HO:OE AOE ESHER CO OE ES SS

State v. Jones, 19 Wash. App. 850, 578 P. 26 71,

CLDTS)ccsesevesesssoecererss i & » Me Oe eoeeeveeveeveeeve eee eeee

State v. Moore, 27 Ariz. App. 275, 554 P. 2d 643

C1976) cocsecccaceoes reer eT et saves seavunsoges

State v. Renfrew, 280 Minn. 276, 159 N.W. 2d 111

CEGGE) Sah ko 8 66 OKE.0 6.6 69.028 O KEEFE SEE OSS BO OFS ®

Swisher v. Brady, 438 U.S. 204, 89 S.Ct. 2699, 57

LEC. 2d 705 C197TE)wecccvescoceressessesneseseres

16,

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United States v- Bernardi, 629 F. 2d 723 (2d Cir. 1980)..-+-- 12

United States v. Blasco, 581 F. 2d 681 (7th Cir. Avi ) een 12

United States v. Burns, 597 F. 2d 940 (Sth Cir. 1979) -ccccce 12

United States v. Cheiman, 587 F. 2a 160 (6th Cir. 1978) .ceee 12

United States v. Clark, 499 F. 2d 802 (4th Cir. 4074) 6ceseekS, 27

United States v. Cobbs, 481 F. 2a 196 (3d Cir. 1973)

cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.

2d 224 PAROS 6a ui CRN o Be 84 605888 TRE TROT ETD ee es 17

United States v. Durham, 475 F. 2a 208 (7th Cir. 1973) eccce 18

United Stat es v. Glist, 594 F. 241374 (10t h Cir. 1979)-ceecees id

United States Ve Grant, 649 F. 2a 942 (4th Cir. 1977)

cert. denied 423 Oe BOR en 44 ens ewe HE PERHES COO CEERI ELE. 20

United St ates Vv. Howard, .26 F. Supp. 1067 (W.D. N.Y.

Deh. Jo cou anaes DRed SPRY SS TERA EERE EMMI ERO Sete vig 15

United States Ve Mart in Linen Supply Cco., 430 U.S.

564, 97 S.Ct. 1349, 51 L.Ed. 2d 642 (1977) oceeeeeveverres 11

United States v. Massey, 550 F. 2a 300 (Sth Cir.

SOL so 1's o0 kd CoO aaa ESS 64 RACES EDS HRSA ERSERORSS ES SOT 18

United States v. Nielson, 492 F. 2d 849 (7th cir.

MN COL og ei eu pace bub ds 2 CR RERES AR EE SOE REE SESE 18

United States v. Priest, 409 F. 2d 491 (Sth Cir.

eee Cl Kees be ee ww ee we eNOS CS Ra Rew L AS TS Jeet ts ae

United States v. Rodriguez-Gaste) lun, S69 F. 2d 482

(9th Cir. 1978) (en banc ) cert. denied, %6 U.S.

919,98 S.Ct. 2266, 55 L. Ed. 2d 760 i eS Se ee re Sere re 19

United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187,

Law orrices

LiCMTCMSTtin,

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§7 L.Ed. 2d 65 elo. | ere ar oe 6, if

United States v. Slaughter, 366 F. 2d 833, (4th Cir.

DOGG 2a cc 6065 00.65 C HORSE U 0 DOD SR Ce ENCE Ded sanueeness ee

United States v. Smith, 379 F. 2d 628 (7th Cir.

LOST doc oedeceereseereeeds ees deseesedsevcsessecseesece

United St ates vs Springer », 460 F. 2d 1344 (7th

Cir.

1972) cert. denied, 409 U.S. 873, 93 S.Ct. 2758,

37 LEC. 2a 160 9886663 66.900 06:9466 6686006860608 6 80'8 9 8.0

United States v. Thomas, 474 F. 2d 110 (10th Cir.

1973), cert. denied, 412 U.S. 932, 93 S.- Cte

ay “Tictncs Be 2G CEPT e chetekctiskeues su Gb6 0 ARES S

2758,

United States ex rel. O'Connor v. New Jersey, 405 F.

2d 632 (3d Cir. 1969) cert. denied, sub nom

Yeager v. O'Conner, 395 U.S. B23. ccccvcssvvecsees

Walls v. State, 368 N.E. 2d 1973 (Ind. App. 1977)...

Wi lson v. United States, 589 F. 2d 331 (Sth Cir.

19GB )e cere ervvereeeeresensesessessesesesese

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment V.-eeeees

United States Constitution, Amendment XIVe..--e-

STATUTES

é #.

Va. Code §18.2 pa rerrrryreynrereenhewuUrepuwreeunen sy

OTHER

Virginia Code of Professional Responsibil ity

vii

28 +8 | Rewe ith Cee CLAN GUL cd el cde iee<dewe

I1:DR

10, 12,

104(A)

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1980

MAJOR HENRY JOHNSON, JR., Petitioner

COMMONWEALTH OF VIRGINIA, Respondent

The petitioner, Major Henry Johnson, Jr., respectfully

prays that a writ of certiorari issue to review the judaments and

opinions of the Supreme Court of Virginia entered in this crimi-

nal proceeding on January 16, 1981 and June 8, 1979.

OPINIONS BELOW

Two opinions of the Virginia Supreme Court are involved

in this petition, as that court, upon first appeal, remanded this

criminel case to the trial court for further proceedings. The

first opinion, dated June 6, 1979, and set out in the appendix

hereto, is reported at 220 Va. 146, 255 S.E. 2d 525 (1979). The |

second opinion, also set out in the appendix, not yet officially |

reported, is reported at 275 S.E. 2d 784 (1981).

JURI SD I CTION

fhe final opinion of the Virginia Supreme Court was is-

sued on January 16, 1981. Counsel for petitioner then mistakenly

believed that former Rule 22 of this Court governed the time for

filing this petition. On April 11, 1981, counsel became aware

of the changed time requirements of present Rule 20.1, and sub-

mitted an application for extension of time to file, which appli-

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ecaton was not timely made under Rule 29.2, and which the Clerk

baw orrices

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of certiorari is filed within 90 days of the final judgment of

the Virginia Supreme Court, the time prescribed by the former

rules. This Court's jurisdiction is invoked under 28 U.S.C.

$1257 (3).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Constitution of the United States, Amendment V:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or indictment

of a grand jury, except in cases arising in the land or naval

forces, or in the militia, when in actual service in time of war

or public danger; nor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb, nor shall

be compelled in any criminal case to be a witness against him-

self, nor be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for public

use, without just compensation.

Constitution of the United States, Amendment XIV, §1:

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the state wherein they reside. No state

shall make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property without

due process of law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.

Code of Virginia (1950), §18.2-31:

Capital murder defined; punishment.--The following of-

fenses shall constitute capital murder, punishable as a Class 1

felony:

(a) The willful, deliberate and premeditated killing

of any person in the commission of abduction, as defined in

§18.2-48, when such abduction was committed with the intent to

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extort money, or a pecuniary benefit;

(b) The willful, deliberate and premeditated killing

of any person by another for hire;

of any person by an inmate in a penal institution as defined in

§653-19.18, or while in the custody of an employee thereof;

(d) The willful, deliberate and premeditated killing

of any person in the commission of robbery while armed with a

deadly weapon,

(e) fhe willful, deliberate and premeditated killing

of a person during the commission of, or subsequent to, rape; and

(f) rhe willful, deliberate and premeditated killing

of a law-enforcement officer as def ined in §9-108 when such kill-

ing is for the purpose of interfering with the performance of his

official duties.

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STATEMENT OF THE CASE

On December 12, 1977, the petitioner, Major H. Johnson,

Jr., was arrested by Virginia avthorities and charged with rob-

bery, with premeditated murder in the commission of armed robbery

while armed with a deadly weapon ("capital murder" under Virginia

Code §18.2-31(d)), and with use of a firearm in the commission

of murder.

The following day, the petitioner appeared in state

court in Roanoke, Virginia, was arraigned, and affirmatively re-

quested the appointment of an attorney. An attorney was there-

upon appointed. That afternoon, a local police detective, James

C. Clingenpeel, who testified he neither knew nor cared whether

counsel had been appointed for the petitioner, visited him in

jail and initiated an interrogation session. At this point, the

petitioner had not yet had the opportunity to confer with coun-

sel.

from a printed card, obtained the defendant's signature on a

“waiver form,” and proceeded to take an oral inculpatory state-

ment from him. The officer thereafter made a memorandum of this

statement, which was never examined or signed by the petitioner.

App-, pp. 9-10. On March 28, 1978, petitioner filed a written

motion to suppress this statement, based upon federal constitu-

tional grounds. The trial court held a hearing on this motion

on April 24, 1978 and, after submission of authorities, ruled the

confession admissible. The Virginia Supreme Court, in an opinion

dated June 8, 1979, sustained the trial court's ruling on the

suppression motion, and made clear that the motion was based on

federal constitutional grounds, end was renewed at every

appropriate stage throughout the proceedings to that point. See

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App., pp. 9-13.

In July of 1978, the petitioner was tried before a jury

in Roanoke, Virginia, upon the three charges of robbery, capital

murder in the commission of armed robbery, and use of a firearm

in the commission of murder. At the close of the evidence in

that trial, the trial court, on motion of both the prosecution

and the defendant, instructed the jury, inter alia, that "if un-

der Count II of the indictment [capital murder], you find the de-

fendant guilty of capital murder, then you must find him not

quilty under Count I [robbery] of the indictment,” ane further

instructed the jury that "if you find the defendant guilty of

capital murder, then you must find the defendant not guilty of

robbery, inasmuch as the elements of robbery are integral parts

of the elements of the offense of capital murder in this case."

App., pp. 16-17

After due deliberation, the jury returned its verdict,

finding the defendant guilty of capital murder and not quilty of

robbery. The trial judge subsequently entered an order confirm-

ing the jury's verdicts, and sentencing the defendant to death

on the capital murder conviction. App., 5.17.

Upon the automatic review of death sentence cases man-

dated by Virginia law, the Supreme Court of Virginia vacated and

remanded the capital murder conviction, due to error in jury in-

structions regarding principals, compounded by erroneous closing

arguments of the prosecuting attorneys. In this opinion, as not-

ed, the Virginia Court also sustained the admission of the de-

fendant's confession into evidence. App., Pp. 15.

When the case was returned to the trial court, the pe-

titioner, in writing and oraily, renewed his motions regarding

exclusion of the confession on federal constitutional grounds,

which motions the trial judge denied throughout, on the basis of the

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Virginia Supreme Court's rulings. The petitioner also on July

19, 1979, filed a motion seeking to have the trial court dismiss

or reform the capital murder indictment, contending that, since

the first jury had acquitted him of robbery, he could not (on

greurds of double jeopardy, collateral estoppel and autrefois ac-

quit) be tried for capital murder becavse robbery is a lesser in-

cluded offense to capital murder in the commission of armed rob-

very. This motion, renewed at every appropriate stage, was

denied by the trial court. See App., p-3.

After a change of venve to Alexandria, Virginia, the

petitioner was again tried for capital murder, and a jury agein

mronounced him aquilty. At this trial, however, he received a

sentence of life imprisonment. App., p.i6.

The defendant again appealed to the Supreme Ccurt of

Virginia, alleging as errors both the admission of his confession

and the violation of his constitutional rights not to be placed

in jeopardy for capital murder after a jury had acquitted him of

a lesser-included offense. A copy of his “assignments of error"

to the Virginia Supreme Court is included in an appendix hereto,

App., p-14. That court chose not to review the confession quest-

ion again, but did crant discretionary review on the double jeo-

pardy question. App., p.15. In that review, the Virginia Su-

preme Court held that the second trial for and conviction of cap-

ital murder did not violate the double jeopardy clause of the

Constitution, and affirmed the conviction, entering its final or-

der in the matter. App., pp. i6 et seq.

The petitioner now seeks certiorari to the Supreme

Court of Virginia to review its decision on the double jeopardy

question, and 2iso on the confession question, where the decision

below was not final until conclusion of the second appeal.

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REASONS FOR GRANTING THE WRIT

I. THE VIRGINIA SUPREME COURT IMPROPERLY CONSTRUED

UNITED STATES v. SCOTT IN HOLDING THAT A JURY'S DIRECTED VERDICT

OF "NOT GUILTY" WAS NOT AN “ACQUITTAL" FOR DOUBLE JEOPARDY

PURPOSES.

In 1962, this Court held that a directed jury verdict

of acquittal in a criminal case was, on double jeopardy grounds,

a bar to any further proceedings. Fong Foo v. United States, 36%

U.S. 141, 82 S. Ct. 671, 7 L.Ed. 2d 629 (1962). Notwithstanding

the Fong Foo decision, the Virginia Supreme Court has held in the

instant case that a jury's directed not guilty verdict on a rob-

bery charge is no bar to further prosecution, conviction and pun-

ishment for an offense in which the same robbery charge was

lesser-included. The decision below was based squarely upon the

perception that in United Stutes v. Scott, 437 U.S. 82, 98 S.Ct.

2187, 57 L.Ed. 2d 65 (1978), this Court created a new test of the

sort of acquittal necessary to invoke double jeopardy protec-

tions. The Virginia Court's reading of the Scott decision

appears to be a novel one; it extends well beyond the factual

pattern present in Scott; and it appears to ignore the teachings

of Fong Foo.

The conviction involved in the instant petition arose

in the petitioner's second trial for one type of “capital murder"

under Virginia law, murder in the commission of armed robbery.

At the first trial, the petitioner was charged both with capital

murder and with the underlying robbery. At the request of prose-

cution and defense, the judge who presided at that trial

instructed the jury that, in the event it returned a guilty ver-

dict on the capital murder charge, then it must find the defenc-

ant not guilty of robbery, “inasmuch as the elements of robbery

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are integral parts of the elements of the offense of capital mur-

der in this case." The jury at that trial did, in fact, convict

the defendant of capital murder and acquit him of the underlying

robbery. The petitioner concedes that the robbery acquittal was

based on the trial court's intructions and was therefore, for all

practical purposes, a directed verdict.

The conviction of capital murder was later vacated and

remanded by the Virginia Supreme Court based upon error in other

jury instructions, and in final argument. Thereupon, the peti-

tioner contended, as he continues to do, that to re-try him on

the capital murder charge after he was acquitted of a lesser-

included underlying charge would violate the constitutional pro-

hibitions against double jeopardy. He now seeks review of a con-

viction of capital murder at such a second trial.

Fundamental to the petitioner's position below was the

contention that the double jeopardy clause bars prosecution and

punishment for a greater offense (murder in the commission of

armed robbery) after acquittal of a lesser included offense (the

same robbery). In essence, the Court below seems to have accept-

ed this contention, but to have focused on what constituted an

acquittal for double jeopardy purposes and, based cn an erroneous

reading of Scott, to have held that the verdict in the first

trial was net such an acquittal.

It is clear that robbery is a lesser-included offense

to capital murder under Virginia Code §18.2-31(d) (murder in the

commission of robbery while armed with a deadly weapon), for

root of "the commission of robbery"--the same robbery--is a ne-

cessary precondition to the capital murder conviction. As the

Virginia Supreme Court has noted,

If all the elements of a given offense are

to be found in another offense, the former is ne-

cessérily incluced in the latter....[{A]J1l1 the le-

gal ingredients of the corprs delicti of the

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lesser offense [are here] included in the elements

of the greater offense...,

and every "element necessary to establish the corpus celicti of

the lesser offense" is relevant and essential "to the proof of

the greater offense." Jones v. Commonwealth, 218 Va. 757, 759,

240 S.E. 2d 658 (1978), cert. denied 435 U.S. 909. A conviction

of robbery would net require the proof of any facts not essential

for the capital murder conviction. See Blockburger v. United

States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932);

(1977). In fact, in the decision which the petitioner now seeks

to have reviewed, the Virginia Supreme Court noted that

if defendant, after being convicted of both

crimes, had been subjected to punishment ior both,

an issue of double jeopardy with regard to multi-

ple punishments would arise.

App., p.20. Thus, the court below would seem to concede that rokt-

bery is a lesser-included offense to capital murder in this case.

And, it is well settled that the double jeopardy clauses forbid

not only subsequent punishment, but subsequent prosecution; they

apply not only when two offenses are identical, but also when the

former offense is lesser-included in the subsequent offerse.

They protect against a second prosecution after acquittal for a

lesser-included offense. See, e.g., North Carolina v. Pearce,

395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed. 2d 656 (1969);

Jones v. Commonwealth, supra, 218 Va. 15 759, and cases cited in

both decisions. Even though prosecution for the greater offense

does not expose the defendant to the risk of a conviction for the

lesser included offense of which he has been acquitted, "when the

elements of the lesser included offense must be proved again in

order to prove the greater offense, Double Jeopardy should

apply.” Jarvis v. Knowlton, 459 F. Supp. 687, 698 (N.D. Tex.

1978).

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Indeed, unless the jury's acquittal of robbery be

deemed not an acquittal for double jeopardy purposes, then it

would seem that this Court's decision in Harris v. Oklahoma, 433

U.S. 682, 97 S.Ct. 2912, 53 L.Ed. 2d 1054 (1977) controls. When,

as here, conviction of the greater crime cannot be had without

conviction (i.e., proof) of the lesser crime, the double jeopardy

clause bars prosecution for the greater crime after conviction

for the lesser one.

The court below avoided the application of the Harris

holding by stating that

the dispositive issue is whether for double jeo-

pardy purposes there has ever been a factual

acquittal of the defendant on the robbery charge.

App., p.21 (emphasis supplied), and answered that question by

stating that the petitioner,

aided by the Commonwealth's Attorney and the

{first] trial judge, successfully obtained a ter-

mination of his prosecution on the robbery charge

without any determination of his factual guilt or

innocence under this [robbery] count. On the con-

trary, the jury was directed to return the verdict

it did

because it found that murder was committed during the course of

an armed robbery. Id.

The lower court's focus on a “factual acquittal" arises

from what the petitioner believes to be a misconstruction of this

Court's decision in Scott, supra, 437 U.S. 62. “It appears," the

Virginia Court held

that the Court in Scott approved a new definition

of the acquittal required to invoke a double jeo-

pardy defense....a legal dismissal might not

{qualify as an acquittal for double jeopardy pur-

poses] because its effect could result in termina-

tion of the proceedings against the defendant on

a basis unrelated to factual guilt or innocence.

This rationale applies in the instant case. Here,

the directed "not guilty” verdict depended legally

upon a finding of factual guilt

of premeditated murder in the commission of armed robbery.

App., p.24-

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Such a reliance upon Scott markedly extends the auth-

ority of that decision beyond its facts, and also fails to con-

sider Fong Foo.

In Scott, a District Judge, at the close of the evi-

dence at trial, granted the defendant's motion to dismiss two

counts of an indictment, based on pre-indictment delay. Only the

third count of the indictment was submitted to the jury, which

returned a verdict of not guilty on that count.

The defendant's motion to dismiss originally had been

made prior to trial, and the defendant conceded that, had the mo-

tion then been granted, the government could have appealed the

dismissal.

The government sought to appeal the dismissal of the

first count of the indictment, and this Court held such an appeal

did not violate the double jeopardy clause. The defendant had

deliberately chosen "to seek termination of the proceedings

against him on a basis unrelated to factual guilt or innocence";

he had “obtain{ed] the termination of the proceedings against him

in the trial court without any finding by a court or jury as to

his guilt or innocence." Scott, Id., 437 U.S. at 97-100.

A key aspect of the factual situation presented in

Scott, and noted by this Court, is that no jury verdict had been

rendered, In the instant case, however, the jury had returned

a not quilty verdict, sharply distinguishing this case from Scott.

Fong Foo v. United States, supra, 369 U.S. 141, dis-

cussed by this Court in Scott, is substantially more apposite to

the instant case than is Scott. The conflict between the holding

of Fong Foo and the Virginia Court's reading of Scott makes this

an appropriate case to grant certiorari in order to explicate

Scott andaffirm the continued vitality of Fong Foo.

In Fong Foo, after seven days of trial , the District

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Judge directed the jury to return verdicts of acquittal, and a

formal judgment of acquittal subsequently was entered.’ "The

trial," as in the instant case,

did not terminate prior to the entry of judgment..

-.-(but]) with the entry of a final judgment of ac-

quittal....The Court of Appeals thought, not with-

out reason, that the acquittal was based upon an

egregiously erroneous foundation. Nevertheless,

{t]he verdict of acquittal was final

for double jeopardy purposes. Id., 369 U.S. at 143.

In the instant case, it may be conceded, the jury's

verdict came upon a directed verdict of acquittal, and the Vir-

ginia Supreme Court somewhat criticized the trial judge for di-

recting such a verdict. It may be conceded that the basis for

the directed verdict was legal, rather than factual (although the

trial court's direction was not “egregiously erroneous"). None-

theless, Fong Foo stands squarely for the proposition that a di-

rected verdict of acquittal--however unsound the foundation upon

which that directed verdict lies--is final for double jeopardy

purposes. See also Finch v. United States, 433 U.S. 676, 97 S.

Ct. 2909, 53 L.Ed. 2d 1048 (1977) (dismissal granted by the trial

court “on the ground, correct or not, that the defendant simply

cannot be convicted of the offense charged;" double jeopardy

barred appeal); United States v. Martin Linen Supply Co., 430 U.

S. 564, 97 S.Ct. 1349, 51 L.Ed. 2d 642 (1977) (after jury dead-

locked, trial judge granted defendant's motion that acquittal be

entered, remarking that the prosecution's case was "weak" and had

not been proven. For all purposes, including double jeopardy,

this was an acquittal); c.f. Sanabria v. United States, 437 U.S.

54, 98 S.Ct. 2170, 57 L.Ed. 2d 43 (1978) (as the result of an er-

roneous evidentiary ruling, the trial court struck evidence and

entered a judgment of acquittal, which was final for double jeo-

pardy purposes).

It is also of interest to note that, with the exception

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of the Virginia Supreme Court, the courts below seem to have re-

stricted application of the doctrine of Scott to fact patterns

similar to those presented in the case itself. See, e.g., United

States v. Cheiman, 578 F. 2d 160 (6th Cir. 1978); United States

v. Blasco, 581 F. 2d 681 (7th Cir. 1978); Sedqwick v. Superior

Court, 584 F. 2d 1044 (D.C. Cir. 1978), cert. denied, 439 U.S.

1075, 99 S.Ct. 849, 59 L.Ed. 2d 42 (1979); United States v. Glist,

594 F. 2d 1374 (10th Cir. 1979); United States v. Burns, 597 F.

2a 940 (Sth Cir. 1979); United States v. Bernardi, 629 F. 26 725

(2a Cir. 1980).

This Court, in Scott, spoke of "venerable principles

of double jeopardy jurisprudence," one of which is that

[a] judgment of acquittal, whether based on a jury

verdict of not guilty or on a ruling by the court

that the evidence is insufficient to convict, may

not be appealed and terminates the prosecution

when a second trial would be necessitated by a re-

versal.

Scott, supra, 437 U.S. at 90-91. And this Court noted that "the

law attaches particular significance to an acquittal." Id.. The

holding of Scott is that

it is not all proceedings requiring the making of

supplemental findings that are barred by the

Double Jeopardy Clause, but only those that follow

a previous trial ending in an acquittal.

Swisher v. Brady, 438 U.S. 204, 218, 89 S.Ct. 2699, 57 L.Ed. 2d

705 (1978).

In relying on Scott for the proposition that a jury's

verdict of acquittal could be other than final for double jeopar-

dy purposes, the Virginia Supreme Court seems to have miscon-

strued the constitutional weight that this Court gives a jury's

not guilty verdict, and seems either to have ignored the holding

of Fong Foo, or to have concluded that Scott, by implication,

overruled Fong Foo in a situation in which the trial judge's di-

rection of a verdict was based upon legal grounds. To review

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such an overreaching reading of Scott, the petitioner believes

the certiorari should be granted.

Il. THIS COURT SHOULD SETTLE A CONSIDERABLE CONFLICT

AMONG THE COURTS OF APPEAL AND STATE COURTS OF LAST RESORT, AND

HOLD THAT THE FIFTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION

REQUIRE THAT A CRIMINAL DEFENDANT'S CONFESSION BE EXCLUDED FROM

EVIDENCE WHEN, PRIOR TO MAKING THE CONFESSION, HE REQUESTED AN

ATTORNEY AND THEREAFTER, BEFORE HE HAD THE OPPORTUNITY TO CONFER

WITH HIS ATTORNEY, THE POLICE INITIATED A NEW CUSTODIAL INTERRO-

GATION SESSION AND OBTAINED AN INCULPATORY STATEMENT.

In the fifteen years since Miranda,’ this Court has not

taken the opportunity to clarify the rules applicable when a

criminal defendant has unequivocally asserted his right to coun-

sel and is nonetheless then interrogated by police officers be-

fore he has had the opportunity to confer with his attorney.

Particularly in recent years, however, questions arising in the

context of police-initiated custodial interrogation after asser-

tion of right to counsel have been decided regularly in the lower

courts, with the result that a confusing plethora of lower court

decisions now exists. It would appear that the federal Circuits

are in considerable conflict over questions arising in this im-

portant Constitutional context, and it further appears that the

decision of the Virginia Supreme Court in this case is in con-

flict with the principles enunciated by the Fourth Circuit Court

of Appeals (whose jurisdiction includes Virginia) for similar ca-

ses.

In the instant case, the petitioner was arrested on De-

cember 12, 1977. On the morning of December 13, at his arraign-

. Miranda v. Arizona, 384 U.S. 436, 88 S.Ct. 1602, 16

L.Ed. 2d 694 (1966).

Law offices

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ment in state court, he affirmatively requested that counsel be

appointed to represent him. 7 Later that same day, before peti-

tioner had had the opportunity to confer with counsel, a police

detective (who testified that he neither knew nor cared whether

counsel had been appointed for the defendant) initiated a new in-

terrogation session in the city jail, read the petitioner the

"Miranda warnings," obtained his signature on a “waiver card,"

and proceeded to take an inculpatory statement from him.

Applying dictum from an earlier Virginia case, the Vir-

ginia Supreme Court held that, since the petitioner had, at this

interrogation session, affirmatively waived his Miranda rights,

his previous assertion of a desire for counsel was legally irrel-

evant. Accordingly, a trial judge's denial of a suppression mo-

tion was sustained, and the confession was allowed in evidence

at both the first and second trials.

The decision of the Virginia Court is at odds with

decisions reached by Courts of Appeals and other state courts of

last resort. 4

Some Courts have taken a rather absolutist view, quite

at odds with the decision below. For example, the Third Circuit

has held, as a matter of constitutional principle, that, once the

right to counsel has attached (as in the case of a custodial in-

terrogation), then any confession obtained in the absence of

counsel “must be suppressed independent[ly] of any issue of the

voluntariness of the confession." United States ex rel. O'Connor

v. New Jersey, 405 F. 2d 632, 636 (3d Cir. 1969) cert. denied,

2The Court below “assume[d), but [did] not decide, that

defendant is correct in that part of his argument in which he

maintains that a request for the appointment of an attorney at

arraignment constitutes an exercise of the right to counsel re-

quiring the cessation of police interrogation under Miranda."

App., pp. 11-12.

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sub nom Yeager.v. O'Connor, 395 U.S. 923.

And the Tenth Circuit, in an oft-quoted statement, has

said that

{O]nce a criminal defendant has either retained

an attorney or had an attorney appointed for him

by the court, any statement obtained by interview

from such defendant may not be offered in evidence

for any purpose unless the accused's attorney was

notified of the interview which produced the state-

ment and was given a reasonable oppertunity to be

present. To hold otherwise, we think, would be

to overlook conduct which violated both the letter

and the spirit of the canons of ethics. This is

obviously not something which the defendant alone

can waive.

United States v. Thomas, 474 F. 2d 110, 112 (10th Cir. 1973),

cert. denied, 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed. 24 160 (1973)%

accord, United States v. Howard, 426 F. Supp. 1067 (W.D. N.Y.

1977); ° compare, Lamb v. Commonwealth, 217 Va. 307, 227 S.E. 2d

737 (1976) (relied upon in the decision below).

Likewise, the Fifth Circuit has held that, once it ap-

pears that counsel has been requested prior to any questioning

(as in this case), then, "a finding of knowing and intelligent

waiver of the right to an attorney is impossible." United States

v. Priest, 409 F. 2d 491, 493 (Sth Cir. 1969); compare, Biddy v.

Diamond, 516 F. 2d 118 (Sth Cir. 1975) °

ee - e

31n Thomas, unlike the present case, the defendant ini-

tiated the interview with law enforcement officers, 474 F. 2d at

110, and the confession was used in cross-examination, rather than

in the prosecution's case-in-chief, Id. Since the Thomas decision

was based on ethical, rather than constitutional grounds, Id. at

112, c.f., Virginia Code of Professional Responsibility, II:DR

7-104(A), the decision's application was purely prospective, not

requiring reversal.

“where the defendant, personally, had not even requested

counsel. 426 F. Supp. at 1069. This decision has both constitu-

tional and ethical bases. Id. at 1071-72

Stn which the defendant (a) had had numerous opportuni-

ties to consult with counsel; (b) was not in custody; (c) had not

een arrested and arraigned; and (d) had come to the police sta-

tion more or less voluntarily, and (e) where the defendant's law-

er was apprised, in his client's presence, that the police "might

ish to question" the defendant. A confession here was ruled

roperly admitted.

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Such absolute views, or per se exclusions, are also es-

poused by the courts of New York, on both constitutional and eth-

ical grounds. People v. Hobson, 39 N.Y. 2d 479, 384 N.Y.S. 2d

419, 348 N.E. 2d 894 (1976).

The Court of Appeals for the Fourth Circuit has not ad-

opted a per se rule of exclusion, but has adopted a test which,

it appears, would have resulted in suppression of the petitioner's

confession in this case, had he been on trial in federal, rather

than state court in Virginia. United States v. Clark, 499 F. 2d

B02 (4th Cir. 1974). It should be noted, however, that the Vir-

ginia Supreme Court, in its opinion below, felt that Clark "is

distinguishable" from the instant case. App., Pp. 12.

In Clark, the defendant, at a bond hearing, was found

not to be entitled to court-appointed counsel as an indigent.

After the hearing, an F.B.I. agent read Clark his Miranda rights,

after which he said "I'd better talk to a lawyer." Less than four

hours later, the F.B.I. agent again visited the defendant in cus-

tody, and again asked him to submit to questioning. This time,

Clark orally wavied his rights to silence and counsel, and made

an oral confession. Clark, 499 F. 2d at 804-05.

The Fourth Circuit (unlike the courts previously cited)

held that the defendant could waive his previously asserted right

to counsel. Id., at 607. However, the Court noted that

evidence 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 confession is voluntary. See United

States v. Slaughter, 366 F. 2d 833, 840-841 (4 Cir.

1966).

Id. Additionally, the Court noted that (as in the case sub

judice), the law enforcement officers had initiated the interview

during which the defendant had made his alleged waiver and con-

fessed. The police initiation of the interview was held to be

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a factor which "is a strong indicator of involuntariness." Id.

The Clark court held that, "at the very least," the

defendant should have been afforded sufficient time to employ and

consult with counsel before law-enforcement officers initiated

any subsequent interviews. Id. © Accordingly, the confession was

suppressed, Id. at 808.

In Lamb, supra, 217 Va. at 310, the Virginia Supreme

Court noted that this Court "has not gone so far" as to promulgate

fixed rules for the consideration of custodial confessions ob-

tained in the absence of and without the knowledgeor permission

of counsel. As this Court considers whether it is time to enun-

ciate such rules, it is useful to note that even many of the

courts which have found such interrogations to be technically per-

missible have expressed their disapproval of the practice. Uni-

ted States v. Cobbs, 481 F. 2d 196, 200 (3d Cir. 1973), cert.

denied, 414 U.S. 980, 94 S. Ct. 298, 38 L.Fd. 2d 224 (1973),”

Coughlin v. United States, 391 F. 2d 371, 372 (9th Cir. 1968),

cert. denied, 393 U.S. 870, 89 S.Ct. 159, 21 L.Ed. 139 (1968),®

Surf the individual states that he wants an attorney..

»-the individual must have an opportunity to confer with the at-

torney...." Miranda v. Arizona, supra, 384 U.S. at 473-74 (em-

es supplied).

TNote also that two days elapsed between the defend-

ant's incarceration and the confession in question. This deci-

sion also says that the evidence in support of voluntary waiver

“should include evidence to the effect that the accused, prior

to making a statement, specifically acknowledged that he was

aware that he was represented by an attorney." 481 F. 2d at 200.

The Third Circuit has vacillated on this question. Compare Uni-

ted States ex rel. O'Connor v. New Jersey, supra, 405 F. 2d at

636, and authorities there cited.

Snere it also appeared that the father of the 19-year

old suspect requested that the officers talk to his son in jail.

391 F. 2d at 372, n.4. For the variety of approaches the Ninth

Circuit has taken, see United States v. Rodriguez-Gastellum, 569

F. 2d 482.

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United States v. Springer, 460 F. 2d 1344, 1352 (7th Cir. 1972)

cert. denied, 409 U.S. 873, 93 S. Ct. 2758, 37 L.Ed. 2d 1602

Wilson v. United. States, 389 F. 2d 331, 333 (Sth Cir. 1968); ©

Walls v. State, 368 N.E. 2d 1373 (Ind. App. 1977); State v. Ren-

frew, 280 Minn. 276, 159 N.W. 2d 111, 113 (1968). ?}

In accordance with the position that petitioner main-

tained in the Court below, and indicative of the variety of deci-

sions in lower courts on similar questions, see also State v,

Jones, 19 Wash. App. 850, 578 P. 2d 71, 73 (1978); People v.

Davis, 568 P. 2d 1175 (Colo, 1977); Dryden v. State, 535 P. 2d

482, 497-95 (Wyo. 1975); State v. Moore, 27 Ariz. App. 275, 554

P.2d 645, 645-46 (1976).

When the motion to suppress the petitioner's inculpa-

tory statement came on for hearing before the original trial

judge, he did not base his decision to admit the statement on

Virginia interpretations of federal constitutional protections

(as did the Virginia Supreme Court), but rather on this Court's

decision in Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46

L.Ed. 2d 313 (1975). It is possible that a proper reading of

Mosley would mandate that the instant confession be excluded.

If that is so, then it would be useful for this Court to grant

certiorari not only to settle the conflict that exists among the

Snote also that, even in this unusual factual situa-

tion, Judge (now Mr. Justice) Stevens found both constitutional

and ethical violations, 460 F. 2d at 1354 (dissent of Stevens,

J.). Compare, United States v. Durham, 475 F. 2d 208, 211 (7th

Cir. 1973); c.f., United States v. Nielson, 392 F. 2d 849, 852-

53 (7th Cir. 1968); United States v. Smith, 379 F. 2d 628, 633

(7th Cir. 1967).

10compare, United States v. Massey, 550 F. 2d 300, 307-

08 (Sth Cir. 1977); United States v. Priest, supra, 409 F. 2d 491

493 (Sth Cir. 1969)

lliwnere the defendant had initiated the conversation.

Compare, State v.-Fossen, 255 N.W. 2d 357, 362 (Minn., 1977).

taw orrices

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lower courts, but also to explicate the Mosley decision.

The Ninth Circuit, en banc, has explained that

Mosley held only that a suspect who has been prop-

erly advised of his rights, and who has invoked

his right to silence, but not his right to counsel,

can use his own judgment in talking to officers

about other crimes if he is advised of his rights

before each interrogation.

United States v. Rodriquez-Gastellum, 569 F. 2d 482, 484 (9th Cir.

1978) (en banc) cert. denied, 436 U.S. 919, 98 S. Ct. 2266, 56 L.Ed.

2d 760,

In Rodriguez-Gastellum, the full Ninth Circuit, settling

a conflict among its panels, rejected a per se rule of exclusion.

It is possible, however, that, when it comes to the right of coun-

sel, Mosley is not so limited as the Ninth Circuit believes. Mr.

Justice White, concurring in Mosley, emphasized that while it may

be permissible under certain circumstances to resume an interroga-

tion after a suspect has asserted his right to remain silent, the

same considerations do not apply when a request has been made for

an attorney. For,

the reasons to keep the lines of communication be-

tween the authorities and the accusec 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....[{A] later decision at the authori-

ties' insistence to make a statement without coun-

sel's presence may propery be viewed with skepti-

cism.

Michigan v. Mosley, supra, 423 U.S. at 110, n.2 (White, J., con-

curring); quoted with approval in Brewer v. Williams, 430 U.S.

387, 405 n.10, 97 S. Ct. 1232, 51 L.Ed. 2d 424 (1977). This

statement indicates that, in the view of at least one member of

this court, it is legally impossible to waive the right to coun-

sel, after request for counsel but prior to consultation with an

l2see also United States v. Springer, supra, 460 F. 2d

at 1354 (Stevens, J., dissenting).

— — wer . -- _—_—— oe we eee eee ee = —-

attorney. Mr. Justice White states that in Miranda, this Court

“create[d]) a per se rule against interrogation after assertion

of a right" to counsel. Michigan .v. Mosley, supra, 423 U.S. at

109 (White, J., concurring). But see United States v. Grant, 549

F. 2d 942, 946, n.2 (4th Cir. 1977), cert. denied 423 U.S. 908.

Brewers’ did not settle this question, although this Court in that

case specifically avoided considering whether the defendant (who

had already conferred with counsel) could not have waived his

right to counsel. Brewer v. Williams, supra, 430 U.S. at 405-06.

If the views expressed by Mr. Justice White are those of this

Court, then Mos ley demonstrates that the Virginia Supreme Court's

decision below was constitutionally erroneous. If, on the other

hand, Mr. Justice White's well-reasoned views do not command a

majority on the Court, then it is submitted that certiorari should

still be granted to settle the question of what rules should ap-

ply in situations analagous to that presented here. The plethora

of lower court decisions, and the conflicting rationales for

those decisions, suggest that the time has come for this Court

to issue a definitive ruling on the subject.

CONCLUSION

For these reasons, a writ of certiorari should issue

to review the judgments and opinions of the Supreme Court of

Virginia.

Respectfully submitted,

Clifford R. Weckstein

Lichtenstein, Weckstein & Raney

132 W. Campbell Avenue

Roanoke, Virginia 24011

(703) 344-3233

Counsel for Petitioner

Liemtensreva

Wicestem & Ranty

ROANOKE, VA. 24011 Wpril 15, 1981

S ‘

APPENDIX

o_+—-e -coe- =

“PRESENT: All the Justices

"MAJOR HENRY JONUNSON, JR.

7 YINLON B STICE A. N COMPTO!

& Rdgecd Wo.) S\GMEMe ses Nigsae en COMPTON

| ,

; COMMONWEALTH OF VIRGINIA :

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE

i" Ernest W. Ballou, Judge

In this criminal appeal, we review the capital murder convics

ition of Major Henry Johnson, Jr. |

-_<-——

On July 26, 1978, Jolnson, then 26 years of age, was con- |

viccted of wilful, deliberate and premeditated murder during the

| 18.2-31(d). He was also convicted of using a firearm during the

coumission of robbery while armed with a deadly weapon. Code

commission of a felony and sentenced to one year imprisonment in

_ penitentiary. Code § 18.2-53.1. Pursuant to the statutory

oo wee ee 0

= set forth in Code §§ 19.2-264.3 and -264.4, the jury recon-

vened and, after hearing evidence on July 27, 1978, on Johnson's

' |

‘prior criminal record and upon other matters relevant to sentenciny,

I |

yrecommended imposition of the death penalty. The jury's recommenda

ge was accepted by the trial court and the death penalty was

imposed at the sentencing hearing held on August 21, 1978. |

[coe § 19.2-264.5.

| The murder victim, John Gardner, president of a real estate

ycompany located in Roanoke, rented an apartment to the defendant.

‘Living with defendant was his younger brother, David Allen Johnson,

‘On December 9, 1977, the brothers went to Gardner's office

‘robbing Gardner. During the commission of the robbery, Gardner

‘ostensibly to pay overdue rent, but with the joint purpose of |

‘was fatally wounded. The medical evidence adduced at trial

' ‘ ‘

‘indicated that the victim dicd as a result of three gunshot wounds

‘found on the back of his head and neck. Any one of the wounds

would have caused instantaneous loss of consciousness, and death |

;

: 4

sad TT, be Aes, As '

aa ee

| would have resulted in "a matter of minutes." Apparently, just

fe weapon was used in the murder and robbery. Only the perpetra

tors of the crime witnessed its conmisston.

26 t-

Defendant and his brother were arrested separately on Decem-

‘ber 12, 1977. The brother first confessed on December 13, 1977,

vat 1:25 a.m, In that account, the brother stated that he fired

the three shots which killed Gardner. The brother next talked to-

the police at 1:10 p.m, on December 13, at which time he stated

I chee the defendant fired all of the shots. The defendant talked

leo police briefly on December 12 at 11:11 p.m. but “said very few

ala On December 13 at 2:18 p.m., the defendant confessed to

[sstdec that he fired the three fatal shots,

: At trial, the defendant testified that his brother fired the

Fabebe: The defendant asserted that his confession was not true

and that he made the statement assuming responsibility for the

| crime because his brother had a "clean record". The brother,

| testifying at trial, maintained that the defendant fired the fatal

“Shots and explained his first confession, which admitted comais-

sion of the murder, by stating that he believed the defendant had

terminal cancer and that he made the statement to "protect" defen-

be a The brothers' testimony at trial conflicted on almost

every aspect of the Commission of the crime.

ej Initially, defendant SECAEES SREE the trial court misapplied

i directed the jury and authorized improper closing argument by the

; prosecutors, / °

F ‘

the law dealing with principals in the first and second degree as

that subject relates to capital murder and, consequently, mis-

| When, as here, the offense constituting the charge of capital

\ murder is the wilful, deliberate and premeditated killing of a

person in the commission of robbery while armed with a deadly

‘weapon, cane § 18.2-31(d), only the actual perpetrator of the

‘crime may be convicted of capital murder. Code § 18.2-18. That

, section provides:

{

f § 18.2-18. How principals in second degree and acces-

gorics before the fact punished.-—-In the case of every

i felony, every principal in the second degree and every

rt: accessory before the fact may be indicted, tried,

: convicted and punished in all respects as if a

I principal in the first degree; provided, however, that

' except in the case of a killing for hire under the

intel gba of § 18.2-31(b) an accessory before the

act or principal in the second degree to a capital

‘ murder shall be indicted, tricd, convicted and

punished as though the offeuse were murder in the

; first degree.

yThe proviso in this statute was added by the General Assembly in

1977. Acts 1977, ch. 478. Prior to this amendment, in the case

iof every felony in Virginia a principal in the second degree could

be indicted, tried, convicted and punished as if a principal in the

‘First degree. As the result of the amendment, however, it is now

essential in a prosecution for capital murder, except in the case

lof murder for hire, that the heretofore unnecessary distinction be

drawn between principals in the first and second degree, assuring

that only the person who is the immediate perpetrator may be a

"principal in the first deyrce and thus liable to conviction for

capital murder. Indeed, the Attorney General does not dispute that

lproposition, stating on brief, that: "It is the position of the

\Commopwealth that the defendant cannot be convicted of capital

murder by [evidence which shows that the defendant merely planned]

ithe robbery and that a death ensued during the commission of the

‘robbery, regardless of who committed the killing.”

The correctness of the foregoing rule is made plain when the

exception contained in the proviso is considered. Excluded fron

the operation of the proviso is the case of a killing for hire con-

‘stituting capital murder under subsection (b) of Code § 18.2-31.*

. mse” A grt Pr eR rrr ere re or ee ee

_—_—— ee

6 18.2-31. Capital murder defined; punishinent. -- The following offenses

shall constitute capital murder, punishable as a Class 1 felony:

(a) The willful, deliberate and premeditated killing of any person in the -

commission of abduction, as defined in § 18.248, when such abduction was

committed with the intent to extort money, or a pecuniary benefit;

(bo) The willful, deliberate and premeditated killing of any person by another

' for hire;

' (c) The willful, deliberate and premeditated killing of any person by an ininate

+ {na penal institution as defined in § 53-19.18, or while in the custody of an

| ry ee thereof, ;

: (a) wae, Comore and premeditated killing of any person in the

» ycommission of robbery while armed with a coney weapon;

‘4 (e) The willful, deliberate and premeditated bill

commission of, or subsequent to, rape; and

4 f) The willful, deliberate and premeditated killing of a law-enforcement

' officer as defined in § 9-103 when such killing is for the purpose of interfering

with the performance of his official duties. wn

ing of a person during the ©

A3 Mi

me rot arene at leat lh ee Sl ie oi ls ost Da ast watt PALETTE FET BN

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patt,2

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ee) ee ee ee fe ee ee ee es ae Wee, 2 Ss Se Fe ——

'Manifestly, the General. Assembly realized that, without the excep- .

‘tion, a person who conceived and instigated a murder for hire, and |

,who procured the agent who actually committed the homicide, could ;

i ; i

‘not be convicted of capital murder unless he directly participated :

“in the act causing the victim's death. To endorse the theory

‘ (adopted, as we shall see, by the trial court and prosecutor

‘Select that a capital conviction may result from a common plan and |

} !

jthat the accused may be a principal in the first degree even though |

. did not perform the homicidal act, would render meaningless the |

exception contained in § 18.2-18 in most murder for hire situations.’

thus, in order to convict this defendant of capital murder, the

!yury was required to find that he actually fired the fatal shot.

Against the background of the conflicting testimony of the

ibrothers, the absence of other probative evidence as to the

Rese of the actual triggerman, and the limitation imposed by

we § 18.2-18, at least four instructions on the subject of |

jPrincipals were given and two were refused by the court below.

Instruction 4, which was given, stated:

The Court instructs the jury that if you believe from

the evidence beyond a reasonable doubt that David

Johnson and the defendant had agreed, planned or

designed to rob or commit larceny from Jon Gardner, and

that while engaged in carrying out such plan David

Johnson and Major Johnson were present, aiding, abetting

and sharing the intention of the other, and that, while

so engaged Major Johnson or Dagid Johnson shot and

¢ killed John Gardner, and that such a shooting should

have been contemplated as a probable result of the

execution of aueh common design, then even though you

are unable to determine which of them fired the fatal

: shot, each is equally guilty of whatever degree of

r homicide, if any, the jury finds to have been conmitted

under the evidence and other instruction of the Court.

, .

‘The defendant objected to Instru¢tion 4 and proffered Instructions

A and B instead: Instruction A provided:

' ‘

! The Court instructs the jury that in order to find

; the defendant guilty of capital murder, you must find

beyond a reasonable doubt that the defendant actually

fired the shot or shots that killed John Gardner.

‘Instruction B was almost identical to Instruction 4 and provided:

meee re we ee

The Court instructs the jury that if you believe

froin the evidence beyond a reasonable doubt that David

that if you are not able to determine beyond a reason-

able-doubt which person fired the fatal shot,

cannot convict the defendant of capital murder, as

defined in the other instructions of this Court.

i (Emphasis indicates material differences between refused Instruc-

tion B and granted Instruction 4.)

The trial judge also gave Instruction 5 which informed the

j jury that they could find the defendant guilty of capital murder

Nit they believed beyond a reasonable doubt “that the defendant

wilfully, deliberately and premeditatedly killed John Gardner,

"and at the time of any such killing the defendant was committing

‘eenaedd while armed with a deadly weapon. . . ." Instruction 6,

“given by the trial judge, provided:

The Court instructs the jury that principals in the

first degree are those who are the actual or immediate

perpetrators of the crime. oe cipals in the second

degree are those who did not with their own hands commit

the act which constituted the crime, but who were

\ present, aiding and abetting in its commission. The

test for a principal in the second degree is whether he

was encouraging or inciting the comnission of a crime

by words, gestures, looks or signs, or in some manner

offering aid or consent to its commission,

Principals in the second degree are liable to the

I same punishment as principals in the first degree,

H except that principals in the second degree cannot be

convicted of capital murder.

Therefore, if you find from the evidence that the

defendant is a principal in the second degree to

capital murder, you cannot find him guilty of capital

murder.

ste SoS

. \

Instruction 10, given by the trial court, informed the jury that if;

leney belicved

A 5

beyond a reasonable doubt that [the defendant's brother]

was guilty of the murder of John Gardner, and further

believe from the evidence beyond a reasonable doubt that

| the defendant was present, aiding and abetting as a '

principal in the second degree in the commission of such

crime, as defined in another instruction of the Court,

then vou shall find the defendant guilty of murder in ,

the first degree . :

In his suling refusing Instructions A and B, the trial judge

" stated that he believed “that if two persons acting in concert

pon Poe. planned to commit Kobbery and Murder, committed the

| robbery and murder, then each would be guilty as a principal in th

| first degree." Therefore, the court informed the attorneys that

| Instruction 4 was a correct statewent of the law and that the

i choosy advanced by the defendant in Instruction B would be refused

i As a result of this ruling and over defendant's objection,

! ehe prosecutors repeated], asserted in their closing and rebuttal

scone that the jury could find the defendant guilty of capital

| murder on two theories. First, it was argued that the defendant

‘clearly pulled the trigger and was guilty of capital murder.

' '

Second, the contention was made that the jury could cpnvict the

The following excerpts are represeitative of the prosecutors’

| Statements advancing the second theory: '

to commit a robbery from John\Ga:dner and to ether,

that they went down to executs that plan, and in the

‘ course of the gxecution of that plan, John Gardner

was killed while they were consznitting a robbery with

\ a deadly weapon, that is Capital Murder regardless of

| who pulled the trigger.

: (I]f you find that David and Major Johnson planned

os * *

Now, here is the most important thing in a}l of that.

‘ Whether you believe who pulled the trigg*r or whatever,

I he [the defendant] is guilty of Capital Murder. The :

reason he is guilty d Capital Murder is because he is

a principal in the first degree. The reason he is a

principal in the first degree is because he planned

the robbery. He had his brother buy the pistol. All

the plans are indicative of that, even from his state-

ment, even from his statement on the stand, and even

{ from the statement of David, which means that he is an

integral part, not a bystander, not a principal in the

second degree, but an active mover in the whole crime, '

with the crimes and the terrible death that Mr. Gardner t

suffered. So, therefore, he becomes a principal in

the first degree, not . . . in the second. He is a 1

prime mover. As a matter of fact, he planned it, he

was there, and even if David Johnson did pull the

trigger, whic! I indicate to you and I think the

evidence has indicated, did not. This man pulled it,

but even if David did, he is still guilty of Capital ta

Murder because of the participation as a principal in

the first degree.

‘While agreeing that refused Instructions A and B are correct:

statements of the law, the Attorney General maintains that the

jury was charged adequately and correctly in Instructions 4, 5, 6 :

and 10. The Conmmonwealth asserts that the substantive provisions

of Instruction A were covered in Instructions 5 and 6 and that the

substantive provisions of Instruction B were covered in Instruc-

}tions 4 and 6. The Comnonwealth concludes that Instructions A and

te were refused properly to avoid multiplicity.

With respect to the prosecutors’ closing argument, the

Attorney General concedes that the comments were erroneous but

urgea that the prosecutors’ statemerits were not so prejudicial “as

‘to deny the defendant a fair trial." Noting that in parts of theigz

bat ees the prosecutors correctly stated the law applicable to

, capital murder, the Commonwealth contends that the argument con-

tained “only a partial misstatement pf the law" and that “not every

ia,’ sencngereee law in-argument by the prosecution is feversible |

‘

| error if che argument taken as a whole was substantially correct

in principle and supported by law and evidence." We reject the

Attorney General's contentions both as to the instructions and the

‘closing argument. °

In order that instructions may inform the jury fully and

| fairly upon the law of the case applicable to the particular facts,

_they should not be drafted $0 a8 to confuse the jury. HH. W.

;Miller Trucking Co. v. ‘Flood, 203 Va. 934, 936, 128 $.F.2d 437, |

"439 (1962). And, where appropriate, instructions should be

, qualified by a cross-reference to another in "a manner which will

[cteary convey to the jury the force and effect of the qualifica-

bend " Outlaw v. Pearce, 176 Va. 458, 469-70, 11 S.E.2d 600, 605 |

t ciseoyt | :

og In the present case, Instructions 4, 5, 6 and 10, read

individually, are correct statements of the law. But unitary

poeeecacy will not suffice under the circumstances of this case.

Instruction 4, read in the abstract, informs the jury that "even

i though » + « (the jury is] unable to determine , , , [who] fired

ithe fatal shot," the defendant is “guilty of whatever degree of

eyeret if any, the jury finds to have been committed under the

, evidence and other instruction of the Court.” This instruction is

jqualified only by a general reference to “other instruction", not

|” a specific cross-reference to Instruction 6, the cructa]

\limiting instruction involved here. The trial court should have

peither inserted in Instruction 4 a specific reference to Instruc- |

tion 6 or added to Instruction 4 langu ige similar to the ‘emphas {zex

ti f Inst ti B, pra

por was Yee nstruc on upra

When the uaidaeiney 4 inherent in Instruction 4 is combined

"ith _the admittedly crroneous portions of the Commonwealth’ 4

, 4TBument, it is manifest that an lnsocrant and confusing analysis |

jof the law was presented to the jury. Bfsed on the prosecutors’

argument the jury could have believed that it could conviét the

defendant of capital murder though it was unable to determine who

‘fired the fatal shots or if it determined that the defendant's

fake fired the fatal shots. Instructions 6 and 10 were contra-

‘dicted by the erroneous argument advanced under Instruction 4 and

Pg. by the trial judge. Thus, this combination of factors

" caused the case to be submitted to the jury on conflicting state-

“ments of the law and the jury was permitted to convict the defen- !

dant of capital hurder without having to resolve a factual issue

“which was essential to a proper verdict. This was error,

: A&

ecord

vu.

781678 |

Alternatively, the Attorney General argues, however, that

‘the foregoing error was harmless. We think otherwise. As we have |

Just said, the effect of the error was to permit a conviction of

Ge accused of capital murder without requiring the jury to deter-

mine that defendant fired the fatal shot. Under the Tnateuctione’

read singly without adequate qualification, and under the argument

& jury did not have to determine the identity of the triggerman.

capital murder, we conclude that the erroneous interpretation of |

BES such a determination was crucial to a valid finding of

= law conveyed in the form of the instructions and advanced by

y the closing argument constituted harmful, reversible error.

| State v. Harris, 290 N.C. 641, 695-96, 228 S.E.2d 437, 445

(1976), relied upon by the Commonwealth, in inapposite. There, the

prosecution in closing argument us gd imprecise Cianaaie in defining

the felony-murder rule for the jury. The evidence fn Harris

clearly supported the verdict reached and since the ‘jury had been

| properly instructed, the North Carolina Supreme Court found that ¢

, "misstatements of law" involved were not material or prejudicial.

tAS noted previously, the evidence before us is sharply conflicting

ee of the improper argument 1 terpreting the instructions,

I. cannot determine how the jury peeer rer these conflicts, if they

did. The misstatements of the Sdobinwetved here went to the core

of this case and cahnot be dismissed as mere innocuous comments.

Because the case will be remanded for a new trial, we need

address only one other assignment of error. Many of the issues

raised by defendant have now been adjudicated by us in Smith v.

'Commonwealth, 219 Va. 455, 476-79, 248 S.F.2¢ 135, 148-49 (1978),

cert. denied, __ U.S. (1979), a decision announced after the

final judgment was entered in this case. We thus turn to defen-

-dant’s contention that the trial court erred in failing to suppres

is confession.

| As noted previously, the defendant was arrested on Decem-

iber 12. At his 9:00 a.m. TE lil on December 13, pleading

: Seti PAYG goer She tc ae, Oe

: ts ‘ie RS v0 ieee we wi ; x *

4 ete +h? ay A “9.

‘

i| indigency, he asked the general district court to appoint counsel

\\ for him. The request was granted and the defendant was returned

|t0 the Roanoke City Jail. At 2:18 p.m. on that same day, Detec-

i tive James C. Clingenpeel of the Roanoke City Police Department

‘initiated an interview with defendant at the jail. Clinyenpeel

——

Arizona, 384 U.S. 436 (1966), using a “rights card" which provided

in part:

3. You have the right to talk to a lawyer right now |

and have him present during the entire time you are

being questioned.

4. If you cannot afford to hire a lawyer, one will

be furnished to represent you before any questioning.

5. If you desire to answer my questions without a

lawyer, you may do so, but you may stop at any Lime

4 you should desire.

IThe defendant indicated that he understood the statements and

(signed the card in the space provided, The defendant then orally

ll gave an inculpatory statement which was not recorded and which was '

|shates at 3:10 p.m. Clingenpee], who testified at an April

1978 suppression hearing, stated that he immediately returned to

his office and reduced his recollection of the defendant's confes-

ee, to writing. The defendant did not thereafter examine or sign

the, officer's memorandum, |

. At the suppression hearing, Clingenpeel stated that, at the

time of the interview, he did not know whether the defendant had

lbeen arraigned, or whether counsel had been appointed. He testific

pthat he made no attempt to ascertain if counsel had been, in fact, |

vappointed and, of course, did not try to notify counsel of the

Minterview. The defendant was first informed of the identity of his

,court-appointed counsel on December 14 and first saw the attorney

ion that day. The record does not reveal when counsel learned of

ithe appointment.

A1O

‘ . ‘i 1

| |

, The defendant asserts that the trial court erred in refusing !

;

they initiated a custodial interview, citing United States v. Clark,

_to suppress his confession because the police did not allow him

sufficient time to confer with his court-appointed counsel before

499 F.2d 802 (4th Cir. 1974). He maintains that our prior

“decisions in Lamb v. Commonwealth, 217 Va. 307, 227 S.E.2d 737

| (1976), and in Skinner v. Commonwealth, 212 Va. 260, 183 S.E.2d

| dant in Lamb, he did not surrender voluntarily on the advice of

, initiace the interview after having had the opportunity to confer

725 (1971), are not controlling. He urges that, unlike the defen-

counsel and unlike the defendants in Limb and Skinner he did not

jwich his attorney. We disagree with defendant's argument.

! We have adopted the rule that "the police may question an

i who has counsel, retained or appointed, whether or not the

‘attorney is present, if there is an affirmative waiver by the

jaccused of his right to counsel made voluntarily, knowingly and

‘fat 740. Such a waiver may occur either before or after counsel is

|retained or appointed. See Skinner v. Commonwealth, 212 Va. at

°263, 183 S.E.2d at 728. Anda defendand may waive his rjghe to

' counsel after he has preylously asserted the right, as long as the}

| defendant's prerogative to exercise the right is “scrupulously

‘Arizona, 384 U.S. at 474-75; State v. Steelman, 585 P.2d 1213,

' 1221-22 (Ariz. 1978); State v. Stone, 397 A.2d 989, 995 (Me. 1979),

‘ although the courts indulge every rcasonable presumption against

waiver and a heavy burden rests on the Comnonwealth to demonstrate

that the defendant knowingly, intelligently and voluntarily waived

his right to counsel. Brewer v. Williams,'430 U.S. 387, 404 (1977);

“Lamb v. Commonwealth, 217 Va. at 310-11, 227 S.E.2d at 740.

ae eee

‘,

;

"his argument in which he maintains that a request for the appoint-

| ment of an attorney at arraignment constitutes an exercise of the

o—--—-

rem to counsel requiring the cessation of police interrogation

under Miranda. Nevertheless, we think that the defendant here

subsequently knowingly, intelligently and voluntarily waived his

‘right to counsel.

The defenJlaint was initially interviewed on the day of his

"arrest, the day befor: his arraiynment. While the testimony

ere See: that he "said very few words", the record shows that

defendant was advised of his rights on that day and affirmatively

wae his right to counsel and his right to remain silent during

that interview. On the next day, five hours after his arraignment,

jwhen the police sought to interview defendant, the interviewing

Bape without knowing whether defendant had been arraigned,

“informed him of his rights orally and in writing at the commence-

iment. of the interrogation. The defendant then affirmatively waived

his right to counsel by signing the “rights card" beside the statec-

(ment "SIGN IF YOU WAIVE THESE RIGHTS", He then willingly discussed

ithe. case without evereasking to see gounsel at any time during the

‘course of the interview.

United States v. Clark, 499 F.2d 802 (4th Cir, 1974), relied

pon by the defendant, is distinguishable. There, the defendant's

request for appointed counsel on gropinds of indigency was denied

at the bond hearing. After the hearing, government agents attempte

‘to interview the defendant, but he stated that he wanted to consult:

aecth an attorney. The interview was terminated; however, t':ree-

'and-one-hal f hours later, the agents again initiated interrogation

‘of the defendant and attempted to persuade him to answer questions.

Clark ultimately waived his right to counsel orally and gave an

‘inculpatory statement. In holding that the waiver was involuntary, |

‘the Court of Appeals emphasized the fact that the defendant had

—=

—— eee =

—

previously requested counsel, that the police initiated the second

— meen ht EERSTE DEN tee AL SSSSESS, rote agree

ere EE EPS ey

—_ eee eee

! | |

interrogation and that the police used persuasion to convince the

| defendeat to waive his right to counsel. Id. at 807.

In Clark, the defendant's assertion of his right to counsel ~

‘occurred in an interrogation context after defendant's request

for appointed counsel had been refused. Here, the defendant never

asserted his right to counsel during interrogation. The record

fase: not reveal any attempt to persuade the defendant to waive his

Be to counsel; rather, the defendant signed the waiver card when

he was first asked. And while in Clark, as here, the police

initiated the interrogation, there is no evidence that the police.

conduct was coercive in this case. Thus, we think the trial court

was correct in admitting the confession in evidence.

For the error in the form of the instructions as compounded

by the improper closing argument of the prosecutors, we will

lreverse the Judgment convicting defendant both of capital murder

and of use of a firearm during the ecuubeaten of a felony.

The Attorney Ceneral at the bar suggested that, in the event

lof a reversal, the remand should be for the sole purpose of

senténcjng defendant for first degree wyrder because, under the

Bee finding, defendant is guilty of either capital murder or

urder in the first degree. But the eyrpr of which we have spoken

has not|affected only those two grades of the homicide aa the

quantum of punishmenc; it’ has permeated the entire guilt and

punishment determination at al] stages. So, under these circum-

istances, we may not properly select one grade of the homicide to

‘furnish the basis for resentencing only. °

\ Consequently, for all of these reasons, the charges of

capital murder and of using a firearm during the coumission of a

felony will be remanded for a new trial on all issues.

‘

Reversed and remanded,

by the page number. References to a transcript of the first trial will

be denoted by “TA,” followed by the page number. References to the

record subsequent to remand will be denoted by "R," followed by the

page number, and references to the record of proceedings prior to remand

will be denoted by "RA," followed by the page number.

ASSIGNMENTS OF ERROR

1. The defendant's prosecution for capital murder in the

commission of armed robbery was barred by the doctrines of collateral

estoppel, double jeopardy and autrefois acquit, inasmuch as a jury pre-

viously had acquitted the defendant of robbery in the same incident.

The trial court erred in permitting prosecution upon the indictment for

capital murder, and entering judgment thereon,

Il, The terial court erred tn failing to suppress the defen-

dant’s confession, when the defendant had unequivocally requested the

services of an attorney, had initiated neither the contact with the police

nor the specific interrogation session, and did not have the opportunity

to confer with the attorney prior to interrogation.

1Ii, The evidence was insufficient to sustain a conviction

for capital murder.

QUESTIONS PRESENTED

The questions presented are numbered to correspond with the

assignments of error to which they refer.

I. WHETHER THE DEFENDANT'S PROSECUTION FOR CAPITAL

MURDER IN THE COMMISSION OF ARMED ROBBERY WAS BARRED BY THE DOC-

TRINES OF COLLATERAL ESTOPPEL, DOUBLE JEOPARDY AND AUTREFOIS AC-

¥ , «& f84 & -

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In the Supreme Court of Virginia held al the Safireme Court Putting én the

City of Richmond on Tuesday the 15th day of July, ie fe

4ajor Henry Johnson, Jr., ™ Rome Appellant,

against Record No. 800372 :

Circuit Court No. F-50691

Commonwealth of Virginia, : | Appellee.

From the Circuit Court of the City of Alexandria

Upon the petition of Major Henry Johnson, Jr., an appeal is

warded him from a judgment rendered by the Circuit Court of the City of

-lexancria on the 7th day of November, 1979, in prosecutions by the

Commonwealth against the said petitioner for felonies.

This appeal, however, is limited to the consideration of

‘ssignment of error No, I which reads as follows:

I. The defendant's prosecution for capital murder in the

emission of armed robbery was barred by the doctrines of collateral

.stoppel, double jeopardy and autrefois acquit, inasmuch as a jury

wreviously had acquitted the defendant of robbery in the same incident.

The trial court erred in permitting prosecution upon the indictment for

capital murder, and entering judgment thereon.

On further consideration whereof, it is ordered that the parts

of the record to be printed or reproduced in the appendix are to be

limited to those parts of the record germane to assignment of crror

ho. I, and the briefs to be filed shall be limited to such discussion as

is relevant to the assignment of error upon which this appeal is awarded.

The petition for appeal is refused as to the remaining assign-

ments of error. /

A Copy,

| Teste:

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hth, SOE.

Cler)Z

ate Py TEStE: $ PUA sete

bAsiaed Seiihiinn, Clerk eae

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‘

Poems All toa phe Pow

‘MAJOR HENRY JOHNSON, JR.

800372 OPINION BY JUSTICE ALRERTIS S. HARRISON, JR,

-v- Record No. January 16, 1981

woe ee

- ==

. COMMONWEALTH Or VIRGINIA

y ‘ FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA.

\j . _Kenneth E. Trabue, Judge

This case ‘is the sequel to Johnson v. Commonwealth, 220 Va.

eat) he

—-- —-

146, 255 $.8.24 525, (1979). A judgment was ‘entered by the court

below in accordance with a jury's verdict, finding Major Henry

‘S Seuanea, Jr., guilty of capital murder in violation of Code §18.

| 2-31(a), and sentencing him to life imprisonment. The appeal is

"for capital murder in the commission of armed robbery was barred

by the doctrines of collateral estoppel, double jeopardy, and

; limited to a consideration of defendant's claim that his eee

! autrefois acquit for the reason that a jury in the Circuit Court |

. !

jof Roanoke had previously acouvitted him of robbery growing out of

| the same incident.

t; Johnson was originally tried in Roanoke under a three-

pos indictment charging him (1) with the robbery of John N.

‘Gardner of United States currency, (2) with the felonious killina

| ana murdering of John N, Gardner while committing robbery while ;

‘armed with a deadly weapon, and (3) with using a pistol while |

committing murder. At the conclusion of the evidence, the trial ;

icourt, without objection and at the request of the defendant,

: granted an instruction which stated that "if, under Count II

lcapital murder) of the indictment, you find the defendant guilty

of capital mirder, then you must find him not guilty under Count

‘I [robbery] of the indictment.” The court, without objection, alsd

| granted an instruction which in pertinent part told the jury

‘that “if you find the defendant quilty of cavital murder, then

you must find the defendant not guilty of robbery, inasmuch as —

-_———-«- ——— oe

Al6

| janyreaninee - i nS sa oath osenenas Ress “meri

iad sag

; mk ven . s oe f

BAY Oe alah 0

wit 8 Rigor alt S tae BE ha

a: eng It JW ; Ths ‘

the elements of robbery are integral parts of the elements of the

offense of capital murder in this case.“ The jury was told that

Yr.

—— —— +4

vere

7" ? eo” a .

“~-

jase murder is the “wilful, deliberate and premeditated killing

‘of any person while in the commission of robbery while armed with | °

Fe deadly weapon” and further that the jury must find beyond a

' reasonable doubt that “at the time of any such killing the defen-

Gant was committing robbery while armed with a deadly weapon" in

order to convict for capital murder.

The record of defendant's first trial discloses that the jury

initially returned a verdict finding Johnson guilty of capital

murder under Count II of the indictment. The court thereupon in-

structed the jury to return to the jury room for a further con-

sideration of Counts I and III. Thereafter the jury returned its |

—_-

——-—_-- -—_—

verdicts finding the defendant guilty of capital murder, guilty of |

' using a pistol in the commission of murder, and not guilty of ' :

i |

' robbery. The trial being bifurcated, the jury then considered the |

issue of punishment and returned its unanimous verdict fixing

defendant's punishment at death. The verdict was subsequently

_ approved and affirmed by the trial court. The order of the trial

| court recites that "[iJn view of the fact that robbery is an inte-

gral part of Capital Murder, it is Ordered that Robbery, Count 1

... be Gismissed." The defendant voiced no objection to the form’

of the orders entered by the court.

The defendant appealed his capital murder conyiction, seeking

anew trial. At that time he raised no issues of double jeopardy,

: collateral estoppel, autrefois acquit, or inconsistent verdicts

The defendant's conviction for capital murder was reversed and

the case remanded for retrial because of error in the form of the}

| instructions as compounded by improper argument of the prosecu-

tors. The jury was not instructed that to convict the defendant |

of capital murder, ft must have found that he was “the triggerman."

| Following a remand of the case, and on motion of the defendant, a

Ai17

charige of venue was granted to the Circuit Court of the City of

Alexandria,

Prior to his second trial, the defendant sought to have the

trial court dismiss or reform the capital murder indictment,

‘alleging grounds of double jeopardy, collateral estoppel, and

lautrefois acquit, Speen s208229 « defendant contended there, and

argues on this appeal, that since he was “acquitted” of robbery at

the first trial he ; could not be tried for capital murder because

the elements of an ‘armed robbery are integral to a conviction of

murder in the commission of armed robbery. The trial court over

ruled defendant's motion, and upon a retrial the jury convicted

| the defendant of capital murder, Because the jury was unable to

agree on the imposition of the death penalty, the defendant was

sentenced by the trial court to life imprisonment. Code §19.2-

v. Commonwealth, supra. It suffices to say that on December 9,

1977, John Gardner of Roanoke was shot and killed. At the same

time money and property were taken from Gardner's person and office

The defendant and his brother David A. Johnson were the perpetra-

tors of this crime. The verdicts finding defendant guilty of

—_—-—— ---9--- so -

264.4(E).

The facts of the case are set forth in our opinion in Johnson

capital murder are amply supported by the evidence. ‘There were

no eyewitnesses to the murder and robbery other than the two

Johnson brothers. The prosecution of thecase was not without

difficulty acd to meet the exigencies of proof the Commonwealth's

Attorney framed one three-count indictment charging the defendant

—-

with capital murder, robbery, and the use of a pistol while commit=

ting murder.

Virginia Code §18.2-31 provides, in pertinent part, as follows:

; The following offenses shall constitute capital murder,

; punishable as a Class 1 felony:

——— —s

Als

(4) The willful, deliberate and premeditated killing

of any person tn the Commission of robbery while armed with

a deadly weapon) .«

Therefore, to convict of Senital murder under MNGnai vision

(a) of Code $18.1-32, the Commonwealth must establish all the

elements necessary to convict of first degree murder, i.e., that

the killing was willful, deliberate and premeditated and; in’

addition, all the “elenents necessary to convict of an armed

robbery. ie Soe \

The origin, history, and purpose of the double jeopardy clause

of the Fifth Amendment are hardly a matter of dispute. In the

recent case of Turner v. Commonwealth, el ag ’ S.E.2d

(1980), we enumerated the three separate guarantees assured

——_—-- — —

by the constitutional prohibition of double jeopardy to be the

protection against a second prosecution for the same offense after

acquittal or after conviction and the protection against multiple

punishments for the same offense. We referred to Blockburger v.

United States, 284 U.S. 299, 304 (1932), where it was said that

"the test to be applied to determine whether there are two of-

fenses or only one, is whether each [statutory] provision requires!

proof of a fact which the other does not.” See also Harrison v.

Commonwealth, 220 Va. 188, 257 S.E.2d 777 (1979); Roderick Cecil

, Jones v. Commonwealth, 218 Va. 757, 240 S.E.2d 658, cert. denied,

oe eee

435 U.S. 909 (1978).

We are conscious of ovr holding in Jones, Supra, that the

double jeopardy clauses of the federal Constitution and of the

Virginia Constitution "forbid not only subsequent punishment but

subsequent prosecution. [Citation omitted.) Those clauses apply

not only when the two offenses are identical, but also when the

former offense is lesser-included in the subsequent offense.

[Citations omitted.] The guarantees also apply when the subse-

quent offense is lesser-included in the former offense. "[Citations

A 19 j

—_—_——_ ==

——

oye a . »%e 7 Ay

J a CP ae ee ‘ AS avere

| structed by the court. The defendant nevertheless contends that

‘BR & ide. : : ie baht.”

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. 4 . ” . ‘

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"sow oe * tee

omitted.) 218 Va. at 759, 240 S.E.2d at 660.

The defendant argues that at his first trial he could not,

due to double jeopardy protections, have been convicted of both

capital murder and robbery. The answer to this argument is that

had defendant been found guilty of both capital murder and robbery

in the first trial, the issue of “same offense" would not arise

because the convictions arose from a single criminal trial. How-

ever, if defendant, after being convicted of both crimes, had beer

subjected to punishment for both, an issue of double jeopardy

with regard to multiple punishments would arise. Turner, __ Va.

Me Sg a eee OS |

Defendant also claims that robbery is a lesser-included of-

fense of capital marder and that since every element necessary to,

establish the corpus delicti of robbery is relevant and essential

to the proof of capital murder, the reciprocal nature of the

double jeopardy clause prohibits his conviction,of capital murder :

based on robbery when the defendant had previously been acquitted

of that robbery.

Significantly, counsel for defendant concedes that the jury

may in fact have acquitted, not on merit but because it was so in-

on the robbery count he ‘as been discharged “without day" and that

his subsequent prosecution for any offense which includes the

elements of robbery is barred.

There is not the slightest confusion or doubt about what

occurred at Johnson's first trial before the Circuit Court of

Roanoke. He was indicted on a single indictment which contained

three counts, a matter within the discretion of the prosecution.

The Commonwealth's Attorney had no way of knowing in advance how ,

the testimony would evolve and whether one or both of the Johnson '

ERT See be oN ree, ONTO TAT Ne new te ei nee a) Wr Ween Oe

| armed robbery of the victim.

l course of action in the first trial, we find no prejudice to the

| that Johnson was innocent of robbery. We would have to find that

; a re? é A | oot, Sa Ad “

ned dl re é Sed . 4 ra ae?

ra ee™ gta Nae * ’ - ow

. whe. eri ds i. > ~~ ~

35 Sige 4 " f.

OES et his ae

oe ode es

, ’

brothers would be proven to be the robber and the murderer. The

defendant was never in any jeopardy of being convicted by the

Commonwealth's Attorney, and the trial court. The jury was speci-

fically instructed that it could not find the defendant guilty of

both capital murder and robbery. The jury was also instructed

that his killing of the victim was not only willful, deliberate,

and premeditated but occurred during the course of defendant's

While the trial court properly may have followei some other

defendant in the course it did follow. This court would stultify

itself to hold that the jury in this case made a factual finding

it ignored the court's instruction and that its finding of not

guilty under Count I was completely unrelated to the express

direction it had received from the court to return such a verdict

if it found defendant guilty of capital murder.

The dispositive issue is whether for double jeopardy purposes

there has ever been a factual acquittal of the defendant on the

robbery charge. The defendant asked for the instruction which

prompted the jury's verdict on the robbery count. He therefore,

aided by the Connonwealth's Attorney and the trial judye, success~

fully obtained a termination of his prosecution on the robbery

count without any determination of his factual guilt or innocence

under this count. On the contrary, the jury was directed to

return ‘the verdict it did because it, in fact, had found that

‘

defendant was guilty of committing an armed robbery (during which !

A21

_——

he also committed murder). Or, stating this anomalous situation

differently, the "not guilty” verdict solicited by the defendant

and the prosecution, and dhe by the court, was predicated

upon an affirmative factual “finding by the jury that the defendant

was guilty of robbery. Surely the double jeopardy clause, designed

to protect against government oppression, does not apply under such

circumstances. : The Supreme Court recently noted, in United States

. se

Vv. DiFrancesco, *" U. 8. (1980), that the double jeopardy pro-

vision is designed to serve “as a bar against repeated attempts

to convict, with consequent subjection of the defendant to em-

barrassment, expense, anxiety, and insecurity, and to the possi-

bility that he may be found guilty even though innocent." None of

these considerations are applicable in the instant case.

The defense relies strongly upon Adkins v. Commonwealth, 175 Va.

590, 9 S.E.2d 349 (1940), and Simon v. Commonwealth, 220 Va. 412,

258 S.E.2da 567 (1979). Adkins was charged in one count of an in-

dictment with bigamy and in the other count with aiding and abetting

in the commission of bigamy. Upon arraignment he demurred to —

counts on the ground that being an unmarried man he could not be

guilty. The court sustained the demurrer as to each count and

ordered that the defendant be discharged from the indictment and

go thereof “without day." Adkins was again indicted and charged

with the aiding and abetting of bigamy. This court held that the

trial judge should have sustained the defendant's plea of al

acquit, noting that the court had previously sustained a demurrer

to the first indictment "to each count thereof" onthe ground re-

lied upon by the accused. Adkins had therefore been fully dis-

charged on both counts by a ruling which as a matter of law barred

further peosoom eee:

In Simon Vv. Commonwealth, supra, a defendant was acquitted

in the district court on a charge of driving a motor vehicle while’

A22

*- ee. —_——

under the influence of intoxicants. Subsequently the defendant

was indicted for involuntary manslaughter, and during his trial

the Commonwealth presences evidence onthe issue of defendant's

intoxication, an issue which had been previously decided in his

favor in the prior proceeding in the district court. Consistent

with Ashe v. Swenson, 397 U.S. 436, 442-43 (1970), we said

that "the Commonwealth is barred from introducing evidence to

prove an wos Yor which : a defendant has been previously ac-

quitted, even though the facts necessarily resolved in the acquitt

are not dispositive of an element of the offense charged in the

second trial." ‘Id. at 417, 258 S.E.2d at 571. We took occasion

to note that Ashe “seems to focus upon the relitigation of issues

of ultimate fact," and that “[c)ourts are in general agreement

that in order to bar a subsequent prosecution for a different

offense arising out of the same transaction a necessary element o

the offense inthe second trial must have been clearly adjudicated |

in theearlier proceeding.” Id. at 415, 417, 258 S.E.2d at 570,

571. We held that collateral estoppel bars a state's relitigation

of facts which had been decided in'thedefendant's favor in the

prior trial even though the second prosecution is not barred.

However, we added that “[t]o understand the limits of our holding

| it is necessary to scrutinize the exact meaning of the district

court's determination that defendant was not guilty of driving

under the influence of intoxicants." Id. at 419, 258 S.E.2d at

572. ;

The court in Adkins decided that the defendant, being un-

married, could be guilty of neither bigamy nor aiding and abetting

in the commission of bigamy. Therefore his discharge constituted

_- -——_—- =

a true acquittal upon a defense which barred his reprosecution.

In Simon there had been an acquittal of the defendant because of |

—_——_-o-o---

the prosecution's inability to establish intoxication. There had

A 23

————< ’ japan re ee ' *

- ~

been an actual adjudication in favor of Simon of a factual nature

and of an element pertinent to the offense involved in his second

trial. ho ayy ra

Dismissals of indictments are granted for a number of reasons

and often serve as tools for the exercise by a trial court of its

seee eee aere

discretion. United States v. Scott, 437 U.S. 82 (1978), recog-

nizes that double Jeopardy following dismissal depends on subtle

distinctions in the reasons underlying a judgment. It appears

ate oe

that the Court in Scott approved a new definition of the oe

reguired to invoke a double jeopardy defense. The Court held tha

a defendant is acguitted for double jeopardy purposes where the

ruling of the trial judge represents a resolution in the defendant's

favor, correct or not, of some or all of the factual elements of

the offenses charged. This permits a court to distinguish between

a dismissal granted pursuant to a legal defense and a dismissal

granted pursuant to a factual defense. The latter would qualify

as an acquittal for double jeopardy purposes. A legal dismissal

might not because its effect could result in a termination of the}

proceedings against the defendant on a basis unrelated to factual °

guilt or innocence. This rationale applies in the instant case.

Here, the directed “not guilty” verdict depended legally upon a

finding of factual guilt rather than factual innocence. The legal

principle was activated when the jury found beyond a reasonable

doubt that all the elements necessary to convict of first degrce

murder and of robbery had been established and therefore the

commission of capital murder was proved. It was this finding by

wv ee = ene mee eee = nee ee ee - —_-

4 5 Saar’ spade hips a8

In United States v. Scott, the trial court, at the conclusion,

of evidence and on defendant's prior motion, dismissed two counts

of a three-count indictment charging distribution of various

narcotics because of prejudice from preindictment delay, and the

jury thereafter returned a verdict of not guilty as to count three.

The Supreme Court, speaking through Mr. Justice Rehnquist, held

that the Government was not precluded from appealing an order '

dismissing the first two counts on the ground that an appeal would

=~ -9....... —

offend the double jeopardy clause of the Constitution.

i !

: A 24

e We emer wenn es mame mys» oe ee ree ere mee Pye eens .

° 4 -~ ~~ - ~“* wT

oP Ah, bt eR 2) YG MEIN nd SEs xt ferrin dar ae ey Lae tl as : —

the jury that triggered its “not guilty” verdict which formed the

basis of defendant*s plea and of this appeal.

It ts ovr conclusion that defendant has not been dismissed

i "without day,” that there has been no prior factual determination

/4n favor of defendant with regard to robbery, and that defendant

| : :

|was not previously “acquitted” of robbery.

Accordingly, the judgment of the court below is affirmed.

Affirmed.

—- —_--_-_

A 25

ee See ee)

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.