# Petition — Major Henry Johnson, Jr. v. Virginia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2404%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 454 U.S. 920 ## Text Law offices 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 V. 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 Law OFFICES LICHTENSTEIN, Wecesttim & Raney ROANOKE, VA. 24011 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? ii Law Onfices LICHTENSTEIm, Wecastcim & Raney ROAKONE, VA. 24011 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 6 13 20 Al Al4 Al5 Al6 LAW OFFricts LICHTENSTEIN, Wecestciw & Raner ROAKOKE, VA. 24011 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 iv taw orrices LICHTENSTEIN, wecestcim & Ranty ROANOEE, VA. 24011 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, 17 18 16 11 12 18 18 18 18 12 Law orrices LICHTENSTEIN, wecesteim & Rancy ROANOEL, VA. 24011 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, vi Law orrices LiCMTCMSTtin, wWecestcim & Ranty ROANOCEE, VA. 24011 §7 L.Ed. 2d 65 elo. | ere ar oe 6, if 9, 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 aa “ete t eT eee Reas 0, 5 ee ihe 8 "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) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2404%3A1. Public record. Not legal advice.