Opposition Brief — Ray Charles Degraffenreid v. Kenneth D. McKellar Warden

RAY CHARLES DEGRAFFENREID,

PETITIONER,

vs.

KENNETH D. MCKELLER, WARDEN, KCI,

WILLIAM D. LEEKE, COMMISSIONER, SOUTH 4

CAROLINA DEPARTMENT OF CORRECTIONS, T. TRAVIS

MEDLOCK, ATTORNEY GENERAL OF THE STATE OF

SOUTH CAROLINA,

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

T. TRAVIS MEDLOCK

Attorney General

e DONALD J. ZELENKA

Chief Deputy Attorney General

Office of the Attorney General

5 Post Office Box 11549

Columbia, South Carolina 29211

Telephone: (803) 734-3737 .

ATTORNEYS FOR RESPONDENTS

* Counsel of Record

>

COUNTER-STATEMENT OF QUESTIONS PRESENTED

I.

WHETHER THE COURT OF APPEALS AND THE DISTRICT COURT PROPERLY

CONCLUDED THAT PETITIONER HAD THE BURDEN OF PROVING THE

ALLEGATIONS CONTAINED IN HIS HABEAS CORPUS PETITION.

(PETITIONER'S QUESTION I).

Il.

WHETHER THE COURT OF APPEALS AND THE DISTRICT COURT PROPERLY

CONCLUDED THAT PETITIONER'S CONFESSION TO LAW ENFORCMENT

OFFICIALS WAS THE PRODUCT OF PETITIONER'S INDEPENDENT,

INFORMED CHOICE TO COOPERATE WITH LAW ENFORCEMENT OFFICERS

AND THAT PETITIONER POSSESSED THE CAPABILITY TO MAKE SAID

DECISION AND THAT HIS WILL WAS NOT OVERBORNE BY THE

CONDITIONS OF CONFINEMENT OR METHODS OF INTERROGATION.

(PETITIONER'S QUESTION II).

Counter-Statement of Questions Presented

Table of Contents l

Table of Authorities ard aie

Citation to Opinion Below

Jurisdiction 9 0 „

Constitutional Provisions

Involved 9 0 5 0

Counter- Statement of the Case

Reasons Why the Writ Should Be Denied

Conclusion 4 —* 22

Affidavit of Filing

Affidavit of Service

16

27

: 111

TABLE OF A TL

Page

Alexander v. Duggar, 841 F.2d 371 (llth Cir. 1988) 9

v 386 U.S. 738, 87 S.Ct. 1396, ,

Ashcraft v. Tennessee, 322 U.S. 143 (1944) 22

Boles v. Foltz, 816 F.2d 1132 (6th Cir. 1987) 9

Bruce v. Estelle, 536 F.2d 1051 (5th Cir. 1976) 6

Chizen v. Hunter, 809 F.2d 560 (9th Cir. 1986) 9

Clayton v. Hughes, 517 F.2d 577 (4th Cir. 1975) 7

ores v. ae ee 479 U.S. ___, 93 L.Ed.2d 473, *

Ct.

Cuyler v. Sullivan, 446 U.S. 335 (1980) 8

Darwin v. Connecticut, 391 U.S. 346 (1968) 24

Davis v. North Carolina, 384 U.S. 737 (1966) 24

Ferguson v. Boyd, 566 F.2d 873 (4th Gir. 1988) 23

Glidewell v. Burden, 822 F.2d 1027 (llth Cir. 1986) 9

Greenwald v. Wisconsin, 390 U.S. 519 (1968) 23

Tes v. Sunn, 800 F.2d 861 (9th Cir. 1986) 9

Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774,

IZ L.Ed. 2d 908 (1964) ll

Johnson v. Zerbst, 304 U.S. 548 at 468 (1938)

Jurek v. Estelle, 623 F.2d 929 (5th Cir. 1980)

Lego v. Twomey, 404 U.S. 477 (1972)

Lokos v. Capps, 528 F.2d 576 (5th Cir. 1976)

Machado v. Commanding Officer, 860 F.2d 542 (2nd

r. 7

Martin v. Wainwright, 770 F.2d 918, at 925

(Iith Cir. T9835) 7

—_— a

nn. 5 e „

iv

Michigan v. Moseley, 423 U.S. 96 (1975) 23

Miller v. Fenton, 106 S.Ct. 445 (1985) 23

Miller v. Fenton, 796 F.2d 598 (3rd Cir. 1986) 7,8 )

Miller v. Fenton, 107 s. ct. 585 8, 23

Moran v. Burbine, 475 U.S. 412 (1986) 25

Reck v. Pate, 367 U.S. 433 (1961) 23

Rogers v. Richmond, 365 U.S. 534 (1961) 23

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) 22, 23

Smallwood v. Warden, 367 F.2d 945 (4th Cir. 1966) 23

Strickland v. Washington, 466 U.S. 668 (1984) 8

Thomas v. State of North Caroline, 447 F.2d 1320

F 23

U.S. v. Carroll, 710 F.2d 164 (4th Cir. 1983) 23

, oss v. DeRobertis, 811 F.2d 1008

* r. 9

U. S. v. Hart, 619 F.2d 325 (4th Cir. 1980) 25

U.S. v. Sledge, 546 F.2d 1120 (4th Cir. 1977) 6

Wr e ee „ a

U.S. v. Wertz, 625 F.2d 1128 (4th Cir. 180 24

Vanter v. Boles, 377 F.2d 898 (4th Cir. 1967) 7

Williams v. Peyton, 404 F.2d 528 (4th Cir. 1968, 23

WEST'S FEDERAL PRACTICE DIGEST THIRD, A

Habeas Corpus, Key 85.2(1) 7

a * >» att — ! ae TL. = =o “= ee, «|

UNITED STATES CONSTITUTION:

Fifth Amendment 2

Fourteenth Amendment

UNITED STATES CODE:

28 U.S.C. § 1254 2

28 U.S.C. § 2254 2

IN THE SUPREME COURT

OF THE UNITED STATES

No

. 89-6126

RAY CHARLES DEGRAFFENREID,

PETITIONER,

vs

KENNETH D. MCKELLER, WARDEN, KCI,

WILLIAM D. LEEKE, COMMISSI „ SOUTH

CAROLINA DEPARTMENT OF CORRECTIONS, T. TRAVIS

MEDLOCK, ATTORNEY GENERAL OF THE STATE OF

SOUTH CAROLINA,

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

The Respondents hereby make a Brief in Opposition

to the Petition for Certiorari and request that the Petition

be denied.

CITATION TO OPINION BELOW

The opinion of the Court of Appeals is styled as

Degraffenreid v. McKellar, No. 88-6590 (4th Cir. August 9,

1989), and reprinted in the Petitioner's Appendix at A-1.

The opinion of the Honorable Joe F. Anderson, Jr., United

States District Judge, is reprinted in the Appendix at A-16.

JURISDICTION

The panel decision of the Fourth Circuit was

entered on August 18, 1989. A Petition for Rehearing and

Suggestion for Rehearirg En Banc was entered on October 2,

1989. The Court's jurisdiction is invoked pursuant to 28

U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Petitioner contends these proceedings involve

the Fifth and Fourteenth Amendments to the United States

Constitution.

COUNTER-STATEMENT OF THE CASE

This matter arises from the certiorari petition by

Ray Charles Degraffenreid from the denial of a Writ of

Habeas Corpus, pursuant to 28 U.S.C. §°254, by the Honorable

Joe F. Anderson, Jr., United States District Judge for South

Carolina, and its subsequent affirmance by the Court of

Appeals. The Petitioner, Ray Charles Degraffenreid, is

presently serving a life sentence for murder. The District

Court, in its Order of March 2, 1988, rejected the Report

and Recommendation ot Magistrate Robert S. Carr and denied

and dismissed the Petition for Habeas Corpus. The United

States Court of Appeals for the Fourth Circuit affirmed the

judgment of the lower court concluding chat Degraffenreid in

the habeas proceeding “did not meet his burden of

- establishing that his confinement, the nature of the

questioning, d his personal characteristics -- or any

combination of these factors -- rendered his confession

involuntary.” (A-5).

Petitioner was indicted at the May 1977 term of

the Court of General Sessions for Chester County for murder.

On November 5, 197/, che Petitioner proceeded to trial by

jury, was found guilty of murder, and was sentenced by the

Honorable Joseph R. Mcss, presiding judge, to confinement

for life.

The Petitioner made a timely appeal to the South

Carolina Supreme Court. He raised the following issues on

direct appeal:

1. Did the Court err in failing to

suppress the admission of the statemenc

t by the police from Petitioner on

February 3, 1977, while in custody,

under mental duress, suffering from

physical pain caused by a hemorrhoid

condition and after the police failed

to provide Petitioner with his medication

upon request?

:

2. Did the Court err in failing to

wagers the admission of the statement

taken by police from Petitioner on 1

February 3, 1977, after Petitioner |

requested an attorney?

|

After full briefing, the South Carolina Supreme Court

affirmed the conviction on January 15, 1979 pursuant to its

Rule 23 of the Rules of the South Carolina Supreme Court.

State v. Degraffenreid, Memo. Op. No. 79-10 (Filed January

15, 1979). Petitioner also filed Applications for

Post-Conviction Relief dated January 3, 1980, and December ‘

3, 1980. The Petitioner contended that he was being held in

custody unlawfully for the following reasons:

l. He was denied effective assistance

of counsel in that counsel failed to

challenge the confession;

2. The grand and petit jury were improperly

constituted in that blacks were excluded;

3. He was interrogated without having been .

given his Miranda warnings;

——

r te i i Be ee, es ; : ;

4. The evidence against him was obtained

in violation of his constitutional rights;

5. He was denied due process in that he

was a victim of malfeasance of the Sheriff

during uis pre-trial detention; and

6. He was denied medical treatment during

pre-trial detention.

An evidentiary hearing concerning the post-conviction relief

claims wee held on April 28, 1981, Following the

evidentiary hearing in the state court, the Honorable Donald

A. Fanning, issued a written Order dated July 6, 1981,

denying the Appellant's Application for Post-Conviction

Relief.

Petitioner filed a timely Notice of Intent to

Appeal and an appeal was perfected to the South Carolina

Supreme Court. Pursuant to Anders v. California. 386 U.S.

738, 87 S.Ct. 1396, i8 L.Ed.2d 493 (1967), appellate counsel

for Petitioner, Kathy D. Lindsay, submitted a brief on

behalf of Petitioner. The South Carolina Supreme Court

ruled, after a careful consideration of the record and

brief, that no reversible error of law was present and it

affirmed the findings and judgments of the lower court

without a full written opinion, pursuant to Rule 23 of the

Rules of Practice of the South Carolina Supreme Court.

Degraffenreid v. State, Memo. Op. No. 82-MO-237, filed

August 3, 1982. The Appellant presented the following

question on appeal to the South Carolina Supreme Court:

Did the lower co .t err in denying and

— Appel.ant's lication for

Post-Conviction Relief n the record

2 1 a"

indicates llant received ineffective

assistance of counsel pursuant to his

1977 conviction of murder; the error

being that the denial of effective

representation of counsel violates

pellant's constitutional rights under

the Sixth and Fourteenth Amen ts

of the United States Constitution.

On December 17, 1985, Petitioner filed a Petition for Writ

of Habeas Corpus in the United States District Court.

Respondents made Return on July 29, 1986. Respondents also

made Amended Return on May 7, 1986.

An evidentiary hearing was held befcre the

Honorable Robert 8. Carr, United States Magistrate, on

February 19, 1987. By Report dated August 5, 1987, Robert

S. Carr, United States Magistrate, again recommended that

Petitioner's Petition for Writ of Habeas Corpus Relief be

granted unless the Respondents take steps to retry Appellant

within a reasonable period of time. Respondents filed

objections to said Report and Recommendation. After

reviewing the record in the case and hearing oral argument

trom counsel for both parties, the Honorable Joe F.

Anderson, Jr., United States District Judge, rejected the

Magistrate's Recommendation and denied and dismissed the

action. Appellant thereafter filed Notice of Intention to

Appeal which resulted in the decision of the Fourth Circuit

affirming the judgment of the District Court.

Petitioner asserts that the lower courts erred in

incorrectly allocating the burden of proof to Petitioner to

show that confession given by him was involuntary.

Petitioner maintains that he bears the burden of proof with

regard only to factual issues entitled to a presumption of

correctness in a federal habeas proceeding. He asserts that

in questions of law or mixed questions of law and fact, the

reviewing court must make an independent determination as to

voluntariness, thereby placing the burden upon the

prosecution to show voluntariness of the confession. He

asserts that the burden of proof is upon the State to prove

that voluntariness by a preponderance of the evidence and

that the lower courts erred in failing to apply these

standards.

Respondents submit that there is a distinction in

the allocation of burden of proof between cases presented on

direct appeal and those presented for collateral review. In

those instances in which a prisoner attempts to collaterally

attack the convictier and sentence by way of habeas corpus

soviet, the burden of proof lies with the habeas Petitioner.

Bruce v. Estelle, 536 F.2d 1051 (Sth Cir. 1976). See U.S.

v. Sledge, 546 F.2d 1120 (eth Cir. 1977). (In direct appeal

process, burden allocated to prosecution). See also,

—— r 8 *** R ee ot i i Me 4) i a * * 3 . *

ller v , 796 v. 2d 598 (3rd Cir. 1986); Clayton v.

tughés, 517 F.2d 577 (4th Cir. 1975); Vanter v. Boles, 377

F.2d 898 (4th Cir. 1967). See also: Machado v. Commanding

Officer, 860 F.2d 542 (2nd Cir. 1988); Jurek v. Estelle, 623

F. 2d 929 (5th Cir. 1980); Lokos v. Capps, 528 F.2d 576 (5th

Cir. 1976).

Alt h at trial, the prosecution must

establish, by a preponderance of the

evidence, that a challenged confession

was voluntary, See ,» 404

U.S. 477 (1972), on collateral review

the burden of proving involuntariness

rests with the habeas corpus applicant.

rtin v. W ight, 770 F.2d 918, at 925 (llth Cir. 1985).

See also Johnson v. Zerbst, 304 U.S. 548 at 468 (1938). See

also WEST'S FEDERAL PRACTICE DIGEST THIRD, Habeas Corpus,

Key 85.2(1).

Petitioner asserts that cases cited by the

District Court as authority for allocation of burden of

proof to him were cases decided prior to the United States

Supreme Court's decision of Miller v. Fenton, 106 S.Ct. 445

(1985), in which that Court announced the requirement that

an independent federal determination apply in considering

the voluntariness of a confession. However, Respondents

submit that the United States Supreme Court decision of

Miller v. Fenton, supra, did not address the allocation of

burden of proof. However, on remand in Miller v. Fenton

from the United States Supreme Court, the Third Circuit

Court of Appeals allocated the burden of proof to the habeas

Petitioner. That Court noted that at the trial level the

r 1 * 2 = —_——-

burden of proof is upon the government to establish by a

preponderance of the evidence that the challenged confession

was voluntary but that on collateral review the habeas

corpus petitioner must prove involuntariness by a

preponderance of the evidence. Miller v. Fenton, 796 F.2d

598 (3rd Cir. 1986). The United States Supreme Court has

since denied certiorari. Miller v. Fenton, 107 S.Ct. 585.

Respondents submit that the District Court and the Court of

Appeals properly allocated the burden of proof in this

habeas corpus action. The District Court's ability to make

an independent determination of the ultimate issue of 1

—voluntariness does not effect the party bearing the burden

of proof in a habeas action.

Contrary to the characterization of the

Petitioner, the District Court and Court of Appeals merely

recognized that in a collateral proceeding the burden of

proof rests with the criminal defendant and not the state.

This is not new law nor is it inconsistent with che

precedent of this Court. See: Strickland v. Washington,

466 U.S. 668 (1984) (burden is on the criminal defendant to

prove the existence cf a Sixth Amendment violation in

collateral review). Cuyler v. Sullivan, 446 U.S. 335 (1980)

(prejudice on conflict claim is presimed only if defendant

demonstrates that counsel “actively represented conflicting

intereets" and that the conflicting interests adversely

affected his lawyers performance). The cases cited by the

Petitioner as asserting no deference due on mixed questions

,

r r e e M mA

of law or fact do not support his actual position thar the

burden of proof in a habeas proceeding rests elsewhere than

on the criminal defendant. In Chizen v. Hunter, 809 F.2d

560 (9th Cir. 1986), the court required the defendant “to

overcome the strong presumption of verity accorded his

statements made during his plea before he was entitled to

relief. 809 F.2d at 563. Similarly, in Glidewell v.

Burden, 822 F.2d 1027 (llth Cir. 1986), the court affirmed

in a habeas setting a conviction where the defendant failed

in his burden to prove (or allege) facts to reveal prejudice

by any delay in the prosecution. In laea v. Sunn, 800 F.2d

861 (9th Cir. 1986), the court remanded the matter for an

evidentiary hearing on whether coercion existed that led to

his plea, but was silent on who bore the burden of proof.

Each of these cases do not reflect a conflict in the

circuits or a disagreement on the approach of the lower

court. Accord: U.S. ex rel. Cross v. DeRobertis, 811 F.2d

1008 (7th Cir. 1988); U.S. ex rel. Weathersby v. Chrans, 662

F.Supp. 940, aff'd., 873 F.2d 1444 (7th Cir. 1989);

Alexander v. Duggar, 841 F.2d 371 (llth Cir. 1938); Martin

v. Wainwright, supra, [781 F.2d 185 (llth Cir. 1985)]; Boles

v. Foltz, 816 F.2d 1132 (6th Cir. 1987). Certiorari should

be denied on this issue where the Court of Appeals and lower

court properly allocated the burden of proof in the habeas

proceeding.

d r ee Ee

Petitioner’ ssion i

Petitioner asserts that the Court of Appeals erred

in concluding that the confession at issue was voluntary as

he asserts that the confession was a result of extended

incommunicado interrogation, denial of his request for an

attorney, and the failure of law enforcement officials to

promptly present him to a judicial officer. The United

States District Court found that Petitioner, already

incarcerated at the Chester County Jail, was “street wise”

and “no stranger to criminal activity". The Court found

that the questioning process was not overbearing or

oppressive, that there had been no threat of physical harm

or reward, that Petitioner was questioned only sporadically

and not at great lengths and was not questioned into the

night or early morning hours. The Court determined that

Petitioner was advised of his Miranda rights each time he )

was questioned and that Petitioner waived right to counsel )

and sought to cooperate with investigators to establish an

alibi defense. The Court noted that, although Petitioner

complained that he was denied medication for hemorrhoids,

that he was being given the assistance by Officer Heath of

his other requests. The Court noted Petitioner as

articulate and possessing great recall of portions of the

events and noting that other discrepancies may be due to

lack of credibility. The Court also determined that

P r A r . T 1

W

Petitioner was unaware of the prohibition against visitors

or phone calls and that Petitioner never sought either.

(APP. 706-718).

The voluntariness of Petitioner's confession was

tirst raised during Petitioner's trial in the state court.

Petitioner requested and was given a full evidentiary

hearing out of the presence of the jury relative to the

voluntariness of the confession and pursuant to Jackson v.

Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

The two prosecution witnesses presented during the in

camera hearing were Reid Long, a South Carolina Law

Enforcement Division Officer, as well as Sheriff Orr. Long

testified that on February 3, 1977, he advised Petitioner of

his Miranda rights, specifically asked Petitioner if he

desired appointed counsel and Petitioner rejected the offer

of counsel and desired to talk to the officer without an

attorney present. (APP. 126-128). Long testified that

Petitioner first gave an oral statement in his presence and

that of Sheriff Orr and later Captain Connor, Detective

Heath, Chief Strait, and Barbara Griffin were called in to

observe Petitioner again repeat his statement with Ms.

Griffin taking the statement down. (APP. 128-130; 132-136).

Petitioner appeared to Long to look healthy, made no

complaints concerning health problems and gave a statement

in the absence of threats or torture. (APP. 127, 132).

After Petitioner. gave the statement, Long and Detective

— ee tt tine th ͤͤ» Be te ie ie —_

Heath transported Petitioner to the Chester County Clerk of

Court's Office for appointment of counsel based upon the

fact that Petitioner had implicated himself in the murder

and even though Petitioner still had not requested counsel. |

(APP. 135-136).

Sheriff Orr, in addition to the same testimony

offered by Long, testified that Petitioner was serving time

in the Chester County stockade on an unrelated charge when

he was arrested on January 29, 1977, with the present murder

charge. Ofr related that Petitioner ves mov from the

stockade to a cell designed for juvenile use in the same

county jail. On the date after the warrant was served upon

him, Petitioner signed a waiver of rights, and thus was made

aware that he could speak to an attorney at any time. Orr

testif'ed that he talked to Petitioner on the date he was

charged as well as at the time Petitioner gave the

statement. Orr stated that Petitioner was fully advised of

his rights on February 3rd prior to giving the statement and

that after Petitioner signed the statement in the presence

of the officers, he signed a receipt for it and was given a

copy. Orr also testified that he was not aware of

Petitioner having any medical problems at the time of the

statement, [though the Petitioner at some point thereafter

was treated for a hemorrhoid condition. Orr related that,

at his direction, a note was tacked on the wall on January

29, 1977, that Petitioner was to receive no visitors or have

any telephone calls. (APP. 135-136).

= ** ee. a 1 — 0 ,

13

The Petitioner testified during the hearing as

well, stating that he was then twenty-two (22) years old,

was serving time for another crime when he was arrested on

January 29, 1977, and served wich a warrant for the instant

crime by Sherift Orr. (APP. 278). Petitioner admitted

that he had two previous housebreaking and grand larceny :

convictions as well as an armed robbery conviction. (APP.

280, 346, 347). Petitioner admitted that at that time he |

told Detective Heath that he was willing to answer questions

and signed a waiver of rights form. Petitioner admitted 7

that he read the waiver of rights form before signing it,

but claimed that he did not understand that he could have an

attorney appointed to represent him at that time. (APP.

284-285). Petitioner stated that he was then questioned for

approximately thirty (30) minutes before being taken to a

cell designed for one individual containing a bed, bath and

shower, but no window. (APP. 286, 282, 288). Petitioner

claimed that he was ill with hemorrhoids, that the cell was

cold, and that he requested but never received medication

for hemorrhoids. (APP. 283, 287, 291). However, Petitioner

also admitted that he had been suffering from his

hemorrhoidal condition from November 1976 until June of .

1977, a number of months prior to the confession. (APP.

350, 352). Although Petitioner testified that he was next

questioned on Sunday night (January 30, 1977) at 9:00 P.M.

by Detective Heath, he later admitted that he asked

;

mn OT n = > a ae ne ee |

14 ,

Detective Heath to investigate an alibi in his behalf.

(APP. 288, 359). Petitioner stated that this questioning

took place after he had been given supper, that it lasted

for two hours, and that Detective Heath did not threaten him

or make him any promises. (APP. 288-290). Petitioner

related that he was unable to sleep that evening because he

was cold, suffering from the hemorrhoidal condition, and

because he was worried about the circumstances of his

arrest. (APP. 290). Petitioner testified that he again

talked to Heath, as well as Connor and Strait on Monday,

January 31, 1977, at 9:00 A. M. and later was taken by them

to Columbia, South Carolina, for a polygraph examination

during that afternoon. (APP. 291, 295). Petitioner again

admitted that he was receiving food but was having

difficulty eating. (APP. 291). Petitioner also asserted

that he requested from Heath medication for his hemorrhoidal

condition on January 31, 1977. (APP. 292). Petitioner was

informed by the polygraph operator that both the 1973 and

1977 polygraph results indicated knowledge of the crime.

(APP. 299). Petitioner asserted that, upon his return from

Columbia, South Carolina, on January 31, 1977, he was

questioned by all three officers in Strait s office from

approximately 3:30 P.M. umtil 7:30 P.M. (APP. 301-302).

Again, Petitioner concurred that he was given food but had

little appetite. (APP. 302). Petitioner also related

difficulty in sleeping due to his hemorrhoids and testified

„

r N S

15

that he “always had pains from them, until I got the

operation” which was not until June of 1977. (APP. 303,

350). Petitioner testified that he was questioned again on

Tuesday, February 1. 1977, at approximately 9:00 A.M. by all

three officers and that he asked to be moved to a different

cell but was not moved. (APP. 304). Petitioner testified

that on February 2, 1977, law enforcement officers presented

to him Smoky Harris, the “snitct" who originally implicated

Petitioner as the perpetrator o the offense. Petitioner

testified that he and Mr. Harris had a face-to-face

confrontation but that he received no threats from law

enforcement officers and was questioned that day from 9:00

to 11:00 A.M. and again from 2:00 or 3:00 P.M. to 6:00 P.M.

(APP. 305-307). Again Petitioner concurred that he was

being properly fed. (APP. 307). It was February 3, 1977,

that Petitioner claims that he first requested of Willie

Heath assistance of counsel and the opportunity to call his

brother. Also, Petitioner directed that Officer Heath “go

talk to Buddy Crant as a possible alibi. (APP. 309).

Petitioner claimed that he did not give the statement until

Friday, February 4, 1977, rather than February 3 and that he

simply repeated what officers told him to zy during the

confession process. (APP. 311-315). Petitioner claimed

that he signed the statement only because he was sick,

needed help from a doctor and a lawyer, and was tired of

being locked-up. (APP. 314). However, Petitioner conceded

————EE——

that he did not talk to his lawyer until February 7 and

admitted that he did not receive medication for hemorrhoids

until February 11 and received no surgery until June. (APP.

323, 350). Petitioner also conceded that he did not request

to call his brother until one day after the statement was

given. He further admitted that he requested that Officer

Heath investigate two potential alibis in his behalf. (APP.

, 324, 359, 361). (See also APP. 137-157).

At the conclusion of the in camera hearing, the

state court found that the court was

...-Dealing here with a factual situation.

And I have to resolve the facts in order

to make this ruling at this point. Facts,

ot course, are finally for the jury. I

conclude that the statement is admissible

in evidence. I find that, from the facts

beyound a reasonable doubt, the statement

was freely and voluntarily given. (APP.

198).

The sam witnesses testified before the jury basically as

related above. Also presented by the prosecution in reply

was the testimony of Officer Willie Heath who related that

on Sunday, January 30, 1977, he was called to the jail by

Petitioner and investigated a possible alibi at Petitioner's

direction. (APP. 367). He testified that he met with

Petitioner at approximately 3:30 P.M. on that day, that

Petitioner never complained of pain or requested medication

and “seemed to be in good humor”. (APP. 368, 371). Shortly

after Petitioner's request to Heath, Heath investigated a

potential alibi and returned to the jail to report his

17

findings to Petitioner as well as to deliver cigarettes he

had purchased at Petitioner's request. (APP. 372). Heath

testified that he gave Petitioner no promises and that

Petitioner never asked for an attorney. (APP. 372, 384).

Further, Heath tes-ified that he was called in to witness

Petitioner's signature to the confession and was present and

heard Petitioner give the confession to the secretary. (APP.

372). Heath denied that he talked to Appellant the morning

of February 3 prior to Petitioner's statement and also

denied that Petitioner ever requested of him an attorney.

(APP. 388, 384). Heath, along with Long, transported

Petitioner to the Clerk of Court's Office for appointment of

counsel shortly after Appellant's corfession and because

Petitioner had implicated himself in a murder. (APP. 387,

385). Heath testified that, Petitioner never asked him for

medication or said he was suffering from discomfort. (APP.

608).

Also, Mrs. Barbara Griffin testified that

Petitioner — his statement orally and she took it down in

shorthand. (APP. 394). She testified that she typed

petit! gers statement, read the statement back to him and

Petitioner signed it. (APP. 395). She also related that

Petitioner made one correction to the statement. (APP.

396). Further, Griffin testified that Long and Heath asked

Petitioner if he wanted an attorney present and Petitioner

declined and insisted upon making a statement. (APP. 398).

/ K ⁵» ]¾ ͤͤZ .

Further, the Clerk of Court testified that Petitioner vas

_ kirst appointed counsel on February 3, 1977 and was later

appointed second counsel on February 4, 1977. (APP. 413).

During the federal evidentiary hearing before

United States Magistrate Carr, Sheriff Orr testified that,

although he had been Sheriff for only twenty-five (25) days

at Petitioner's arrest, he had been Magistrate for ten (10)

years prior thereto. (APP. 452). Based upon information

provided by informant, Smoky Harris, Orr testified that an

arvest warrant was obtained for Petitioner and served upon

him by Orr. while Petitioner was in the Chester County

facility. (APP. 453). Orr related that he read to

Petitioner the Miranda warnings, that Petitioner indicated

that he understood those rights, and declined counsel.

(APP. 454). Orr related that Petitioner appeared normal and

without pain or difficulty in movement. (APP. 457). Orr

described the youth cell which held Petitioner from January

29 to February 3, 1977 as a front cell near the jailer's

office containing a bunk, commode, shower, sink, table with

stoo), and bench. The cell also has one window in the cell

door. (APP. 458). He related that the temperature in 1977

was regulated at 65 degrees by Presidential Order and that

additional “blankets were provided. (APP. 458-459).

Petitioner was held in the juvenile cell to prevent

conversation or eonfrontation with Smoky Harris who had

signed a statement against Petitioner. (APP. 400). The

19 — f N

Sheriff admitted posting a prohibition against calls or

visitors for Petitioner and that the prohibition was to ‘ast

only through the weekend but inadvertently remained visible

for a longer period of time. (APP. 460). Orr stated that

Pe. toner did not request medical attention, an attorney,

or famii, visits and that the first call made by Petitioner

was on February 4 to his brother. (APP. 461-462). Further,

medical log entries revéal that Petitioner did not request

medication until February 11 and received a mild laxative at

that time. (APP. 466). Orr also related that ministers and

attorneys are always permitted as visitors regardless of any

posted prohibitions. (APP. 468). The Sheriff was unaware

of any request by Petitioner for visitors or permission to

use the telephone. (APP. 469). Orr's next contact with

Petitioner was February 3, 1977. Orr confirmed that

Petitioner was advised of his Miranda rights and offered an

attorney but Petitioner declined said offer. (APP. 471).

Orr related, in addition to what he previously testified to

at trial, that Petitioner first asserted right to counsel on

February 4, 1977, (APP. 477), and that he first learned of

the complaints Petitioner raises herein on February 12, 1977

when Petitioner appeared with counsel. (APP. 479). Orr

related that, at the cime of the confession, Petitioner was

net handcuffed and that Petitioner could not see the notice

prohibiting visitors and calls. (APP. 487, 492). In fact,

Petitioner's first telephone call was made at a time when

the note was still posted. (APP. 492).

Reid Long also testified again at the evidentiary

hearing and related his giving of Miranda to Petitioner.

(APP. 512). Long denied that Petitioner requested counsel,

medication, contact with family or other prisoners. He

testified that Petitioner first invoked right to counsel on

February 4, 1977, subsequent to his brother's visit. (APP.

85-91). Petitioner also exhibited to Long the ability to

read and write. (APP. 512). Long related that the focus of

the investigation up to the point of Petitioner's confession

was that of mere exploration. This is confirmed by the

officers’ willingness and cooperation in attempting to

verify Petitioner's alibis. (APP. 519).

The jailer, Johnny Dawkins, testified that any

defendant who requested an attorney received one and that he

recalled no request by Petitioner for an attorney or pain

medication. (APP. 110).

Chief Strait testified that on the January 31,

1977, trip to Columbia, South Carolina, Petitioner was not

interrogated and was not questioned by him upon return to

Chester. (APP. 457, 458). He also testified that, at the

confession, Petitioner presented no complaints or requests.

(APP. 549).

Barbara Griffin testified as she had previously at

trial as did Willie Heath with a few exceptions. Heath

testified additionally that he knew Petitioner's family but

Petitioner requested that he not contact them. (APP. 567).

,

5.

Heath related that he saw Petitioner on January 30, 1977 and

the morning of January 31, 1977, at Petitioner's request

that he investigate potential alibi leads. (APP. 563-569).

Heath also travelled with Petitioner to Columbia, South

Carolina, but did not see him again until February 3, 1977.

Although Heath testified that Petitiovxer did not request

counsel, calls, medical assistance © 4 warmer cell, on

cross-examination as to his memory and specific .

recollection, he testified "I don't think he asked me for a :

lawyer." (APP. 581). Heath related that, up to the |

confession, he was merely involved in Petitioner's case to

investigate potential alibis for Petitioner and saw

Petitioner only at Petitioner's request. (APP. 575-578,

161). Also on cross-examination, Heath testified again that

Petitioner did not request an attorney on the morning of

February 3, 1977. (APP. 588).

Petitioner offered virtually the same testimony

presented during the trial with certain exceptions.

Petitioner complained that he was not given access to

television, books, or magazines but never stated that he

requested same. (APP. 616). New to the federal proceeding

was Petitioner's testimony that, when he was taken out of

the cell prior to the confession, he was under the

impression that he was going to see an attorney. (APP. ~

631). He also testified that he knew what Smoky Harris had

previously informed the officers so he knew what to put in

(APP. 634).

"Well, yes, I was caught“ and that he was not receiving the

the confession. Petitioner admitted that,

treatment he expected. (APP. 635). He also testified that

the contents of the confession were based upon what he had

read and heard on the street. (APP. 635). Petitioner

further testified that, after his confession, he met Sheriff

Orr and the officers in the hallway and requested that he be

moved out of the juvenile cell and was, in fact, moved to

the maximum security portion of the jail. (APP. 638).

Petitioner further related his prior record and *

in the criminal justice system as well as the number of

times he had been represented by counsel and given

confessions. (APP. 641-643). He also testified that he

confessed, not because he was tired and cold and wanted to

resolve the situation, (See contra; trial testimony) but

because he did not understand that he had the right to

request an attorney and to stop questioning. (APP.

652-653).

The test for the voluntariness of a confession is

whether the confession was the product of a free and

unconstrained choice. If a criminal defendant's will is

overborne, use of the resulting confession offends due

process. Schneckloth v. Bustamonte, 412 U.S. 218 (1973).

There must be a determination made of whether police conduct

was oppressive or coercive. “Absent police conduct causally

related to the confession, there is simply no basis for

r SS eC Oe

23

concluding that any state actor has deprived a criminal

defendant of due process of law." Colorado v. Connelly, 479

U.S. 157 (1986). In determining whether a criminal

defondant's will was overborne, it is important to make the

assessment based upon the totality of the circumstances,

both that of the defendant and of the details of

interrogation. Schneckloth v. Bustamonte, supra; Colorado

v. Connelly, supra. See also Miller v. Fenton, supra; U.S.

v. Carroll, 710 F.2d 164 (4th Cir. 1983). Important factors

for careful consideration include the defendant's education,

youth, low intelligence, and receipt of Miranda warnings.

Id. Other factors also include repeated questioning by

police, Smallwood v. Warden, 367 F.2d 945 (4th Cir. 1966);

relay questioning, Ashcraft v. Tennessee, 322 U.S. 143

(1944); and prolonged questioning, Michigan v. Moseley, 423

U.S. 96 (1975). Further factors include physical or mental

abuse, Greenwald v. Wisconsin, 390 U.S. 519 (1968), and the

mental condition of the defendant. Colorado v. Connelly,

supra. Delay in time before appearance before a judicial

officer, U. S. v. Carroll, supra; Ferguson v. Boyd, 566 F.2d

873 (4th Cir. 1988), and being held incommunicado are

additional factors. v. Sta f rolina,, 447

F.2d 1320 (th Cir. 1971); Williams v. Peyton, 404 F.2d 528

(4th Cir. 1968); Darwin v. Connecticut, 391 U.S. 346 (1968);

Reck v. Pate, 367 U.S. 433 (1961); Rogers v. Richmond, 365

U.S. 534 (1961). However, “none of these factors is to be

TN eee eee ee ee

ee ee a W SE ee

24

considered in isolation, nor may the determination rest on

any one circumstance. U.S. v. Wertz, 625 F.2d 1128 (4th

Cir. 1980).

The evidence in this case and the Court of Appeals

conclusions reveals that Petitioner presented himself at the

time of his confession, as a mentally stable twenty-one (21)

year old with a tenth grade education, and an extensive

criminal record. Petitioner had previously given

confessions and was previously represented by counsel on

unrelated charges and convictions. Petitioner was an

intelligent and knowledgeable individual who was familiar

with police practice and procedure, including the confession

process and utility of representation by counsel. Unlike

the case of Davis v. North Carolina, 384 U.S. 737 (1966),

Petitioner was not a mental deficient who was held for

sixteen (16) days incommunicado with barely adequate

nourishment. Petitioner was familiar with his surroundings

and was not disoriented or frightened.

The evidence also reveals that the questioning

process was not overbearing or oppressive. There was no

threat of or physical harm done to Petitioner by law

enforcement or evidence of promise of reward or immunity in

exchange for a confession. Unlike Darwin v. Connecticut,

391 U.S. 346 (1968), Petitioner was not questioned for six

to seven hours per day. Officers were also unaware of

physical discomfort, if any, suffered by Petitioner and

indicated that Petitioner appeared alert. In fact, the

J

7

DD „ PPP b! K ˙ A m pes. _id

State's witnesses support the conclusion that Petitioner was

questioned sporadically and not at great length. Petitioner

was transported to another city for a polygraph examination

during which he was again advised of his rights and not

questioned at all during the trip. Although Petitioner was

retained in the juvenile cell located in the Chester County

Jail in order to avoid the confrontation between Petitioner

and another inmate "snitch", Petitioner admitted that he

could hear the comings and goings of the Chester County

Jail, that he was removed from the cell to other locations

in the jail for questioning and that he never requested

reading material, calls, or visitors. Petitioner was

unaware of efforts of his brother to see him or of the

posted prohibition of visitors or calls. Events occurring

outside Petitioner's presence and unknown to him are without

merit to reveal his mental state. Moran v. Burbine, 475

U.S. 412 (1986). During questioning, Petitioner appeared

normal and indicated a general willingness to talk to

investigating officers. In fact, the witnesses offered by

the Stace support the conclusion that Petitioner never

requested counsel and repeatedly summoned an officer who was

a friend of the family to request that the officer make

efforts to investigate various alibi possibilities which he

offered, See U. S. v. Hart, 619 F.2d 325 (4th Cir. 1980),

and of whom Petitioner requested that his family not be

notified. Although an order of the Sheriff denying

Petitioner visitors over the weekend was inadvertently

posted for a longer period than intended, the testimony

reveals that an attorney could have seen Petitioner at any

time regardless of the order and that the jailer would have

contacted an attorney upon Petitioner's request. Further,

there was no threat from the State that release from the

juvenile cell, medication, medical treatment, counsel, or

visitors would be withheld until Petitioner gave a

confession. In fact, the State's witnesses clearly support

the conclusion that Petitioner never requested any of the

above and none were a factor in Petitioner's confession.

Petitioner was not the victim of prolonged questioning as

the composition of the confession reveals. Petitioner was

not worn down by improper interrogation tactics and was

repeatedly given Miranda warnings. The law enforcement

officers certainly never intimidated nor threatened

Petitioner. In fact, Petitioner initiated and consented to

continued meetings with law enforcement officers in hopes of

establishing some alibi, and, thereafter, voluntarily

confessed.

Although some days passed before Petitioner was

taken to a judicial officer, this is but one factor to take

into consideration in determining the voluntariness of the

confession. Herein, there were no uninterrupted periods of

interrogation and the delay was not a result of exploitation

but for investigation in Petitioner's behalf.

27

Respondents submit that the .onfession was freely

and voluntarily entered and that the lower courts’

conclusions «re correct and supported by the record. His

requests for certiorari relief are without merit and must be

denied.

CONCLUSION

For all the foregoing reasons, the Petition for

Certiorari should be denied.

March 1, 1990

Columbia, South Carolina

Respectfully submitted,

T. TRAVIS MEDLOCK

Attorney General

DONALD J. ZELENKA

Chief Deputy Attorney General

A

By:

PETITIONER,

vs.

KENNETH D. MCKELLER, WARDEN, KCI,

WILLIAM D. LEEKE, COMMISSI , SOUTH

CAROLINA DEPARTMENT OF CORRECTIONS, T. TRAVIS

MEDLOCK, ATTORNEY GENERAL OF THE STATE OF

SOUTH CAROLINA,

AFFIDAVIT OF FILING

PERSONALLY appeared before me, Donald J. Zelenka,

who being duly sworn, deposes and says that he is a member

of the Bar of this Court and that on this date he filed the

original and ten ies of Brief in Opposition to

the Petition for Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit in the above

captioned case by depositing same with Federal Express, and

properly addressed to the Clerk of this Court.

This lst day of March,

SWORN to before me this

lst day of March, 1

(LS)

My Commission Expires

No. 89-6126

RAY CHARLES DEGRAFFENREID,

PETITIONER,

vs.

KENNETH D. MCKELLER, WARDEN, KCI,

WILLIAM D. LEEKE, COMMISSIONER, SOUTH

CAROLINA DEPARTMENT OF CORRECTIONS, T. TRAVIS

MEDLOCK, ATTORNEY GENERAL OF THE STATE OF

SOUTH CAROLINA,

AFFIDAVIT OF SERVICE

PERSONALLY appeared before me, Donald J. Zelenka,

who being duly sworn, s and says that he served the

foregoing Brief in t to the Petition for Writ of

Certiorari to the United States Court of ls for the

Fourth Circuit on the Petitioner by deposit three copies

of the same in the United States Mail, first class erg

repaid, and addressed to John F. a Esquire, 140

r Street, Columbia, South Carolina 29 61. He further

certifies that ali parties required to be served have been

served.

This lst day of March,

SWORN to before me this