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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 494 U.S. 1071

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1460%3A3. Public record. Not legal advice.