# Appendix — Peyton v. Timmons

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1966
- **Citation:** 385 U.S. 960

## Text

6
“. Tell us, in°your own words what iia at

221 Fife Lane, October 19, 1961, at approximately
5:15 P.M.

“A. About 5: 00. P.M. I went by Ann’s house and
_ she let me in th@ront door. Ruth came up and came
in the house. She sat down in the big chair in the liv-
ing room in front of the window: I went to the bath-
‘room arid came out and ‘stood by the front door. Ann

was either standing or sitting at the desk’ by the door... *

“I pulled the pistol from my hip pocket and started
shooting. A bullet hit Ruth first and Ann run into the
bedroom and grabbed the phone and I pulled her away
from the phone. She ran back into the front room and
I started shooting again, but I don’ t know how many
times I shot. | e

“Ann ran for the front ‘door ai I was shooting
and I pulled her away from the front.door and I shot
her then. After I shot her, I turned around and shot
again. I don’t know if it was Ruth or Ann. Then I
walked over to Ruth and f raped her and I walked
over to Ann, turned her over. She was laying sideways
and opened her eye up. She was.trembling then. I
_ might have pulled her clothes down but I. didn’t rape
’ the girl.

op called the police operator and I came back and
put Ruth in my arms and carried her to DePaul Hos-

_ I carried her in and laid her on the stretcher.:
‘I got in thé car and came back tg Anri’s house. I
walked up. to the motorcycle officer “and handed him
the keys.and the next thing I was in the police car.

“Q. ‘Jay, you were treated for overdose of sleeping
pills. Tell us when. you took them.

“A, After I realized what I had. done, I wanted *
®o die and I took the pills. .

“Q. Where did you get the pills?
“A. Thad them with me when I went there.

“Q. How much had you had to'drink?
“A. Part ofa pint 0 _— and four or five beers.

7

- my gun had been stolen at Virginia Beach.

‘ al

a

“QO ‘What time did you quit work?
*“A. About 4:00.

~ “Q. You refer to Ann. Do you meain Ann Bannon?
| “A. Yes, sir. 7

‘io, ‘You refer to Ruth in your statement. Do ™
mean Ruth Davis Lewis?

“A. Ruth Davis. I don’t know her last namé.

“OQ. Where did you get the gun?

” Ben Williams, second: house pest Princess Anne
Road on Chapel Street.

“Q. How long had you had it?

“A. About one day.

“Q. How much did you pay for it?

“A. I borrowed it from him. I had horrowed it
before because I carried a good bit of -money.at times

%

I show you a 32 calibre automatic Serial No.
ela cea eeiies sc oriaine

“A. Yes.
“Q. How long bebe you soni Ann? -

“A.. Twenty years. We growed up together i in Ber-
fin, Maryland, along with Ruth.
“Q. What did Ruth say 1 to you before you raped.

a Nothing that I recall.

“Q. . Are you comfortable at this time? -

“A. You aré treating me all right.

“Q. Why did you go to Ann’s house?

“A. I don’t know. I just went there. I knew her

father and mother and I had been there several times
before. .

- Had you had intercourse with Ann?

“A, ' No, sir

“Q. Had } you liad intercourse with Ruth before
this happened? ~

' “A. No, sir.

“Q. Is this statement the truth to the best of your .
knowledge and belief and given ‘freely without threat
or promise’ by us or ” member of the Boat Police
Division? —

“A. That’s right.

“Q. Anything else you care to say?.
“A. That's all, I guess. I want to die. 4 ain’t got
= to live for.”.

~

The della introduced two psychiatrists as witnesses.
* Dr. Dietrich Heyder, who examined the defendant about
11:00 a.m. the day after the crime, said, in part: “It could
be observed that this man was at the time in practically per-
fect mental health and there was no disturbance of the men-
tal status.” The other psychiatrist, Dr. Robert H. Thrasher,

was of opinion that defendant was in a psychotic state on

the day. of the crime, and that he “wouldn’t trust” the de-

_ fendant not to kill Ann Bannon again if she were living, and

that the same applied also to other persons. He further said |
that he had a “sick, mixed up mind,” and that, “Even the ©
stress of normal living outside may bring out = hostile, ag-
gressive impulses.”

In rebuttal, Dr. Joseph R. Blalock, Superintendent of the
Southwestern State Hospital, testified that from his observa-
- tion of the defendant, the defendant knew the difference -
' between right and wrong and could adhere to the right. Dr.
Charles Nemeth, who had made a closer examination and
observation of the defendant at the State Hospital, said he. .
found the patient neither psychotic nor insane, and that he |
knew the — — right and ee |

5

9

The evidence shows that the murder weapon, a 32 calibre
pistol, was apparently stolen from H. C. Divers, the owner,
between the latter part of September, 1961, andthe day of
the murder. * |

‘On the afternoon of the murder, Mes. Mary Ballard, who
lives on Fife Lane about four doors from the residence of ’
Mrs. Ann Bannon, observed a blue Jeep stationwagon, with

“Virginia Lee Hotel” written on it, circling around the block °.
‘where she’ lived between 3:30 and 4:30 p.m. Timmons was:

shown to have had such a wagon in his custody.’
Police Detective Fred Henley. testified that he took .the

_ defendant into custody about 6:00 p.m. on October pag

Mrs. Bannon’s home; that Timmons appeared to be in ‘

subdued, quiet condition,” talked coherently, was sober, ‘nd.
there was nothing unusual in his behavior or manner. The
officer in examining the body and clothing of Timmons .

‘found “red smears that indicated them to be blood” dh the ©

fly of his trousers. He asked the defendant if he had shot a
person. Timmons replied, saying he had not shot a woman ;
that he had driven to a house with another man; that that
man got out of thie car and went into the house; and he,

' the defendant, drove off. He then stated that-he returned to”

the house and found the police officer there, and was ar-
rested; and that he did not kndw at that time why he was
arrested, Asked who the other man was, the defendant
said that his name was “Mike.”

- On the same evening Timmons told the nurse who met
him at the hospital where he took Mrs. Lewis, that “I shot

her accidentally, I shot two of them,” and told Police
* Officer H. D. Suggs that: “The gun went off, it was an. acci-

dent, the gun went’ off four times.” Later asked what hap-
pened, he replied: “I am trying to do a favor for someone,
and I am not saying any more.” While in jail he wrote to
his sister saying: “I know that I have done wrong, and: I
am going to _ until Idie.”

eg

10

The defendant did not take the witness stand. The record

- shows that he knew both Mrs. Lewis and Mrs. Bannon. All
three were natives of Maryland, and Timmons, had, in his
younger years, gone to the same school in Berlin, Maryland,
then attended by the two women. Mrs. Lewis had seen
Timmons only about three times in the ten years preceding
. October, 1961. Timmons, twenty-four years of age, stopped
. school at the age.of sixteen, and obtained employment with
‘a racing establishment in Maryland. There is evidence that
he had suffered from “a nervous condition” for which his
. physician had had him committed to 4 Maryland state men-
tal hospital on June 20, 1959. He. was allowed to return
home in August, 1959; but was readmitted to the hospital in
Novembér of the same year. On December 23, 1959, he was —
paroled in the custody of his mother, and in April, 1960, he —
obtained a discharge from the hospital, and thereafter came.
to Virginia Beach and obtained employment with the par-
ents of Ann Bannon, Mr. and Mrs. Ayers, the latter owning
or operating the Virginia Lee Hotel at Virginia Beach.
’ On October 20, Timmons was admitted to the Norfolk
General Hospital for observation as to his mental condition

_ and treated for an overdose of sleeping pills.. On October

25, 1961, he was ordered by the trial court to be delivered to
the Superintendent of the Southwestern State Hospital at
Marion, Virginia, for proper care and observation, and for .
a detailed report of his mental condition as of October 19,
1961, and all other days subsequent thereto, pursuant to
Title 19.1-228, Code of Virginia, Rep. Vol. 1960.

The Superintendent of the Southwestern State. Hospital
and Dr. Charles Nemeth, its clinical director, reported to
the court that Timmons was “considered-to be mentally com-
petent and able to testify in his own defense.” They further
' stated that, they found nothing in the history of his behavior
in jail from October 28, 1961, “indicating the presence

11°

of any psychosis,” and in their opinion, Timmad, ‘ ‘was
during this whole period, without psychosis and was men- |
tally competent” to stand trial.

On February 1, 1962, at the request of the defendant the ~
court appointed William H. Sands, “a competent and ex- »
_ perienced attorney” as counsel! for the defendant. On Feb-
ruary 6, 1962, four other indictments were found against
Timmons: one for malicious shooting with intent to maim,
disfigure, disable and kill Ruth Lewis; two for committing
rape on’ Ruth Lewis; arid one for committing rape upon
Ann Bannon.

_ The trial of this case was continued from time to time
upon motion of the defendant, and was held on April 17 and
18, 1962. The court gave eight instructions to the jury at the
request of the Commonwealth and twelve instructions at the
request of the defendant. Eight of the instructions granted
on behalf of the defendant related to the issue of his sanity.
Another told the jury that should the defendant be found
guilty, his punishment “must' be based solely upon the killing
for which he is being tried without considering other alleged
. offenses.” Defendant objected to only two of the Common-
wealth’s instructions, C-3, which told the jury that murder
in the commission of, or attempt to commit rape is murder
. of the first degree, and Instruction C-4,. which defined the

_ Offense of rape. No grounds were assigned for either ob-
jection, nor exceptions taken to the granting of the-instruc-
tions.

The record s}iows that counsel appointed by the court to
represent defendant vigorously stressed before the jury the
actions of Timmons at the home of Mrs. Bannon to support
the theory that defendant was insane at the time of the kill-
ing. No. objection was made to the details recited by Mrs.
Lewis; and, on the other hand, she was cross-examined at
great length as to them. There was no objection made to

12
any of the other evidence, except as to the admission of the
photographs showing the body of Mrs. Bannon, Defendant’s
counsel sought in his cross-examination of the witnesses to _
bring out the enormity of the shocking nature of the acts of
the defendant. In his argument to the jury, he referred to
them as showing “a most unusual situation, a most abnormal
situation, not a situation that you or I have any right to ex-
pect from any normal human being. ” He said they disclosed

“a picture of a mad dog running wild,” and “(T)hat is _

exactly what it was and the Commonwealth’s Attorney him-
self brought it out to you.” He asked’ that Timmons be
_ found not guilty by reason of insanity; but if the jury did not
believe him to be insane, under the instructions of the court,
that a death sentence be not imposed:upon him, but he be
sent to a hospitalor penitentiary for treatment. -
The motion, in the trial court, for a new trial was argued
by counsel of defendant’s own choosing, his present counsel,
who succeeded counsel appointed. by the court. Upon ap-
peal, he assigns error: (1) to the verdict of the j jury as con-
trary to the law and the evidence; (2) to the admission of
the photographs and “slides” of the body of the deceased;
(3) to the admission of evidence relating to the rapes of Mrs.
Lewis; (4) to the “failure of the court to properly instruct
the jury;” and (5) to “improper argument” of the Com-
. monwealth’s Attorney. Error assigned to the exclusion of
evidence has been abandoned. — |

[1] The assignments will be considered in the sii above

mentioned. On the first assignment, it is admitted in the -

brief of the defendant that the burden was on him to*estab-
- lish to.the satisfaction of the jury that he was mentally in-
competent at the time of the shooting of Ann Bannon.
Counsel, however, recognizes that this question has beeri

resolved against him, and although he asserts that the jury
might: have reached a. different conclusion, he’ admits that.

13°.

“the verdict is binding or on bale In view of this admission, it

is unnecessary that we further deal with the facts relating t to -

the issue of insanity.

Much of the brief and argument of the Aefendant | is based
on. his contention that the admission of the photographs of
the body of Mrs. Bannon and testimony as to the rapes of
Mrs. Lewis tended to inflame the j Jury to his prejudice, in
support of his second and third assignments of error.

- The theory of the Commonwealth was that the defendant
was guilty of either a willful, deliberate, and premeditated .
killing; ‘ora killing in.the commission of, or attempt to com-
mit rape. Code, § 18.1- 21.*

{2]. The killing of Mrs. Bannon by the dite | is un-
contradicted and the guilty agent is not in question. * In view
of that there arose the presumption that defendant .was
guilty of murder of the second degree, and the burden of
proving the eleménts necessary to elevate the crime to mur-
der in the first degreé was ppon the Commonwealth. Henry

3. ve Commonwealth, 195 Va. 281, 289, 77 S.E.2d ‘863.

’ The Commonwealth sought to show that the motive un-
‘ der either of its theories was rape.’ Here, as in the case of
Martin v. Commonwealth, 184 Va. 1009, 37 S.E.2d 43, the
defendant contended that since it had been shown that a
person had died: of a wound’ inflicted by the discharge of a
pistol in the hands of an accused, admission of photographs
showing the body of the victim, was surplusage, which in- '
flamed the jury. }
In answer to that contention we said i in Martin v. Com-
monwealth, supra, 184 Va., page 1022, 37 S.E. 2d, page 49:

— *§ 18.1-21 “Murder by poison, lying in wait, imprisonment, starving,
or by any wilful, deliberate, and premeditated killing, or in the com-
mission of, or attempt to commit, arson, rape, robbery-or burglary is
murder of the a degree. All other murder i is murder of the second,

degree.”

14

*

" “Objects onenied with crime are often offered in

evidence in criminal cases when related to issues in the ~

case. An authentic photograph shows no more than

~ would, be disclosed by a view of the object itself. It
may give a more accurate description of the appear- .
ance, nature and condition of the object than a mere
verbal description dependent upon memory. The pic-
ture of the wounded body of a man in the repose of
death should -excite no more sympathy or prejudice
than the exhibition of a living person with a bruised
broken and torn body.

“The manner in which Martin was shot, the dis- —

tance from which he was shot, and where the shot en-
’. tered his body were t relevant and material to the issue.”

We there further said that: “It did t not lie in the power of
_ the defendant, by this general admission or confession to
prevent the state: from proving all the facts, and thereby
present to the jury the picture of the entire transaction re-
_ lied on for conviction. Doubtless there are many cases where

- courts should and do preclude: proof upon the admission of
essential facts, but rarely where the intent-or motive is in-
volved, and may be inferred from such proof. ear we
184 Va., page.1023, 37 S.E.2d, page 49.

See sho Enoch v. Commonwealth, 141 Va. 41 1, 437, 438,
126 S.E. 222; Newberry v. Commonwealth, 191 Va. 445, 61
S.E.2d 318, and annotation, “Admissibility of photograph of
corpse in prosecution for homicide or civil action for causing
death,” 73 A.L.R.2d 769, wherein a gnultitude of cases are
reviewed, including the two Virginia cases above cited.

{3} The photographs of the victim were relevant to show
the degree of atrociousness of the crime, or the malice with
which it was committed. The state of disarray of the de-
ceased’s clothes shed light on the ‘motive and intent of the
| defendant, as revealed in his contemporaneous acts. The ,

_ photographs clearly and simply show more than any wit-

Looe

ta

ness, save + eiindias actually Saw at the: time of the killing.

The question of their admissibility was one resting in the .

sound discretion of the, trial. court.. Enoch v. Common-

wealth, supra, 141 Va. 438, 126 S.E. 230.

[4] There is no merit in the contention that it was error

to permit Mrs. Lewis to testify as to the rapes upon her. --

There was no exception to her testimahy and the vigorous

and persistent cross-examination of her shows that the-de-

fendant sought to magnify the depravity and brutality’ of
his acts to give substance to the argument. that he was in-
sane. While there has been no compliance with Rule of
Court 1:8, it is also clear that defendant by his cross-exami-
nation waived his-right to object to her testimony, even if
he had saved the point. The killing and the rapes*all oc-
curred within a few minutes. The offenses were so closely

connected and: interwoven as to be a continuous series of.

acts tending to show the intention and motive of the de-

' fendant. It is impossible to separate them and.get a com- °

plete view of the whole case and the reasons therefor.

Compton v. Commonwealth, 190 Va. 48, 55, 55 S.E.2d 446.

_ Furthermore, the court expressly instructed the jury .

that should they find the defendant guilty, that the punish-

ment to be fixed by them “must be based solely on the kill- —
inig for which he is being tried without gona) other |

i. alleged offenses.” !
[5] Generally speaking, it is not proper onthe trial of a

ccinsinal case to admit testimony of a’ prior independent -

crime; but there is an exception to the rule as well estab-
lished as the rule itself that such testimony is admissible
where it shows motive, intent or is related to.or connected
with or leads up to the offense for which the accused is on

trial. Colvin v. Commonwealth, 147 Va. 663, 669, 670, rif se

S.E, 476.

—_——

i

This.is not a situation involving a prior offense unrelated .

to the act for which the defendant. was being tried. The

rapes upon Ruth Lewis, were important links in, the chain of . .

evidence. Day v. Commonwealth, 196 Va. 907, 914, 86
S.E.2d 23; Compton v. Commonwealth, 190 Va. 48, 55, 55

_ §.E.2d 446; Huffman v. Commonwealth, 168 Va. 668, 682,

190 S.E. 265; 7 Michie’s Jur., ieee $§ 47 and 48, pages

389 et seq.

_. Also see Williams v. Commonwealth, 203 Va. 837, 841,
127 S.E.2d°423; and Rees v. Commonwealth, 203 Va.. 850,

868, 127 S.E.2d 406, where many cases dealing with the
Virginia rule and i its exceptions are reviewed. .

[6] There is no merit in the assignment that the court
_ failed to properly iristruct the jury. While Instructions C-3
- and C-4 were objected to, there were no exceptions taken
to either of them, nor do the assigriments of error point out,

. under Rule of Court 1:8, the grounds of objection or the
vice in the instructions. Harlow v. Commonwealth, 195 Va.’

269, 271, 272, 77 S.E.2d 851. We find no error in the giv-
ing of Instructions C-3 and C-4, since C-3 merely instructs

the jury that “murder in the commission of, or attempt-to

- commit rape is murder of the first degree,” and C-4 merely
defines what constitutes the crime of rape.

We come next to the assignment that the Common- ©

wealth’s Attorney was guilty of improper argument. It is

pointed out that the Commonwealth’s Attorney made sev- |

eral statements, the} general tenor of which related to the de-

_ pravity and Atrociousness of defendant’s acts on October

19,1961, and the probability that he would commit criminal
acts in the future, if he should be released from restraint. It
is urged that such argument was prejudicial error because

calculated to cause the jury to “speculate” as to what might

happen after the verdict, and Jones v. Commonwealth, 194
Va. 273, 72 S.E.2d 693, 35 A.L.R.2d 761 and Coward v.

~ pez...

*D

ee) |

Commonwealth, 164 Va. 639, 178 .S.E. 797 are cited in sup-
port. The facts in the cited cases are unlike those here:
There the court, in response to.a question from a juror as to -

whether a sentence imposed . by them might be thereafter _ .
reduced, stated that it was the duty of the jury to fix the
punishment within the limits. prescribed by law, without
_ consideration as to what might be done thereafter to reduce
the measure of that ‘punishment:* Here, the Common-

wealth’s Attorney was not referring to what might happen ~ :

with respect to changing the measure of punishment im-
posed upon the defendant; but as to what might happen if
the defendant ‘were, turned loose. on the public, having in
mind the propensities ‘attributed to him by Dr. Thrasher; a
witness for the defendant, who said that Timmioris had such
a diseased mind that “the stress of normal living outside may
‘bring out his hostile, aggressive impulses,” and also stressed
in the argument of his counsel. hy malta
_. There was not a single objection in the trial court to the

argument of the Commonwealth’s Attorney, nor a motion for

a mistrial because of it. Moreover, the remarks were in-

vited and provoked. by the argument of counsel for the-aé--__
“. cused, in support of his theory that the enormity of the of-

fenses supported the plea of insanity. Defendant’s counsel

may have thought the remarks supported his theory and.

did not desire to bring them to.a stop, or to ask that the
_ jury be instructed to.disregard them. * uh is

N

i

. [7] We do not approve of counsel attempting to go out-. »
side the evidence; ‘but he has a right to combat the argu- -
‘ment of the defendant’s counsel and to refer to the evidence
_ and fair inferences. from it; as the Commonwealth’s Attor-
ney here .did, both with respect to the guilt of the accused
and a proper measure of punishment. Jackson v. Common-
wealth, 193 Va. 664, 675, 676, 70 S.E.2d 322; Hubbard v.
Commonwealth, 190 Va. 917, 931, 932, 59.S.E.2d 102. -
ee ' fe, ae

*

\

18

° x, o* *, @ ,
The trial judge, in the. exercise of his discretion, evidently .
saw no impropriety. in the remarks, and having the oppor- _

A tunity to observe the whole situation and attending circum-.

«

stances, concluded that defendant had 4 fair and impartial
trial. While the remarks of the Attorney for the Common-
-wealth were: strong and vigorous, they were based on a situa- -
_ tion which confronted him, and we do not think there ,was

’ any transgression sufficient to classify it-as an error war-
bf rantipig reversal under the circumstances of this case.

’ a

¥

[8] The defendant was’ represented by. able and compe-
‘tent counsel both in the trial court. and i in this Court. In the
trial court, it was ‘sought to. show that he. was insane, and
much of the evidence, as we have seen, was brought out in

‘ answer to questions propounded by deferidant’s.counsel, and

‘admitted-on that issue. He carinot be allowed to take ad-"
_ vantage of his claim itt the trial court that. evidence of his
condition at-the time of the killing showed that he was in-
sane; and now on appeal perthitted to successfully con-.

“tend thatthe admission o such evidence was erroneous and \

z prejudicial to him. McMillan v. Commonwealth, 188 Va.

- 429, 432, 50 SE. 2d 428; 1 M:J.,Appeal and Error, §§ 253
and 254, pages 669 et seq.; 5 aang. Criminal Procedure;
eee, page 373.

__ After examining all of the assignments of ‘ihices the whole
“case in its trial setting and full context, and taking into con-
: ‘sideration the contentions of the defendant during the prog- |
_Tess ‘of his.trial, we conclude that a reversal of the judgment

Gs not warranted.

>,

The. Judgment, of the trial court is, therefore, affirmed.

‘ : ~
s’ - . a . ’
‘

,.
rail

19
APPENDIX II
VIRGINIA:
IN THE,
Corporation Court or THE City or. NorFoLk,

Part Two

‘IN RE: Jay R. Timmons, PETITIONER
W. K. Cunnincua, Jr., RESPONDENT

MEMORANDUM BY THE COURT

In the petition for the issuance of a writ of habeas corpus, |
_the petitioner alleges numerous grounds upon which he ©

‘ relies, but, as stated in the very thorough Memorandum
. filed by counsel for petitioner, and during the trial hereof
on June 28, 1963, the questions for determination by this
" court consist substantially of the following two issues of law.
At what stage of a state criminal proceeding must counsel be ap-

pointed to represent tne accused in order to satisfy the demands
of the “due process” clause of the United States ‘Constitution,

Amendment XIV, and the Virginia Constitution, Section 67

The crime of ‘murder, with which the petitioner is
. charged, was committed on October 19, 1961, in the city of

Norfolk; and petitioner was arrested on that date by Norfolk

City police upon a warrant charging said crime.
On October 20, 1961, petitioner was committed by the
court for observation to the Norfolk General Hospital; and

on October 25, 1961, petitioner was committed by the court .

~

‘
* .
OD hee et ee y Sa Ue

20

to the Southwestern State Hospital, at Marion, Virginia, for

care, observation and report, pursuant to Title 19.1-227 and
19.1-228 of the Code of Virginia. |

On December 20,°1961, the Superintendent of South-
western State Hospital reported to the court that petitianer
was not insane, and was considered to be mentally competent
and able to testify in his own defense; and on December 22,

1961, an order was entered by the court directing his return |

to the city of Norfolk.

. Counsel for petitioner refers to Title 37-61. 1 and 37-62.1
of the Code of Virginia as requiring the appointment of
counsel to represent petitioner before commitment for ob-
servation; but an examination of these sections shows that
they are .not applicable to -proceedings in: which one is
charged with the commission of a‘crime, which proceedings
are controlled by Title 19.1 -297 and 19.1-228.

-Under these sections, pursuant to which the petitioner :

was committed, the appointment of an attorney is not re-
quired, nor is it necessary under the State law.

The commitment order of October 25, 1961, recites that |

it was entered “for good cause shown;” and such action was

not prejudicial to the. rights of petitioner, but were for the °_

protection thereof,

The contention is also made by petitioner that during his
confinement in Soutwestern State Hospital he was éxamined
by doctors on the staff of said hospital, during which time

_ he was not represented by ggunsel, and_.that the results of

such ‘examinations were improperly admitted at his trial. |

There is no requirement under State law or procedure for
the appointment of counsel under these circumstances, and,
in the opinion of this court, none was necessary.

On January 16, 1962, after the return of petitioner to the |
city of Norfolk, petitioner waived preliminary examination —

before the Police Justice of the City of Norfolk, and the

9. foal’ wea > «

a ai: :
charges against petitioner were sent on to the Corporation
Court of the City of Norfolk, Part Two, where the indict-
ment upon which petitioner was convicted was returned by
the Grand Jury of said court on February 5, 1962.

.On February 1, 1962, William H. Sands, a competent
attorney of many years experience, at the bar of the city of
Norfolk, was appointed by the court to represent the peti-
tioner. !

Prior to this time petitiones had not been represented by
counsel.

On February 6, 1962, on motion of said attorney’ the trial
of this case was continued to the March term; and after
' another continuance was tried before the court and a jury
on April 17 and 18, 1962...

On ‘April 18 the jury returned a verdict of guilty of mur- —
der in the first degree, and fixed the punishment of peti-

' tioner at death.

_A motion to set aside the verdict upon certain grounds
and grant petitioner a new trial was made on that date and ©
continued; and on May 10, 1962, William H. Sands was
permitted to withdraw as counsel for petitioner, and Wil-
liam King Mapp, attorney at law, who had. been privately
retained as counsel for petitioner, appeared of record as |

_. such.

On June’ 2, 1962, an Amended Motion to set aside the .
- said verdict and award petitioner a. new trial was filed by
said latter attorney, which motion was argued and over-
ruled on June 11, 1962.

Subsequent proceedings in which petitioner was repre-
sented by said attorney resulted in the granting of a writ of
error by the Supreme Court of Appeals of Virginia, which
on March 4, 1963, affirmed the judgment of the lower
court. Timmons v. Commonwealth, 204 Va. 205. -

¢

22

A petition to ery a rehearing. was denied by said court

on April 19, 1963.

In the present habeas corpus proceedings, petitioner is
not represented by the same attorney, but is now represented —
by his present counsel. .

We now come, therefore, to the question of whether or
not the failure to appoint counsel for petitioner until Feb-
ruary 1, 1962,.was a violation of due process of law ‘insofar

asthe rights of petitioner are concerned.

Title 19.1-241 of the Code of Virginia provides that in
any case in which a person is charged with a felony and is
not represented by counsel, the court,- before accepting the

” plea of such person, shall by order entered of record appoint

an attorney at law to represent him.
This section, when read in conjunction with Title 14-181,
applies only to courts of record; and there is no requirement
or provision under the statutes of Virginia for the appoint-
ment of counsel under the circumstances of. the case at bar,
except as stated above. |
In the consideration of. this question, the court will eae
first to the two following recent cases.
_ In the case of Hamilton v. State of Alabama; (U.S.), 82
S. Ct. 157 (1961), the court held that under the law of

- Alabama arraignment is a critical stage in a criminal pro-

ceeding, since the defense of insanity must be pleaded at
that time or the opportunity is lost. Thereafter, that plea
may not be made except in the discretion of the trial judge, .

and his refusal to accept it is not: ‘reviewable on appeal.

Pleas in abatement and certain motions to quash must

also be made at the time of arraignment.

The court held, therefore, that failure to appoint counsel
for the accused:at this stage in the proceedings was a viola-

-, tion of due process of law..

-

%

23

“This case is not apslteeila to the case at bar, since; under
the law of Virginia, none of these defenses can be made at
the preliminary hearing, but. must be made later in a court

of record.

In the case of White v. State of Maryland, (US.), 83
S. Ct. 1050 (1963), the accused, without répresentation of —
counsel, pleaded guilty when arraigned at the preliminary
hearing, and at the subsequent trial tke plea of guilty made
at the preliminary hearing was introduced in evidence, al-
though he had entered pleas of “not guilty” and “not guilty
by reason of insanity” prior to the trial, and relied upon

these at the trial.

The court held that the failure to — counsel for the
accused at the preliminary ‘hearing, under these circum-
stances, was a violation of due process of law. _

This case is not applicable to the case at bar,’ since the
petitioner waived preliminary hearing, no plea was en-
tered, and none could have been properly accepted at the
preliminary: hearing.

In the case of Gideon v. Wainwright, (U.S.) 83 S. Ct:

. 792 (1963), the accused, who was not charged with a capi-
tal ‘offense, was denied the right to have counsel appointed

by the State courts of Florida, since, under thé law of that
state, the State courts could only appoint counsel to repre-
sent a defendant charged with a capital offense.

_ The court overruled the previous holding. in Betts v.
Brady, 316 U.S. 455, and held that the accused was entitled ©
to have counsel appointed to represent him under the cir-
cumstances of this case; and the failure of the State courts

~ to do so constituted a violation of due process of law.
. Since the question as to at what stage of the proceedings
‘such appointment should be made was not before the court,

this was not considered; and this case is not applicable to
the case at bar.

24

After a consideration of these cases, and the other cases

* cited by counsel for petitioner, the court is of the opinion |

that the appointment of William H. Sands as counsel for
petitioner by the Corporation Court of the City of Norfolk,

Part Two, on February 1, 1962, was in accordance with the |
~ law of the State of Virginia, and did‘not constitute. a viola-

tion of due process of law. °

The court is also of the opinion that the evidence of peti-
tioner fails to sustain the burden of proof necessary to es-
tablish his charges that he was mistreated and threatened
‘by:'the police, denied .the right of counsel, and that -the
. Statement made by him to thé police was secured involun-

tarily by duress, and while he was under the influence of —

barbiturates, suffering from alcoholism, and in a mentally
deficient, if not insane, state of mind at the tiie said state-
ment was obtained.” -

_ * The court is also of the opinion that the evidence ‘of peti-
‘tioner fails to sustain the burden of proof necessary to estab-
. lish his charges that he was mistreated and threatened, and
. .denied the right of counsel at Southwestern State Hospital.

Was. the representation by court appointed counsel afforded the .

accused effective and adequate, thereby satisfying the demands
of the “due process” clause of the United. States Constitution,
Admendment XIV, and Virginia Constitution, Section 8?

we

The contention by counsel for petitioner that petitioner

was not afforded effective and adequate, representation by —

William H. Sands, his court appointed attorney, as appears
~ from the Memorandum filed herein by counsel for peti-
_ tioner, is based upon the ground that said attorney failed
to make reasonably diligent and thorough inquiry as~to

the availability of, and to produce at the trial of petitioner, -

8 \

2 a gee On etna mae

25

certain medical and lay testimony concerning the alleged
mental condition of petitioner for some time prior to the ©
commission of this offense; and which evidence, according
to petitioner, would. have been available if such inquiry.
had been made.,

While petitioner testified that his’ court appointed attor- :

ney only saw him three. or four times after his appointment
and prior to the trial, his attorney testified that he inter-
viewed the petitioner. at least ten or fifteen times, “probably
more”; and in the opinion of the court such testimony of —
the attorney appears the more credible and is accepted by
the court..

After the defense of insanity was decided upon, and after
consultation with the mother of petitioner, as well as peti-
tioner, arrangements were made by the mother for Dr.

- Robert H. Thrasher, a psychiatrist of extensive training and
_experience, and who has pragticed his’ profession in’ this

community for a number of years, to examine petitioner
and prepare to testify at the trial.

Dr. ‘Thrasher accordingly observed petitioner ‘in Feb-
ruary, March and April, 1962, and testified that this was -

' sufficient for him to form an opinion, and ‘testify, as to peti-

tioner’s mental condition as of October 19, 1961..
Dr. Thrasher thereupon testified fully at the trial of

? petitioner, relating details of petitioner’s background, in-

cluding his records as forwarded to Dr. Thrasher by Eastern
Shore Hospital, Cambridge, Maryland.

As appears from the record of the trial, several other wit-
nesses, including petitioner’s mother and sister, were also
called as witnesses on behalf of petitioner, by his attorney,
in support of his defense of i insanity at the time of the com-
mission of the offense. _,,

After the verdict in question was returned by the jury, the

court appointed cbunsel for petitioner mee that said ver-

pod er
. 26 :

bed

dict he set aside, and ‘a new trial awarded petitioner; but

before this motion was argued, petitioner’s court appointed

attorney was replaced by privately employed counsel, as.

hereinbefore stated, who filed an: Amended Motion to set

‘aside said verdict upon the grounds therein set out, and

subsequently argued this motion, which was overruled.

It should be-noted that no claim was made at this time
.in the Amended Motion to set aside said verdict that the
medical and lay evidence which petitioner claims his court
appointed attorney should have discovered and produced
at the trial had been discovered since the trial, and that it
- / constituted. an additional ground for a new trial as after-

- discovered evidence.

If available at the time of the trial, it was equally avail-.

-able at the time the motion for a new trial was argued, and
if called to the attention of the trial judge, could have been

. considered by him; and ir the event of an adverse ruling, °

his action. could have. been reviewed by the Supreme Court
of Appeals of — on the Writ of Error which it
granted. —
' It should also be oni from order of March 6, 1962, that
' petitioner’s court appointed attorney moved the court to
enter orders requiring production for inspection by counsel
for petitioner of a statement made to the police by peti-
‘ tioner; and also that the Superintendent of Southwestern

State Hospital be required to furnish to Dr. Thrasher the,

' records of said hospital pertaining. to the observation of
petitioner during his confinement in that hospital.
‘ These motions were denied, and counsel for petitioner

duly excepted thereto, but such action of the trial court was —

not assigned as error before the Supreme Court of eum
of Virginia. )

The theory of the defense, as stated, was based upon the
alleged insanity of the petitioner at the time of the offense,

* «

r

and counsel for petitioner concluded, as a part of the plan
of defense, that the depravity and atrociousness of peti-
tioner’s acts at the time of the offense would furnish evidence
which would substantiate this claim in the eyes of the jury.

‘ Evidence introduced by the Commonwealth, therefore,

as to the aggravated nature of petitioner’s; conduct, was in

accordance with the above theory of counsel for petitioner.

Counsel for petitioner urges strongly that the case .of
Brubaker v. Dickson, 310 F. 2d 30 (9th Cir., 1962) 37, 39,
is similar to the case at bar, and that the decision in that
case should be followed in the case at bar. as,

In this case the court held that under the facts of the -
case accused had not received reasonably effective assistance
and representation in the preparation and trial of the case
by his appointed attorney,‘and ordered anew trial. _

* At page 37 of the opinion the court states that appellant
was entitled to effective aid in the preparation and trial
of the case. : eee

The court, at the same page, also says

“This does not mean that trial counsel’s every .mis-
take in judgment, error in trial strategy or misconcep-
tion of law would deprive an accused of a constitutional
right. Due process does not’ require ‘errorless counsel,
and not counsel judged ineffective by-hindsight, but.
counsel reasonably likely to render, and: rendering rea-

_ sonably effective assistance.’ Determining whether the
_ demands of due process were. met in such a case as °
this réquires a decision as to whether ‘upon the whole
course of the proceedings,’ and in all of the attending
circumstances, there was a denial of fundamental fair-
ness. It is inevitably a question of judgment and de-

”

gree.”

At page 35 it appears. that the petitioner’s trial counsel,
a Deputy Public Defender, was appointed shortly after,ar-

28.

raignment, and that he initially ew to petitioner
that he. plead guilty. In the three and a half months be-
tween arraignment and trial, trial: counsel saw him on only
‘ three occasions, for a total oa about an hour. Two of the
conferences were devoted largely to matters other than peti-
- tioner’s defense. | .

And at page 38 the court further ee that from the
allegations of the petition the defenses available but not:
presented by trial counsel appear to have been substantial. |

This*case is clearly distinguishable on its facts from the
“case at bar; and after a consideration of this case, and the ©
‘other-cases cited by counsel for petitioner, including the case
of Turner v. State of Maryland, 303 F. 2d 507 (4th Cir.,
1962), the court is of the opinion that upon. the whole
course of the proceedings and’ in all-of the attending cir-
cumstances, petitioner’s court appointed counsel, who was _
an able and competent attorney, afforded petitioner effec-
tive arid adequate representation in compliarice with due
process of law, and that the allegations of the petition are
- not sustained.

It is the conclusion of the court, ‘Paiste that @he
prayer of the — be denied and ‘said petition dis-
missed.

An order may be presented for entry in accordance with ~
the foregoing.

a od z Stniees Surrey, jr., Judge
® : ; :

t

“July 23, 1963

=,

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me
APPENDIX III :

In THE UNITED Statts District Court FOR
THE EASTERN DistRIcT OF VIRGINIA

NorFoLxk Division
Misc. No.'4518

_ JAY R. TIMMONS,’ '
aaa - Petitioner, .
, 4 ' . , Vv. i

. G C. Peyton, SuPERINTENDENT OF THE VIRGINIA
STATE PENITENTIARY, .
op nae : : Respondent.

MEMORANDUM

On October 19, 1961, at approximately 5:15 P. M., the
multiple crimes of murder, rape. and felonious shooting
were committed by the petitioner, Jay- R> Timmons. On .
April, 18; 1962, he was tried and convicted of first degree
murder by a jury in the Corporation Court of the City of
Norfolk, Part II, and his punishment was fixed-at death. .
On May 10, 1962, his court-appointed counsel was granted
leave to withdraw from the case as petitioner’s family had
made other arrangements for legal representation. On June
11, 1962, petitioner’s motion for a new trial was denied and —

: the death .sentence was imposed. Subsequent proceedings @

have. delayed the execution of said sentence.

A writ of error was granted by the Supreme Court of
Appeals of Virginia. In an exhaustive opinion by Justice -
Spratley the Supreme Court of Appeals of Virginia unani-

7 er affirmed the judgment. Timmons v. Commonwealth,

oa

204 Va. 205, 129S.E. (2d) 697. In the present proceeding
' the Court has the-benefit of the record and transcript in the °

-. trial on the merits, as well as the record and transcript in

the subsequent state habeas corpus proceeding. With one
. possible minor exception," the opinion of Justice Spratley
covers every factual detail relative to the crimes committed
and the trial proceedings on the merits of the case. Rather
than review the sordid details ‘of the events of October 19,
1961, this Court adopts and incorporates herein all of the
facts. as set forth in Timmons v. Commonwealth, supra, to
the same extent as though they were quoted herein.
Foll@wving the decision of the Supreme Court of Ap-

sit peals of Virginja on March 4, 1963, a rehearing was sought.

and denied on April 19, 1963. Thereafter, on May 27, 1963,
petitioner filed his state court application for a writ of

habeas corpus.’ A plenary hearing was granted, evidence
_ was heard, briefs‘were submitted and, on July 23, 1963, the
state court judgé (not the same jurist who presided over the
original trial) filed an extensive memorandum denying and
dismissing the writ. An order to this effect was entered on.

‘July 30, 1963. A writ of. error was denied by the, Supreme

Court of Appeals of Virginia 6ti October 17, 1963. Cer-
tiorari was denied by the Supreme Court of the United
States.on January 20, 1964. Having fully exhausted his-

* state court remedies, petitioner filed his petition for writ of ©

habeas corpus in’ this Court on the same day,‘i.e., January —
20, 1964. A stay of execution was entered upon ‘the filing
of the federal petition. |
. The present proceeding was heard ~ this Court pursuant
to written stipulation of counsel and the petitioner on the

1 The opinion in Timmons v. Commonwealth, supra, mentions that.
petitioner was first committed to a Maryland: state mental institution
‘on June 20, 1959. The habeas corpus record indicates that this com-
mitment was on July 20, 1959. The error, if any, was neitpoanesin to
_ ‘petitioner.

ip ‘

RE Es 31

basis of the entire recotd of both state*court proceedings. |
The written stipulation, in effect; was the full equivalent

__ of a plépary hearing.

Threé, issues are before the Court for determination. They '
may be summarized asfollows: ‘
(1) At what stage of a criminal investigation or pro- -
ceeding must counsel’ be appointed to JTepreseht the
accused in order to satisfy the “due process” clause of
the Fourteenth Amendment? = | Fhe,
(2) Must the defendant be present in person and/or
represented by counsel when’ a commitment order is \
entered by a state court directing the transfer of the .
accused to a state mental institution for the purpose of _.

ining his sanity at the time of the alleged com-

certaining his competency to stand trial? .
_ (3) -Was the pétitioner effectively represented by, couft-.
appointed counsel? : ‘ss

.) mission of the offense and for the further purpose sie et

The issues will be’ discussed in.the order stated above: ~”
. When petitioner was taken into custody, it must be re-
membered that he had already made serious incriminating
statements, Indeed, petitioner does not, even at this late ,

date, deny the act of killing for which he was tried and con-
_ victed on his plea of “not guilty by reasgn of insanity.” The . af
_' evidence establishes-that, on the day in question, petitioner ° '

first shot a young lady in ‘the legs; he then shot the now
deceased victim at least twice and, at some point in the.

_ series of his firing the pistol, he again shot the young lady

(who miraculously survived the ordeal) in the neck; the.

. testimony substantiates the contention that petitioner ripped

_ the clothes of the murder victim, but ‘whether he actually

Se

* 3Z .

a raped sie at this or any other time is*not ‘clearly proven;

returning to the survivor, he pulled her to the floor, tore
her dress and undergarments, and raped ,her; thereafter ,,
he went back to the niurder victim “for a minute or twos
compléting his series of criminal acts, he returned to the
‘survivor°and raped her a second time. After entering the
” kitchen where he apparently consumed a quantity of pills in
an effort to take his own life, he went to the’telephone and ©
“called the police. According to the survivor, he told who-
ever answered the telephone that he-had “killed two wom-
en.” Returning to the survivor, he ascertained that she’ was
alive and said,“I had better get you to the hospital.” He
thereupon picked up the survivor in his arms -and trans-
ported her to the emergency room at DePaul Hospital. Upon
arrival at the hospital he told a nurse who met him, “I shot
her accidentally. I shot two of them.” He thereupon re-
turned ‘to the residence of the murder’ victim which, by

that time, was occupied by the police in response to his « -

telephone call, and he was taken into ‘custody. On the trip
‘ to police headquarters he told an.officer, “The gun went off,
it was an accident, the gun went off four times.” Later that
evening ‘petitioner said, “I am trying’ to db a favor for some-
“one, and I am not saying any more.”

It was in this setting that the investigation was formally

commenced. While petitioner claims that he gave the in- .

criminating statement on October 19—the day of the of-—
fense—it is obvious that he is in error. He fixes the time of
the statement at 4:00 P.M. or 4:30 P.M.—a time prior to
the happening of the tragic events which gave rise to this:
proceeding. The state habeas court discredits petitioner’s

allegations that he was mistreated and threatened by the

police, and that the statement was secured involuntarily by
duress during the time petitioner was under the influence of
barbiturates, suffering from alcoholism, and in a mentally

(2

re

deficient, if not’ infane, state-of mind. The ‘facts are that,
on ,the evening of October 19, petitioner became drowsy
_and when the police ascertained that he had taken a quan-
tity of pills, petitioner was rushed to the hospital for a
“stomach pumping” procedure. The contents of his stomach

. were: analyzed, the results being negative for barbiturates

and positive for Methapyrilene—the latter we a sleep-
producing drug.

Petitioner was returned to the. detective ieee at ap-
proximately 4:00. P.M. on October 20.-The record, both
on the trial and the state habeas hearing, is silent as to
whether either of the two detectives said anything to peti-
- tioner as to any right to counsel, or-otherwise warned him
“that anything said by him could be used against him. We

presume . that nothing was said along these lines: At the

state habeas corpus hearing petitioner was not questioned as
to whether he was given any ,warning of self-incrimination.

Petitioner’s counsel now argues that, in line with the prin- “3

ciples pronounced in Escobedo v. Illingis, 378 U.S. 478, de-
cided after the trial and state habeas proceeding, petitioner

was in the “accusatory” stage and, therefore, was entitled to -

. the absolute right of counsel. Conceding as we must that
, petitioner was in the “accusatory” stage on the afternoon
_ of October 20 when he furnished the signed statement to
the police, we do not ot agree that Escobedo fits this—case.
While : petitioner ‘testified that he requested the assistance of
counsel at varying times prior to the day before his prelimi-
nary hearing on January 16, 1962, following his return to
‘Norfolk from the Virginia mental institution for the crimi-
nal insane, this contention is refuted ly the various police
officers with whom he came in contact. The state habeas
judge again discredited petitioner’s testimony on this pojnt.

Absent extraordinary circumstances, the federal court re-

viewing a state habeas corpus plenary hearing must give

xe

aah ©
°

ie ae ) |

great weight to the findings of the state court. Hall ‘v.

Warden, 4 Cir., 313 F. (2d) 483 ; Pannell v. Cunningham,
302 F.-(2d)-633; Brown v, Allen, 344 U.S. 443, 458. Based

upon the record before the Court, an independent finding is

now made that no request or suggestion as to counsel was ad-

vanced by petitioner until the day before his preliminary

hearing on January 16, 1962.

Petitioner has testified that he requested the assistance of »

counsel after being transferred to Southwestern State Hos-

‘pital at Marion, Virginia, pursuant to a state court order

eritered on October 25, 1961. He identified a Dr. Centor
as being the individual who thréatened him and to whom
he directed: his tequest for an attorhey.’ Dr. Centor was

. the chief psychologist at the hospital. As the petition for
writ of habeas corpus did not. allége that petitioner re-—

questéd counsel? while at the state mental institution, Dr.
Centor was not’ available at the state habeas proceeding.
During the course of the state habeas hearing a telephone
call was made to Dr. Center. A stipulation as to what Dr.
_ Centor would testify to, if pres€nt,.was entered into the
_fecord. Inadvertently or otherwise, the stipulation makes
no reference as to what Dr. Centor would _testify- with re-
spect to petitioner’s contention that he expressed a desire
~ for counsel. When the federal petition was filed, counsel for

respondent filed an affidavit from Dr. Centor but, on motiog _

of petitioner, this Court sustained the motion to strike said

affidavit reserving to responderit the further right to take .
the testimony of said witness. -_No subsequent effort was ~

- made to take Dr: Centor’s deposition, or otherwise produce
him at the hearing. On the bare record we have only the

2 The petition does allege that the pemeinatiodn, tests and interroga-
_. tories ‘were conducted at the Southwestern State Hospital “without
* your petitioner having counsel appointed to’ represent him or without

the benefit of counsel. o 4
+ a

ema

35

evidence of petitioner that he did request cotmae’ while at

~ the hospital. The state habeas judge held that petitioner __ .

had failed to sustain the burden of proof necessary to estab- .
lish that he was ‘denied the right of counsel: while at the
hospital. Apparently the state court refused to. believe.
‘petitioner’ S$ testimony on ‘this point despite the fact that it
stands uncontradicted on this record.

_ While we believe that “the ‘state court was justified in -
branding petitioner’ s statement as unworthy of belief, we
conclude that it is better. to dispose of this contention by |
holding. that, assuming arguendo the request for assistance
of counsel at the state mental institution, the constitutional
rights of petitioner were not invaded even if such a request
was made and denied.\ State mental institutions to which -
— accused of crime are frequently sent for the pur- ©
pose of determining mental competency, both at the time of

trial and as of the date of the alleged offense;.canndt be

thwarted in their efforts to accomplish the purpose of intel-
ligent examinations by the presence of attorneys. Assuming —
the validity of the commitment order, petitioner would. have
this Court hold that, at any time during the 61 days peti- —
tioner was held for observation, there existed a constitutional
right to demand the advice and assistance of counsel. We
do not believe that-any court could give serious considera-
tion to such an argument and, indeed, no authority has been |
cited which even remotely touches. upon the. point. More-. i
‘over, and of even -gréater significance, it. should be again
noted that the petitioner entered a plea of “not guilty by’
reason of insanity.” It is true that the tests, examinations
and interrogatipns conducted at the nfental institution were -

_ introduced in evidence but not until after the petitioner had _
- presented affirmative evidence of insanity. by a qualified

inka prema who related in detail the | tests, examina-

36

tions and interrogations conducted by him. The end result.
of petitioner’s contention, if accepted by the court, would
mean that a suspected mentally-ill person accused of crime
could successfully prevent any study or interogation by the

prosecution, thereby limiting the testimony on insanity to_

the opinion of a privately-employed psychiatrist and thus

destroying the adversary system. As stated. by former Chief
Judge Sobeloff in Thomas v. Cunningham, 4.Cir., 313 F. —
(2d) 934, commenting upon the Virginia’ statute suthorif-
~ ing the commitment .of' suspected mentally-ill persons ac-
cused of crime: :

“In clear “recognition of its constitutional obligation,
Virginia expressly authorizes a hearing on the question

- whether ‘the person to be tried is in such a mental
condition that his confinement in a hospital for the in-
sane, or colony for the feeble-minded, for proper. care
and observation i is necessary:to attain the ends of jus-
tice.’ Since a defendant cannot always be expected
demand an examination for himself, the judge may
invoke the procedure sua sponte.”

Accordingly ‘we hold that there is no constitutional right on
the part of an accused, committed pursuant to court order
' as being suspected of insanity, to demand the advice or
"assistance of counsel while at the mental institution under
the circumstances and for the purposes here presented.
On January 15, 1962—the day prior to the scheduled
_ preliminary examination in the Municipal Court of the City
of Norfolk—petitioner was visited in the Norfolk: City Jail
by Detective Artman. The purpose of this visit was to’ ascer-
tain | whether petitioner desired to waive his preliminary
hearing on the following morning. Petitioner inquired as to
when he would get a lawyer. Artman replied by stating
that an attorney would be appointed for him “if, he did not

. 7 .

37

have one of his own at the time that he would be indicted.”
At this conversation no incriminatory statements were made
by petitioner. The following morning petitioner was taken to
the Municipal Court and executed the waiver of his pre-
liminary hearing. It is well settled that an accused may |
waive a preliminary hearing as it is procedural ‘and not juris-
_ dictional. Moreover, Virginia has held that: an objection
to a procedural defect such as stated above must be made
timely. Snyder v. Cans, 202 Va. 1009, 121 S.E.
= (2d) 452.

Assuming, without betting that petitioner actually re-_
quested the assistance of counsel at the preliminary hear-
ing, we do not think that it necessarily follows that counsel
must be then appointed.?’ The latest and most authoritative
voice on this subject comes from the Supreme Court of the. -
United States in Pointer v. State of Texas, ....... US. rae .
33 L.W. 4306, decided April 5, 1965. It is there said:

“In this court we do not find it. necesenry to desibe
one .aspect of the question petitioner raises, that is,
whether failure to appoint courisel to represent him at
the preliminary hearing unconstitutionally denied him
the assistance of counsel within the meaning of Gideon ~
v. Wainwright, supra. In making that argument peti-
tioner relies mainly on White v. ‘Maryland, 373 USS.
59, in which this court reversed.a conviction based in
_ part upon evidence that the defendant had pleaded ©
guilty to the crime at a preliminary hearing where he
was without counsel. Since the preliminary hearing .
there, as in Hamilton v. Alabama, 368 US. 52, was
one in which pleas to the charge could be niade, we
held in White as in Hamilton that a preliminary pro- .

'. 3In- 1964, ‘several years following petitioner’s trial, Virginia adopted
§ 19.1-241. i granting an accused felon the right of representation by
legal counsel at every stage of any proceeding against him. Petitioner’
argues that this‘statute is merely a restatement of ‘constitutional rights
| pre-existing the enactment of § 19.1-241-1. We —

=
>

38
ceeding of. that nature was so critical a stage in the.
prosecution that a defendant at that point was entitled
to counsel. But the State. informs us that at a Texas
preliminary hearing, such as is involved here, pleas of =
guilty or not guilty are not accepted and that the judge
decides only whether the accused should be bound over
to the grand jury and if so whether he should be ad-
mitted to bail. . Because: of these significant differences
in the procedures of the respective States, we cannot

4 say that the White case is necessarily controlling. as to-

the right to counsel. Whether there might be other cir-

cumstances making this ‘Texas preliminary hearing so

critical to the defendant as to call for appointment of.
. counsel at that stage we need not: now decide on this
record, and that ee we reserve.’

There is no contention that petitioner made any incrimi-
natory statement at the preliminary hearing or at any. sub-
_ sequent time prior to the ‘appointment of counsel! which
‘took place immediately upon petitioner's indictment at the
February, 1962, term of the grand jury. More important, —
however, is the fact that Virginia, as in Texas, does not
permit the acceptance. of either a plea of guilty or not
guilty on a felony charge at a preliminary hearing. Even
the procedure prescribed for waiving an indictment does not
permit a plea to-be entered at a preliminary hearing on a -
felony charge. § 19.1-162. In Webb v. Commonwealth,
204 Va. 24, 129 S.E. (2d) 22, it was held that the require-

*The ial record indicates that court-appointed viieaail for’ peti-
tioner filed a motion on February 27, 1962; seeking an order requiring
the Commonwealth to furnish a copy of a written statement made by
petitioner to the police on January 31, 1962. The moticn was denied.
The statement of January 31, 1962, if any ever existed, was not pre-
sented in evidence. The court-appointed attorney testified in the state
habeas proceeding that he had no kriowledge of the .statement of
October 20, 1961, until it was offered in evidence. The petitioner —
‘testified at the state habeas proceeding\that he had given two state- |

ments, one an which was introduced in evidence.

ry
e

39.
a ;
ment of a preliminary hearing (assuming no waiver) of one’ .
arrested on a charge of a felony is not jurisdictional, and
that its denial does not violate the “due process” and “equal
. protection” of the law clauses of .§ 1 of the Fourteenth |
Amendment to the Constitution. of the United States and.
§-8 of the Constitution of Virginia. Since Virginia’s highest
- court has spoken on the anions, and in the absence of a: |
- positive ruling to the contrary in’ Pointer v. State of Texas,
supra, we hold that petitioner's argument to the effect that
he was entitled to the assistance of counsel. (assuming that
he had requested same) at the pacer 5 hearing is de-
void of merit. ? |
The discussion as to the right to counsel could sity
"be terminated at this point. Nevertheless, because the peti-
tioner is under a death sentence, we deem it ‘appropriate
_ to state the views of this Court as to the. limiting effect of
Escobedo v, Illinois, supra, and ‘especially in the light of
+ the factual situation herein presented. In Escobedo the de-
fendant, after arrest, ‘made several requests to see ‘his _re-
tained counsel who, though present in the building to the
knowledge of the police, was refused access to his client. De-:
fendant was not advised of his right to remain silent and, .
after persistent questioning by the police, made an incrimi-
natory statement to‘an Assistant State’ s Attorney which was
‘admitted in. evidence at the trial. “Defendant was convicted

of murder. and, on direct appeal, the Supreme Court of the ——- |

United States reversed and remanded in a five to four. de-
’ cision. It is the broad language in Escobedo which. has:
given rise ‘to much confusion among attorneys and judges.
For example, it is said (378. US. 490) :

“We hold, therefore, that where, as here, the invest.

gation is no longer a general inquiry into an unsolved

crime but [1] has begun to focus on a particular suspect, _
3 [2] the Suspect has been taken into police _— BF

»

40

' the police carry out a process of interrogations that
lends itself to eliciting incriminating statements, [4] the
suspect. has A scone and been denied an opportunity
to consult with his lawyer, and[5] the police have not
effectivaly warned him of his absolute constitutional.
‘right. to remain silent, the accused ‘has been denied ‘the

.. assistance of ‘counsel’ in violation of the Sixth Amend-
\ ment to the Constitution as#made obligatory upon the
States by the Fourteenth Amendment,’ Gideon v. Wain- ©
wright, 372 US., at 342, 83 S. Ct. at 795, and that no

‘ statem@nt elicited by the police during the interroga-.-

tion may be used against him at a criminal trial.” .

?

_ With three exceptions, petitioner apparently comes with-

in the foregoing holding. The exceptions are (1) petitioner
‘+ did not request a lawyer at the time of or prior to giving his
incriminatory statement, (2) petitioner’s counsel did not
object to the introduction of the incriminatory statement (a
point which will be hereafter considered), and (3) peti-
tioner entered a plea of “not guilty-by reason of insanity.”
A fourth possible exception is that the record is silent as to
whether petitioner had been,warned of his right to. remain
silent but, for the purpose of this discussion, we are assum-

‘

ing that he was not warned. —

o

- Reverti gto Escobedo we find the following language in

an attempt to clarify the syllogism’ previously expressed |
(378 U.S. 492): | ,

“Nothing we have said today affects the —_ of ‘the
“ police to investigate ‘an urisolved crime,’ Spano v. New
York, 360 U.S. 315, 327 (Stewart, J:, concurring), by.
gathering: information from witnesses and | other
proper investigative efforts.’ Haynes v. Washington, ©
373 U.S. 503, 519. We hold only that when the process
shifts from invéstigtitory to-accusatory—when its focus
is on the accused and its is to elicit a confession |
—our adversary system begins to operate, and, under

es

41

the circumstances here, the accused must be permitted

“to consult with his lawyer.” __ .
Law professors, attorneys and judges now apparently
overlook the words “under the circumstances here” and -
place great emphasis on the words “must ke permitted to

consult with his lawyer.” They are, furthermore, inclined . :

- to the*belief that the Supreme Court will eventually drop .
the bars with respect to one or more of ‘the five elements
previously quoted herein. In People v. Dorado, 394 P.
(2d) 952, 33 L.W. 2415, certiorari pending, the Supreme -
Court of California recently held that defendant’s failure to

‘request or obtain.counsel was an exception which did not *

‘ remove the ‘case from the rule pronounced in Escobedo,

On the same day, in a rather obvious effort to obtain a amore

. definitive ruling from the Supreme Court of the United
States, the California Supreme Court held that Escobedo

was not intended to be retroactive, In re Lopez, ....... -

i pe , 33 L.W. 2390, thereby holding that a collateral:
_ attack upon a conviction prior to Escobedo was not avail-
able to one whose Sixth Amendment rights would have

. otherwise been expanded under Escobedo. New Jersey has

likewive tejected the possible retroactivity of Escobedo in

State v. Johnson,....... Atl. (2d) .......,33 L,.W. 2375. Qn’a

different approach Nevada and Ohio have concluded that
each of the factors specified in Escobedo must.occur to y make

the same a controljing precedent. Bean v. State, ....... P.
* (2d) ......., 33 L/W. 2390; » uth McLeod, pm .. N.E. (2d)
pack , 33 L. 'W. 2351. .

; The Fourth Circuitehas ‘ronsedy distinguished Escobedo
in Davis v. State of North Carolina, .....' F. (2d) ......, de- |
cided December 8, 1964, whére, ina three to two’ opinion,
it was said:

42

“This case is, therefore, far from the principle of
Escobedo v. Illinois, 378 U.S. 478. In Escobedo, a

- suspect, not otherwise lawfully subject. to detention,
was being interrogated. During the course of his ques-
tioning he repeatedly aske@ permission to consult his
lawyer, and his lawyer -was present .in police head-

_ quarters, insistently demanding access to his client.

‘One time, through opening doors, the lawyer and client
actually got a glimpse of each other, but their persistent |
demands and requests to consult were -as. persistently
refused until after a confession had been obtained. The .
Supreme Court held, of course, that the suspect should
have been allowed to-speak to his lawyer who was pres-
ent for that purpose and who was actively asking, him-
self, to speak to his client. Denial of the right to con-
sult his attorney was held, under those circumstances, —
to have been a denial of due process.

“Here, we have no such circumstances. Davis, ad-
vised that he could consult an attorney if he wished, ._
sought only to have his sister come to see him.. The
police. did all that they could to assist him in thé reali- |
zation of that wish. When there was no request of legal

_ assistance and when the police did all that reasonably _
might be expected of thent to facilitate the prisoner’s

_ seeing the one person he wished to see, it cannot be held
that the police unreasonably depriyed him of his right
to counsel.” FE te as ne 7

The sharp dissenting opinion of former Chief Judge Sobeloff
manifestly indicates that the majority interpreted Escobedo
as being limited to the facts of that case. Relying upon the.
California case of People v. Dorado, supra, Judge Sobeloff .
- at least intimates that the request for counsel at a time
_ when‘the party interrogated may be characterized as in the
“accusatory” stage is unnecessary. On the retroactive appli-
- cation of Escobedo, Judge Sobeloft expresses the view that
. sin@® other federal and state courts have held Gideon v.
| | re

>

2

od

ncaa adenine eins «

+)

-

| Wainwright, 372 US. 335,. to ie retroactive, Escobedo een

should be accorded the same treatment. While we have no |
Virginia or Fourth Circuit decision on the retroactive effect
of Escobedo (other than’ as noted in Judge Sobeloff’s dis-
_ senting opinion in Davis), wé recognize that the Fourth
_ Circuit has held Mapp v. Ohio; 367 U.S. 641, to be en- .

_ titled to rétroactive application. Hall v.. Warden, 4 Cir.,
313 F. (2d) 483. Under no circumstances could the present
‘case be decided upon the theory that Escobedo is not en-
titled to retroactive treatment in — of the foregoing con-
' siderations.

‘In a direct appeal on a conviction for rape, Virginia tins
adopted a middle ground as to the necessity ef counsel dur-
ing an interrogation where the defendant :was in the “ac
cusatory” stage. Cooper v. Commonwealth, ....... _. |
140 S.E. (2d) 688. Defendant was represented by couneel
_ at the preliminary hearing which resulted in a dismissal of
the charges. Thereafter, without notice to counsel but after
warming defendant of his: rights, an investigator for the
Virginia State Police interrogated the accused on two separ-
ate occasions, one of which followed the grand jury indict-
ment while defendant was in jail. A tape recording of the
conversation between the four year old child and her mother
was made and, at the last interview with defendant, was
_ played to him: Defendant never admitted the crime but
at one point in the interview “he started halfway to cry
there and he said I don’t know why.” No other incrimina-;
tory words were spoken. In concluding that defendant was
entitled to ‘counsel at the time of the wocoand interrogation,
the court said:

aw ecesies in aks dias te tibel Circuit, ina case arising out
of New Jersey, has held Gideon to be retroactive, Palumbo v. State of
New Jersey, 334 F. (2d) 524, but the New Jersey court has now ruled
that Escobedo is not retroactively applied, State v. _ Johnson, ii Atl.
(2d) ..., 33-L.W. 2375. i

, = -

“It is true that Cooper was advised of his rights before
he was examined and that no thgeats or inducements
were made to him. It is also true that the record does
not. show that Cooper asked to consult with counsel, but
the fact remains that he was not experienced in ¢trimi-
nal procedure, his intellectual endowment was ‘at the
lower limits of normal’ and his ability to function under
stress was ‘in-a corresponding range.’ He had been
indicted for a capital offense and was subjected to a
lengthy examination by a skillful police investigator
who was seeking to obtain an admission or confession.
The interrogation was no longer investigatory; it was
‘accusatory. It cannot be successfully denied that the
defendant needed the assistance of counsel during this
stage of the proceeding. ms

“We do not mean to say that in all cases counsel ‘must
be present when a confession, admission or incriminat- |

_ing statement is made by an accused in order that this
evidence be admissible against him in a criminal prose-
a Each case must be judged on its own particular
acts

~ “We only hold that under the facts and circumstances
of this case the defendant was, deprived of his consti-
tutional right to the assistance of counsel, and that;the ~
trial court, therefore, committed prejudicial error in ad-
mitting in evidence the testimony of Mundy concern-.
ing the contents of the tape recording and in admitting
in evidence the tape recording itself, all of which had
a direct bearing on the meaning of his alleged admis-

sion ‘I do not know why’. ar
Thus, Virginia, without meittioning Socshede, has held
that, under certain circumstances, counsel must be present
at an interrogation stage of an investigation which, has
focused upon a: particular accused. Of course, in Cooper,
. there was an objection to the contents of the tape mencnal
and the playing of same.

— i in gee me = _

45 a.
Again assuming that petitioner was not warned of the
right to remain silent, courts are divided as to the effect of

Escobedo. In People v. Hartgraves, 31 Ill. (2d) 375, 202
N.E. (2d) 33, the: defendant’ was not affirmatively warned:

that his confession might be used against him, and the Illi- ~_

nois court, examining its prior holdings in light of Haynes v:
Washington, 373 U.S. 503, and Escobedo, pointed out that

«Haynes merely stated that the failure to warn a defendant
_and advise him of his right to remain silent is an attendant

circumstance which the accused is entitled to have appro-
priately considered in determining voluntariness and ad-
missibility of his confession. As to Escobedo, Illinois con-

cluded that the refusal of a request for assistance of counsel, © _

coupled with a failure to warn the accused of his right to.
remain silent, amounted to a denial of the assistance of

- counsel, but since the accused did not request the assistance

of counsel the confession need not be rejected. In State v.
Neely, Ore., 395 P. (2d) 557—a decision which the Illinois
court, considered and rejected—the only contention raised
was that the defendant ‘had not been warned of his right to

~~ “remain silent. The record. was silent’ as to whether. the

defendant had been so advised, but the court concluded
that the defendant’s testimony created an inference that he
was not warned—a situation that is substantially identical
with the present case. Oregon held that, under its prior de-

- cisions, the confession would not be violative of defendant’s

rights but, since Escobedo, and considering: the dissenting
opinion of Mr. Justice White in which,he agrees with the °
majority as to the duty to “warn,” Oregon concluded that

- the necessity of a warning against self-i tion is now

_ required. While somewhat in a different light/as it involved
the question of self-incrimination at the trial level, we know
that the Supreme Court has now held that no state court
may require a defendant to testify as to a matter which may

Q 4 ::

46

tend to incriminate himself. Malloy v. Hogan, (1963) 378
U.S. 1, reversing its prior rulings in Twining v. New Jersey,
211 U.S..78, and Adamson v. California, 332.U.S. 46. |

Obviously Escobedo will require a further study by the
United States Supreme Court. Under the facts as found in

Escobedo. it is difficult to disagree with the majority on the

conclusion reacifed. ‘The ‘nation and its law enforcement
agencies can properly “live” with this decision. In peti- —

_tioner’s case we note that he does not complain _or_allege,

either in the state’ ‘of federal petitions for -habeas corpus, that

. he was not warned d of his right to remain silent. His attack
Js. directed tothe refusal of counsel, threats, mistreatment
and the failure of his court-appointed counsel to object to,

the confession taken on October 20, 1961. Such being the

/ case, the issue of any failure to give any warning as to the use

of an incriminating. statement is not before the Court.
Realizing, however, that it may resolve itself into a “merry-

‘go-round” procedure, the statements and conclusions herein
‘reached may forestall such action. + ayes 3

The logical effect of Escobedo, if given the interpretation

‘placed upon it by several courts which have suggested that . |
_ once the inquiry has begun to focus upon a particular sus-

pect it is then incumbent upon the authorities interrogating

the suspect to see to it that the suspect is given an attor-

ney (whether requested or not), is that. we have adopted
throughout our nation a mandatory system of judicial super-

_ vision of investigative processes. The judiciary has always

reviewed such procedures but never before has it been called

upon to supervise same: Let us assume that the interrogat-~ .

ing process commences.as a general inquiry and, during the ©

, course of such interview, the party being interrogated makes .
} certain statements which then lead the interrogating officer
‘to believe that he is.the actual suspect: According to many.

legal authorities, it then becomes neressary to stop the inter-

3

Secs

47

Sg

rogation, arrange for the presence of an attorney, warn the. °

suspect of his right to remain silent and then endeavor
to proceed.with the intere6gation. If 2M

2

| did details of wine oneaiia on ‘die : ilaaeeeet of October

19, 1961: The evidence of guilt at the moment the confession

"was introduced. was overwhelming. ‘While the court-ap-
. pointed attorriey was not cross-examined at the state habeas

hearing as to his failure to object to the confession, it is

_ perfectly apparent that the attorney concladed that the ~

confession, jif it-had any bearing on the fairness of the trial,
would. pa a be beneficial to petitioner.

_ Examining the 74 page opinion in Culombe-x. Connecti-
. . cut, 347 U.S. 568, we find nothing therein contained which

would serve as a warning ‘ to petitioner’s court-appointed
counseb that Escobedo and Haynes would necessarily be

eo forthcoming. Assuming arguendo that petitioner’s confes-

sion of October 20, 1961, would now be legally impermis-
sible, this has no ees on, the effectiveness of petitioner’ S.

counsel, . ~ ‘

The pxincipal complaint now anced by petitioner is that

oy in attorney. failed.in his’duty to make reasonable inquiry
"¢

petitioner’ s home area (Berlin, Maryland) with respect.
to his prior activities tending to: Support the issue of in-

sanity. He relies upon Brubaker v. Dickson, 9 Gir.,.310 F. .. .

(2d) 30, cert. den. 372 U.S. 978, in which th petition was.
refused a plenary hearing ‘in both the oat federal ~

is well stated herein (310 F.' (2d) 32) :°

e. “The: test to be applied { in determining sie legal ade-
'_ quacy of the.allegations of appellant’s petition is readily
‘stated: “The requirement of the Fourteenth Amend-
mefit is for a fair trial’; the due process ‘clause “‘pro-
hibits the conviction and incarceration of one whose
trial is offensive to.the commor and fundamental ideas

. of fairness and right.? Com ce with this standard
required that appellant, charged with a: — offense,

be represented at trial by counsel.

\

a factual’

o

Ee

“But the constitutional requirement of representation
at trial ig one of substance, not of form. It could not be

satisfied by 4 pro forma or token appearance. Appel- |

lant was entitled to ‘effective aid in the preparation and
- trial of the case.’ ’

- &Phis does not mean that trial counsel’s every mistake.

/ jn judgment, ertor in trial strategy, or misconception
- Gf law would deprive an accused of a constitutional
right. Due process does not require ‘errorless counsel,
and not counsel judged jneffective by: hindsight, but
- counsel reasonably likely to render and°rendering rea-
sonably effective assistance.’ Determining whether the
demands of due process were met in such a case as this
requires a decision as to wether ‘upon the whole course
of the proceedings,’ and in all the attending circum-
stances, there was a denial of fundamental fairness; it
is inevitably a question of judgment and degree.”

Cf pig) é> Ga ° , :
_’ The effeetiveness ‘of court-appointed counsel” for peti-

tioner, onthe basis of the trial record, has already been
determined by the: Supreme Court of Appeals of Virginia.
Acknowledging that such a conclusion would not be binding
as to subsequent evidence adduced at the habeas corpus
hearing pent have a finding contrary to petitioner’s con-
tention by the state habeas corpus judge, with a subsequent

' denial of a writ of error. by Virginia’s highest court and a

refusal. of a writ.of certiorari by the United States Supreme
Court. Totally aside from the foregoing—which should be
sufficient - in itself—this Court has carefully. reviewed ‘the

trial record and transcript, along with the state habeas —

transcript, and now finds that the argumer\t of ineffective .

‘counsel is devoid of merit.

Complaint is made that counsel failed to investigate and ”

counsél knew that this physician, during 1959, had arranged

= J 4 ~ y

o
t .

"arrange for the presence of a Dr. Robbins, a general practi- —
tioner from the Eastern Shore of Maryland. Petitioner’s

’

SS
, ‘ a & , 4

for petitioner’s initial commitment to a Maryland state

mental institution. He inquired of petitioner and peti-.
tioner’s mother as to the then whereabouts of Dr. Robbins
. (referred to in parts of the testimony as Dr. Robestson).

He was told that Dr. Robbins had left Maryland and gone
to New. York. Approximately 13 months following peti-
tioner’s conviction Dr. Robbins was located by petitioner’s ©
post-conviction privately employed attorneys in Greenwood
Lake, New York. The difficulties, if any, in ‘locating Dr. °
Robbins are not disclosed by the record. The attack upon
court-appointed counsel is that he did nothing further in an -

effort to locate Dr. Robbins. While this is a correct state-" _

- ment of fact, let us examine what the court-appointed attor-
ney did under the circumstances. ;
He arranged for the entire Maryland state mental hospi-
al record to be forwarded to Dr. Robert H. Thrasher, a
~ local psychiatrist with ‘ample qualifications. He arranged
for Dr. Thrasher fo testify at the time of trial and a review.
of. Dr. Thrasher’s testimony demonstrates his firm opinion
that petitioner was insane. There was, of’ course, evidence
‘to the contrary and the jury.-did not accept Dr. Thrasher’s
conclusions.. The Maryland psychiatrist who attended peti-
tioner during his stay at the mental institution in 1959 was
‘Dr. Crawford who died shortly prior to’ petitioner’s trial.
Court-appointed counsel unsuccessfully endeavored to se- :
cure, by court order, a copy of the records of Southwestern
State Hospital for the purpose. of examination. by Dr.
Thrasher in advance of trial.
There is little, if anything, that Dr. Robbins could. have

_added to the defense of insanity. Dr. Thrasher knew and -

_ . testified to the incidents leading to petitioner’s commitment
‘ to,the Maryland state mental institution. There is no con- -
- tention that Dr. ‘Robbins is peculiarly qualified in the com-
plex field of psychiatry. If the good doctor had been located

é

54

and brought to Norfolk for the trial, his opinion would have »
been seriously impaired by his standing as a general practi- ©
- tioner only. Dr. Robbins had not seen or consulted the péti
- tioner since 1959. Dr. Thrasher, on the other hand, was
thoroughly qualified in psychiatry and, in addition to stidy-
ing the reports of-petitioner’s prior mental difficulties and
ascertaining other facts from independent sources, had the
- opportunity of conferring with and studying the petitioner —
. on approximately four occasions prior to trial. We hold that
_ the court-appointed attorney was not ineffective or other-
wise derelict in his duty in not extending greater efforts to
- locate Dr. Robbins. © aes ; ory
We aré next told that court-appointed counsel failed to
go to Maryland and interview potential witnesses in peti-
tioner’s home:community on the issue of insanity. Accept-
‘ing as a finding well supported by the evidence that the at-
torney ‘was not told ofthe existence of potential witnesses
in the home community, we note that petitioner's sister,
"Lois Rogers, and his mother, Mabel Deneay, testified in
petitioner’s behalf at the original trial, The mother de-
scribed petioner’s behaviour pattern, nervousness, prior men-
tal difficulties, the act of: petitioner in shooting himself in
the leg, his visit to his home community on October 12,
_ 1961, and what, was said: by petitioner, his drinking prob-
lems, and what Dr. Crawford (the physician who died) had -
said about petitioner’s mental condition.° Neither the mother
nor sister testified at the state habeas hearing. The attorney .
testified that he had interviewed the mother on two or three
gccasions and the only reference to any party in the home
_* contmunity, other than Drs. Robbins and Crawford, was

6 Petitioner’s attorney attempted to bring out Dr. Crawford’s state- ,
ment to the mother on direct examination, but an objection was sus-
‘tained. On cress-examination the prosecution’ asked the questions of
- the mother.and answers were given. rie te ,

45

_ to one Patricia iii seiieaiiithe a girl with whom peti-
tioner had been keeping company immediately prior to- his
_ act of shooting himself in the leg. And when we examine the
deposition testimony of lay witnesses produced at the state
habeas hearing, we note that from a factual standpoint they
knew little or nothing more than petitioner’s mother had:
already related. Petitioner now argues that each of these
lay witnesses expressed an opinion’ that petitioner was in-
sane and that this conclusion would have had a decided
effect upon the jury. We agree with the respondent ‘that ‘
such a conclusory statement would not have been admitted
at the original trial. Ramsey v. Commonwealth, 200 Va.
. 245, 249, 105 S.E. (2d) 155; 158; Jones v. Commonwealth,
$202 Va. 236, 117 S.E. (2d) 67, 71. Petitioner’s reliance
upon Forehand v. Sawyer, 147 Va. 105, 136 S.E. 683, is .
misplaced. That was a will case involving testamentary -
capacity of the testator, a matter which is governed by
other factors. Moreover, we conclude that, under all the
facts and circumstances of this case, it is unreasonable to
expect that the court-appointed attorney should visit an
_ area approximately 100 miles fr irom the place of trial for the
- purpose of conducting a house-to-house canvass in an effort
to determine the views of lay witnesses as to the sanity of the
accused,
Complaint is nade that’ the attorney neglected to shine
to the introduction of certain evidence during.the course of

ithe trial. Without finding that the attorney erred in any —

respect on this point, at the most such an error would be
a matter of trial tactics. It has been repeatedly held that »
mistakes in judgment or trial tactics by defense counsel do
_ not deprive the accused of a constitutional right and are
not reviewable on habeas corpus. Tompa v. Commonwealth,
4 Cir., 331 F. (2d) 552. The record clearly shows that the
purpose of court-appointed counsel was to establish the ac-

ai

tions of petitioner at the home of the murder victim in order
' to convince the jury that only an insane person, with no
' apparent motive, could shoot two young girls, killing one
and seriously injuring the other, raping the injured girl
twice while she was lying in a pool of her own blood, and
raping ‘or attempting to rape th¢. murder victim after she
- was dead or while she was dying. The Supreme Court of
Appeals of Virginia commented upon the failure to object
and noted the approach to the problem confronting counsel.
The weaknéss of petitioner’s argumenton the failure to
object is adequately demonstrated by the absence of com-
ment thereon in petitioner’s brief filed in this court.

CONCLUSION —

_ The records in the original trial and state habeas corpus _
hearing have been minutely examined as this Court is ap-
preciative of the fact that the death sentences are now the
subject of nationwide criticism. Such a matter is, of course,
for the legislative branch of our government. This Court
expresses no independent view as to the sanity of petitioner.
In Virginia; unlike the federal practice, the burden rests ©
upon the accused to prove his mental incompetency. Wessels.

v. Commonwealth, 164 Va. 664, 180 S.E. 419; Holober v.

Commonwealth, 191 Va 826, 62 S.E. (2d) 816; DeJarnette
v. Commonwealth, 75 Va. 887. The United States Supreme
Court has declined to ifterfere with a state’s policy on the
issue of insanity. Leland v. Oregon, 343 U.S: 790. Virginia
throws a further safeguard around the execution of the
death sentence under § 19.1-235 Code of Virginia, 1950 as
_ amended. The moral question of executing a person of peti-’
_ tioner’s ‘mentality i is for the executive branch and the courts
are powerless to prescribe the answer. Davis v. State of
oe Carolina, supra; Snider v. ——* 4 Cir., 292

a ae 683, 686.

" April 28, 1965

°

57

We conclude that petitioner was given a fair trial, that his

constitutional rights as applied to the facts and trial pro- -

“cedures of this case were not violated, and that he was

adequately and effectively represented by an experienced a

attorney. ; ?
- By reason of the fact that petitioner i is mider a death sen-
pron pi lace eanainaaibcrenlena eects
of probable cause.

PLD RO ae IIR Cay CARN

‘United States District Judge

oe

ee a

58

' APPENDIX IV

Unrrep States Court or APPEALS
For THE Fourtn Cirrcurr *

Perm,

_ OPINION OF THE COURT
J. SPENCER BELL, Circuit Judge:
Jay Timmons was convicted by a jury of fire degree

- murder in April 1962. He was sentenced to die. The Su-

preme Court of Appeals of Virginia affirmed the judgment
of conviction. Timmons v.. Commonwealth, 204 Va. .205,
129 S.E.2d 697 (1963). Habeas corpus was sought in the
state courts; a hearing was held, and in July 1963 relief
was denied. The Virginia Supreme Court of Appeals denied
a writ of error, and the Supreme Court denied certiorari. —
Timmons v. Cunningham, 375. U.S. 994 (1964). Habeas

corpus was then sought in the court below; the facts were

stipulated ‘by counsel, and on April 28, 1965, the district.
court dismissed the ‘petition but granted a certificate of
probable cause. Timmons v. Peyton (D.C.E.D. .Va.), 240
F. Supp. 749. | |

The facts of this case are the following: On October 19,
1961, at about 5:20 p.m. Jay Timmons.shot two women.

‘One of them was killed; the other was shot through both.. .

legs and through the neck. Timmons’ and the women had
attended grade school together in a small town m Mary-
land. Timmons was employed by the father of the deceased
victim. He had apparently come to the house in order to
persuade her to give him. a contract to paint her ‘house.
There is*no indication in the record of any recent social:
relationship between Timmons and either of the two wom- —
en. Apparently, he had not seen either of them other than

:
Liisa et teeta HOM Reet Tage OLS a ales a
.

59

on two or three escasions since childhood. When the surviv- °

ing witness entered the. house, the other woman sat at her

desk writing. Timmons entered the living room and greeted |

the newcomer quite casually. This was the only remark

‘made before the shooting began. After shooting them Tim-

mons proceeded to have sexual intercourse with the one who
was still alive. It is possible that he also had intercourse with

the dead woman. He then telephoned the police and told

them he had shot two. womien. Discovering that one of

’ them was alive, he picked her up in his arms, took her to a

car, and drove her to the hospital. He then returned to the ~
residence where the events had-taken place; the police were _

already there. This was about 5 :35 p.m.
_ The police took Timmons to headquarters, En route he

_ Said it was an accident; a little later he said he would say
no more. Shortly thereafter Timmons was rushed to the

hospital because he was getting drowsy and told the police

. he had taken sleeping pills; his stomach was pumped and
revealed that.he had in fact taken pills containing Scopola-

mirie and Methapyrilene. Timmons remains in the hospital

overnight and was returned, the next day to police custddy. -

At that time. Timmons made a written statement to the
police which described fully the sequence of events; this
written statement was later introduced into evidence at trial
and read aloud to the jury. The court below found that the

record wag “. . . silent as to whether either of the two dete¢-

tives said apything to petitioner as to any right to counsel,
or otherwise warned him that anything said by him could be

used against him. We presume Cat nothing was said along —

these lines.”
At trial Timmons pleaded not guilty by reason of in-
sanity. Defense counsel permitted without objection the

written confession to be introduced into evidence along with —

o. qubheen—
™_
~

60 -.

’ slides of the two- women after they had been shot. Counsel
' “did object, without success, to showing photographs of the
victims to the jury and, also without success, to enlarging the
slides and projecting them for the jury on the ground that
these were prejudicially inflammatory and -not necessary to
prove the state’s case.’ . *

Timmons was born in 1936, dropped out of Sook when
he was sixteen, and had a nervous breakdown when.he was
twenty-three, two years before thé events in question. At
that time he shgt himself and was then sent to a state mental
‘ institution in aryland. He remained there two weeks, re-
turned home ‘for about three aitd a half ‘months, and then
went back in for about another month, His history at that
institution revealed that he was “potentially dangerous.”

_ .At’trial defense counsel called the doctor who examined

Timmons on the morning after the events in question. He
testified that Timmons did not appear to him at-that time
psychotic. Defense counsel had never discussed the case
with this witness. The witness, although he refused to ex-
press an opinion as to legal sanity, did testify that Timmons

“was in reasonably good mental shape, not to require fur-.
»ther psychiatric treatment. . . .”- before being returned to
police custody.

The chief witness for the défense was.a well known and —
respected Norfolk physician who was a diplomated psychia-
' trist. He testified that he had made-a thorough investiga-
tion and that in his opinion Timmons was psychotic when
he committed the crime and had a history of four suicide

‘nitigillptenionagah ‘

1-The prosecution argued to the jury that the accused man was a
mad killer—that if his life were spared he would kill again and again;
that he might be a little crazy but he knew the difference between
- right and wrong.

a

: a

& .

attempts. Defense counsel did not contact the physician
* who had originally put Timmons .-in a state’ institution in.
“Maryland because he had moved and counsel did not have . |

his address, and also because that doctor was not a psychia-"
trist. Subsequently different counsel located the doctor and —
received a letter from him stating that “Mr. Timmons was

definitely insane ‘while under my care.” Two psychiatrists.

testified for the state. The official diagnosis by the two state
psychiatrists, who had examined Timmons at the South-

western State. Hospital, was “a social disturbance, in addi- _

tion, alcoholism, and also mild mental deficiency.” ‘These
two psychiatrists estimated that Timmons had received
about eight hours of individual attention by the doctors dur-
ing his two months at the hospital. Dr. Blalock, the superin- -
tendent of the asylum, one of the state’s witnesses, .testified -

that he had not examined Timmons personally except at the

staff meeting when the diagnosis was made. He conceded _

‘that his institution was very much understaffed; that Tim-

mons was one of two hundred maximum security patients
under the direct supervision of Dr.-Nemeth, the other expert
witness for the state. He stated that in his opinion Tim- |’
mons knew the difference between right and wrong and >

had the power to choose the right at the time he committed

the offense.

Timmons’ contentions: before this court may be sedeeeid

to two basic arguments: (1) that his Fourteenth Amend-

2 The first iii psychiatrist diagnosed Tinundins as “schizophrenic
reaction undifferentiated type; catatonic.” The second psychiatrist as
“schizophrenic reaction ‘chronic undifferentiated type.” No explana-
tion is offered to expldin why counsel called the first psychiatrist with-
out previously discussing the case. Presumably he had seen the doctor’s .
diagnosis and assumed from that that he would testify to insanity. We
think it a fair inference from the record that the doctor’s unfavorable
testimony applied to ‘Timmons’ appearance the day he left the hospital

and that he refused to giye an opinion on legal ‘ sanity because he had -

no ania! to make an adequate examination. |

62
ment right to due process‘was violated in that he was denied ©
the right to counsel at critical stages in his pretrial proce-
dure, and (2) ‘ineffectual counsel. Both the'state habeas
court and the district court found that his representation at
trial was competent, and we cannot sd that this me was
clearly. erroneous.
We think that the denial of abit to the petitioner ‘for
_ _ a period of three and one-half months following the offense,
during the first 60 days of which time,the state for all prac-
.. tical purposes held him incommunitado, was a violation of.
"the petitioner’s Sixth Amendment ‘right to counsel during *
critical pretrial proceedings ‘which materially affected the
- outcome of his triaf. Powell v. State of Alabama, 287. U.S.
45 (1932); White v.. Maryland, 373 U.S. 59 (1963). In
considering, this question, we must keep in mind the follow-

ing chronology of events: The killing’ occurred on October, - -

19, 1961: The confession was taken by-the police on October
20,.1961. On _October 24, 1961, the petitioner was served
. with notice of the motion to have him committed to South-
_ western Hospital, a state institution for the criminally in- -
sane. On October 25, 1961, the commitment order was
signed. On December 20, 1961, Dr. Blalock, the superin-
tendent of Southwestern Hospital, reported that the peti- -
tioner was competent to stand trial.: On December 27th Dr. |
Blalock further reported that in his opinion the petitioner .
was sane at the time of the commission of the offense, point-
“ing out that he had overlooked this request in the order-when
his original report was made. On January 20, 1962, the peti-
tioner, on advice of the police, waived a preliminary hear-

_ ing. On February 1, 1962, counsel was appointed. .On
February 5, 1962, an indictment was returned mm the
grand jury.

We ‘hold that the preparation of the defense may not

- without violation of * process be postponed indefinitely . }

es

.
ab eA at Ae

4 e

sounee

‘wal the state has: ‘completed its case. We -do not t hold that’

an accused is entitled to have ‘a lawyer present when he

is undergoing psychiatric tests to determine his competengy -

to stand trial-or his sanity. That is not the qu tion here
where this petitioner was héld by the authorities for sixty-

one days—during which he received a maximum of only
eight hours personal attention. We think the preparation —
of his defense could and should have been allowed to pro--
ceed concurrently with the state’s. Furthermore, there is no -

reason to assume that reputable counsel and’ psychiatrists

-. could not:cooperate in the administration of tests and the
necessary factual investigations of the patient’s backgrounds."

to verify or refute his own statements. : : oe
On October 24, 1961,- while defendant 3 was ; cued in

the city jail, notice of hearing to determine whether he

should be‘ committed to the state insane asylum was served
on him. The.commitment was made on motion of the state’s
attorney requesting that he: be examined not only to deter-

mine if he was competent to stand trial as required by |

Statute (Virginia Code of 1950, § 19.1-228) but ‘also -to

determine if the defendant was sane at the time of com- -

mitting the offenses for which he had been arrested.’ The

statute does not authorize‘ the latter determination. The

defendant, who was indigent and mentally deficient, was

_ neither present .at the hearing nor represented by counsel.

The next day-he was sent to the state : where he re-
mained for two months: 7

First, we note that. the petitioner himself was not present
at the hearing. $ This court has heretofore held that the

- 3 The petitioner has testified that he continuously asked for counsel ?

from the time of his arrest. This testimony was contradicted in sotne
instances. Fven.when it stands uncontradicted the state habeas court
refused to credit it.° Had the amend been present, nae for

: counsel —— have been honored. - ; 2

NG”

f
sy

. 64
Virginia statute (§ 19.1-240) requiring the presence of the
accused at every stage of his trial_is merely declaratory of a
common law right, and hy absence at any critical stage a
violation of his constitutional right. Near’ v. Cunningham,
313 F. 2d 929 (1963). In. 1965 the Virginia legislature
passed § 19.1-241.1 guaranteeing every. person accused of a
felony the right to representation by counsel at every stage of-
any proceeding against him based upon such a charge “held.
_in any. court in this state.” We-disagree with~the. district
- Court’s opinion that this statute granted new rights to an
‘accused not already embodied in the Sixth Am ent to
the Constitution and by the Fourteenth ‘Amendment,made
applicable to the states. Gideon v. Wainwright, 372 US.
:335 (1963).4 We think the argument that the presence
of a defendant at a civil commitment is not required pre-

. sumably ‘because the proceeding might confuse and harm
the defendant, is not pertinent in this case, especially in
view of the fact that the DePaul Hospital at Norfolk, where
the defendant had been sent for a preliminary exqmina-

. . ° tion, had ‘returned him.to police custody with the report

’ that he was in reasonably good mental shape and did not re-
. quire further-psychjatric treatment before being released to
police custody. . Furthermore, in a civil case the defendant
is entitled by statute to have counsel present during the hear-
ing to defend his rights. Counsel herg could have pointed
out to the court that the Virginia stattte did not authorize
. the petitioner’s commitment:to test his sanity at the time of .
the offense but only to test his capacity to stand trial. One
does no@have to be a medical expert to know that the more
closely to the time of the offense an examination of an ac-

¢The statute (Virginia Code of 1950°§ 19.1-228) provides for the
. examination of a person “ with crime,” thus manifesting in its
_ .context that it is a part of acgisatory process and thus under .

Gidéon counsel is then necessary.
” *

. 65

cused’s mental condition can be made the more trustworthy
. the report. Thus in this case, wherein it was obvious to the
state from the very outset that the only possible defense was
insanity, the petitioner was held in official custody for more
than three and one-half months until the state had ¢om-
pleted all aspects of its evidence and preparation for trial
before petitioner was permitted the benefit of counsel.

Lending strength to the petitioner’s contention that his
defense was crippled and due process denied by this delay
is the fact that the trial court denied a motion to make.
available the records at the state asylum in order to per-

mit defense’s expert psychiatric witness to examine them.
' Thus defense was unable to prepare any cross-examination
of the state’s experts with the aid of his own experts. The
state’s experts admitted on cross-examination serious short-
ages of professional and investigatory staff. In spite of an
effort on.the part of defense counsel, the record reveals no
adequate cross-examination of the state’s expert witnesses;
notwithstanding the glaring discrepancy between the diag-
nosis of the defense’s experts and that of the state’s.’ Cer-
tainly, a jury of laymen in search of the truth as to the peti-
‘tioner’s mental status is entitled to more than the naked .
confrontation of two such diverse diagnoses. ,
: We think, finally, that the strongest reason supporting

our holding that the defendant was denied due process by
being delayed for-over three and, one-half months in the
preparation of his defense while the state was actively seek-
ing evidence to convict, is the fact that under Virginia ‘law
the burden of proof'rests upon a defendant’ who pleads in-
sanity. Indeed we feel that this case is a classic example of
the prejudice which is caused by this rule. Given the sicken-
ing and appalling nature of the facts of Timmons’ crime, his

66
uated history, his low mmentality, and the strong testimony |
ofa psychiatrist that- hé was insane, there is little doubt
that a jury would have found that a reasonable doubt existed

as to his sanity. Due to concessions made in the brief on ~

~ direct appeal this issue was not before the Supreme Court of

‘Appeals of Virginia: It is regrettable that. that court’ did

-not have an opportunity to review its holding: on this point.
_. The Virginia rule was first laid down in Boswell’s case, 61
Va. (20 Gratt.) 860 874-876 (1871), and was reiterated in
Christian v. Commonwealth, 220 Va. 311, 117 S.E.2d 72
(1960), and Jones v. Commonwealth, 202 Va. 236, 117

S.E.2d 67 (1960). We recognize the fact-that the Supreme . —

Court in 1952 in the case of Leland v. Oregon, 343 US.
790, has upheld an Oregon rule requiring the defendant to
_ prove insanity beyond a reasonable doubt. We feel bound
. by this decision, although we seriously doubt if it would be
upheld by the present court.
The. district court has discredited the petitioner’ S$ asser-
tions that he requested counsel on two occasions before his
trial: first, when he was questioned and confessed at the
police station the-day following the offense, and second while
he was confined at Southwestern for sixty-one days. Finally;
the court found that he had “probably requested counsel”
the day before his preliminary hearing on January 20, 1962.
The court considered each of these instances separately and
concluded that even had he requested counsel, no harm was
done by: denial. Without considering the application of
: Escobedo to the confession, we cannot agree with the habeas |

5 The state psychologist who. administered the Wechsler Adult ~
telligence Scale Form test reported Timmons’ I.Q. score as: Verbal
score. 74, Performance score 69, and full score 70. In lay language
Timmons was of extremely low intelligence bordering on merital re-
tardation. He ‘would be considered barely able. to function outside of

a specialized institution—not educable in an ordinary school, and rated ~

in the lowest 212% of the —

67

. court’s conclusion. We think that the cumulative effect of
. the state’s conduct constituted a denial of the petitioner’s
Fourteenth Amendment right to due process and his Sixth
Amendment right to counsel under. the rationale of the
Court’s decision in Crooker v. State of Califgrnia, 357 U.S.
433 (1958). In Crooker-the special circumstances did not
exist which would have caused the Court to set aside the
judgment. Hee. we are dealing with a defendant. of near
moronic capacity who had twice been confined in an institu-
tion for the feeble-minded, whose heinous crime with no ap-
parent motive leaves one with the conviction that the peti-
tioner is not a proper subject | for execution. We cannot agree —
with the district court, which “expresses..no independent
view ag to the sanity of the petitioner” that the moral ques-
tion of executing a person of petitioner’s mentality is for the
executive branch. When the state has marshalled all its forces «
against such creatures as the petitioner and has convicted
* a man who is in law insane by denying him a fair oppor-
tunity to carry his very heavy burden of proof, he has been
denied “due process” under the Fourteenth Amendment. In
~ the eloquent dissenting words of Mr. Justice Frankfurter i in
Leland v. Oregon, 343 U.S. 790 (1951):

“But a muscular contraction resulting ina homicide
. does not constitute murder. Even though a person be
- the immediate occasion of another’s death, he is not a
‘ deodand to. be forfeited like a thing in the medieval
law. Behind a muscular contraction resulting in an- |
other’s death there must be culpability to turn homicide
into murder. P |

We, therefore, reverse the district court and remand with
instructions to issue the writ unless the state will retry him
.Within a reasonable time, affording him a fair opportunity .

oto test the issue of sanity at the time of the offense.

Reversed and Remanded.

te

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1815%3A2. Public record. Not legal advice.