Petition for a Writ of Certiorari — Peyton v. Gillespie

UPREME COURT. 1), & DEC < 196g -

FPS, CLERK

9 tr Pe

Supreme Court of the United States

October Term, 1968

No. WM 2

C. C. PEYTON, SUPERINTENDENT OF THE

VIRGINIA STATE PENITENTIARY,

Petitioner,

V.

PAUL M. GILLESPIE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

JUDGMENT OF THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

RosBert Y. BuTTON

Attorney General of Virginia

REnNo S. Harp, III

Assistant Attorney General of Virginia

Supreme Court Building

Richmond, Virginia 23219

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TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT. ..........scccccesessesssessersseecessstecnsees susneenecessens 1

OPINIONS BELOW .......-0-.::ssesssesesssessssesetneernensnssnsecsssnssnnensacsanensnnenssnens 2

THE JUDGMENT .........csssscsseccsesssssseseesnssesnssensesensscanennnnscsnsccnnessnscsnnssennes 2

JURISDICTION .....----csceessessessesossenenssnsenneees spsseceiseaaindsciaincicenaatadiaarseretaes 2

QUESTION PRESENTED ........----+-+:sessssssecsssenseensessnsessnssennssnnssconsssnnecensses 2

STATEMENT OF THE CASE ............:c-ccseceeceseseeesererssensnnesnennssneserernsnnsnsees 2

SUMMARY OF ARGUMENT ... esha he eva 6 |

3

ARGUMENT 6

CoNCLUSION a 10 ]

CERTIFICATE OF SERVICE ..........-:-csscesescesessesesseesenseenssnennensnsseenenanssnanes 11

AppPENDIXx I sesiesadenieiaiiiaaiennsincivagiotian App. 1

AppenpIx II seuianieisldaidiassninbetuisananettas App. 8

TABLE OF CITATIONS

Cases :

Escobedo v. Illinois, 378 U.S. 478 (1964) ---.-vs---+:sss0++ ae:

Gillespie v. Peyton, 266 F. Supp. 11 (1967) ieeinaminnen 2

Gillespie v. Peyton, 399 F. 2d 683 (4th Cir., 1968) ....--.--.--- 2

Johnson v. New Jersey, 384 U.S. 719 (1966) .... 6, 8

Miranda v. Arizona, 384 U.S. 436 (1966) 6, 8

Other Authority

Tithe 28 US.C., Sector 1254 (2) nncssccssccssrseisecreeeenerenssoneii . 2

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Supreme Court of the United States

October Term, 1968

Bs aceietians

C. C. PEYTON, SUPERINTENDENT OF THE

VIRGINIA STATE PENITENTIARY,

Petitioner,

¥,

PAUL M. GILLESPIE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

JUDGMENT OF THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

PRELIMINARY STATEMENT

C. C. Peyton, Superintendent of the Virginia State

Penitentiary prays that a writ of certiorari issue to review

a judgment of the United States Court of Appeals for the

Fourth Circuit of August 22, 1968, in the case of Paul M.

Gillespie v. C. C. Peyton, Superintendent of the Virginia

State Penitentiary. On September 13, 1968, an order was

entered in the United States Court of Appeals for the

Fourth Circuit staying its mandate for a period of ninety

days from August 22, 1968. On December 5, 1968, the

Chief Justice granted the Superintendent an extension of

time to and including December 20, 1968, to file his petition

for writ of cc rtiorari,

2

OPINIONS BELOW

There was no opinion of the Circuit Court of the City of

Staunton. The Supreme Court of Appeals of Virginia

declined to grant a writ of error to the judgment of the

Circuit Court of the City of Staunton of December 14,

1964, on October 14, 1965, but did not file an opinion in

connection with the same. This Court denied a petition for

writ of certiorari on June 20, 1966, and a petition for a

rehearing was dismissed on October 10, 1966.

The opinion of the United States District Court for the

Western District of Virginia in this case, Gillespie v.

Peyton, is found at 266 F. Supp. 11 (1967).

The opinion of the court below is reported at 399 F. 2d

683 (4th Cir., 1968). Copies of the foregoing opinions will

be found in the appendix to this brief.

THE JUDGMENT

The judgment of the court below was entered on August

22, 1968 (Gillespie v. Peyton, 399 F. 2d 683 (4th Cir.,

1968) ).

JURISDICTION

The jurisdiction of this Court to issue the writ of certio-

rari in the premises is grounded upon the provisions of

Section 1254(1), Title 28 U.S.C.

QUESTION PRESENTED

Did the United States Court of Appeals for the Fourth Ciscuit Err

in Holding That the Confession of Paul M. Gillespie Was Im-

properly Admitted Into Evidence?

STATEMENT OF THE CASE

On or about February 20, 1963, Virginia Parkins was

raped and murdered in the City of Staunton, Virginia. On

or about September 7, 1963, Anna P. Dutton was assaulted

3

in Augusta County, Virginia. Paul M. Gillespie, heretia-

after referred to as the prisoner, was arrested in Richlands,

Virginia, in connection with the assault charge on Septem-

ber 16, 1963. Richlands, Virginia, is located in ‘Tazewell

County, and the Commonwealth's Attorney of Tazewell

County was present at the time of the prisoner's arrest.

The arrest was made by Sheriff John E. Kent of Augusta

County, Virginia. The City of Staunton, V irginia, is sur-

rounded by Augusta County. Sheriff Kent immediately

informed the prisoner that he did not have to make any

statement and that any statement that he made would

probably be used in court against him. In addition, the

Commonwealth’s Attorney for Tazewell County advised

the prisoner that he did not have to make any statement

and advised him in some detail as to his rights (Tr. 29,

179). Sheriff Kent inquired of the prisoner as to his

address in Staunton. The prisoner omitted his previous

address of 123 North Madison Strect. Sheriff Kent in-

quired as to why the prisoner had omitted this address, at

which point the prisoner replied, “Don’t try to pin that

murder on me.” (Tr. 181).

The prisoner was placed in the Jail of the City of

Staunton: on September 17, 1963. On September 19, 1963,

Mrs. Stanley visited the prisoner (Tr. 187). On September

23 or September 24, the prisoner was visited by his brother

and sister (Tr. 186). |

A discussion concerning counsel between the prisoner

and his brother and sister was overheard by Sheriff Kent,

and there was a reference made to a Mr. Stanley, who was

somehow related to Mrs. Stanley, the visitor. Philip L

Stanley, who was a practicing attorney at the time of the

discussion, is apparently the Mr. Stanley to which reference

was made. This Mr. Stanley was a relative of Mrs. Stanley.

who was a frequent visitor of the prisoner.

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Om September 21, 1963, the prisoner was taken to the

Markina’ home, and at that time the prisoner denied ever

beings in the pantry, which was behind the kitchen in the

Parkins’ home, the location at which the body of the de-

ceased was found (Tr. 301). On that very day, after

returning to Jail, the prisoner refused to see Mrs. Stanley,

who was waiting at the jail, nor would he accept some

artivles which Mrs, Stanley had brought to him (Tr. 302).

On September 27, 1908. Sergeant R. C. Gaunce, an

experienced memver of the Department of State Police,

questioned the prisoner, ile did so only after advising him

that any statement whch he might make could and proba-

bly would be used against him in a court of law. The

prisoner advised Sergeant Gaunce that he wanted to see an

attorney before he made a statement about the case. The

questicning was immediately stopped until approximately

nine hours later, At this time the prisoner again advised

Sergeant Gaunce that he woekd like to talk to an attorney.

Sergeant Gaunce mentioned most of the names of Staunton

attorneys to the prisoner, and the prisoner replied that he

did not know any of the attorneys mentioned. Although

there appears to have been no actual request to contact an

attorney taade to Sergeant Gaunce. he nevertheless prom-

ised the prisoner that he would call an attorney (Tr. 373-

378),

In response to a telephone call, Robert L. Rhea, an

attorney in Staunton, went to the Police Station, where he

was introduced to the prisomer, and he was advised that the

prisoner was involved im the Parkins’ case. At this point,

Mr. Rhea pointed out that be had a conflict of interests

becattse he had been appointed to prosecute certain cases in

Staunton and would be unable to represent the prisoner in

this matter,

lt is important to mote. however, that he advised the

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prisoner that he was under no obkgation to make a state-

ment, that he could remain silent. and that any statement

which he might make would probably be used against him

in a court of law.

Mr. Rhea then left. Shortiy thereafter. the prisoner gave

a complete confession; the events oi his heinous crime

being described in detail.

For reasons not appearing to be clear, the court appointed

Philip L. Stanley as attorney for the prisoner on October

10, 1963, and on the same day an order was entered

committing the prisoner to Southwestern State Hospital at

Marion, Virginia, for mental observation and evaluation.

On December 2, 1963, Dr. Joseph R. Blalock, Superintend-

ent of the Southwestern State Hospital, advised the court

that the prisoner was not psy-fitic, nor had he been

psychotic since his admissicm and that he was able to testify

and assist in his own defense.

The court then directed that the prisoner be returned to

Staunton to stand trial, and on December 18, 1963, the

court was notified that the prisoner had employed counsel

of his own choosing. Mr. Stanley was then relieved of his

appointment. On January 6. 1964. a preliminary hearing

was held, and the case was certified to the grand jury of

the Circnit Court of the City of Staunton. On January 9,

1964, the prisoner was indicted by the grand jurors of the

Circuit Court of the City of Staunton.

Because counsel representing the prisoner sought a writ

of habeas corpus in the Supreme Court of Appeals of

Virginia, the prisoner's trial did not commence until Sep-

tember 30, 1964. The prisoner was convicted and sentenced

to serve a term of life imprisonment for murder.

It is of this sentence that he complains.

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SUMMARY OF ARGUMENT

The Superintendent will demonstrate that the court below

has not only misstated the facts in the case at bar, but has

also applied this Court's decisioa in Miranda v. Arizona,

384 U.S. 436 (1966). contrary to this Court’s decision in

Johnson v. New Jersey, 384 U.S. 719 (1966).

More succinctly stated, the Superintendent will show

that the court below has not only ignored the evidence

contained in the record, but has also required the Common-

wealth to offer the prisoner counsel prior to interrogation

at a time at which the same was not required.

ARGUMENT

The Court Erred in Holding That the Prisoner’s Confession Was

Improperly Admitted Into Evidence.

The sole question before this Court is the question of the

admissibility of the confession of this convicted murderer.

Let us turn first to the opinion of the court below. Judge

Sobeloff in his opinion claims that in applying the teach-

ings of this Court in Escobedo v. Iilinois, 378 U.S. 478

(1964), the confession is inadmissible. First, Judge Sobel-

off claims in his opinion that the prisoner was subjected to

eleven days of continual police interrogation concerning his

possible involvement in the unsolved murder of Virginia

Parkins. This statement is not only unsupported by the

record, but is refuted by the same. Moreover, Judge Sobel-

off ignores the opinion of the learned District Judge where-

in he pointed out that the prisoner received sympathetic care

while in the Augusta County Jail in the City of Staunton.

Let us, however, review carefully the record to determine

whether or not Judge Sobeloff’s statement has any basis in

fact whatsoever.

The prisoner was arrested on September 16, 1963, in

7

Richlands, Virginia, which is located in Tazewell County.

He was questioned for approximately two hours with re-

gard to the Dutton offense. The only reference to the

Parkins rape—murder was Sheriff Kent’s question as to

where the prisoner had lived in Staunton.

On the following day, September 17, 1963, the prisoner

was taken to Wytheville, Virginia, where he was questioned

for from two to two and a half hours. On the following day,

September 18, 1963, he was not questioned at all. On

September 19, 1963, no interrogation took place, although

a conversation ensued between Mrs. Stanley, the prisoner,

ard Sheriff Kent for approximately one-haif hour. On

September 20, 21, 22, 23, 24, and 25, no questioning took

place.

On September 26, Sergeant Gaunce interrogated the

prisoner from approximately 9:00 p.m. until 3:00 a.m.

Immediately upon the prisoner’s statement that he would

like to talk to an attorney, the questioning ceased. There

was no questioning on September 27, 1963, because the

prisoner said he would like to talk to an attorney, Mr. Rhea

came and advised the prisoner of his right to remain silent

and that he did not have to say anything whatsoever.

Shortly thereafter, without any questioning taking place,

the prisoner confessed.

In view of the foregoing summary of the evidence in

the case at bar, it is manifest that Judge Sobeloff’s claim

that the prisoner was subjected to eleven days of continual

police interrogation is, if it be put charitably, incorrect.

More specifically, it can only be stated that the opinion of

the court below contains a gross misstatement of fact.

The court does point out that the prisoner was advised

of his right to remain silent. Having admitted this most

important fact, it then proceeds in its opinion to gloss over

the important advice given the prisoner.

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The prisoner, having been advised of his right to remain

silent by counsel, then confessed. The evidence does show

that Mr. Rhea advised that a lawyer’s fee would be a

minimum of $500.00. There is no showing that the pris-

oner was indigent at this time. He was, however, provided

with court-appointed counsel early in the prosecution, but

shortly after his return from Southwestern State Hospital

employed counsel who represented him throughout his

prosecution in the courts of the Commonwealth, in the

Supreme Court of Appeals of Virginia, and in this Court.

For reasons not stated in the record, this attorney then

failed to appear in the District Court and in the court

below. He, however, now represents the prisoner in this

proceeding.

The court below points out that the police failed to

advise the prisoner of his right to a free court-appointed

lawyer. This is true. It is submitted, however, that since

this Court’s decision in Miranda v. Arizona, 384 U.S.

436 (1966), is not applicable herein (Johnson V. New

Jersey, 384 U.S. 719 (1966)), that the same was un-

necessary. The opinion of the court below is, therefore,

premised upon a clear misstatement of law. Judge Sobeloff’s

misstatements of the facts are then buttressed by his clear

misstatement of the law applicable to the case at bar. The

prisoner was fully advised of his constitutional rights as

they then existed under the decisions of this Court. Having

been advised of his right to remain silent, he went ahead

and made a confession. As hereinbefore pointed out, Judge

Sobeloff’s statement that the prisoner was subjected to

eleven days of continual police interrogation 1s not sup-

ported by the record. Indeed, a careful review of the same

shows that the prisoner was questioned for approximately

nine to ten hours in a period of eleven days. Moreover, on

the day upon which he confessed, he was not questioned at

9

all. The prisoner asked to talk with an attorney, and an

attorney talked to him and advised hin: of his rights. He

asked for permission to consult with counsel. This request

was promptly honored, and all questioning ceased until such

time as said conference took place.

Judge Sobeloff states in his opinion that the Common-

wealth urged the court to accept the District Court’s find-

ing that the prisoner effectively waived his right to counsel.

This, however, is not the question in the case at bar.

Escobedo, of course, is limited to the facts as set forth

therein. The case at bar does not involve a situation where

counsel was seeking to confer with client. The facts in the

case at bar, simply stated, are that the prisoner desired to

talk with counsel. He did talk with counsel, and was

advised of his rights. Immediately after having been ad-

vised of his rights, he made a confession. The prisoner was

not mistreated, nor was he subjected to lengthly inter-

rogation prior to his confession.

Judge Sobeloff in his opinion claims that the prisoner

did not intelligently waive his right to counsel. This is

clearly not the test in the case at bar. Here, the prisoner,

apparently able to employ counsel, was advised by counsel

as to his rights and then made a confession to a most

heinous crime. It is quite clear that the opinion of the

court below is not supported by the record from an

evidentiary standpoint, nor has it correctly applied - law

pertinent to this case.

It is of particular importance to note that this — on

June 20, 1966, subsequent to its decision in Miranda,

denied a petition for a writ of certiorari, and thereafter on

October 20, 1966, denied a petition for rehearing. While

this Court has previously pointed out that denial of

certiorari cannot be taken as an affirmance of the judgment

below, it is quite clear that the Court has considered this

10

matter. This Court’s action in dismissing the writ of

certiorari is certainly entitled, however, to consideration.

This Court, having reviewed the prisoner’s conviction be-

fore should not now perm*+ 2 lower Federal court to in

effect reverse its decision.

CONCLUSION

A review of the record and the opinion of the court

below clearly shows that the prisoner’s confession was

voluntary. The prisoner was fully advised as to his right

to remain silent prior to the making of his confession. He

was not subjected to continuous interrogation, nor even in

Judge Sobeloff’s view was he abused during the course of

his incarceration. The effect of the decision of the court

below is to void a life sentence imposed upon a rapist and

murderer for a most heinous crime. The basic question

presented is whether or not this decision of the United

States Court of Appeals for the Fourth Circuit is to be

allowed to stand to the detriment of the rights of the

general public to enjoy life, liberty, and the pursuit of

happiness in these United States.

For these reasons, it is respectfully submitted that the

writ of certiorari should be granted and that the judgment

of the court below should be reversed.

Respectfully submitted,

Rosert Y. BUTTON

Attorney General of Virginia

REno S. Harp, Jil

Assistant Attorney General of Virginia

Supreme Court Building

Richmond, Virginia 23219

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CERTIFICATE OF SERVICE

1, Reno S. Harp, IiI, an Assistant Attorney General of

Virginia, counsel for the Superintendent in the captioned

matter, and a member of the bar of the Supreme Court of

the United States, do hereby certify that on this 20th day

of December, 1968, I mailed a copy of the foregoing

Petition for a Writ of Certiorari to the Judgment of the

United States Court of Appeals for the Fourth Circuit by

first class mail to Henry H. Tiffany, Esquire, Attorney at

Law, P. O. Box 964, 116 S. Wayne Avenue, Waynesboro,

Virginia 22980, counsel for the respondent hereir..

Reno S. Harp, III

Assistant Attorney General

APPENDICES

APPENDIX I

Opinion and Judgment of The United States District Court for the

Western District of Virginia, Harrisonburg Division, dated

March 31, 1967

This matter comes to this court upon a petition for a

writ of habeas corpus filed pursuant to 28 U.S.C. §2241,

by Paul M. Gillespie. a state prisoner, and is filed in forma

pauperis.

In 1964 the petitioner, in two separate state trials, was

found guilty of two unrelated felonies. In the first one on

August 25, 1964, he was found guilty of malicious wound-

ing in the Augusta County Circuit Court, Augusta

County, and was sentenced to twenty years. He is presently

serving the remainder of that sentence in the Virginia State

Penitentiary. His second conviction came on December 14,

1964, when he was found guilty of first degree murder and

sentenced to life imprisonment by the Circuit Court for the

City of Staunton, Staunton, Virginia.

It is necessary to note at the outset that petitioner is

attacking, via this petition, his life sentence for murder.

The unrelated sentence for malicious wounding is not in

contention.

We find the pertinent historical facts of this case to be

as follows: On February 20, 1963, Miss Virginia Parkins

was found murdered and raped in Staunton, Virginia. On

September 7, 1963, one Anna P. Dutton was assaulted in

Augusta County, Virginia. Then on September 16, 1963,

petitioner was arrested in Richlands, Virginia, in connec-

tion with the assault of September 7, 1963. He was then

taken to the Augusta County jail in Staunton after being

questioned in Richlands, Virginia, where he was advised of

his right to remain silent. He made, in Richlands, a state-

ment which led the officers to suspect his connection with

the Februar 20, 1963 murder. On September 20, 1963,

petitioner was taken to the Parkins home in Staunton

where the murder took place. Then on September 27, 1963,

App.2

he confessed to the murder «cf Miss Parkins. In October,

1963, after a lawyer was appomnted for him, petitioner was

committed to a state memial hospital for observation and

was found mentally competemt to stand trial. The pre-

liminary hearing was held im Jammary, 1964, and petitioner

was indicted on February IS, 1964, for murder. Prior to

this time, the petitioner had retaimed private counsel and

the court appointed counse had been allowed to withdraw

from the case. His retaimed attorney filed an application in

the Supreme Court of Appeals for 2, writ of habeas corpus

and the case was continued om Jammary 23, 1964, pending

acticn on the petition by the Virginia high court.

Subsequently on June 11, 1964, the writ was denied. In his

first trial, on July 7, 1964, petitioner was found guilty in

Augusta County of malcsows wounding and was sentenced

on August 25, 1964. The muunder wrial then took place from

September 30 to October 2. 1964. The life sentence was

imposed on December 14. i964, after the court had been

given a pre-sentence report. Fram this judgment an appeal

was taken to the Supreme Camrt of Appeals which refused

to grant a writ of error om October 14, 1965. From this

denial the petitioner filed a petition for a writ of certiorari

with the United States Sepreme Court. This was denied

on June 20, 1966 and a petisiom for a rehearing was denied

on October 10, 1966. The petitioner now cones to this

court alleging the same groumds for reRej that he alleged

in his petition for a writ of error to the Supreme Court of

Appeals. In order to comply with the exhaustion of state

remedies doctrine, it ts mot meoessary for a petitioner to

utilize state habeas corpus if lhe has once presented, and

received a ruling upom, bas allegations in a previous

proceeding in the state's kagiest court. Therefore, since all

the present allegations hawe omoe been ruled on by the

Supreme Court of Appeals, petimoner has exhausted his

icnaiteadibiake 252 rf periieas Be R e aab Sea aaa

hes PRG BP Pda. . Dale neal eae

App. 3

available state remedies in compliance with 28 U.S.C.

§2254 as interpreted by Fay v. Noia, 372 U.S. 391 (1963).

The fact that the United States Supreme Court refused

to grant the petitioner a writ of certiorari is of no signifi-

cance to us. The Supreme Court said in Browm v. Allen,

344 U.S. 443 (1953) that its denial of certiorari to review

a decision of a state supreme court which affirmed a

criminal conviction of a lower state court should be given

no weight by a federal district court in passing upon the

same petitioner’s application for a writ of habeas corpus.

However, before we can examine the merits of peti-

tioner’s contentions we must face the problem of whether

we can properly entertain a habeas corpus petition from

this particular petitioner. The problem has to do with the

intermixed questions of what rehef is available to the

petitioner and whether petitione- is attacking the sentence

he is now serving. According to the director of the Bureau

of Records and Criminal Identification in Richmond, peti-

tioner is presently serving a twenty year sentence for

malicious wounding which was imposed in Augusta County

Circuit Court on August 25, 1964, and which is entirely

independent of the conviction which is under attack in the

present petition. Thus the first part of the problem is

whether there is any relief which we could give to the

petitioner if we ruled in his favor. If not, then, the peti-

tion would raise a moot question. It is generally under-

stood that “Habeas corpus is available only when a ruling

in the petitioner’s favor will result in his immediate release

or will cause the restraints on his liberty to cease.”? And

as the Supreme Court said in McNally v. Hil, 293 U.S.

131, 136-7 (1934) :

1 Sokol, R. P., Fedcral Habeas Corpus, p. 30 (1965).

App. 4

the only judicial relief authorized . . . [in a habeas

corpus proceeding is] the discharge of the prisoner

or his admission to bail, and that only if his detention

were found to be unlawful.

It is obvious that a ruling in petitioner’s favor on the

present petition which challenges his murder conviction.

could not result in his immediate release or cause the pres-

ent restraints on his liberty to cease because he would

continue to serve the sentence for malicious wounding.

Therefore we believe the petition should not be entertained

because there is no relief available to petitioner on the

murder conviction while he serves another previously

rendered sentence.

The second part of the problem is whether the petitioner

has standing to attack, by habeas corpus, a sentence which

he is not yet serving. As stated above, the director’s record

indicates that petitioner is presently serving the malicious

wounding sentence. Thus the implication would be that he

has yet to begin serving the sentence for murder. And “a

sentence which the prisoner has not begun to serve cannot

be the cause of restraint which the [federal habeas corpus]

statute makes the subject of inquiry.” McNally v. Hill,

supra, p. 138.

Although the judgment order of the Staunton City

Corporation Court makes no mention of when service of

the life sentence is to begin, it would appear to us that it

was the intent of the trial court that the sentence begin to

be served after completion of the twenty-year sentence. If

this is true, this petition for a writ of habeas corpus is

faulty, not only because relief is unavailable in this court,

but it is also premature in that it attacks a sentence which

petitioner has not begun to serve.

But notwithstanding the above considerations, and in

App. 5

the alternative, we now undertake to consider the merits

of the petitioner’s allegations. We do this in order to give

the petitioner a decision on his petition while the witnesses

are still available, should they be needed, and while the

record is still “warm”.

We find that, upon examining the record, it will not

be necessary to conduct a plenary hearing because the

record leaves no controiling points in question.

The petitioner makes the following allegations:

(1) that he was denied the assistance of counsel during

the period of interrogation prior to the confession;

(2) that his conviction was based primarily on a

confession that was inadmissible because it was. in-

voluntary.

As to the first allegation, we note that the murder trial

of petitioner took place from September 30, 1964, through

Cctober 2, 1964. Therefore the petitioner is entitled to

have his confession measu: -d by the standards laid down

in Escobedo v. Illinois, 378 U.S. 478 (1964) because as

was announced in Johnson v. New Jersey, 384 U.S. 719

(1966),

. . Escobeda is to be applied prospectively . . . [and]

is available only to persons’ whose trials began after

June 22, 1964, the date on which Escobedo was de-

cided.

The same decision goes on to say that Miranda v. Arizona,

384 U. S. 436 (1966) is available only to persons whose

trials began after June 13, 1966. Thus the Escobedo de-

cision is the only one of the Escobedo-Miranda pair which

is available to the petitioner. The Escobedo decision says,

at pages 490-491, that the accused is denied assistance of

App. 6

counsel and any statements he gives are therefore inad-

missible,

[where] the investigation is no longer a general

inquiry into an unsolved crime but has begun to focus

on a particular suspect, the suspect has been taken

into police custody, the police carry out a process of

interrogations that lends itself to eliciting incrimi-

nating statements, the suspect has requested and been

denied an opportunity to consult with his lawyer, and

the police have not effectively warned him of his ab-

solute constitutional right to remain silent. .. .

The record shows that the investigation had definitely

focused on the petitioner and it was no longer a general

inquiry into an unsolved crime. But the record shows

further in unrebutted evidence, that before the petiticner

gave his confession he was advised of his absolute consti-

tutional right to remain silent. Additionally, when he

requested the right to consult with an attorney, the ques-

tioning was stopped and a lawyer was called. In fact the

record shows that this lawyer advised him that he had the

absolute right to remain silent.

The fact that this lawyer was running for the office of

Commonwealth’s attorney and had prosecuted cases for the

state in the past does not overcome the fact that the lawyer,

when asked by the petitioner about the fee for representa-

tion, told him of his status and explained that because of

his status he could not represent petitioner. He did, how-

ever, go on and advise petitioner of his right to remain

silent. In light of these facts, petitioner chose to proceed

several minutes later and give a confession. This, we hold,

amounts to a clear waiver of any further right to consult

with an attorney. Thus there is no merit in petitioner’s

first allegation.

App.7

Next, petitioner alleges that his conviction was based on

a confession which was involuntary because the petitioner

was kept in a cell by himself, deprived of all reading mate-

rial, not allowed visiting privileges in accordance with the

regular visitation schedule and was not allowed day room

privileges.

The record shows that the petitioner was given sympa-

thetic care while in the Augusta County jail. He was asked

if he wanted to move into a cell block where there were

other prisoners but he preferred to remain alone. He was

not held incommunicado because the record shows that he

had visitors. This fact overrides the fact that their visiting

hours might have differed from the regular visiting hours

from time to time. The record also shows that he was

given reading material. In short, a reading of the lengthy

record leaves us with the judgment that this petitioner

gave a voluntary confession and that none of the alleged

irregularities made it involuntary. Thus he is entitled to

no relief on this second allegation.

It is therefore

ADJUDGED AND ORDERED

that the petition be dismissed and the writ denied.

The Clerk of this Court will send a copy of this opinion

and judgment to counsel for the petit‘oner and to the

respondent.

ENTER: ‘

/s/ TED DALTON

U. S. Chief District Judge

App.8

APPENDIX II

Opinion of the United States Court of Appeals for the Fourth Circuit,

filed August 22, 1968

SoBELorfF, Circuit Judge:

Paul M. Gillespie, a Virginia prisoner presently serving

two unrelated sentences, one for murder and the other for

malicious wounding, appeals from an order of the District

Court denying his petition for a writ of habeas corpus.

Proceeding in forma pauperis, appellant attacks only the

life sentence imposed for the murder conviction. He con-

tends that he was denied assistance of counsel in his

interrogation by the police and that therefore the resulting

confession was unconstitutionally admitted in evidence at

his state trial. Applying the principles enunciated in

Escobedo v. Illinois, 378 U.S. 478 (1964),’ we uphold

Gillespie’s contention and remand this case to the District

Court for issuance of the writ.

The facts are not in dispute. Upon his arrest on a charge

of maliciously wounding one Anna Dutton, appellant was

subjected to eleven days of continual police interrogation

concerning his possible involvement in the unsolved murder

of Virginia Parkins, Clearly the focus of a police investiga-

tion, Gillespie persistently refused to admit complicity in

the Parkins murder. At approximately 9:00 o’clock on the

evening of appellant’s tenth day in custody, the police

began a session of intense interrogation which lasted until

3:00 o'clock the following morning, when Gillespie ex-

pressly demanded the assistance of counsel before submitting

to further questioning. The session was then terminated,

but was resumed that afternoon without any effort on the

1 As appellant’s trial took place on December 14, 1964, he properly

relies only cn the Supreme Court’s opinion in Escobedo. See Johnson

v. New Jersey, 384 U.S. 719 (1966).

App.9

part of the state to obtain the defendant an attorney in

accordance with his request. Appellant repeated his desire

for legal counsel and only then did one of the investigating

officers summon a local attorney to the police station.

When, upon arrival at the station, the lawyer was in-

formed of Gillespie’s possible involvement in the “Parkins

Matter,” he told the suspect that a conflict of interests

would prevent his serving as defense counsel. Appellant

then inquired into the cost of retaining other counsel, to

which the attorney responded that a lawyer’s fee would be

a minimum of $500. Before departing, however, the

attorney did advise Gillespie of his right to remain silent.

Ignoring this caution, appellant confessed shortly there-

after and his statement was ultimately admitted, over

defense counsel’s objection, at the state trial.

The state now concedes that the police procedure em-

ployed during Gillespie’s interrogation fell short of Esco-

bedo standards. As the Court stated:

“We hold * * * that where * * * the investigation is

no longer a general inquiry into an unsolved crime

but has begun to focus on a particular suspect, the

suspect has been taken into police custody, tne police

carry out a process of interrogations that lends itself

to eliciting incriminating statements, the suspect has

requested and been denied an opportunity to consult

with his lawyer * * * the accused has been denied ‘the

Assistance of Counsel’ in violation of the Sixth

Amendment * * * and that no statement elicited by the

police during the interrogation may be used against

him at a criminal trial.” 37& U.S. at 490.

Nevertheless, on this appeal the state urges us to accept

the District Court’s finding that appellant effectively

waived his right to counse!. The record, however, does not

support this conclusion.

a.

Pein tite SD

SORE FSF SIS ST Foe ee Oe

App. 10

Appellant unequivocally declared a desire to consult with

an attorney before making a statement. The state dis-

regarded this request and relentlessly pressed the interroga-

tion. More importantly, after being rejected by state-chosen

counsel the defendant was erroneously and improperly

told that it would cost a minimum of $500 to exercise his

right to counsel. Neither the police officers who were

present during the lawyer’s brief visit, nor anyone else,

disabused the defendant, an indigent, of the effects of the

misleading statement by advising him of his right to a

free court-appointed lawyer. Since he was not fully and

accurately apprised of his right, Gillespie could not

knowingly and intelligently have waived it. Fay v. Nota,

372 U.S. 391 (1963); Johnson v. Zerbst, 304 U.S. 458

(1938). See also United States v. Slaughter, 366 F.2d

833 (4th Cir. 1966). Thus, the introduction of Gillespie’s

statement violated his Sixth and Fourteenth Amendment

rights and rendered his conviction void.

We find it unnecessary in light of this conclusion to

consider appellant’s other contentions. The judgment of

the District Court is reversed and the case remanded for

the issuance of a writ of habeas corpus witl. reave to the

state to retry petitioner if it be so advised.

Reversed and Remanded.

eadae