# Opposition Brief — Steward v. Virginia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1472%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1972 - **Citation:** 409 U.S. 1048 ## Text TABLE OF CONTENTS Page I cnesrstncnssnicinononitcrwsinsanenionsinrntenansnantsnumteet 1 Os analdeiliesenidacannieioorioniaiae 2 Law AND ARGUMENT: 1. Did The Commonwealth Suppress Evidence Favorable To The Defendant So As To Deny The Defendant Due Process a ct cart ied atoveaaienensipaindaniaeiconcs - 2. Was The Evidence Sufficient To Support The Verdict And as oe wee Gamer 6 3. Was Improper And Prejudicial Evidence Presented To The Trial Court During Sentencing Proceedings In Violation Of Defendant’s Due Process Rights? —..0000000000..2..eeeeee 6 I 10 RESET LN RED 10 APPENDIX TABLE OF CITATIONS Cases Brady v. Maryland, 373 U.S. 83. 10 L.Ed.2d 215, 83 S.Ct. 1194 chic dchd cenit doen 5 Clarke v. Burke, +40 F.2d 853 (7th Cir. 1971) 000000. 5 Giglio v. United States, ... U.S. ....., 31 L.Ed.2d 104, 92 S.Ct. II retestrebinbeenh acini cians hsicceceassinconneintniraascnncoeostsniinincnendios 5 Grayson v. Harris, 267 U.S. 352, 69 L.Ed. 652, 45 S.Ct. 317 eects bettie bosiscobsishesccpeaasaieleetisaiawntian 6 Klingstein v. United States, 217 F.2d 711 (4th Cir. 1954) 8 ALLIS Og LALO OREN Ce Ree Taam Page Linton v. Commonwealth, 192 Va. 437, 65 S.E.2d 534 (1951) ... 8 McClain v. Commonwealth, 189 Va. 847, 55 S.E.2d 49 (1949) _ 8 Taylor v. United States, 179 F.2d 640, cert. den. 339 U.S. 988, 94 L.Ed. 1389, 70 S.Ct. 1010 (9th Cir. 1950) -202 0 o. 8 Thayer v. Spratt, 189 U.S. 346, 47 L.Ed. 845, 23 S.Ct. 576 ERD soscesttane since eacaionehilineneddiehdameccasauiiansdaeheciitdinaeiligimteen.. 6 United States v. Chewuing, 458 F.2d 381 (9th Cir. 1972) 000... 8 United States v. Cole, 449 F.2d 194 (8th Cir. 1971) 00. 5 United States v. Cole, 453 F.2d 902 (8th Cir. 1972) 20000... 5 United States v. Hill, 455 F.2d 504 (9th Cir. 1972) 0022. 5 United States v. Randolph, 456 F.2d 132 (3rd Cir. 1972) 2000000000... 5 United States v. Trainer, 423 F.2d 263 (1st Cir. 1970) -220000000000..... 5 United States v. Weston, 448 F.2d 626 (9th Cir. 1971) 00000000... 8 Williams v. New York, 337 U.S 241, 93 L.Ed. 1337, 69 S.Ct. 1079 (1949), reh. den. 337 U.S. 961, 93 L.Ed. 1760, 69 S.Ct. 1529, 338 U.S. 841, 94 L.Ed. 514, 70 S.Ct. 34 ooo... 8, 9 Williams v. Oklahoma, 358 U.S. 576, 3 L.Ed.2d 516, 79 S.Ct. 421 (1959), reh. den. 359 U.S. 956, 3 L.Ed.2d 763, 79 PIE “ic tcatinidiukocch utaaeid deancssai ateiisticceaenoacins Aamir 8 Statute § 53-278.1, Code of Virginia (1950) .....................-.c.cscsccsscssssecsceserees 7 Supreme Court of the United States October Term, 1971 No. 72-171 LAWRENCE STEWARD, Petitioner, ¥. COMMONWEALTH OF VIRGINIA, Respondent. BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI To the Honorable Chief Justice and Associate Justices of the Supreme Court of the United States: The respondent, the Commonwealth of Virginia, respect- fully submits the following brief in opposition to the granting of a writ of certiorari in the above matter. The parties will be referred herein by their respective positions in the trial court, i.e.. defendant and Commonwealth. QUESTIONS PRESENTED _ The Commonwealth will restate the questions presented inorder to remove from them statements of arguable facts: 1. Did the Commonwealth suppress evidence favorable 2 to the defendant so as to deny the defendant due process of law? 2. Was the evidence sufficient to support the verdict and judgment of the trial court ? 3. Was improper and prejudicial evidence presented to the trial court during sentencing proceedings in violation of defendant’s due process rights ? STATEMENT OF THE CASE The “Statement of the Case” set out in defendant’s brief is substantially correct. However, the Commonwealth will briefly review and highlight the pertinent facts in order to more accurately present the facts as they appeared before the trial court. Defendant was indicted for the murder of Warren Thomas Woodward, a sailor stationed in Norfolk, Virginia. The assault, which resulted in the death of Woodward, took place on the sidewalk of Hampton Boulevard in Norfolk in the evening hours of September 28, 1970. Death was caused by a blow or blows to the head. An eyewitness to the incident, Mrs. Cathon, testified that she was driving on Hampton Boulevard when she observed a sailor being beaten by two men. He was being kicked in the back and head, and his head was “being stomped on.” (Tr., p. 34). She stopped her car, got out, and walked towards the sailor, when the defendant turned around and looked at her. He then alerted his co-defendant that she was coming, and they ran off. (Tr., p. 35). Mrs. Cathon positively identified the defendant as one of the ones doing the beating. (Tr., pp. 33, 35, 38, 39, 40). She also stated that both of the persons were doing the beating simulianeously. (Tr., p. 37). Defendant attempts to dispute this positive identification with the statement that en - a CREE GRA Ba ASN NAN EGR ATE PT ce 3 his identification was somewhat qualified on cross-examina- tion. A close reading of Mrs. Cathon’s cross-examination shows that her identification was not positive as to the co- defendant, Brooks, but was positive as to the defendant. (Tr., pp. 45-49). The second key witness for the Commonwealth was a Mrs. Bonney who lived near the scene and who was an acquaintance of the defendant. She testified that on the day in question, the defendant and Brooks were staying at her house where she lived with another woman. They were visiting in Norfolk from their home in New York. On the night of the assault, the defendant and Brooks returned to the house after having been out all day. In a resulting conversation between the four of them, the two men were describing between themselves how they had beat some white man. (Tr., p. 71). They said that they had just killed some “Honky,” and both of them indicated that they thought they had some of his brains on their shoes. They indicated that they had beaten him because he was white. The defendant and Brooks are black. They said they had beaten this white sailor on Hampton Boulevard, and that they had stomped him and kicked him and beat him. (Tr., p.72). Defendant describes this witness as a “young girl”; how- ever, young woman would be more accurate. Although she never testified as to her age, she had four children. Further, her testimony was very straightforward and unequivocal and was not shaken on cross-examination. She also described Brooks as wild-eyed, but not Steward, and did not testify that they were drunk. Any further discussion of facts, as they specifically relate to the questions raised by the defendant, wiil be set out in the Law and Argument to follow. 4 LAW AND ARGUMENT 1. Did The Commonwealth Suppress Evidence Favorable To The Defendant So As To Deny The Defendant Due Process Of Law? There were two young girls, Cynthia and Glenda Vines, who were eyewitnesses to the crime, but who were not called by the Commonwealth. On cross-examination of one of the investigating police officers, it was brought out that these girls had been shown photographs of the defendant and Brooks and had identified Brooks, but not the de- fendant. Defendant claims that this was a suppression of evidence favorable to the defendant and deprived him of his Constitutional rights to due process. Initially, it should be pointed out that the evidence was not “suppressed” since it came out at trial and was before the trial court. Secondly, the evidence was not a “secret” withheld by the police or the prosecutor, because it had become public record at the trial of the co-defendant, Brooks, which was held on January 15, 1971, three months prior to defendant’s trial. The Commonwealth will include as an appendix to this brief excerpts from the transcript of the trial of Brooks which fully explore the showing of the pictures to the girls and the extent of their identification. The fact of the identifications made by these girls, and that they had been witnesses, was fully explored in Brooks’ trial, and therefore was a matter of public record. Although the Commonwealth has no way of knowing whether defendant’s counsel at- tended the trial of Brooks, it seems inconceivable that he would not, considering that Brooks was a co-defendant. Certainly the defendant cannot complain of any “surprise” under these circumstances. Finally, the Commonwealth submits that the evidence that TREE TY FM LR ARE SIRI LE OE ET 5 was allegedly “suppressed” was not such as to materially affect the outcome of the trial if it had been known to the defendant sooner. Certainly, its actual effect on the trial was negligible, since the fact that the girls had not identified the defendant was before the Court, and did not detract from the otherwise overwhelming evidence of guilt of the defendant. Certainly the leading case relating to suppression of evidence is Brady v. Maryland, 373 U.S. 83, 10 L.Ed:2d 215, 83 S.Ct. 1194 (1963), a case which has been fo.lowed, construed, and distinguished by numerous lower court deci- sions. Under the Brady rule, there must be a failure of the prosecution to disclose exculpatory information at the trial, not necessarily prior thereto. It does not require pre-trial discovery. United States v. Cole, 453 F.2d 902 (8th Cir. 1972) ; United States v. Cole, 449 F.2d 194 (8th Cir. 1971); United States v. Trainer, 423 F.2d 263 (1st Cir. 1970). Further, the evidence suppressed must be exculpatory or materially aid the defense. United States v. Randolph, 456 F.2d 132 (3rd Cir. 1972); United States v. Hill, 455 F.2d 504 (9th Cir. 1972) ; Clarke v. Burke, 440 F.2d 853 (7th Cir. 1971); Giglio v. United States, ...... BPR wissns 31 L.Ed.2d 104, 92 S.Ct. ...... (1972). As stated in Giglio, supra, “we do not, however, automatically require a new trial whenever the combing of the prosecutor’s files after trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict.” In the instant case, not only was there in fact no “sup- pression” of any evidence, but the evidence in question would not have been material to the defendant’s case, since the record of the trial of the co-defendant Brooks show that the girls did not identify the defendant because they were never in a position to see his face. Certainly there has been no showing of a denial of due process of law. 6 2. Was The Evidence Sufficient To Support The Verdict And Judgment Of The Trial Court? This assignment of error by the defendant is essentially a simple question of sufficiency of the evidence, which is not a Federal constitutional question and therefore not a proper ground for granting certiorari. Thayer v. Spratt, 189 U.S. 346, 47 L.Ed. 845, 23 S.Ct. 576 (1903) ; Grayson v. Harris, 267 U.S. 352, 69 L.Ed. 652, 45 S.Ct. 317 (1925). Defendant has attempted to convert this into a Federal question by asserting that the conviction is devoid of evidentiary support. However, the facts simply do not justify such an argument. There was ample evidence that a murder had been committed and that the defendant had jointly participated in it and was responsible for it. 3. Was Improper And Prejudicial Evidence Presented To The Trial Court During Sentencing Proceedings In Violation Of Defend. ant’s Due Process Rights? The Commonwealth would bring to the attention of the Court initially that defendant's brief contains some mis- leading, if not inaccurate assertions. First, the defendant asserts that “emotional, inflammatory letters were read into the record” at the sentencing hearing. The letters in question were written to the Commonwealth's Attorney (prosecutor ) by the father of the victim, and attempted to describe the type of person the victim was and what he was doing when he was killed. There was nothing therein re- lating to the defendant, per se. and certainly nothing ex- tremely “emotional” and “inflammatory.” Furthermore, this same matter had already been testified to by the victim's father during the actual trial, and was already properly in - 7 the record. It was hearsay at the time of the presentation of the pre-sentence report only because it was obtained by the probation officer from the letters rather than from the trial transcript. Secondly, defendant asserts that he was prejudiced by the fact that the probation officer reported that the co- defendant Brooks had claimed that he was under the in- fluence of drugs at the time of the assault. While this was an opinion or conclusion of the probation officer, the basis for that conclusion was fully set out so that the sentencing judge could evaluate that information and form his own conclusions. Further, this information was also a part of the record in the trial of the co-defendant Brooks. The procedure followed by the trial court for sentencing was in conformity with § 53-278.1, Code of Virginia (1950). which reads as follows: “§ 53-278.1. Investigation by probation officers in certain cases.—When a person is tried upon a felony charge for which a semence of death or confinement for a peried of over ten years may be imposed and pleads guilty, or upm a plea of net guilty is tried by the court witheut a jury »s provided by law, and is adjudged guilty et sah charge. the court may. or on the motion of the deton tant shall, before fixing punish- ment or impesing senterce direct a probation officer of such court te thereughly investigate and report upon the history of the accused and any and all other relevant facts, to the end that the court may be fully advised as to the appropriate and just sentence to be imposed. The probation officer shall present his report in open court in the presence of the accused who shall be ad- vised of the contents of the same and be given the right t» cross-examine the investigating officer as to any matter contained therein and to present any additional facts bearing upon the matter which he may desire to present. The report of the investigating officer shall be filed as a part of the record in the case.” This procedure is proper, and the introduction of addi- tional evidence to that which was presented at the trial is not a violation of due process. McClain v. Commonwealth, 189 Va. 847, 55 S.E.2d 49 (1949); Linton v. Common wealth, 192 Va. 437, 65 S.E.2d 534 (1951). It has been consistently held by this Court and lower Federal courts that such a sentencing procedure is not unconstitutional and is not subject to the same due process requirements as the trial itself. Williams v. New York, 337 U.S. 241, 93 L.Ed. 1337, 69 S.Ct. 1079 (1949). reh. den 337 U.S. 961, 93 L.Ed. 1760, 69 S.Ct. 1529, 338 U.S. 841, 94 L.Ed. 514, 70 S.Ct. 34; Williams v. Oklahoma, 358 US. 576, 3 L.Ed.2d 516, 79 S.Ct. 421 (1959), reh. den. 359 U.S. 956, 3 L.Ed.2d 763. 79 S.Ct. 737; Taylor v. United States, 179 F.2d 640, cert. den. 339 U.S. 988, 94 L.Ed. 1389, 70 S.Ct. 1010 (9th Cir. 1950) ; Klingstein v. United States, 217 F.2d 711 (4th Cir. 1954) ; United States v. Chewning, 458 F.2d 381 (9th Cir. 1972). The type of evidence and information before the trial court in the instant case, to which the defendant objects, was specifically approved in Williams v. New York, supra, as stated in Williams vy. Oklahoma, supra: “This Court .. . held that, once the guilt of the accused has been properly established, the sentencing judge, in determining the kind and extent of punish- ment to be imposed, is not restricted to evidence de- rived from the examination and cross-examination of witnesses in open court but may. consistently with the Due Process Clause of the Fourteenth Amendment. consider responsible unsworn or ‘out-of-court’ informa- tion relative to the circumstances of the crime and to the convicted person's life and characteristics.” Defendant's reliance on United States v. Weston, 48 — F.2d 626 (9h Cir. 1971) is misplaced. not ony because ———_ AO OEE EE 9 Weston is a somewhat singular exception to the line of cases stemming from Williams v. New York, supra, but also be- cause there is no close factual comparison between Weston and the instant case. In Weston, the evidence introduced at trial warranted the minimum punishment of five years, and the trial judge so stated. However, a pre-sentence investiga- at the sentencing hearing, contained unsworn evidence de- tailing otherwise unverified statements to an unknown in- former to the effect that the defendant is probably guilty of additional and far more serious crimes. The trial judge, admittedly taking this information into consideration, then sentenced Mrs. Weston to fifteen years. None of the information in question in the instant case involved other crimes, and there is no evidence whatsoever that the trial court judge based his sentence upon the objected to evidence. The record in the instant case, con- trary to the inferences in defendant's brief, does not show prejudice against the defendant on the part of the probation officer. The pre-sentence report contained information favor- able to the defendant, as well as unfavorable. It did not contain “highly prejudicial” and “inflammatory” remarks. as asserted by defendant, without support. Defendant has not even shown that any of the information was untrue. The sentence received by the defendant was justified under the facts of the case and was not a result of any prejudice by the judge or anyone else. i i a iia atta, alien lt hl Aten sh eh ein saith Nine 10 CONCLUSION For the reasons set forth herein, it is submitted that no error, constitutional or otherwise, was committed by the trial court or the Virginia Supreme Court, and the petition ~ for writ of certiorari should be denied. Respectfully submitted, ANpbREW P. MILLER Attorney General of Virginia | Gitrert W. Haiti Assistant Attorney General Supreme Court Building Richmond, Virginia 23219 CERTIFICATE OF SERVICE I certify that three (3) copies of the foregoing Brief in Opposition to Petition for Writ of Certiorari in the case of Lawrence Steward v. Commonwealth of Virginia, were this 10th day of November, 1972. mailed to Stanley E Sacks, Esquire. Sacks, Sacks & Tavss, 405 First & Mer- chants National Bank Building, Norfolk, Virginia 23510. Gitsert W. Hattru Assistant Attorney General Testimony of Officer McManus Cross-Examination [20] * * * Mr. McLellon: Q Taking these pictures here, this is the only connection you had with this case, is that correct? A There and at the Medica! Examiner’s Office, yes. sir. Q You didn't go out and interview any witnesses? A Yes, sir. I did. Q Who did you interview? » By Mr. Campbell : Q Whatis yourname? A _ Glenda Vines. Q I'm going to ask you to speak up loud and clear. How oldare you? A 15. App. 9 Q Where do you live? A 320 West 26th Street. Q Where were you living on September 28th of last year? A 1010 West 42nd Street. Q 101042nd Street? [73] A Yes, sir. Q How far is that from Rich’s hamburger place on the corner of 42nd and Hampton? A _ About a block, I would say. Q Is it in the same block that Rich’s is located? A Yes, sir. Who were you living there with? A My mother. Whoelse? A My brother. How old is your brother? A 11. How old is your sister? A 14. What ishername? A _ Cynthia. Do you remember what day of the week September 2thwas? A_ No, sir. 1 know it was on a Monday. Q OnaMonday? A _ Yes, sir. Q That Monday night, did you have occasion to go to Rich’s hamburger place? A Yes, sir. | was going there to buy something | 74] to eat. Q Speakup. A_ I was going to buy something for to eat. Q Whowent withyou? A My sister. Q Cynthia? A_ Yes, sir. Q About what time did you go? A Around 8:00. Q Atnight? A _ Yes, sir. ooo vO DO DO App. 10 Q While you were at Rich's, did you see anything hap- pen on the other corner, across from Rich's? i unusual happen? A_ Across the street from Rich's? Q Yes, in that area. A_ I saw two people, two men over there, and one sailor. Q Ican't hear you. A_ I saw one sailor and two men. Q When you saw them, where were they? When the sailor and the two men were together, where were they? A On the side of BeLo, you know. Q The side of the Street BeLoison? A Uhhuh. 175] Q Now, what were they doing? A_ First they hit him and then they started kickit§, him. Q Who is the “they” you are talking about? Was the sailor white or Negro? A He was white. Q Were the men—the other two men—white or Negro? A Negro. Q Wecan identify them that way. Were the other two men sailors or not? A They weren't sailors. Q The white man had on a sailor uniform? A_ Yes, sir. Q Who was beating who? A Both of them was beating him up. Q Beatingwhoup? A _ Thesailor. - QQ How were they going about it? Explain it the best youcan. A They were kicking him in the head. Q Was the sailor standing up or down on the sidewalk? A He was on the ground. a App. 11 Q Which one of the men was kicking? [76] A Both of them. Q What part of the sailor's body were they kicking? A The head. Q Did you see the sailor at any time when he was standing up? A _ No, sir. I hadn't turned around then. Q Now, the two men that were kicking him, when was the first time you saw either one of them that night? A | haven't never seen them before. Q That night, when was the first time you saw them? A They came up to Rich’s window and looked in. Came up and looked in Rich's window? A _ Yes, or Q What sort of place is Rich's? How many windows dees it have? A_ It got one big picture window you can open and one side door. two side doors. Q Were the doors open or closed? A They were closed, you know. The front door was closed. Q Was the window open or closed? A They were closed. Q How long before you saw the two men and the [77] sailor together did you see the two men run over at Rich's? A. The sailor got—no—the two men got off the bus. © The two men? The two colored men? A_ Yes, sir. Q They got offthe bus? A_ Yes, sir. Q Where did they go? A They came across the strect. Q They got off on the other side of Hampton Boulevard App. 12 from Rich’s and came across the street to Rich’s A Yes, sir. Q Didthey come inside? -A Uhuh. Q How far were you from them when they were at Rich’s? A_ I was close up to the window and they came up close. Q Then what did they do? A _ They just looked in. One looked in. Q Can you identify the person in this courtroom who looked in? Mr. McLellon: I think we are going to have a question as to this identity now, and I would object to any type question as to identification. |78] Your Honor heard the police officer say he went to see this girl, and after showing the pictures he told her it was a correct identification. This influences this girl and J object to any type identification being made. The Court: The test is going to be on what does she base her identification today. Mr. McLellon: Of course. it’s something at this time. The fact of a police officer, a detective, telling a—what is she about a 14 or 15 year old girl—that this is a correct identification, that these are the men that did it. This can- not help but influence a person and for that reason, I would object to any type identification being made by this girl. The Court: As I said, I'm going to let him question her and I’m going to let you question her and the test is going to be whether her identification has been so tainted that her identification cannot be entered in evidence. Mr. McLellon: I know, as your Honor knows, there are many things we know are wrong that are legally not wrong eat App. 13 and people are influenced by certain things. Take jurors, you hear the stories about things they tell you later they thought was [79] important and wasn’t important. We know many things influence a person that they would never admit in- fluenced them. With the fact the police officer previously told the girl her identification was correct, this would taint it and I can’t possibly see any way that it could help but be tainted. The Court: I'm going to see what the evidence presents. All right. Mr. Campbell : Q Can you identify the person that looked in, in this courtroom today? A Yes, sir. Q Would you point to that person, if you can? A ( Witness pointed to the defendant ) Mr. Campbell: The record will show she is pointing at the defendant. Mr. McLellon: Note our exception to it. The Court: Yes, sir. Mr. Campbell : Q What type clothing was the defendant—the one who looked in—wearing? A Fur coat. Q After he looked in, where did he go? A They went back down that way by BeLo’s way, [80] by the bus stop. Q Who was at the bus stop? A The sailor was com- ing, you know, from BeLo way, up to the bus stop. Q Coming from the direction of BelLo’s? A Yes, sir. ~ () Where did the three of them meet? A Out there in front of the whiskey store. App. 14 Q What was the first thing that was done? A_ First] know, they were hitting him and he fell on the ground. Q Did you hear anybody say anything? A _ No, sir. Q Anyofthethreeofthem? A _ No,sir. Q Which one hit first? A_ I don’t know, but I know both of them hit him. Q Bothofthemhit who? A_ Hit the sailor. Q What did the sailor do? A _ He fell on the ground. Q Did the sailor ever hitthem? A _ No, sir. Q Did yousee himtry tohitthem? A _ No, sir. [81] Q After he fell on the ground, did he ever get up? A Hetried to. He tried to get up and get his hat. (9 What happened? A_ They knocked him back down and started kicking him. Q Which one was kicking? A The one in the fur coat. Q What kind of coat did the other one have on? A A leather coat. Q What did the one in the leather coat do? A He was just standing up there and then they started running across the street when the man came out of Rich's. Q What mancame out of where? A_ Rich’s. Q What did that man do? A He came over and looked at the man. (2 Where was the man from Rich's when the two men ran? A_ He was inside. @ Then whai did he do? A Then he went back in App. 15 and called the police and the other man came up and that’s when the lady pulled over [82] in the car. Q The lady pulled upinthtcar? A Yes. Q A white lady or a Negro lady? A White lady, with children. Q Didyouseeherhere? A Yes. Q When the two men ran from where the sailor was, where did they go? A They ran across the street and went on 40th Street. Q On40th Street? A Yes, sir. (Q Does that mean they had to go down Hampton Boule- varda little ways? A No, sir. Q You were at 42nd Street, weren't you? A Uh huh. Q How did they get to 40th Street? A Because the next corner when they got across the street is 40th Street, because a church— Q_ They ran to the next corner and goton 40th Street? A Yes, sir. Q Did you keep them in sight or did you lose [83] sightof them? A Ther they came back. Q Did youever lose sight of them? A No, sir. Q Where did they go on 40th Street? A They went on 40th Street. I didn’t see them when they went on 40th Street. Q That's why | asked did you lose sight of them. Did vou understand what I meant?