Opposition Brief — Swisher v. Virginia

Supreme Court, U.S,

FILED

(y JUN 1° 1999

No. 98-1801 CLERK

In The

Supreme Court of the United States

BOBBY WAYNE SWISHER,

Petitioner,

COMMONWEALTH OF VIRGINIA,

Respondent.

On Petition For Writ Of Certiorari

To The Supreme Court Of Virginia

e

RESPONDENT’S BRIEF IN OPPOSITION

+

Mark L. EAr.ey

Attorney General of Virginia

*PameLA A. Rumpz

Assistant Attorney General

900 East Main Street

Rickmond, Virginia 23219

(804) 786-4624

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Has petitioner failed to preserve his claim that his con-

sent to search his jacket was unknowing and unintel-

ligent?

ii

TABLE OF CONTENTS

Page

STATEMENT OF THE CASE......ccsvccvcsesescses 1

STATEMENT OF FACTS...:....-.0. 0-0 seeeeeeeeeees 1

REASONS FOR DENYING THE WRIT............. 5

SWISHER’S FACT-SPECIFIC CLAIM THAT HIS

CONSENT TO SEARCH HIS JACKET WAS NOT

KNOWING AND INTELLIGENT IS NOT PRE-

SERVED FOR RE Vay ssc cccusdevevesscevbauties 5

CUONCLUIAN sc ccccvecunuveetensesnesseeneesseses 11

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TABLE OF AUTHORITIES

Page

Cases

American Surety Co. v. Baldwin, 287 U.S. 156 (1932) ..... 7

Forbes v. State Council, 216 U.S. 396 (1910)............ 7

Hanson v. Denckla, 357 U.S. 235 (1958). ......-- 6000 ees 7

Herndon v. Georgia, 295 U.S. 441 (1935).....---.-eeeee 7

Illinois v. Gates, 462 U.S. 213 (1983) ........- 6 ee eee ees 7

Kyles v. Whitley, 514 U.S. 419 (1995).....- 6-0 seer eens 8

Radio Station WOW v. Johnson, 326 U.S. 120 (1945)..... 7

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

Simmerman v. Nebraska, 116 U.S. 54 (1885)..........-- 7

Swisher v. Commonwealth, 256 Va. 471, 506 S.E.2d

763 (1998)... cccccccccccccccevccccvesscscccess passim

Texas v. Mead, 465 U.S. 1041 (1994). ...... 66. cece eeeee 8

Tiffany Fine Arts, Inc. v. United States, 469 U.S. 310

(19GB) .ccccccccccccccccscccvccevescvcsucscvereesss 8

Yee v. Escondido, 503 U.S. 519 (1992). ..... 6. eee eeeees 7

OTHER AUTHORITIES

§ 19.2-264.4, Code of Virginia.......--.--seeeeeereees 1

U.S. S. Ct. Rule 10 ...ccccceccccccccnccccvccccccccess 8

U.S. S. Ct. Rule 14.1(g)(i) ... 6. ee eee eee eee eens 7

STATEMENT OF THE CASE

On October 29, 1997, a jury in the Circuit Court for

Augusta County, Virginia, convicted the petitioner, Bobby

Wayne Swisher, of capital murder, abduction with the

intent to defile, rape and forcible sodomy. The jury fixed

Swisher’s punishment at life for each of the non-capital

convictions. The jury also sentenced Swisher to death on

the capital murder conviction, finding that he represented

a continuing serious threat to society and that his offense

was outrageously or wantonly vile, horrible or inhuman

in that it involved torture, depravity of mind or aggra-

vated battery to the victim. See Va. Code § 19.2-264.4. In a

separate sentencing hearing held February 18, 1998, the

trial judge imposed sentence in accordance with the

jury’s verdicts.

On November 6, 1998, the Supreme Court of Virginia

affirmed Swisher’s conviction and death sentence.

Swisher v. Commonwealth, 256 Va. 471, 506 S.E.2d 763

(1998).

STATEMENT OF FACTS

The Virginia Supreme Court summarized the facts

surrounding Swisher’s offense as follows:

On February 5, 1997, Dawn McNees Snyder dis-

appeared from a florist shop where she worked

in Stuarts Draft in Augusta County. Her body

was found on February 21, 1997, near a river-

bank about two miles from the florist shop. Ani-

mals had eaten extensive portions of her face,

re

neck and upper chest, and her identity was

established by use of her dental records.

On February 22, 1997, the defendant, age 20,

was at an apartment with two friends, one of

whom was Clarence Henry Ridgeway, Jr.

Swisher told Ridgeway that Swisher had

abducted, raped, sodomized, and killed Snyder.

Swisher stated: “You know the woman, Dawn

Snyder .. . I killed her.” Swisher related the

following details to Ridgeway.

On February 5, 1997, about 7:15 p.m., Swisher’s

uncle drove Swisher by car to a grocery store

located near the florist shop where Snyder

worked. Swisher left the grocery store and

walked to the florist shop. Swisher entered the

shop, approached Snyder, and said, “I have a

gun in my pocket.” Swisher showed Snyder a

“butcher knife with ridges” and directed her to

go with him.

Swisher forced Snyder to leave the florist

shop through a rear door, and they walked for

some distance until they reached a field by the

South River. Then, Swisher stopped Snyder and

told her to “suck his dick.” He forced her to

perform an act of oral sodomy upon him, and he

made her remove her clothes. After he raped

her, she put her clothes on, and he forced her to

perform another act of oral sodomy upon him.

Swisher decided to kill Snyder because she

had “seen his face.” He “pulled out the butcher

knife” that had “ridges around the edge of the

blade,” and he “slit her across the left side of the

face and was holding her; then slit her throat

and then gouged her and then tossed her into a

river.” He walked along the riverbank, watching

her in the river, asking her, “[a]re - are you dead

yet?” After Snyder floated in the river for

awhile, Swisher saw her “crawl up the bank.”

Then, “he got scared and took off running

straight to his house from that field.” Swisher

threw his knife in the river.

When Swisher finished his confession to

Ridgeway, Swisher stated that “[i]t feels like [I]

could do it again.” The following morning,

Ridgeway informed the Augusta County Sher-

iff’s Office of Swisher’s crimes.

On February 23, 1997, Sergeant William E.

Lemerise, Sergeant K.W. Reed, and two other

deputies went to a house where Swisher resided

with his uncles, Paul H. Swisher and William E.

Swisher. Sergeant Reed advised Bobby Swisher

that he was a suspect in the murder of Dawn

Snyder and asked if Swisher would accompany

the deputies to the Sheriff's Office for question-

ing. Swisher, who did not object, accompanied

the deputies. Sergeant Lemerise informed

Swisher that he would be required to wear

handcuffs while en route to the Sheriff’s Office

because of a departmental policy which

required that the sheriff's personnel transport

suspects in restraints for safety considerations.

Lemerise told Swisher that he would have to

wear these restraints even though he was not

under arrest.

When Swisher arrived at the Sheriff's

Office, about 10:15 p.m., the handcuffs were

immediately removed from him, and he was

taken to a “briefing room.” The briefing room is

an open room with a coffee machine and a drink

machine. There are no bars on the windows or

door locks in that room. Swisher was permitted

to smoke cigarettes, and he was given coffee.

Sergeant Lemerise explained to Swisher that

he was not under arrest, that he was a suspect,

that the sheriff's personnel were going to ask

him some questions, and that he was free to

leave. Lemerise asked Swisher “how did he feel

about the fact that he could walk out of there if

he chose to, words to that effect . . . and

[Swisher] appeared at the point in time,

although he was nervous . . . to be fine with the

situation.”

Swisher spoke with the deputies, but did

not confess to the commission of any crimes

until after he was arrested and twice read his

Miranda rights after midnight on February 24.

Swisher admitted, in an audiotaped confession,

that he had sodomized, raped and murdered

Snyder by cutting her throat. He also stated that

after he cut her throat, he threw her into the

South River.

Dr. David Oxley, a medical examiner who

performed an autopsy on Snyder’s body, was

unable to render an opinion about the specific

cause of Snyder’s death. He did state, however,

that it was in inescapable conclusion that

Snyder’s death was the result of violent causes

“probably related to the neck.” Dr. Oxley was

not able to determine positively whether the

victim’s throat had been cut because animals

had eaten her larynx, trachea, and the large

arteries and veins that were in her neck. The

highest concentration of blood on the victim’s

clothing appeared on a shirt around the neck

area extending onto the chest area.

Patricia Taylor, a forensic scientist in the

Forensic Biology Unit of the Western Regional

Laboratory for the Commonwealth of Virginia,

qualified as an expert witness on the subject of

forensic DNA (deoxyribonucleic acid). She

examined some panties that were found on

Snyder’s body. Her examination revealed that

DNA consistent with Swisher’s DNA was found

in the semen deposited on Snyder’s panties.

Taylor testified that the odds of the DNA found

on Snyder’s panties belonging to someone other

than Swisher were one in 380,000,000 in the

Caucasian population.

Spots of blood were found on Swisher’s

coat. Taylor testified that the DNA profile

obtained from that coat is consistent with the

DNA profile of Snyder and different from the

DNA profile of Swisher. Taylor testified that the

probability of randomly selecting an individual

unrelated to Snyder who had a DNA profile

consistent with the DNA on Swisher’s coat was

approximately one in 1.3 billion in the Cauca-

sian population. Dr. Taylor testified that the

DNA profile obtained from spermatozoa heads

extracted from the victim’s stomach and esoph-

agus were consistent with Swisher’s DNA pro-

file.

Swisher, 256 Va. at 475-478, 506 S.E.2d at 765-76.

¢

REASONS FOR DENYING THE WRIT

SWISHER’S FACT-SPECIFIC CLAIM THAT HIS CON-

SENT TO SEARCH HIS JACKET WAS NOT KNOW-

ING AND INTELLIGENT IS NOT PRESERVED FOR

REVIEW.

Prior to trial, Swisher moved to suppress all “prop-

erty seized as a result of [his] arrest.” (JA 132). Included

in this motion was a request to suppress evidence

obtained as a result of a luminol test performed on the

jacket Swisher wore when he voluntarily accompanied

sheriff's deputies to the department for questioning. In

his written motion and at the hearing on the motion,

Swisher asserted that the physical evidence, including the

jacket, ought to be suppressed either because it had been

obtained without a warrant or because it had been

obtained as a result of his alleged illegal arrest. (JA

132-135). After hearing testimony on the matter, the trial

court ruled that the search of the jacket was consensual

and refused to suppress the jacket. (JA 532).

On direct appeal, Swisher never challenged the trial

court’s ruling that he had consented to the luminol test-

ing of the jacket. Rather, Swisher reasserted that the

jacket was obtained and searched improperly because he

allegedly had been arrested illegally. The Virginia

Supreme Court, not having been presented with a ques-

tion of whether Swisher’s consent was “voluntary,” never

decided that issue. The Court, however, in ruling that the

search conducted by the police was constitutional, found

that Swisher was not “in custody” at the time of the

testing and reiterated the trial court’s uncontested find-

ing that Swisher had consented to the luminol testing of

his jacket. Swisher, 256 Va. at 482-483, 506 S.E.2d at

769-770 (noting that before Swisher was arrested at 12:05

a.m., Swisher was “free to leave the Sheriff’s Office” and

that the record evidence “supports the trial court’s find-

ing that ... Swisher’s consent was voluntary”). Neverthe-

less, Swisher asserts certiorari is warranted to address the

consent search of his jacket and whether “consent to

search can be voluntary when such consent is given by an

individual in custody at a police station, who has not

given a knowing and intelligent waiver of his Fourth

Amendment rights.” (Petition at 6)

A. Not raised below

In the court below, Swisher never challenged the trial

court’s ruling that he voluntarily consented to the testing

of his jacket. He certainly never alleged that his consent

was unknowing and unintelligent because he allegedly

was “in custody” at the time of the consent. Because the

claim was not raised in the Court below, certiorari is not

warranted. Yee v. Escondido, 503 U.S. 519, 533 (1992); Illi-

nois v. Gates, 462 U.S. 213, 218-220 (1983); Rule 14.1(g)(i).!

B. Factual question

The state courts’ fact-specific determinations that

“Swisher gave [police] consent to test his jacket,” Swisher,

256 Va. at 483, 506 S.E.2d at 769, clearly do not warrant a

' Swisher may argue that he preserved a challenge to the

voluntariness of his consent in a petition for rehearing. He

clearly did not. Swisher’s petition for rehearing challenged his

consent on Fifth Amendment grounds, not on the Fourth

Amendment grounds he alleges here. In any event, raising the

federal question for the first time in a petition for rehearing is

insufficient unless the court actually entertains the petition and

expressly decides the question. Radio Station WOW v. Johnson,

326 U.S. 120, 128 (1945); Hanson v. Denckla, 357 U.S. 235, 243-44

(1958); Herndon v. Georgia, 295 U.S. 441, 443 (1935); American

Surety Co. v. Baldwin, 287 U.S. 156 (1932); Forbes v. State Council,

216 U.S. 396 (1910); Simmerman v. Nebraska, 116 U.S. 54 (1885).

The Virginia Supreme Court summarily denied Swisher’s

petition for rehearing.

grant of certiorari. See U.S.S.Ct. Rule 10 (certiorari is

rarely granted when the asserted error consists of .. . the

misapplication of a properly stated rule of law.”). See also

Kyles v. Whitley, 514 U.S. 419, 460 (1995) (Scalia, J., dis-

senting) (“an intensively fact-specific case in which the

Court below unquestionably applied the correct rule and

did not unquestionably err [is] precisely the type of case

in which we are most inclined to deny certiorari”)

(emphasis in original); Texas v. Mead, 465 U.S. 1041 (1994)

(Stevens, J.) (court does not review cases which primarily

present questions of fact). This Court, moreover, should

not grant certiorari to redecide the factual findings of the

two lower courts. See Tiffany Fine Arts, Inc. v. United

States, 469 U.S. 310, 318 n.5 (1985) (factual findings made

by the trial court and upheld by the appellate court

should not be reviewed under the “two court” rule).

C. No merit

Contrary to Swisher’s repeated assertions, he simply

was not “in custody” at the time he voluntarily consented

to having his jacket tested. The Virginia Supreme Court

found that before Swisher was arrested at 12:05 a.m. on

February 24, 1997, Sheriff’s deputies “informed [Swisher]

he was free to leave the Sheriff’s Office.” Swisher, 256 Va.

at 482, 506 S.E.2d at 769. Thus, Swisher’s case does not

even present the question he would have this Court

decide: under what circumstances a person in custody

knowingly and intelligently consents to a search. And,

although Swisher never challenged on direct appeal the

trial judge’s finding that he consented to a search of his

jacket, Swisher’s position in the trial court was that he

never consented to a search, not that his consent some-

how was unknowing or unintelligent. (JA 495).

In any event, it is clear that Swisher knowingly and

intelligently consented to having his jacket tested. In fact,

the trial judge specifically credited, and the Virginia

Supreme Court cited, the testimony of Sergeant William

Lemerise in this regard. Lemerise testified that he

explained the purpose of the luminol test to Swisher (JA

456), and then asked Swisher whether deputies could test

his jacket. Swisher replied, “that’s all right with me,

because I don’t know nothing about what you’re talking

about.” Swisher, 256 Va. at 483, 506 S.E.2d at 769. In

addition, after the luminol test showed that blood was

present on the jacket, Sergeant Lemerise “explained to

Swisher that the test was positive.” (JA 456). Lemerise

then “asked Swisher for permission to send the jacket to a

forensic laboratory for further testing and Swisher

agreed.” Swisher, 256 Va. at 483, 506 S.E.2d at 769.

Whether a consent to search was voluntary “is a

question of fact to be determined from the totality of all

the circumstances.” Schneckloth v. Bustamonte, 412 U.S.

218, 227 (1973). Given the fact that Swisher was not in

custody at the time he consented to the search of his

jacket, that he specifically had been told he was free to

leave, and that the purpose of the luminol testing was

fully and carefully explained to Swisher before he con-

sented to the testing, there is no basis for reviewing the

trial court’s determination that his consent was voluntary.

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D. Harmless error

Swisher’s argument presents no compelling reason to

grant certiorari because it was not properly preserved

and it involves only an intensely fact-specific application

of well-established Fourth Amendment law to the partic-

ular facts of Swisher’s case. Even if an error had

occurred, however, it unquestionably would have been

harmless. The independent evidence overwhelmingly

proved that Swisher committed a capital murder. He fully

confessed to a friend (JA 1005-1010), he confessed again

to the police (JA 173-175, 181), and Swisher’s sperm was

found on the victim’s panties. (JA 1070). In addition,

sperm found in the victim’s rectum, vagina, esophagus

and stomach was determined to be “consistent with a

mixture of the DNA profiles of Swisher and Snyder.” (JA

1067, 1068).

In view of the independent evidence against Swisher,

it is clear that his guilt was established overwhelmingly

and that his alleged error clearly would be harmless.

Certiorari, therefore, is not warranted.

¢

11

CONCLUSION

Swisher has not presented any “compelling” reasons

which warrant certiorari review of his claim. This Court

should deny the petition for writ of certiorari.

Respectfully submitted,

COMMONWEALTH OF

VIRGINIA,

Respondent herein.

Mark L. EArtey

Attorney General

Pameta A. Rumpz

Assistant Attorney General

Office of the Attorney General

900 East Main STreet

Richmond, Virginia 23219

(804) 786-4624