# Petition for Writ of Certiorari — Berkeley v. Virginia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2088%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1995 - **Citation:** 516 U.S. 865 ## Text Supreme Court, u.8, FILED JUL 11 1995, No. IN THE SUPREME COURT OF THE UNITED STATES October Term 1995 STANLEY JUSTIN BERKELEY, Petitioner Vv. COMMONWEALTH OF VIRGINIA, Respondent PETITION FOR WRIT OF CERTIORARI TO THE VIRGINIA SUPREME COURT PETITION FOR WRIT OF CERTIORARI JUDAH BEST, ESQ.* DEBEVOISE & PLIMPTON 555 13th Street, N.W. Washington, D.C. 20004 (202) 383-8060 STEPHEN A. SALTZBURG, ESQ. GEORGE WASHINGTON NATIONAL LAW CENTER 720 20th St., N.W. Washington, D.C. 20052 (202) 994-7089 STANLEY E. SACKS, ESQ. SACKS, SACKS & IMPREVENTO 150 Boush Street Norfolk, Virginia 23514 (804) 623-2753 *Counsel of Counsel for Record Petitioner ITHre on neal cp nema QUESTIONS PRESENTED Was petitioner denied due process when the court of appeals found sufficient evidence to support a felony murder conviction with abduction as the underlying felony notwithstanding the fact that: (1) the jury was instructed it could convict only if it found that the murder had occurred during the commission of a rape; and (2) there was no evidence to support the jury’s guilty verdict? as Was petitioner denied due process when the trial judge denied him the right to introduce evidence that a codefendant had pleaded guilty and admitted committing a capita] murder, and petitioner’s jury was permitted to infer that petitioner committed the murder despite the prosecution conceding outside the jury’s presence that the codefendant had committed the crime? 3. Was petitioner’s Fifth and Fourteenth Amendment privilege against self-incrimination violated when statements made by petitioner during booking were admitted even though petitioner, having previously been given Miranda warnings, specifically invoked his right to counsel, petitioner indicated after several sentences that he assumed any statements were confidential as part of the booking process, and the Commonwealth presented no evidence that petitioner had knowingly and intelligently waived his right to have counsel present before talking about the crimes charged? ii ST als er Ni RR ag Ma vc FE Mol i Sl sone AG Ais BOO RRR He met. 6 Metre hpsalicea TABLE OF CONTENTS QUESTIONS PRESENTED . OPINIONS BELOW JURISDICTION CONSTITUTIONAL PROVISIONS STATEMENT OF THE CASE . ISSUES RAISED BELOW... REASONS FOR GRANTING THE WRIT . ARGUMENT IN SUPPORT OF GRANTING THE WRIT ASE 9 sa et Se CONCLUSION APPENDIX iii TABLE OF AUTHORITIES CASES , 19 Va. App. -y, i ee ee ar eee , 245 Va. 327, 427 5.8.26 376 teeeel. eee | iS; Cole v. Arkansas, 333 U.S. 196 See eee Baca go , 451 U.S. 477 (5983) ss 82 32, 35, FF, 39, 44, 42 Essex v. Commonwealth, 18 Va. APP- bs 442 S.E.2d 707 (1994) ... Ae , 442 U.S. 95 Sees. 5S See PS ea ee a James _v. Commonwealth, 18 Va. _— 746, 442 S.E.2d 900 ... 24, 25 McCommack v._United States. 500 U.S. 967° 8998) 5 a are Q’Dell_v. Commonwealth, 234 Va. 672, 364 S.E.2d 491 (1988), Sark. danied, 488 U.S. 871 (1988) .. 24 Oregon v. Bradshaw, 462 U.S. 1039 (i903) ea: A ee, eee: Mee Ortiz v. Dubois, 19 F.3d 708 (1st Cir. 1994), cert. denied, _ U.S. __, 115 S, Gh. Sa ee aw 8 Se ee ee | Penosyiyania_y. Muniz. 496 U.S. 582 eee? Ses ac £2, 2. Be iv i aieeeeneiiia aati , 713 F.2d 1447 (9th Cir. Perry v. Rushen 1983), Saxk.danied, 469 U.S. 838 (3963) SOA ‘ 915 F.2d 280 (7th Cir. 1990) .. 30, Sheldelbower v. Estelle, 885 F.2d 570 (9th Cir. 1989), Saxk.dspied, 498 U.S. 1092 (1991) ‘ , 845 F.2d 165 (8th Turner v. Armontrout Cir. 1988), cart. denied, 488 U.S. 928 (1988) sore , 717 F.2d 1020 United States v. Avery (6th Cir. 1983), cext.—danied. 466 U.S. 905(1984) .. Take | Me , 848 F.2d 1110 (10th Cir. 1988) ae ’ 738 F.2d 378 (10th Cir. 1984), cert. denied,469 U.S. 1076 (1984) ‘ United States v. Montgomery, 714 F.2d 201 (lst Cir. 1983) ; United States v. Morrow, 731 F.2d 233 (4th Cir. 1984), cert. denied, 467 U.S. 1230 (1984) . Saahpy ee eee » 799 F.2d 126 (4th Cir. 1986), Serk.densed,— 479 U.S. 1093 (1987) Maanengton-Y.TRmae, 388 U.S. 14 (1967) ; ty Williams v. Commonwealth, 213 Va. 45, 189 S.E.2d 378 (1972) 30 Y 31 38 31 39 41 40 38 40 39 26 28 CONSTITUTIONS, U.S. Const., Amend. U.S. Const., Amend. Va. Const. Article Section 8 and 11 28 U.S.C. § 1257 Va. Code Ann. § 18 Va. Code Ann. § 18 Sup. Ce. BR. 23-23 STATUTES AND RULES XIV: vi CS in ae ee 2, 2, ee ee ee Te ee Pe Se eee yy | > oe oO. Ss atta ts OPINIONS BELOW The unreported decision of the Virginia Court of Appeals denying a petition for review on the second and third questions presented in this petition was entered on May 14, 1993. It is set forth in the Appendix at A-42. The 2-1 decision of the Virginia Court of Appeals finding sufficient evidence to support a murder conviction was entered on November 29, 1994. It is set forth in the Appendix at A-2, and is reported at 19 Va. App. 279, 451 S.E.2d 41. The unreported decision of the Virginia Supreme Court denying review was entered April 17, 1995. It is set forth in the Appendix at A-1. JURISDICTION This Court has jurisdiction to entertain this petition for certiorari pursuant to 28 U.S.C. § 1257. The petition is filed in a timely manner under Rule 13.1 of the Rules of the Supreme Court. CONSTITUTIONAL PROVISIONS Petitioner relies upon the following constitutional provisions: U.S. Constitution, Amendment V: [NJor shall any person .. . be compelled in any criminal case to be a witness against himself U.S. Constitution, Amendment XIV: [N]or shall any State deprive any person of life, liberty, or property, without due process of law. STATEMENT OF THE CASE Petitioner accepts as accurate the statement of facts by the Virginia Court of Appeals in its November 29, 1994 opinion, set forth in the Appendix at A-2. Petitioner’s statement of the case summarizes the key facts set forth by the Virginia Court of Appeals. On July 9, 1991, Melissa Harrington (the victim) was abducted in the early morning from the parking lot of the apartment complex where she resided. No one actually witnessed the abduction, and no witnesses could identify the abductor. The police, having reason to suspect Andrew Chabrol of the abduction, went to Chabrol’s house, were admitted, and found both Chabrol and petitioner present. For several hours the police stayed on the premises and sporadically questioned Chabrol and petitioner. In response to police questioning, Chabrol and petitioner gave conflicting versions of their activities. After Chabrol refused a police request for permission to search the house, police obtained a search warrant. They searched the house and found the victim’s nude, dead body on the floor of the master bedroom. She had been killed by Chabrol. Upon discovery of the body, the police arrested both Chabrol and petitioner. Petitioner was given Miranda warnings, and clearly and unmistakably invoked his right to counsel. Thereafter, while being booked, petitioner stated to the officer conducting the booking that he "was a victim of circumstances," and, according to the officer, petitioner added the following: He stated he was only here on vacation. He stated during the abduction he could only drive the car in which they picked her up due to his limited ability. He said he f----- her but on the second time he could not bring himself to do it.' bi Page 280 of the trial transcript, which is also page 150 of the Joint Appendix filed in the Virginia Court of Appeals. Petitioner made additional statements which the trial judge suppressed. Transcript of hearing on motion to suppress dated March 12, 1992, page 3. | Vaginal swabs were taken from the victim and were subjected to analysis. i DNA testing of sperm found in the victim was consistent with petitioner’s DNA and inconsistent with that of Chabrol and the victim’s husband. The likelihood that the DNA came from a male other than petitioner was small. . Petitioner was originally charged | with capital murder under Virginia Code Section 18.2-31. The original indictment alleged that the killing occurred "during the commission of, or subsequent to, rape." The Commonwealth moved, however, prior to trial that the indictment be amended to charge a violation of Virginia Code Section 18.2-32 and to delete the quoted words. Thus, as the Commonwealth presented its evidence, the indictment simply charged petitioner with murder. At the close of the Commonwealth’s case, petitioner moved to strike the evidence as insufficient. At that time, the Commonwealth again moved to amend the indictment, this time to add the phrase "in the commission of rape or abduction." (See App. A-10) Petitioner consented to this amendment when the Commonwealth agreed that it would "give up any claim to concert of action." The indictment, following the second amendment, read as follows: The Grand Jury charges that: On or about July 9, 1991, in the City of Chesapeake, Virginia, the accused, STANLEY JUSTIN BERKELEY, did maliciously kill and murder Melissa Harrington, in the commission of rape or abduction, in violation of Section 18.2-32 of the Virginia Code. The two amendments to the indictment followed the guilty plea of Chabrol to capital murder. Chabrol was sentenced to death. See Chabrol v. Commonwealth, 245 Va. 327, 427 S.E. 2d 374 (1993). He has since been executed. As part of the defense case at trial, petitioner sought to offer into evidence Chabrol’s guilty plea to show that Chabrol had admitted that he killed the victim and that the Commonwealth had accepted his admission as accurate.” The trial judge -- the same trial judge who took the plea from Chabrol -- excluded the evidence.3 The jury found petitioner guilty of abduction with intent to defile, rape, and first degree murder. The trial 2: This evidence was enormously important after the Commonwealth moved for the second amendment to the indictment and stipulated that it would not rely upon a concert of action theory to convict petitioner. The Commonwealth’s stipulation required that it prove guilt by showing petitioner affirmatively acted, and not by showing that petitioner was tangentially guilty because the joint actor Chabrol committed the murder. ai The Virginia Court of Appeals recognized that, without the guilty plea of Chabrol, the record in petitioner’s trial would not have permitted any trier of fact or a reviewing court to know whether the murder was committed by peti- tioner, Chabrol or both men. See App. A-12 n.4. judge, relying upon the jury’s recommended sentences, imposed three life sentences on petitioner. The Virginia Court of Appeals affirmed, 2-1, with one judge arguing in dissent that the Commonwealth, as a result of its stipulation that it would not rely upon a concert of action theory, had no evidence to prove that petitioner was guilty of murder. The Virginia Supreme Court denied review. ISSUES RAISED BELOW Petitioner sought to strike the evidence as insufficient at the close of the Commonwealth’s evidence, renewed the motion at the close of all the evidence, filed a post-trial motion in the trial court, and consistently urged on appeal that there was no evidence to support the jury’s verdict. Petitioner objected at trial and on appeal to the exclusion of Chabrol’s guilty plea. Petitioner moved i prior to trial to suppress the statement he made during booking, and challenged the admissibility of the statement on appeal.‘ 4. Prior to trial, petitioner filed a motion to Suppress a number of evidentiary items. Paragraph 4 of the motions set forth the following allegation: 4. That [in] violation of the Fifth, Sixth, Bighth and Fourteenth Amendments of the United States Constitution and Article I, Section 8 and 11 of the Virginia Constitution, agents of the Commonwealth questioned Defendant in contravention of his rights under Miranda and the Constitution and failed to honor the Defendant’s request for his attorney prior to questioning. The trial judge conducted a suppression hearing prior to trial. As a result of that hearing, petitioner’s counsel persuaded the judge to suppress the statements that petitioner made during booking after he asked whether his statements would be in strict confidence and was assured that they would. Petitioner’s counsel successfully urged that, following this assurance, petitioner was effectively being interrogated without having been warned of his rights. In admitting the statements petitioner made before asking for assurance about confidentiality, the judge did not rule on petitioner’s claim that the Commonwealth "failed to honor the Defendant’s request for his attorney." Although defense counsel did not raise the issue artfully, he attempted to articulate the point that petitioner never waived his right to counsel at any time. REASONS FOR GRANTING THE WRIT 1. Petitioner was denied due process when the court of appeals found sufficient evidence to support a felony murder conviction with abduction as the underlying felony notwithstanding the fact that: (1) the jury was instructed it could convict only if it found that the murder occurred during the commission of a rape; and (2) there was no evidence to support the jury’s guilty verdict. The Virginia Court of Appeals departed from the long line of cases decided by this Court that deny an appellate court the authority to affirm a conviction ona legal theory that was never presented to the jury. 2. Petitioner was denied due process when the trial judge denied him the right to introduce evidence that a codefendant had pleaded guilty and admitted committing a capital murder, and 10 petitioner’s jury was permitted to infer that petitioner committed the murder despite the fact that the prosecution conceded outside the jury’s presence that the codefendant had committed the crime. The Virginia Court of Appeals ignored this Court’s decision in Green v. Georgia, 442 U.S. 95 (1979), and its decision is in conflict with the decisions of several federal circuits that have decided similar issues. 3. Petitioner’s Fifth and Fourteenth Amendment privilege against self-incrimination was violated when Statements made by petitioner during booking were admitted even though petitioner, having previously been given Miranda warnings, specifically invoked his right to counsel, petitioner indicated after several sentences that he assumed any statements were confidential as part of the booking process, and the 11 Commonwealth presented no evidence that petitioner had knowingly and intelligently waived his right to have counsel present before talking about the crimes for which he was charged. As indicated by the facts of this case, there is confusion about the relationship of this Court’s bright-line rule of Edwards v. Arizona, 451 U.S. 477 (1981), and its progeny, and the "booking . exception" to the privilege against self- incrimination recognized by a plurality of the Court in Pennsylvania v. Muniz, 496 U.S. 582 (1990). Moreover, there is conflict among lower courts as to whether the prosecution must show that a suspect who has invoked his right to counsel after being given Miranda warnings has waived his rights when a statement is made to police before the suspect has been provided counsel. 12 ARGUMENT IN SUPPORT OF GRANTING THE WRIT 1. The record in this case is absolutely clear that the jury was instructed by the trial judge on the elements of felony murder as follows: The Court instructs the jury that the defendant is charged with the crime of first degree murder. The . Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime. ; One, that Melissa Harrington was killed, two, that the killing was . malicious, and, three, that the killing occurred in the commission of rape in which the defendant participated. (Emphasis added) ° No objection was made to this instruction, and it is the only jury ee ee ee instruction which specifies the elements of first degree murder. The prosecutor made no reference in argument to the jury about the murder occurring in the course s. The instruction is found at page 371 of the trial transcript, which is also page 220 of the Joint Appendix filed in the Virginia Court a of Appeals. 13 of abduction; he argued only about murder in the course of rape. At no time did the prosecutor ask the judge to modify the instruction quoted above. Thus, it is indisputable, as the dissenting judge in the Virginia Court of Appeals specifically observed, that the jury was restricted in its deliberations concerning murder to deciding whether the murder occurred during the course of a rape. The dissenting judge also noted that the majority’s holding "that victim’s murder stemmed from the commission of the felony of abduction" violated due process because "([t]his reasoning improperly premises Berkeley’s criminal liability upon a theory that was not submitted to the jury."® The record does not reveal why the trial judge limited the jury’s consideration to rape rather than to 6. Dissenting Opinion of Judge Benton, App. A-29. 14 abduction or rape. During a hearing on the post-trial motion to set aside the convictions, the trial judge was reminded that the jury had been told that it had to find that the murder occurred in the commission of a rape and offered no explanation for his instruction.’ The judge may have deemed the abduction to be too remote in time, or he may have decided that the murder was not part of the abduction. Whatever his reasoning, the trial judge never instructed the jury on the legal theory which served as the basis of the majority opinion in the Virginia Court of Appeals.® ¥; See Joint Appendix in Virginia Court of Appeals, at 260. : 8. The trial judge might well have made a last minute. decision to limit the jury’s consideration to murder committed in the course of rape. He defined for the jury the 7 term "in the course of abduction" as well as 3 "in the course of rape," but clearly limited the felony murder instruction to rape. In view of the prosecutor’s closing argument, the prosecutor appears to have abandoned any reliance on murder in the course of abduction. This abandonment may have become clear to the trial judge late in the trial. 15 The dissenting judge in the Virginia Court of Appeals was correct. The holding below violates a long line of cases decided by this Court. See, e.g., Cole v. Arkansas, 333 U.S. 196, 201-202 (1948) (violation of due process when defendant’s convictions were affirmed on grounds other than those charged to and tried before jury); McCormick v. United States, 500 U.S. 257, 270 n.8 (1991) ("This Court has never held that the right to a jury trial is satisfied when an appellate court retries a case on appeal under different instructions and on a different theory than was ever presented to the jury."). See also Ortiz v. Dubois, 19 F.3d 708, 716 (1st Cir. 1994) ("...if the prosecution decides to submit a case to the jury on one of two equally valid legal theories, and the jury convicts despite insufficient evidence, on appeal the court cannot 16 resurrect the conviction by ruling that there was sufficient evidence to convict on the alternative theory."), cert. dended.: .. U.@.- 5.448 B. CO. 799 (1995). Given the jury instructions administered by the trial court, the Commonwealth was obliged to establish that the victim had been killed during "the Commission of rape in which the defendant participated."’ Having abandoned a concert of action theory, the Commonwealth could produce no such evidence. The victim was not killed in the commission of a rape by petitioner; the victim was killed by Andrew Chabrol, who confessed his crime to the Commonwealth and to the court." Hence, 7 The instruction is found at page 371 of the trial transcript, which is also page 220 of the Joint Appendix filed in the Virginia Court of Appeals. 10. In Chabrol_v. Commonwealth, 245 Va. 327, 331 (1993), the Virginia Supreme Court noted that (continued...) 17 the Virginia Court of Appeals could not affirm petitioner’s murder conviction on the ground submitted to the jury and instead affirmed on an entirely different theory, that the victim had been killed "within the res gestae of the abduction. "" Moreover, if the murder conviction is set aside, petitioner has a strong argument for a new sentencing hearing. The jury that returned a recommendation of three life sentences was treating petitioner as a convicted murderer. As the trial judge instructed the jury, it had discretion to recommend a sentence for the rape conviction from five years to life imprisonment, and for the abduction conviction from twenty years to life imprisonment. Since the jury’s 10. (...continued) after killing the victim, Chabrol "ran out of the room and told [petitioner] that he had killed Harrington." a3 App. A-13. See also App. at A-19-21. 18 recommendations were made after it erroneously convicted petitioner of murder, there is every reason to believe that the murder conviction affected the sentencing recommendation on the other crimes. 2. Prior to petitioner’s trial, Chabrol pleaded guilty to capital murder. The prosecution was aware of the plea and Supported it, and the trial judge in petitioner’s case was the same judge who had accepted the plea.'’* Thus, both the prosecution and the trial judge knew that Chabrol had killed the victim, and that i2. The record in Chabrol’s case indicates, "Chabrol pleaded guilty to capital murder in violation of Code § 18.2-31(5) (murder in the commission of, or subsequent to, rape). He also pleaded guilty to rape and abduction with intent to defile. Before accepting his guilty pleas, the trial court examined Chabrol and found that his pleas were made knowingly, voluntarily, and intelligently. Upon agree- ment of counsel and Chabrol, the court heard from the prosecutor a partial recitation of the Commonwealth’s evidence. Thereafter, the court found Chabrol guilty of all three offen- ses, ordered a presentence investigation by the probation office, and scheduled a hearing for the penalty phase of the capital murder proceeding." 245 Va. 327, 328-29 (1993). 19 she had not been killed by petitioner in the course of a rape or otherwise. Notwithstanding this knowledge, and despite the prosecutor specifically agreeing not to seek a conviction for murder on a theory of concert of action, the prosecutor objected to admission of Chabrol’s plea and the trial judge sustained the objection. As a result, the jury was left with the misleading impression that petitioner was the murderer, because his semen was found in the victim and there was no other evidence regarding the murder. The exclusion of evidence regarding Chabrol’s plea denied petitioner a fair trial on the murder charge, and accounts for why the jury convicted him on the only theory submitted to it: ji.¢e., the murder took place in the course of a rape. There is no reasonable basis on which the guilty plea could have been 20 excluded. Chabrol was pleading guilty to capital murder, the Commonwealth was seeking the death penalty, and both Chabrol and the Commonwealth maintained that Chabrol was the killer. Moreover, the trial judge in petitioner’s case was intimately familiar with the facts, since he had accepted Chabrol’s plea. Petitioner’s trial counsel reasonably asked the trial judge to take judicial notice of Chabrol’s plea of guilty to capital murder. He made this request after he learned that the Clerk’s office had not yet completed the order incorporating the guilty plea into the Court’s records. Petitioner’s counsel had requested the order 10 days before trial. Faced with three readily available options -- (1) ordering the Clerk’s office to prepare an order incorporating the guilty plea so that it could be offered as an exhibit, (2) 21 entering an order stating that Chabrol had pleaded guilty to capital murder, or (3) taking judicial notice of the guilty plea which the trial judge himself had accepted from Chabrol™ -- the trial judge, without citing any authority for his ruling, stated the following: THE COURT: The jury can’t take judicial notice. It will have to happen some other way. It can’t happen by me taking judicial notice and a jury can’t take judicial notice. Transcript at 346. Petitioner’s trial counsel responded: "But the Court can, Judge." Transcript at 347. The prosecutor, citing no authority, argued to the trial judge that he could not take judicial notice and that petitioner should be required to call Chabrol as a witness. The trial judge 5 FE The trial judge stated "I already know it" to indicate that he was fully aware that Chabrol had pleaded guilty and admitted the murder. Trial transcript at 346. 22 ultimately agreed and concluded that he could not take judicial notice of the guilty plea, despite it being an undisputed fact of which he was personally aware. The judge said to petitioner’s counsel, "If I take judicial notice the jury doesn’t know anything about it." Transcript at 347. This remarkable exchange denied petitioner a fair opportunity to prove undisputed facts that would have assured that the jury would not incorrectly assume he murdered the victim when his was the only DNA semen evidence found in her body. In making his ruling that he could not take judicial notice of undisputed facts which soon would be incorporated in official court documents, the trial judge denied petitioner the most important evidence of his innocence of murder. 23 By refusing to enter an order or have the Clerk enter an order incorporating Chabrol’s guilty plea, and by also refusing to take judicial notice of the plea and instructing the jury of Chabrol’s plea, the trial judge denied petitioner his chance to prove what no one disputed: Chabrol killed the victim; petitioner did not. The authority of a trial judge to take judicial notice is recognized by Virginia courts. See, e.g., O’Dell_ v. Commonwealth, 234 Va. 672, 696 n.7, 364 S.E.2d 491, 505 (1988), cert, denied, 488 U.S. 871 (1988). Trial judges routinely take judicial notice when prosecutors do not object, and notice helps them as well as a defendant. See, e.g., James v. Commonwealth, 18 Va. App. 746, 442 S.E.2d 900 (1994) (judicial notice taken of a training manual). 24 The same Virginia Court of Appeals that held petitioner’s rights were not violated when the trial judge refused to inform his jury that Chabrol had pleaded guilty to the murder has held that the preferred way for trial judges to deal with prosecutorial claims that a defendant has previously been convicted of a felony is to admit the record of the conviction and then take judicial notice of the punishment that qualifies the conviction as a felony. See Essex v. Commonwealth, 18 Va. App. 168, 171-72, 442 S.E.2d 707, 709 (1994). This procedure was the one petitioner sought to follow, except that he was faced with the fact that the Clerk’s office had not yet prepared an order incorporating Chabrol’s plea and the trial judge refused to take judicial notice as to the nature of the crime which Chabrol admitted. 25 In rejecting petitioner’s fairness Claim, the Virginia Court of Appeals has sanctioned a one-way street in which prosecutors are able to have trial judges take judicial notice of undisputed facts while defendants are barred from doing so, even when the trial judge is personally knowledgeable about the facts and those facts are unchallenged. This kind of one-way street is exactly what this court condemned in Washington v. Texas, 388 U.S. 14 (1967) (holding the compulsory process clause binding on the states and condemning an arbitrary state rule favoring the state). In petitioner’s case, when the trial judge refused to take judicial notice and then failed to enter an order reflecting Chabrol’s plea or to require the Clerk’s office to prepare such an order, he denied petitioner all reasonable access to the undeniable fact that Chabrol 26 pleaded guilty to the murder charged to petitioner. It was wholly unfair for the judge to require that petitioner call Chabrol as a witness. Neither petitioner nor his counsel had access to Chabrol, and petitioner had neither need nor desire to propound Chabrol and therefore vouch for Chabrol’s credibility." Petitioner wanted only to show that Chabrol had pleaded guilty to capital murder, and that the Commonwealth of Virginia supported his plea. The patent unfairness in excluding the plea from evidence is underscored by the prosecutor’s stipulation that he would not rely upon a concert of action theory in exchange for petitioner’s accepting a 14. The trial judge assumed that Chabrol would testify, but the record contains no facts supporting this assumption. Moreover, petitioner indicated he had no objection to the prosecutor or the court attempting to call Chabrol and to take responsibility for him as a witness. Trial transcript, page 354. 27 second amendment of the indictment. Essentially, the prosecutor stipulated that petitioner could not be convicted except as a result of his own actions, and the trial judge then prevented petitioner from showing the jury that he did not kill the victim and that the DNA evidence did not relate to the identity of the murderer. Had the guilty plea been incorporated in a court record, the record would have been admissible as a business record or an official record. Williams v. Commonwealth, 213 Va. 45, 46- 47, 189 S.E.2d 378, 379-80 (1972). But, because the Clerk’s office had not yet created the record, petitioner’s counsel was forbidden from calling the plea to the attention of the jury. Implicitly, the trial judge treated the plea as inadmissible hearsay until it was incorporated in a record, and the judge 28 refused to obviate the hearsay problem by taking judicial notice. The hearsay nature of the ruling is demonstrated by the prosecutor’s and trial judge’s insistence that Chabrol testify to avoid the implicit hearsay problem. The prosecution attempted to argue that Chabrol’s guilty plea was not relevant. Such an argument might have had merit if the prosecutor had not abandoned his concert of action theory. Once he abandoned that theory, Chabrol’s plea was the single most important piece of evidence concerning who committed the murder. The prosecutor relied upon Chabrol’s guilt to obtain the death penalty that led to Chabrol’s execution.” There is no reasonable argument that Chabrol’s admitted guilt and 15. In the statements made by petitioner to the police, petitioner indicated that Chabrol had been the sole murderer and that petitioner had expected Chabrol to release the victim, not kill her. Transcript of hearing on motion to suppress, dated March 10, 1992, page 27. 29 responsibility for murder would not have exculpated petitioner. By holding that petitioner could be denied access to this evidence and could be required to call Chabrol to the stand, the Virginia Court of Appeals denied petitioner due process and rendered a decision that is in conflict with this Court’s opinion in Green and with a number of other federal decisions. Federal courts consistently have looked to several factors in determining the admissibility of hearsay evidence of third-party guilt at trial. Green, 442 U.S. at 97 (focusing on adversity to penal interest and reliability); Rivera v. Director, Dept. of Corrections, 915 F.2d 280, 282 (7th Cir. 1990) (considering reliability of evidence) ; Perry v. Rushen, 713 F.2d 1447, 1452-53 (9th Cir. 1983) (requiring evidence to be highly relevant), cert. denied, 469 U.S. 30 838 (1983); Turner v. Armontrout, 845 F.2d 165, 169 (8th Cir. 1988) (mandating that evidence be unambiguously exculpatory), cert. denied, 488 U.S. 928 (1988). The presence of all these factors in this case leads directly to the conclusion that Chabrol’s plea should have been admitted into evidence. Denying petitioner the use of both the guilty plea and Chabrol’s admission of murder was egregiously unfair under the circumstances. The prosecutor knew that Chabrol committed the murder and that petitioner did not, the prosecutor had stipulated that petitioner could not be convicted on the basis of Chabrol’s actions, and the trial judge instructed the jury that it had to find that the murder occurred during a rape to convict petitioner. Because the DNA evidence implicated petitioner, not Chabrol, in rape, and because there was no evidence 31 as to who committed the murder, the jury was invited to conclude that petitioner committed the murder, even though the prosecutor and the trial judge both knew this was not the case. This is a violation of due process. 3. Petitioner unequivocally invoked his right to counsel after being informed of his Miranda rights. He thereby obtained the protections afforded by Edwards v. Arizona, 451 U.S. 477 (1981), and its progeny. This Court’s post- Edwards decisions hold that, once an arrestee has invoked his right to counsel under Miranda, statements obtained while the arrestee is in custody are inadmissible unless (a) the suspect initiates any subsequent conversations, and (b) the prosecution shows that there is a waiver as to any interrogation that follows initiation of a conversation by 32 the arrestee. See, €.g., Oregon v. Bradshaw, 462 U.S. 1039 (1983). The record establishes that petitioner did not initiate any conversation and did not speak after invoking his right to counsel until the booking process began. The record clearly indicates that petitioner never gave any indication that he intended to waive the right to have counsel present or that he intended to volunteer a statement that could be used against him. There is no doubt in this case that petitioner did not volunteer any information until he was placed ina "lock-up" for purposes of booking and confronted by the booking officer, Officer Kevin Kight. It was Officer Kight’s utilization of the "Classification sheet" that caused petitioner to speak about his crime. 33 A plurality of this Court concluded in Pennsylvania v. Muniz, 496 U.S. 582 (1990) (Brennan, J., joined by O’Connor, Scalia and Kennedy, JJ.), that Miranda does not apply to routine booking questions designed to secure necessary biographical data or to complete pretrial services, because routine questions are not intended to elicit information for investigatory purposes."© The Muniz plurality emphasized that, in deciding whether or not custodial interrogation occurs, a court must focus on the perspective of the suspect. In Muniz, the questions asked were limited to the arrestee’s name, address, height, weight, eye color, date of birth and current age. 16. Chief Justice Rehnquist, joined by Justices White, Blackmun and Stevens, concluded that Muniz’s responses to the booking questions were not testimonial and therefore "do not warrant application of the privilege." The Chief Justice found it unnecessary to decide whether the questions asked fell within the routine booking exception recognized by Justice Brennan. Jd. at 608. 34 Id. at 601. Moreover, in Muniz, the arrestee waived his Miranda rights when they were read to him. In the instant case, petitioner specifically invoked his right to counsel, and the booking officer used a "classification sheet" to question petitioner about charges that might be pending elsewhere and any "mental illness" he might claim. The relationship of Edwards and Muniz has not been developed by this Court. Petitioner respectfully submits that Muniz will undermine the protections which this Court assumed would be provided by Edwards. . After a suspect specifically indicates that he does not want to answer questions and wants the assistance of counsel, police should not then be free to use the booking process as a vehicle for compelling the suspect into talking after moving him from the place of arrest to the station house, 35 especially if the suspect assumes, as petitioner did, that the "booking" process is distinct from the investigatory process and that statements made therein cannot be used against him." Petitioner respectfully submits that, once he specifically invoked his right to counsel, the Commonwealth should have been required to show that he understood that any statements he made about the crime during the booking process could be used against him. This case illustrates how a suspect may be confused about the way in which the booking process relates to the invocation of the right to have counsel present during any interrogation. It is clear