Delevan Wesley Thomas v. Commonwealth of Virginia, 357 F.2d 87, 4th Cir. (1966)
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Scribd Government DocsDelevan Wesley Thomas v. Commonwealth of Virginia, 357 F.2d 87, 4th Cir. (1966)
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Scribd Government Docs357 F.
2d 87
Delevan Wesley THOMAS, Appellant,
v.
COMMONWEALTH OF VIRGINIA, Appellee.
No. 9926.
United States Court of Appeals Fourth Circuit.
Argued June 29, 1965.
Decided Feb. 11, 1966.
Jack T. Hamilton, Charlotte, N.C. (Court-assigned counsel), for appellant.
Reno S. Harp, III, Asst, Atty. Gen. of Virginia (Robert Y. Button, Atty.
Gen. of Virginia, on brief), for appellee.
Before BOREMAN and J. SPENCER BELL, Circuit Judges, and
THOMSEN, District Judge.
BOREMAN, Circuit Judge.
A pro se petition for a writ of habeas corpus filed by Delevan Wesley Thomas
was denied by the District Court after a plenary hearing at which petitioner was
represented by court-appointed counsel. This appeal followed.
Thomas, after waiving a jury trial, was tried by the Circuit Court of Fairfax
County, Virginia, convicted of the offense of armed robbery and is now
imprisoned pursuant to sentence duly imposed. His principal attack upon his
trial and conviction is based upon the introduction in evidence of certain oral
admissions of guilt and a written confession alleged to have been extracted from
him through coercion. The District Court heard the testimony of the petitioner
and other witnesses, resolved the conflicts and found that the admissions and
confession were not coerced but were voluntarily given. We shall briefly sketch
the facts which find support in the record.
At approximately 4:25 a.m. on November 23, 1962, a car driven by Thomas
was stopped by District of Columbia police for a traffic violation (improper
lights) and neither Thomas nor any of the other occupants of the car could
produce a proper driver's license. In his testimony, Thomas revealed that he had
been drinking rather heavily and that he was 'booked' for a traffic violation and
for drunkenness. In checking the car and its occupants police found a gun under
the front seat and Thomas and his five companions were taken to District of
Columbia Precinct 9.
4
The car bore Maryland license tags so the District of Columbia police contacted
Baltimore and were informed that the Fairfax, Virginia, police department was
looking for this vehicle in connection with an armed robbery of Evan's Inn
which had occurred earlier that night or morning in Fairfax County, Virginia.
District of Columbia police contacted Fairfax authorities and informed them
that the robbery suspects were in custody.
According to witness Boswell, he and Briggman, both Fairfax police officers,
arrived in Washington, D.C., around 5 a.m. Mr. Evans, the owner of Evan's Inn,
and some of his employees soon arrived at Precinct 9 and in a 'lineup' they
identified Thomas and two or three of his companions as persons involved in
the robbery. Officers Briggman and Boswell talked to the men who had been so
identified and they admitted their part in the robbery. These two officers
returned to Fairfax around 7 a.m. to secure warrants and, after obtaining
warrants for Thomas and his five companions, returned to Washington about
1:30 p.m. Thomas and the others who had been identitied then signed waivers
of extradition and were delivered to the Fairfax officers about 2:30 p.m. They
arrived in Fairfax at approximately 3:30 p.m. and were taken before a
magistrate, who was at the jail. The warrants were then served and bail was set.
Boswell testified that sometime between 4 p.m. and 7:30 to 8 p.m. Thomas and
two or three of his companions confessed their part in the robbery, a written
statement was prepared in questionand-answer form and Thomas signed it. This
is the confession admitted in evidence against him at him trial.
Thomas contends that his oral admissions of guilt were coerced (1) by the
brutality of District of Columbia police and (2) by false representations by the
police that one of his companions had made a confession and had implicated
him. There was no complaint with regard to the treatment accorded him after
his removal to Fairfax.
The District Court noted that Thomas' petition does not concisely state the
contentions but, with the assistance of petitioner's counsel 'the issues have been
clearly presented.'1 Thomas testified that the District of Columbia police beat
him with their hands and fists in the presence of officer Briggmen. Two alleged
accomplices testified they saw blood running from Thomas' ear and that
Thomas told them he had been beaten. However neither of the accomplices
witnessed any brutality according to their testimony. The officers denied these
charges. After hearing all of the testimony the District Court announced from
the bench his findings of fact and condlusions of law. We quote pertinent
portions therefrom, as follows:
9
'The Court has determined the admissibility of the confession without regard to
its truth or its falsity. Rogers v. Richmond, 365 U.S. 534 (81 S.Ct. 735, 5
L.Ed.2d 760) (1961). Ordinarily the Court would not even receive the evidence
on the petitioner's participation in the crime, and it was only on the petitioner's
request that it was received.
10
'There is a conflict in the evidence pertaining to police conduct in Washington.
The petitioner, Mr. Thomas, charges that the Washington police extracted from
him an oral confession by physical abuse. * * *.
11
'The Court finds that he was not beaten, that there was no physical abuse
practiced upon him in Washington. The Court also finds that the statement in
Washington was not extracted from Mr. Thomas by Mr. Briggman's telling Mr.
Thomas that another co-defendant had confessed and he might as well confess
and get the matter straight. There was no coerced confession of a co-defendant.
12
'Mr. Thomas was brought from Washington to Fairfax. That occurred under
these circumstances. The Washington police notified the Fairfax police that the
suspects had been picked up. Fairfax police went over to Washington. They, in
due course, returned to Fairfax, got warrants, returned to Washington with the
warrants, and then the suspects including Mr. Thomas, having waived
extradition-- the suspects, including Mr. Thomas, were brought back to Fairfax
County.
13
'Upon return to Fairfax they were taken before a magistrate. The warrants were
executed and bond was fixed. After this was done they were taken to jail and
there Thomas made a confession which was introduced at the trial. The Court
finds that no coercion, no physical abuse was practiced by the Fairfax police.
No trickery or fraud concerning any co-defendant was practiced by the Fairfax
police with regard to the confession which Mr. Thomas voluntarily gave. The
Court finds that the confession given in Fairfax was not the product of an
illegally coerced confession in Washington.
14
'Turning now to the very interesting question about the delay. Mr. Thomas
waived extradition in Washington. The Fairfax police already had Virginia
warrants. The Fairfax police could not take the defendant before a Washington
magistrate on the Virginia warrants. They first had to get back to Virginia. The
only practical time to consider, it appears to the Court, concerning the delay, is
the interval between the delivery of the prisoners in Washington and the
production before a Virginia magistrate. The Court finds there was no
unreasonable delay. In fact, there appears to have been no delay of any
consequence from the time that the Fairfax police got custody of the
defendants, brought them over to Virginia and as their first action took them
before a magistrate.
15
'The Court finds that the petitioner Mr. Thomas was effectively represented in
his trial. The only complaint is the failure to have the confession excluded, and
this is unfounded. 'The Court concludes that no constitutional right of the
petitioner, Mr. Thomas, was violated by reason of the introduction of the
confession. No 6th amendment right was denied him by reason of the quality of
the representation which he had.'
16
Thus the District Court disposed of the issues raised by the petition and as
developed with the assistance of petitioner's counsel. The Court's findings with
reference to the absence of coercion by brutality or trickery and the
voluntariness of the oral admissions in Washington and the written confession
signed in Fairfax are fully supported by the evidence and will not be disturbed.
17
On appeal, court-appointed counsel (not the same counsel who appeared for
petitioner in the court below) has attempted to assert a claim of violation of
petitioner's constitutional rights under the holding of the Supreme Court in
Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977
(June 22, 1964). No Escobedo question was presented to or considered by the
District Court. The evidence and findings below contained no specific reference
to either lack of representation by counsel or request for the assistance of
counsel during the period of petitioner's detention following his lawful arrest in
Washington, D.C., and prior to the taking of his written confession in Fairfax,
Virginia. In view of the intimation on appeal of the existence of a constitutional
right and a violation thereof under Escobedo and in fairness to the petitioner,
we think that Thomas should be accorded the opportunity, within a reasonable
time as determined by the District Court, to amend his petition if he can. It may
be that petitioner has not pursued available procedures in the courts of Virginia
and has not exhausted his remedies in those courts with respect to the Escobedo
question which he seeks now to present on appeal; if so, he could not properly
amend his petition for federal habeas corpus relief in that regard or raise the
question by a new petition until he has sought and has been denied relief in the
courts of the Commonwealth. We, therefore, remand the case to the District
Court for such further proceedings as it may determine to be appropriate and
necessary in the circumstances.
18
Remanded.
In announcing findings of fact and conclusions of law the District Court said:
'The petitioner complains because a confession was introduced into evidence
which he contends was coerced by physical abuse and which he also contends
was coerced because of a statement made to him that a co-defendant had
confessed and he might just as well confess, too. He also complains that he did
not receive effective representation by his counsel. This allegation is really
narrowed down to the question of whether counsel should have protested
because of the lapse of time between the return of the petitioner to Fairfax
County from Washington, D.C. and the time that he was taken before a
magistrate and whether a confession was extracted in the interim.'
