Ferguson v. Boyd, 76-2034
| Decision Date | 27 December 1977 |
| Docket Number | No. 76-2034,76-2034 |
| Citation | 566 F.2d 873 |
| Parties | Herbert Levi FERGUSON, Appellant, v. F. C. BOYD, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Barry Nakell, Chapel Hill, N.C. and Third Year Law Students Catherine Reid and Robert John White, for appellant.
Wilburn C. Dibling, Jr., Asst. Atty. Gen., of Virginia, Richmond, Va. (Andrew P. Miller, Atty. Gen. of Virginia, Richmond, Va., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, WINTER, Circuit Judge, and COPENHAVER, District Judge. *
Petitioner, Herbert Levi Ferguson, brings this appeal challenging the validity of his conviction in state court on the ground that a statement made by him to the prosecutor and admitted as evidence at his trial was involuntary in that it was (1) coerced by psychological means and (2) induced by a promise that his girlfriend would be released if he confessed. Petitioner also contends that the statement was obtained without the necessary Miranda 1 warning and in violation of his right to counsel.
The statement having been entered as evidence at his trial in 1971, petitioner was convicted by the Circuit Court of the City of Buena Vista, Virginia, for breaking and entering with intent to commit larceny and was sentenced to prison for four years. Petitioner did not appeal. In 1972, he filed in state court a petition for habeas corpus. An evidentiary hearing was held in 1973 and his petition was denied. Petitioner then appealed to the Supreme Court of Virginia, which in 1974 affirmed the Circuit Court's denial of the petition, holding that because of his failure to appeal he lacked standing to raise the issues on habeas corpus. Ferguson v. Superintendent of Virginia State Penitentiary, 215 Va. 269, 208 S.E.2d 749 (1974).
In 1975, petitioner filed a habeas petition in the United States District Court for the Western District of Virginia. The Commonwealth filed a motion to dismiss and on June 3, 1975, the district court denied the petition. Ferguson v. Boyd, 397 F.Supp. 129 (W.D.Va.1975). This appeal then ensued. 2 We reverse.
On July 29, 1971, shortly after midnight, Buena Vista city police officers noticed a 1965 Ford in the municipal parking lot occupied by a man in the driver's seat and a woman in the rear seat. Petitioner was standing beside the car. The officers then saw another man, Rosser Williams, in the middle of the street walking away from the Western Auto Store and toward the car with an armful of guns. As the officers ran to the scene, the petitioner entered the rear seat of the car. The officers found a pile of guns where petitioner had been standing in addition to the guns they took from the man who was crossing the street. All four persons, including Lionel Mosby who was in the driver's seat and petitioner's girlfriend, Juanita Wolfolk, who had been sitting in the rear of the car, were arrested.
At the jail, petitioner was informed of his constitutional rights by one of the arresting officers. Moreover, petitioner was already generally aware of those rights by virtue of previous entanglements with the law. Although petitioner had been drinking and was not entirely lucid, he advised the officers that he wanted a lawyer and refused to make any statement or answer any questions, even to the extent of revealing his name, without an attorney. However, petitioner did inform the arresting officers that he would tell them "all about it if . . . (they) would let the girl go."
Shortly thereafter, the Commonwealth Attorney arrived at the jail and interrogated petitioner for the avowed purpose of obtaining a confession. Notwithstanding petitioner's earlier request for an attorney, and in clear violation of Miranda, the prosecutor, along with a police officer, proceeded to ask petitioner "what he had done and the fact that he had gone in there and all this . . ." Except for the exchange of "some right strong words" between the prosecutor and the petitioner, no additional statements were obtained from petitioner on the night of his arrest. Nevertheless, two things were then abundantly clear to the authorities: (1) petitioner wanted his girlfriend released, and (2) the case against the girlfriend was so "shaky" that it could only be pursued if she were implicated by one of the others.
The next day, instead of first taking the prisoners before the municipal court then sitting in Buena Vista for the purpose of setting bond and advising them of their right to counsel, as required by then Virginia law, 3 the authorities transported them some forty miles to the Augusta County Jail at Staunton. There the four were kept isolated from one another for six days until August 4, 1971, when Mosby, petitioner and his girlfriend were returned to Buena Vista for a court appearance at which bond was to be fixed and, for petitioner, counsel designated. During the six-day period of incarceration at Staunton, no effort was made to bring them before the court for the fixing of bond and the appointment of counsel as might have been done on either of the two occasions during that six-day period when the Buena Vista municipal court was in session.
The three were returned to Buena Vista by automobile and were accompanied by two police officers, including Police Chief Huffman. On the return trip, petitioner was seated next to his girlfriend from whom he had been separated for the past six days. Although the testimony is in sharp contrast as to whether the police officers or the petitioner initiated the conversation on the subject, it is conceded that the petitioner again offered on the return trip to make a statement in exchange for the release of the girl. One of the officers suggested that petitioner speak to the prosecutor. When they arrived at the courthouse some fifteen minutes prior to the convening of court, Chief Huffman promptly contacted the prosecutor and advised him that petitioner would make a statement in order to obtain the girl's release. The prosecutor then conversed with the petitioner in the presence of the officer and took his statement. 4 At that time, it was known by the prosecutor that the prime purpose of the court appearance was to enable the petitioner to confer with his attorney who had been selected the day before but who apparently was not to be formally appointed until the hearing that same morning. The prosecutor, who acknowledged at the habeas corpus hearing that he would surely have been thwarted in obtaining a confession from the petitioner once his attorney arrived to counsel him, received the confession in the few remaining minutes prior to the 10:00 a.m. hearing with the court.
The prosecutor acknowledges that he knew that the purpose of the confession by the petitioner was to obtain the release of the girl. He further concedes that his sole purpose as prosecutor was to obtain a confession implicating petitioner, not to absolve the girl. Indeed, he was aware that Williams had already exonerated the girl a fact that had not been relayed to the petitioner. In this connection, it is interesting to observe that the authorities chose to leave Williams at the jail in Staunton when the other three were returned to Buena Vista.
It is unnecessary to resolve the disputed issue of whether a promise was made to the petitioner that his girlfriend would be released if he would confess. The petitioner insists that he was so promised. The prosecutor on the other hand, while acknowledging that he is not entirely certain as to whether a promise was made, states that he is under the impression that he made no promise. However, he does concede that the petitioner may have said, "If I tell you how this thing happened to prove to you that she didn't have anything to do with it, will she be released?" And the prosecutor further concedes that he "may very well have said 'yes.' "
Even adopting the state's version, it is understandable that the petitioner might have been led to believe the girl would be released if he confessed. The prosecutor knew that release of the girl was uppermost in petitioner's mind. The prosecutor also knew that the petitioner had offered on the night of his arrest to confess if the authorities would agree to release the girl. When petitioner came to court on August 4th, the prosecutor was informed that petitioner would make a statement for the purpose of obtaining the girl's freedom. Indeed, at one point in his testimony, the prosecutor acknowledged that he was informed by Chief Huffman immediately upon petitioner's return to Buena Vista and just prior to the confession that the petitioner would make a statement if the prosecutor would agree to turn the girl loose. Under all the attendant circumstances, the prosecutor ought to have known that his agreement that he would release the girl if petitioner told him how it happened to prove to him that the girl had nothing to do with it might very well create the impression in petitioner's mind that the girl would be released if petitioner confessed. Viewed from the petitioner's perspective, it would not have been unreasonable for him to understand that a promise had been made. Grades v. Boles, 398 F.2d 409 (4th Cir. 1968).
Nevertheless, we do not rest our decision on the ground that an improper promise was made in order to induce from petitioner an involuntary confession. The state court judge in the habeas hearing necessarily resolved this credibility issue against the petitioner and we accept his finding thereon. For the same reason, we disregard petitioner's disputed contention that, in violation of his right to counsel, the police officers initiated the conversation on the August 4th return trip that led to his confession without benefit of a renewed Miranda warning just prior to the hearing at which counsel was to have been appointed for him.
We conclude that the finding of the state court judge that the confession was voluntary is not fairly...
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