Moore v. Ballone

• Citation: 658 F.2d 218
• Decision Date: 20 August 1981
• Docket Number: No. 80-6584,80-6584
• Parties: Curtis J. MOORE, Appellee, v. Gerard BALLONE, Superintendent, Central State Hospital; James P. Mitchell, Virginia State Penitentiary, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 218

658 F.2d 218

Curtis J. MOORE, Appellee, v. Gerard BALLONE, Superintendent, Central State Hospital;

James P. Mitchell, Virginia State Penitentiary, Appellants.

No. 80-6584.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 8, 1981.

Decided Aug. 20, 1981.

Robert E. Bradenham, II, Asst. Atty. Gen., Richmond, Va. (Marshall Coleman, Atty. Gen. of Va., Richmond, Va., on brief), for appellants.

Robert P. Geary, Richmond, Va. (Geary & Davenport, Harvey Latney, Jr., Richmond, Va., on brief), for appellee.

Before WINTER, RUSSELL and ERVIN, Circuit Judges.

WINTER, Circuit Judge:

Curtis Jasper Moore petitioned for a writ of habeas corpus under 28 U.S.C. § 2254 (1976), alleging that his criminal convictions in a Virginia state court were obtained through the use of evidence procured during a custodial interrogation conducted by the police in violation of his rights under the fifth and sixth amendments to the Constitution. The district court, 488 F.Supp. 798, granted the writ and the Commonwealth of Virginia appeals. We affirm.

I.

Moore was convicted of the rape and murder of an 88 year-old woman, Eva King Jones, at her home near the police station in Emporia, Virginia, in the Circuit Court of the Commonwealth of Virginia for Greensville County. The police discovered nothing at the home of the deceased and received no information that linked the crimes to Moore in their immediate aftermath. However, before she died, Mrs. Jones stated that she had been attacked by a black male. The police, lacking investigative leads, conducted a "dragnet" operation during which they brought approximately twenty black men to the stationhouse and questioned them about the crime over a period of six days. The men so questioned generally had been previously suspected of "peeping tom" incidents, attempted rape, or other unsavory behavior. ¹ Significantly, Greensville County Sheriff Sasser conceded at the hearing on a motion to suppress the evidence obtained from the interrogation of Moore that the police had no record of any kind of criminal activity for which Moore was suspected.

Six days after Mrs. Jones's murder, on January 8, 1975, the police received complaints about Moore's odd behavior at the Skippers, Virginia, Post Office and at a nearby inn. Sheriff Sasser ordered one of his deputies and an Emporia policeman to pick up Moore and bring him in for questioning around 3:30 p. m. The sheriff conceded that he did not question Moore about these complaints. Instead, he testified that Moore was "hauled in (to) find out who he was and where he was from."

The police officers did not arrest Moore. They asked him to accompany them to the Emporia police station for questioning. To do so Moore had to abandon the bicycle he was riding at the time and ride approximately ten miles into town in a police car. Upon arrival at the stationhouse he was taken into a rear room, where a tape recorder had been set up. At least four police officers were present in the room throughout most of the ensuing interrogation. The sheriff testified that he conducted most of the questioning. After he had gathered some background, he began questioning Moore about the circumstances relating to Mrs. Jones's murder. At some point in this questioning the tape recorder was engaged. The tape recording produced, which was part of the record at every stage of this case, is well over an hour in length. It reflects continuous questioning, not only by the sheriff but by other police officers as well. The sheriff admitted that Moore was never informed during the course of the interrogation that he was free to leave. The sheriff's belief that Moore was "free to leave" was based entirely on the lack of charges for which to hold him. The sheriff also learned that afternoon that Moore had required hospitalization for mental problems, and indeed he questioned Moore at some length about it.

Under circumstances we have described, the police conducted a prolonged interrogation of Moore. He asked when his mother would arrive to pick him up and was told that it would take a few minutes, although it took much longer despite the fact she had to come only ten miles. He then asked how many more questions would be asked, and was told again it would only take a few more minutes, to which he responded, "no, I'm tired now." The sheriff merely told him, "I am too, that's two of us, Curtis," and continued the interrogation. Shortly thereafter Moore became unresponsive again, and stated "I go home," to which the sheriff replied, "Nobody is going to hurt you. We just want to talk, want you to tell us about last week, ok?" Some time later, the sheriff asked Moore if he wanted to go home, Moore said yes, and the sheriff told him, "Well, come on and tell me about it then and we'll go." When Moore continued to say, "I don't know nothing," the sheriff continued to tell him that they would go home after Moore talked. As Moore apparently grew more unresponsive, the sheriff repeated fifteen times that if Moore talked he could go home. ² Still later, exasperated the sheriff told him, "You tell me what happened. We're tired of messing around here now. We're ready to go home. Tell me what happened so you can go home too." Finally, Moore told the sheriff he was sleepy, indicated he wanted to go home, but was again told he could go when he told the police what happened the night of the murder.

Moore asserts that he was never advised of his constitutional right to remain silent under the fifth amendment and his right to the assistance of counsel under the sixth amendment as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Commonwealth concedes that it did not so advise him at the beginning of his interrogation, but contends that the sheriff eventually informed Moore of his constitutional rights before Moore inculpated himself in the crime.

The warning prescribed by Miranda was not recorded on the tape of the interrogation, nor did the police secure any document executed by Moore reflecting that he had been informed of and understood his rights. The sole evidence that the police advised Moore of his rights is the testimony of Sheriff Sasser. Moore did not testify at the suppression hearing, but the contemporaneous recording of the interrogation, which the state judge listened to, supports his contention.

The record is unclear as to precisely when the sheriff claims that he gave Moore the required notice. The state judge found the sheriff did so "before (Moore) ever made any admission of going to (Mrs. Jones's) house." The sheriff testified that it occurred approximately an hour after the taped interrogation began. He had begun to suspect that Moore had committed the crime, so he left the room and called the Commonwealth's Attorney, who was not available, and then called the City Attorney, who advised the sheriff to notify Moore of his constitutional rights, which the sheriff allegedly did when he returned to the interrogation room. Moore also allegedly said that he understood his rights at that time, and agreed to continue talking to the police officers. The sheriff stated that this incident occurred just prior to taking Moore to Mrs. Jones's house that evening. They went there twice, the first time at approximately 9:30 p. m. At the trial, but not at the suppression hearing, the sheriff stated that he accordingly must have called the Commonwealth's Attorney and the City Attorney around 8:30 or 9:00 p. m.

No evidence in the record accounts for the discrepancy between the sheriff's testimony that he began the interrogation around 3:30 p. m. or 4:00 p. m., that his interrogation of Moore is contained on the tape, that he notified Moore of his constitutional rights approximately one hour after he began the interrogation, and his testimony that this notice was given shortly before the first visit to Mrs. Jones's house, which undisputedly occurred at approximately 9:30 p. m It is not clear, moreover, at what point in the interrogation the Miranda warning was given, irrespective of time. Moore's "admission" placing himself at the Jones residence the night of the murder that the sheriff testified occurred after the warning was given may refer to a discussion on the tape or to admissions made by Moore on the first visit to the house.

The tape of Moore's questioning indicates that the sheriff left the room about twenty minutes into the interrogation, returning about five minutes later. Nothing on the tape suggests any break in recording, and at that point, despite intense questioning by the sheriff and other officers pointedly asking Moore about a sexual encounter with the woman, Moore had still admitted little more than seeing a woman on the street with an overcoat and pocketbook. Entirely consistent with the sheriff's testimony about the interrogation, Moore finally admitted, after approximately forty-five minutes of relentlessly repetitive leading questioning, that he did have a sexual encounter on the night of the murder, and approximately five minutes later he admitted that he had visited a woman's house, which the police suggested was the victim's house. Shortly after one hour of interrogation, Moore agreed to accompany Sheriff Sasser and other police officers to the victim's house. The tape is audibly shut off by a police officer who states, "end of part one, police station." Given the lack of any previous discernible break in the tape, and the Sheriff's own testimony, the only plausible time the Miranda warning could have been given was at the time the officers took Moore from the interrogation room and escorted him to the Jones residence across the street.

II.

We need not decide whether any Miranda warning was actually given, ³ because the record starkly demonstrates both the failure of the police to give the warning sufficiently timely to protect Moore's constitutional rights to remain silent and to the assistance of counsel and their...