Brewer v. Peyton

• Decision Date: 28 October 1970
• Docket Number: No. 13869.,13869.
• Citation: 431 F.2d 1371
• Parties: Summit Curtis BREWER, Appellant, v. C. C. PEYTON, Superintendent, Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

431 F.2d 1371 (1970)

Summit Curtis BREWER, Appellant, v. C. C. PEYTON, Superintendent, Virginia State Penitentiary, Appellee.

No. 13869.

United States Court of Appeals, Fourth Circuit.

Argued February 6, 1970.

Decided October 28, 1970.

Melvin R. Manning, Richmond, Va. (Court-assigned counsel), for appellant.

W. Luke Witt, Asst. Atty. Gen. of Virginia (Robert Y. Button, Atty. Gen. of Virginia, on the brief), for appellee.

Before BOREMAN, WINTER and CRAVEN, Circuit Judges.

BOREMAN, Circuit Judge:

Summit Curtis Brewer appeals from an order of the district court denying his petition for a writ of habeas corpus without a hearing.

On October 27, 1959, Brewer was arrested at approximately 8 p. m. at his father's home near Galax, Virginia, in connection with a homicide which had occurred in Carroll County, Virginia, on the same day. He was taken to the police station in Galax, where he was questioned for some forty to forty-five minutes, before being transferred to the jail at Hillsville, Virginia. On the way to Hillsville the officers continued to interrogate Brewer and, as they drove by the local funeral home, asked Brewer if he wanted to go inside to see "what he had done." Brewer's shoes were taken from him after his arrest, ostensibly for use as evidence. Between 10 and 10:30 p. m. Brewer's brother, William, arrived at the Hillsville jail; William was not allowed to consult with his brother and, as he was pushed out the back door by the officers, William shouted, "Don't tell them anything until I get you a lawyer." William testified at a state habeas corpus hearing that he was told at the station by a policeman that his accused brother had been advised of his legal rights.¹ Appellant claims that he requested an attorney prior to giving a statement, but was told "You can't see no attorney now. We've got to question you first."² The interrogation continued until approximately 3 a. m., on October 28, when Brewer orally "confessed" to having committed the murder. The questioning then was discontinued but was resumed at 8 a. m., at which time Brewer signed a written statement which included a waiver of rights and which was referred to as a "confession."

Later that day counsel who had been retained by Brewer's family came to see him and was informed that a "confession" had been given to police. Counsel ascertained that the questioning leading to the confession had been extensive, but Brewer made no complaint to counsel that any coercive tactics had been employed by officers in obtaining the confession.

Pursuant to a motion by his counsel Brewer was sent to a mental hospital for observation and the hospital psychiatrist later reported that Brewer had a "full scale I.Q. of 74, placing him in the borderline level of intelligence, and a diagnosis is made of `Mental Deficiency, Idiopathic, Mild.'" although the psychiatrist concluded that Brewer was not psychotic or insane and that he was mentally competent to stand trial.

Acting upon his counsel's recommendation, Brewer entered a plea of guilty and a sentence of life imprisonment was imposed.

On November 12, 1965, Brewer filed a petition for a writ of habeas corpus in the Circuit Court of Carroll County, Virginia. He alleged that his confession resulted from coercion and pressure exerted upon him for an extended period of time during interrogation; that a search for and seizure of evidence from his father's home and a nearby truck were unconstitutional; that he was denied assistance of counsel during the interrogation; and that his counsel's representation was ineffective in that counsel failed to investigate the circumstances surrounding the giving of the confession and other aspects of the case before advising him to plead guilty. A hearing was held by the state habeas court which denied relief. The Supreme Court of Appeals of Virginia denied Brewer's application for a writ of error.

Brewer then filed his present habeas corpus petition in the district court alleging the same grounds presented in the state courts. The district court reviewed and relied upon the record of the state habeas hearing and ordered the federal petition dismissed without a hearing. We affirm.

The challenge to the legality of the search and seizure is clearly without merit since there is no showing that anything seized in the search was used as evidence against Brewer or in any manner to his prejudice.

Brewer's claim that he was without counsel during the interrogation is also without merit since his trial took place some time prior to Escobedo v. Illinois,³ which for the first time required that counsel be present at the accusatory stage of interrogation. Escobedo subsequently was held to be nonretroactive.⁴

Brewer's remaining claims are: that, because of his low mentality and the use by police of pressure tactics during the interrogation, his confession was coerced; that the coerced confession motivated his subsequent guilty plea, thereby rendering the plea involuntary.

These claims found support in prior decisions of this court in which it was held that a guilty plea was involuntary when based upon and induced by a coerced confession and that such a plea did not bar a subsequent collateral attack (by habeas corpus) upon the judgment and sentence. White v. Pepersack, 352 F.2d 470, 472 (4 Cir. 1965); Jones v. Cunningham, 297 F.2d 851, 855 (4 Cir. 1962).

However, the effect of the above-cited White and Jones cases has been eroded by the United States Supreme Court's recent decision in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). In McMann, the Court stated:

"The issue on which we differ with the Court of Appeals arises in those situations involving the counselled defendant who allegedly would put the State to its proof if there was a substantial enough chance of acquittal, who would do so except for a prior confession which might be offered against him, and who because of the confession decides to plead guilty to save himself the expense and agony of a trial and perhaps also to minimize the penalty which might be imposed. After conviction on such a plea, is a defendant entitled to a hearing, and to relief if his factual claims are accepted, when his petition for habeas corpus alleges that his confession was in fact coerced and that it motivated his plea? We think not if he alleges and proves no more than this. Emphasis added.

* * * * * *

"A more credible explanation for a plea of guilty by a defendant who would go to trial except for his prior confession is his prediction that the law will permit his admissions to be used against him by the trier of fact. At least the probability of the State\'s being permitted to use the confession as evidence is sufficient to convince him that the State\'s case is too strong to contest and that a plea of guilty is the most advantageous course. Nothing in this train of events suggests that the defendant\'s plea, as distinguished from his confession, is an involuntary act. His later petition for collateral relief asserting that a coerced confession induced his plea is at most a claim that the admissibility of his confession was mistakenly assessed and

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