Brown v. Cox

• Decision Date: 06 March 1970
• Docket Number: Misc. No. 6529-N,6820-N.
• Citation: 311 F. Supp. 81
• Parties: Raymond BROWN, Petitioner, v. J. D. COX, Superintendent of the Virginia State Penitentiary, Respondent. Linwood Charles EBRON, Petitioner, v. J. D. COX, Superintendent of the Virginia State Penitentiary, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

311 F. Supp. 81

Raymond BROWN, Petitioner, v. J. D. COX, Superintendent of the Virginia State Penitentiary, Respondent.

Linwood Charles EBRON, Petitioner, v. J. D. COX, Superintendent of the Virginia State Penitentiary, Respondent.

Misc. Nos. 6529-N, 6820-N.

United States District Court, E. D. Virginia, Norfolk Division.

March 6, 1970.

Vann H. Lefcoe, Portsmouth, Va., for Raymond Brown.

William T. Parker, Portsmouth, Va., for Ebron.

Reno S. Harp, III, Asst. Atty. Gen. of Virginia, Richmond, Va., for respondent.

MEMORANDUM ORDER

WALTER E. HOFFMAN, Chief Judge.

These two habeas corpus cases concern state court prisoners who were involved in the same crimes committed about 12:45 a. m. on Sunday morning, July 27, 1958, in the City of Portsmouth. In all, five juveniles¹ were implicated; the others being Major Maryland Davis, Jr., Nelson Jones, and Frederick Williams. The petitioners, Brown and Ebron, were granted separate plenary hearings in the state court, their writs were denied, petitions for writs of error were refused by the Supreme Court of Appeals of Virginia, and they then turned to the federal court for relief.

Because of the age of the petitioners and the confessions given, this court felt that the circumstances surrounding the confessions had not been sufficiently explored in light of Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948), Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962), Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966), Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961), In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), and many other decisions touching upon confessions of juveniles. Accordingly, plenary hearings were granted by the federal court and the cases were consolidated.

Following a pretrial hearing attended by the petitioners and their counsel² on January 22, 1969, an order was entered on February 4, 1969, confining the plenary hearing to the following factual issues:

1. Were petitioners' confessions admissible in evidence?

2. Were petitioners represented by counsel at their respective hearings in the Juvenile and Domestic Relations Court for the City of Portsmouth, or was a guardian ad litem appointed to represent them?

The federal court plenary hearings were conducted on March 26-27, 1969; June 17, 1969; and February 4, 1970.

We entertain no doubts as to the factual guilt of the petitioners. While we do not have a transcript of the trial proceedings of October 8, 1958, at which time these petitioners were tried in the Court of Hustings for the City of Portsmouth on five separate indictments charging rape, two offenses of robbery, and two offenses of maiming,³ there appears in the state court records presentence reports filed November 12, 1958, which fully disclose the brutality of the crimes committed during the early hours of Sunday, July 27, 1958. We do not, however, under the law, concern ourselves with the factual guilt of the petitioners. The fact that this was gang rape of the female victim, and gang robbery and maiming of both the male and female victims, only serves to support the seriousness of the offenses and gives some substance to the length of the sentences imposed upon these juveniles.

We will initially discuss the proceedings in the Juvenile and Domestic Relations Court for the City of Portsmouth. After all five juveniles had been taken into custody, interrogated, and given written confessions on Sunday, July 27, 1958, Detective R. V. Porter obtained and filed juvenile petitions on Monday, July 28, 1958, which was the first day the court was open following the commission of the crimes. In the interim period it is clear that at least the mothers of Nelson Jones, Linwood Charles Ebron, and Raymond Brown had conferred with their sons and one or more of the police officers. On July 30, 1958, the judge of the Juvenile and Domestic Relations Court issued orders of detention in accordance with section 16.1-197 of the Code of Virginia 1950, as amended.⁴

Precisely when attorneys were retained to represent the petitioners is unknown. When Ebron's mother first saw her son on the afternoon of July 27, 1958, she told him not to worry as "we are going to try to get a lawyer and get you out."⁵ Two attorneys, J. Hugo Madison and Walter L. Davis ultimately were retained by the parents of Ebron, Brown and Jones. The original juvenile petitions filed against the five boys on July 28 were returnable to August 25, 1958. The Clerk of the Juvenile Court testified that the petitions indicated the cases were continued from August 25, 1958, to September 2, 1958, by agreement of counsel.^5a It would appear, therefore, that counsel were representing the juveniles prior to August 25, 1958. Mr. Walter L. Davis, one of the attorneys, died on some date between 1958 and 1966. Mr. Madison could not recall whether he was present at the preliminary hearing in the Juvenile and Domestic Relations Court on September 2, 1958, but he states that his 1958 diary reflects the word "Portsmouth" for that particular day without specifying for what purpose Mr. Madison, a Norfolk attorney, would be going to Portsmouth. Mr. Madison further stated that he did not know when he was retained and expressed the view that Mr. Davis was probably first employed. Brown's mother, Christine A. Cherry, testified that it was a couple of weeks before Davis and Madison were retained, and she further estimates this time to be "about the last of August."⁶ Mrs. Sullivan, the mother of Ebron, admits having hired Davis and Madison but was not pressed as to the date of employment.

We turn to the testimony of the petitioners on the issue as to whether they were represented by Messrs. Davis and/or Madison at the preliminary hearing on September 2, 1958. Ebron, at the federal hearing, said nobody was there to represent them, and specifically denied the presence of Mr. Davis.⁷ Ebron's testimony at his state court hearing on October 11, 1967, was to the contrary as to Davis who, according to Ebron, requested a continuance of the preliminary hearing because Madison was not present.⁸ Later, in the same plenary hearing,⁹ on cross-examination of Ebron the following appears:

"Q. Wait a minute. Did you have counsel there at the preliminary hearing?

A. Sure. A counsel, not two of them which it was supposed to have been.

Q. But you were represented by counsel?

A. Yes. That is what I am telling you now.

Mr. Davis asked Mr. Judge Cassell could the case be continued because his partner lawyer wasn't there and they were in this together."

The petitioner, Brown, testified that he was uncertain as to whether Messrs. Davis and/or Madison were present at the juvenile court preliminary hearing,¹⁰ although he knew that his parents had retained the services of these attorneys. Since both Ebron and Brown concede that all five juveniles were present at the hearing on September 2, 1958, at which time Judge Cassell marked the docket sheet "Held for Grand Jury" opposite each name, we think it clear that Mr. Davis, counsel for both Ebron and Brown, was present. We believe it unnecessary to determine whether Mr. Madison was present.

Ebron's mother was admittedly present at the preliminary hearing on September 2, 1958.¹¹ Brown's mother, Christine A. Cherry, claims to have arrived late for the hearing and that it was over when she arrived. The mother saw Brown's father, from whom she was divorced, coming out of the building as she arrived.¹² The father testified that he was notified of the hearing and that "he got there rather late"—somewhere near the close of the proceeding.¹³ Incidentally, Brown's father "believes" that Davis and Madison were present at the juvenile hearing.¹⁴

The docket sheet indicates that the following parents were present, all of which appears in the handwriting of Judge Cassell: the mother of Ebron; the father and mother of Brown; the father and mother of Williams; the mother of Davis.¹⁵ It is significant to note that the entries in the handwriting of Judge Cassell correspond with the facts surrounding the presence of petitioners' parents, other than the time of arrival at the hearing. We find that the parents as noted were present during the entire proceedings.

The final point with respect to the Juvenile Court proceedings is that the written report required by section 16.1-176(b) was not made prior to the cases being sent on to the grand jury. Concededly, no written report was typed until September 11 (Brown) and September 12 (Ebron). Likewise, the statute is mandatory. Tilton v. Commonwealth, 196 Va. 774, 85 S.E.2d 368 (1955). However, neither the statute nor the case law appears to require that the report be in writing. The uncontradicted testimony of the Chief Probation Officer is to the effect that, due to clerical shortage and backlog of typing personnel, it was frequently the practice to report orally to the court, with the written report being filed at a later date. This is obviously what happened in these cases. The statute requires an "investigation" to be made—not a "report." It further provides that if the juvenile court makes an "investigation and report," with the results being certified to the court of record, the latter court need not order a further investigation. We hold, therefore, that a written report was not required as a condition precedent to the Juvenile and Domestic Relations Court sending these cases on to the grand jury, and that an oral report was given as a part of the prevailing practice.

We hold, furthermore, that there were no constitutional defects in the Juvenile Court proceeding which will afford either of these petitioners any relief.

We pass, then, to the more serious question of the confessions. The question is not confined to the strict theory of admissibility. More precisely, the issue is one of voluntariness. Youth by itself is not a ground for holding a confession inadmissible. Williams...