Cradle v. Cox

• Decision Date: 01 June 1971
• Docket Number: Misc. No. 167-70-N.
• Citation: 327 F. Supp. 1169
• Court: U.S. District Court — Eastern District of Virginia
• Parties: David Lee CRADLE, Petitioner, v. J. D. COX, Superintendent of Virginia State Penitentiary, Respondent.

327 F. Supp. 1169

David Lee CRADLE, Petitioner, v. J. D. COX, Superintendent of Virginia State Penitentiary, Respondent.

Misc. No. 167-70-N.

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

June 1, 1971.

Thomas Connor, Norfolk, Va. (court-appointed), for petitioner.

W. Luke Witt, Asst. Atty. Gen., Richmond, Va., for respondent.

MEMORANDUM ORDER

KELLAM, District Judge.

By Order of the United States Court of Appeals for the Fourth Circuit of August 20, 1970, the petition for habeas corpus in this case was remanded to this Court for further consideration in light of Kemplen v. Maryland, 428 F.2d 169 (4th Cir. 1970). Following remand, counsel was appointed to represent petitioner and a plenary hearing held on March 31, 1971.

David Lee Cradle (Cradle), a minor born February 5, 1945, was arrested at the home of his grandmother on April 24, 1962, about 2:00 o'clock a. m., upon two charges of armed robbery.¹ His grandmother² was then told the matter would be heard in Juvenile Court that morning—April 24, 1962—at 10:00 o'clock a. m. He was taken by the police to headquarters, where at 4:15 a. m. and 4:55 a. m., April 24, 1962, after being fully advised of his rights, he gave statements admitting the offenses charged.

On April 24, 1962, defendant appeared before the Juvenile Court. When his grandmother did not appear, a guardian ad litem was appointed for him.³ A transcript of this hearing and the court records establish that the two bus drivers who had been robbed merely related the facts of the robbery. They were not able to identify Cradle as one of the persons who robbed them. The matter was continued to May 22, 1962, to enable the investigation and report required by Section 16.1-164 and 16.1-176 of the Code of Virginia, to be made. The report was filed on May 22, 1962, and without further hearing, the case was certified by the Juvenile Judge to the grand jury for action.⁴

On May 11, 1962, counsel was appointed to represent Cradle. He conferred with Cradle on May 14, 1962. Cradle told his counsel he had given a voluntary statement confessing the crimes and he desired to enter a guilty plea. On June 6, 1962, Cradle gave his own counsel a written statement saying he wanted to "plead guilty." At his trial on June 11, 1962, he did enter a guilty plea to each of the charges, and was on October 16, 1962, sentenced to eight years imprisonment on each charge to run concurrently.

On September 20, 1965, Cradle filed a state habeas petition raising, among other things, the issue of lack of counsel at the juvenile hearing. After a full plenary hearing, he was denied relief. Such denial of relief was affirmed on appeal to the Supreme Court of Appeals of Virginia. 208 Va. 243, 156 S.E.2d 874. Certiorari was denied by the United States Supreme Court on July 17, 1968.

The Supreme Court of Appeals of Virginia held in the Cradle appeal that In re Gault was not to be applied retroactively. Since that time the United States Court of Appeals for the Fourth Circuit held in Kemplen v. Maryland, 428 F.2d 169 (1970) that In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, is to be given retroactive application, and we are bound by that finding. However, in Kemplen, the Court pointed out that it did not appear that the granting of a new trial was the "only possible relief for the juvenile who was unconstitutionally put over to the adult criminal court." Further, the Court said the "district court may fashion various remedies to suit the procedures of the various states within the circuit and to fit the facts of particular cases." In Handy v. Director, Patuxent Institution, Memo Decision No. 13,547, 4th Cir., decided October 1, 1970, the Court said the failure to furnish counsel at the juvenile hearing would entitle the juvenile to a de novo determination of whether "waiver was appropriate."

We should first determine whether any prejudice resulted to Cradle from the absence of counsel at his juvenile hearing. At the start, it is appropriate to point out that in In re Gault, the Court was dealing with procedure in the Juvenile Court of Arizona which (a) did not provide for an appeal, (b) permitted hearsay testimony, which denied the right to cross-examination, (c) permitted use of an involuntary statement—juvenile not being advised of any right to remain silent, etc., and (d) the imposition of a more severe sentence for the juvenile than was permitted for an adult for the same offense. There the Supreme Court held that the trial did not comply with due process. But the Court there again, as it had done in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84, pointed out that they did not intend to indicate that the "hearing to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearing" but that it must measure up to the essentials of due process and fair treatment.

The procedure in Cradle differs from that in In re Gault. It is not confined to the difference between a "confinement order" and a "certification order." In Cradle, at the time of his arrest, his grandmother, the person having custody of Cradle, and who had raised him, was advised of the charge, and that a hearing would be held the next morning at 10:00 o'clock a. m. Shortly after his arrest, Cradle gave a voluntary confession after being advised of all his rights.⁵ No hearsay testimony was admitted at the hearing, and the report required by statute was ordered. The Court made no adjudication of commitment or confinement. The matter was certified to the Corporation Court for action by the grand jury, and an indictment was returned. Section 16.1-175 of the Code of Virginia provides that when in a court, other than the juvenile court, it appears a person is under the age of eighteen, that court shall transfer the case to the juvenile court, but if the court is a court of record, it may, in its discretion, after an investigation by the probation officer, or if one has been made, upon review of that report, continue with the case. This is not an arbitrary decision, but one to be based upon knowledge of facts upon which the discretion might properly operate; that is, it must be a sound judicial discretion. Tilton v. Commonwealth, 196 Va. 774, 85 S.E.2d 368; Redmon v. Peyton, 420 F.2d 822 (4th Cir. 1969).

As provided in Section 16.1-176, Code of Virginia, when a juvenile is charged with an offense which if committed by an adult would be punishable by confinement in the penitentiary, the juvenile court may retain jurisdiction or certify the juvenile for proper criminal proceedings in the court of record. That section further provides that if the offense charged, when committed by an adult, would be punishable by death or confinement in the penitentiary for life or a period of twenty years or more, and the juvenile court does not certify the case to the court of record for action, the Commonwealth's attorney may present the case to the grand jury for action, and action by the grand jury deprives the juvenile court of jurisdiction. Here, each of the two offenses charged carried punishment by death or confinement in the penitentiary for life or any term not less than five years. Code of Virginia 18.1-91.

When the matter is heard in the court of record, whether upon certification or otherwise, that court can then proceed to try the defendant as a juvenile, or as an adult. In effect, this is the first decision which that court makes, once it appears an offense has been committed and the report of the probation officer has been reviewed. Section 16.1-177, Code of Virginia. Again, the discretion to be exercised is "a sound judicial discretion," and one not to be exercised arbitrarily and wilfully, but based on knowledge of the facts.

The record of the state habeas hearing discloses that even prior to the return of the indictments by the grand jury, appointed counsel conferred with Cradle.⁶ The first conference was on May 14, 1962. After counsel explained his rights, and the penalty for the offenses charged, Cradle told his counsel he wanted to enter a plea of guilty, and that he had given a statement to the juvenile police officer. The voluntariness of giving of the confessions was thoroughly discussed with Cradle, as well as the circumstances under which the statements were given. Counsel conferred with Cradle on May 14th, 15th, 16th, 21st, 23rd and June 6th. At trial on June 11th, when Cradle entered his guilty plea, his grandmother was present. On his plea, and the evidence heard, Cradle was found guilty. Upon request of his counsel, a pre-sentence report was obtained, and he was not sentenced until October 16, 1962.

Following a remand of this federal habeas by the United States Court of Appeals for the Fourth Circuit, by Order of August 20, 1970, counsel was on November 4, 1970, appointed to assist Cradle. A plenary hearing was held on March 31, 1971, to determine whether the waiver by the juvenile court was proper when made. At the hearing petitioner offered no evidence. The Chief Probation Officer of the Juvenile Court of Norfolk testified that he was assigned to do the report called for by Section 16.1-176(b) of the Code of Virginia; that it was the usual custom and practice of that court to certify cases of this type to the court of record for disposition, and that in his opinion, even had counsel appeared for Cradle, the case would have been certified to the Corporation Court.

In the proceedings before the Juvenile Court, the two victims of the bank robbery and the juvenile police officer were the witnesses. The two victims of the robbery merely testified they were robbed, but could not identify the robbers, and the police officer testified as to the confession given. Defendant Cradle did say he had purchased a jacket and shoes with the money he had stolen, but nothing more. The matter was continued to May 22nd to enable the probation officer to make an investigation and...