Davis v. Com., 740492
| Decision Date | 28 April 1975 |
| Docket Number | No. 740492,740492 |
| Citation | 215 Va. 816,213 S.E.2d 785 |
| Parties | James Henry DAVIS, Jr. v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Supreme Court |
Robert L. Harris, Richmond (Robert N. Johnson; Harris, Tuck, Freasier & Johnson, Professional Associates, Inc., Richmond, on briefs), for plaintiff in error.
Alan Katz, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen.; Michael M. Weise, Asst. Atty. Gen., on brief), for defendant in error.
Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
James Henry Davis, Jr. was indicted for the crimes of robbery and murder. Upon his pleas of not guilty to both charges, he was convicted on each by a jury and sentenced to confinement in the penitentiary for two consecutive terms five years for robbery and twenty years for murder in the first degree. We granted the defendant a writ of error.
The assignments of error present three basic questions. Was the defendant's confession rendered involuntary because it was given upon the recommendation of his two retained attorneys, whom he contends were ineffective and incompetent? Was the defendant entitled to a second preliminary hearing on the charges as the result of the claimed inefficiency of counsel? Was the cross-examination of the Commonwealth's witness Bey improperly limited by the trial court?
We affirm.
On August 20, 1973, Louis Weinstein was shot and killed during the course of a robbery of his jewelry store at 420 East Broad Street in Richmond, Virginia. On September 13, 1973, the defendant was arrested and charged with the murder and robbery. He made no statement at the time of arrest. Daniel F. Terry and A. Clair Sager, Richmond attorneys, were retained the next day as his counsel. They had previously represented him on another charge resulting from an unrelated criminal offense which occurred on August 22, 1973.
On October 3, 1973, the preliminary hearing on the instant charges was held, having been continued from a prior date. The charges were certified to the grand jury which returned the indictments on November 5, 1973. The confession in question was given on November 20, 1973.
The trial had been scheduled for November 26, 1973, but it was continued on motion of the defendant, made by Terry on that day. Terry represented to the trial court that 'Mr. Davis has changed his plea two or three times and in view of the fact that he would have plead guilty, now he wants a jury . . ..' He further stated that Davis had 'come up with three witnesses at the last minute . . ..' Terry, accordingly, asked for more time to prepare the defense. The trial was postponed and set for December 4, 1973.
The record shows that on November 26, 1973, upon motion of Terry, an examination of the defendant was ordered to determine his mental condition. Code § 19.1--228. Responding to the court's inquiry into the reason for the motion, Terry stated, 'Well, his mother don't think he acts right, that's one thing, but he indicates that he will go along with--we've had the polygraph in this instance and then--then he's changed and makes a statement in this instance, he pleads one way in this instance and another way in another and its hard for me to reach him, I--I cant't hardly cope with it, he just don't seem to act reasonable.'
On December 3, 1973, the trial judge entered an order allowing Sager to withdraw as counsel for the defendant. Apparently, Terry was never technically a 'counsel of record.' Rule 1:5. The record shows that this order was entered following receipt by the trial judge of a letter dated November 27, 1973, in which Sager and Terry asked to be relieved as counsel. In the letter, counsel stated that they had agreed to represent the defendant provided they were paid their fee before the case was heard and provided the defendant would follow their recommendations in the handling of the case. They further stated that they had 'done considerable work on this case since the defendant's mother approached (them) about representing him,' that they had not been paid, and that the defendant had not followed their recommendations but had 'insisted that the case be handled according to his directives.'
Robert L. Harris, another Richmond attorney, was then appointed by the court. He represented the defendant to final judgment in the trial court and was appointed to prosecute this appeal.
On December 10, 1973, Harris, on behalf of the defendant, filed a motion for an order granting the defendant another preliminary hearing on the charges and a motion for an order his constitutional rights. The hearing on these motions was held on January 18, 1974. The motions were denied and the trial on the merits commenced on January 24, 1974.
During the trial, the confession in question was received in evidence, over the objection of the defendant. Detective Norman A. Harding of the Richmond Bureau of Police, the investigating officer, testified that the defendant made no statement about the offenses to him on the date he arrested Davis but that on November 20, he talked to the defendant at the Richmond City Jail in the presence of Terry. Harding stated that as the result of a 'call' from Terry, he went to the jail where he waited for about one hour before Terry informed him that defendant 'wanted to talk to me.' After being advised by Harding of his rights, as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the defendant fully and in detail confessed to the crimes with which he was charged. The evidence shows that the interrogation by Detective Harding was fair, objective, deliberate and free from pressure of any kind. The interview was completed in 13 minutes.
During the January 18, 1974, hearing on the preliminary motions, Ralph B. Robertson, Reid A. Simmons and the defendant testified; Terry and Sager did not. The evidence relevant to the confession consisted of the testimony of Robertson and of the defendant. Robertson, 30 years of age, testified that he was an attorney practicing in Richmond and an assistant Commonwealth's Attorney for the City. He stated that he was present in the Richmond General District Court on the date of the defendant's first appearance, that the defendant was 'brought in' with Milton Cox, 'the co-defendant to James Henry Davis,' and that 'Mr. Sager identified the wrong defendant as being his client and in all honesty this disturbed me a great deal because I knew the seriousness of the offense with which this defendant' was charged. Robertson further testified that he had discussed the case in passing conversation with Sager and Terry. He stated that the attorneys did not appear to be concerned about Davis' confession and thought that it would only help him. Robertson could not understand why Terry let Davis make a statement unless he had some 'promise of cooperation.' He acknowledged that there might have been a reason for this action bur said that Terry did not state any reason for it.
The defendant testified that he was 20 years of age with an eighth grade education, that he had met Terry and Sager in connection with the August, 1973 offense, that he did not request the interview with Detective Harding, that his attorney came to the jail before the interview and 'was talking to me and he was telling me to plead guilty to the charge and I told him I ain't want to plead guilty to the charge, so he talk about two hours, . . . say he was going to get me a whole lot of time if I didn't plead guilty.' He further testified that Terry told him that if he pled guilty 'they might give me fifty years,' otherwise, he would get two life sentences. He also stated that he did not want to confess "cause I told him I be lying if I say I did (it),' but that he made the statement because his attorney 'told me to give it.'
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