Ferguson v. Superintendent of Virginia State Penitentiary

• Decision Date: 14 October 1974
• Parties: Herbert Levi FERGUSON v. SUPERINTENDENT OF the VIRGINIA STATE PENITENTIARY.
• Court: Virginia Supreme Court

Page 749

208 S.E.2d 749

215 Va. 269

Herbert Levi FERGUSON v. SUPERINTENDENT OF the VIRGINIA STATE PENITENTIARY.

Supreme Court of Virginia.

Oct. 14, 1974.

Donald R. Johnson, Lexington (Bernard J. Natkin, Lexington, on brief), for plaintiff in error.

Wilburn C. Dibling, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

HARRISON, Justice.

On November 3, 1971, Herbert Levi Ferguson, having waived trial by jury, was convicted by the lower court on an indictment charging him with breaking and entering the storehouse of the Western Auto Store in Buena Vista with intent to commit larceny, and was sentenced to confinement in the penitentiary for a period of 4 years. Defendant did not appeal the judgment of conviction.

On May 22, 1972, Ferguson filed in the court below a petition for a writ of habeas corpus in which he attacked his conviction. He alleged a denial to him of counsel at custodial interrogation and that the confession given by him was coerced and involuntary. After a full evidentiary hearing the trial court denied the writ, finding as a fact that the confession of Ferguson to the law enforcement officers that he did break and enter the Western Auto Store was not coerced or induced but was made voluntarily, and hence it was admissible. We granted the petitioner an appeal.

On Thursday, July 29, 1971, shortly after midnight, two patrolling officers of the Buena Vista police department noticed in the city's parking lot a 1965 Ford occupied by two persons, a man under the wheel and a woman in the back. The officers did not stop at that time, but immediately thereafter Officer Marshall Stinnett went back to the lot and noticed that a third person, subsequently identified as Ferguson, was standing at the rear door and outside the vehicle. The officer saw another man in the middle of the street walking away from the Western Auto Store with an armful of guns. Stinnett called for two fellow officers, and as he ran toward the car Ferguson opened the door and got in the back seat with the woman.

The officers found 'a pile of guns right where Mr. Ferguson was standing at the rear door of the car', in addition to the guns that they took from the man who was seen coming across the street. The door to the store had been pried open and the lock broken. The officers found a crow bar and a tire iron lying beside the cash register which also had been broken open. The sum of $48.10 was missing from the cash register, and 15 guns, valued at $1,160.25, were recovered. All four parties, including Ferguson and the female, Juanita Wolfolk, were arrested and charged with breaking and entering. Prior to any interrogation by the officers the defendant was given the full and correct Miranda warnings. Ferguson refused to make any statement without an attorney, and no incriminating statement was made by him at that time, or at any time while he was in jail.

On August 4, 1971, D. R. Huffman, the Chief of Police of Buena Vista, transported petitioner and his codefendants by automobile from the Augusta County jail to the Municipal Court in Buena Vista. The purpose of Ferguson's return to Buena Vista and to the court was for the appointment of counsel. Huffman testified that during the course of their journey Ferguson initiated a conversation and volunteered that 'he would like to talk to the Commonwealth's Attorney, he would like to get this thing straight and tell the truth about it and get this girl (Miss Wolfolk) off as she was not guilty'.

Huffman said he advised Ferguson that he 'could talk to the Commonwealth's Attorney if you wish to', and that when they walked into the court room he told Ferguson: 'Well, here is Mr. Robey, the Commonwealth's Attorney, you can talk to him. He did talk to Mr. Robey and told him his story.'

Petitioner, in the presence of Huffman and the Commonwealth's Attorney, confessed to breaking and entering the Western Auto Store. He insisted that Miss Wolfolk, with whom he had been living for over a year, had no part in the breaking and entering. Robey testified that he was fully aware that Ferguson's purpose in making the statement was to get the girl released, but that he had no recollection of having made any promise to the petitioner in regard to her release.

In his petition for a writ of habeas corpus Ferguson alleged only (1) the denial of counsel at custodial interrogation and (2) that his confession was involuntary and coerced. However, in his assignments of error he also complains of (3) a failure to appoint counsel for him in accordance with the provisions of Code § 19.1--241.2, (4) failure to advise him of his right to counsel and to give him his Miranda warnings, and (5) failure to provide him with an adequate record of the trial proceedings.

We observe again that the trial court found petitioner's confession to be voluntary and not coerced. The evidence disclosed that the Miranda warnings were properly given to petitioner and that there was no custodial interrogation of him. Petitioner admitted that he had previously been convicted of a felony and had previously filed a petition for writ of habeas corpus. He stated that he knew he was entitled to counsel and also knew his...