Lawson v. Murray
| Decision Date | 25 January 1988 |
| Docket Number | No. 86-6763,86-6763 |
| Citation | 837 F.2d 653 |
| Parties | 24 Fed. R. Evid. Serv. 870 Clarence Eugene LAWSON, Petitioner-Appellee, v. Edward W. MURRAY, Director of the Virginia Department of Corrections, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Linwood Theodore Wells, Jr., Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen. of Virginia, on brief), for respondent-appellant.
Jessica A. Ginsburg, Third-Year Law Student (Stephen A. Saltsburg, Supervising Atty., University of Virginia School of Law, Post-Conviction Asst. Project, on brief), for petitioner-appellee.
Before RUSSELL and HALL, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.
In a state court in Virginia, Clarence Lawson was convicted of burglary, attempted burglary and larceny. During his trial, he offered in his defense the testimony of Larry Bellamy, who, after briefly giving some testimony tending to exculpate Lawson, cut off cross-examination by invoking his fifth amendment privilege against self-incrimination. Believing that Bellamy's invocation of the privilege substantially impaired the Commonwealth's right to a fair trial, the trial judge struck all of Bellamy's testimony.
After exhaustion of all of his available state court remedies, Lawson sought a federal writ of habeas corpus, alleging that his right to due process had been denied when Bellamy's testimony was stricken.
Upon the recommendation of the United States Magistrate, the district court upheld the claim and directed issuance of the writ. We reverse, since we conclude that, in the circumstances of this case, considerations of fairness to the Commonwealth warranted the action of the trial judge in striking the testimony of the witness.
In the early morning hours of February 14, 1982, the Norfolk, Virginia, police were alerted to a burglary in progress at the R & W Hawkins warehouse. Two policemen responded. Upon their arrival at the scene, they observed two black males in the back parking lot of the warehouse near a red Mercury automobile, the trunk of which was open. When the officers approached the car, the two men fled. The officers gave chase; one of them caught and arrested Larry Bellamy, and the other man escaped.
A search of the automobile revealed several things that had been taken from the warehouse and a sledge hammer apparently used by the intruders in an attempt to gain entry through a wall into an adjoining liquor store. Upon checking, the policemen learned that the vehicle was registered in the name of James Lawson, a nephew of the petitioner, Clarence Lawson.
About two hours later, at 4 o'clock in the morning, James Lawson's brother, Elliott, telephoned the Norfolk police and reported that the red Mercury automobile had been stolen. He was invited to come to the police station, and, upon arrival there, he changed his story. He signed a statement in which he said that he had borrowed the automobile from James Lawson for the night, and had lent it, in turn, to Bellamy. He also stated that he had received a telephone call from the petitioner, Clarence Lawson, in which Clarence had reported that he and Bellamy had been "jammed" by the police and had been forced to abandon the vehicle. Elliott provided the police with a photograph of the petitioner, Clarence. When the photograph was shown to Officer E.N. Rogers, Rogers identified it as being a picture of the man he had unsuccessfully chased as the man fled from the parking lot earlier that morning.
During petitioner's trial before the court without a jury, a jury trial having been waived, Officer Rogers positively identified petitioner as the man he had seen with Bellamy in the parking lot of the R & W Hawkins warehouse in the early morning of February 14, 1982, and who had successfully fled and avoided Rogers's pursuit. The Commonwealth called Elliott Lawson as a prosecution witness, but Elliott completely recanted his earlier statement to the police. He testified that he had borrowed the Mercury automobile from James Lawson, but that the vehicle had been stolen while Elliott and his girlfriend were in a club. He denied that he had lent the automobile to Bellamy, and claimed that the policeman had procured his signature to his contrary written statement by coercion.
In defense, Carolyn Williams testified that she was Clarence Lawson's girlfriend, and that Clarence had been with her throughout the morning hours of February 14. Clarence himself took the witness stand to testify that he had not been present in the warehouse parking lot but had spent the entire night with Carolyn Williams. James Lawson testified, routinely, that he had lent the automobile to Elliott. The defense then presented Bellamy as a witness.
After identifying himself and stating his age, defense counsel asked Bellamy only one question. In response, Bellamy testified that at no time between midnight and 10 o'clock in the morning of February 14 had Clarence Lawson been with him.
On cross-examination, the prosecutor asked what Bellamy had been doing that night. Bellamy invoked his fifth amendment privilege against self-incrimination, and the prosecutor made a motion to strike Bellamy's testimony in chief. When the court indicated that it would grant the motion to strike, Bellamy relented and agreed to answer some questions about what he had been doing that morning. He then testified that he had visited Elliott Lawson in Elliott's home for some hours late the previous day, and that the two of them then went riding in the red Mercury automobile that Elliott had borrowed from James. Elliott had dropped Bellamy off on the street near the R & W Hawkins warehouse, and Bellamy cut through the rear parking lot of the warehouse on his way home. He saw no red Mercury automobile in the parking lot. He admitted that he had been picked up by the police in the vicinity of the warehouse, but when asked whether he had been running at the time of his arrest, Bellamy again invoked his fifth amendment privilege.
The prosecution then again made a motion to strike all of Bellamy's testimony, a motion that defense counsel resisted contending that Bellamy had sufficiently described his activities that night to permit his testimony in chief to stand. After concluding that Bellamy had not waived the privilege, and after again being told by Bellamy that the witness wished to invoke the privilege, the court granted the prosecution's motion to strike the testimony.
After conclusion of the bench trial, the court found Clarence Lawson guilty of burglary and larceny of the warehouse, and attempted burglary of the liquor store.
On the basis of a recommendation by the United States Magistrate, the district judge concluded that the trial judge's striking of Bellamy's testimony worked an unconstitutional denial of the...
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