Moore v. Ballone, Civ. A. No. CA79-0548-R.

• Citation: 488 F. Supp. 798
• Decision Date: 21 April 1980
• Docket Number: Civ. A. No. CA79-0548-R.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Curtis Jasper MOORE, Petitioner, v. Gerard BALLONE, Superintendent, et al., Respondents.

488 F. Supp. 798

Curtis Jasper MOORE, Petitioner, v. Gerard BALLONE, Superintendent, et al., Respondents.

Civ. A. No. CA79-0548-R.

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

April 21, 1980.

COPYRIGHT MATERIAL OMITTED

Harvey Latney, Jr., Robert P. Geary, Richmond, Va., for petitioner.

Robert E. Bradenham, II, Asst. Atty. Gen. of Va., Richmond, Va., for respondents.

MEMORANDUM

MERHIGE, District Judge.

Petitioner, an inmate confined at Central State Hospital in Petersburg, Virginia, having exhausted his state remedies, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges state convictions in the Circuit Court for the County of Greensville, Virginia, for rape and first degree murder, alleging that several self-incriminating statements were taken from him during a station-house interrogation and admitted into evidence at trial in violation of his Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Respondent Ballone is Superintendent of the Central State Hospital, Petersburg, Virginia, a State institution for the treatment of the mentally ill where petitioner is presently confined. Respondent Mitchell is Warden of the Virginia State Penitentiary in whose custody the petitioner was placed by virtue of the judgment of conviction.

Jurisdiction is attained pursuant to 28 U.S.C. § 2241.

Petitioner has moved for summary judgment and respondents have filed their response thereto. Neither petitioner nor respondents seek a plenary hearing on the merits of the instant petition, choosing instead to rely on the state court records. Having heard oral argument on petitioner's motion for summary judgment and reviewing the state court records, the Court finds summary judgment inappropriate, due to the many factual disputes, but finds the petition itself ripe for disposition on its merits.

Certain of the facts surrounding petitioner's claim are not in dispute. On the night of January 2, 1975, Mrs. Eva Jones, age 88, was the victim of a brutal rape and murder in her home across from the Emporia, Virginia police station. Before her death that night she told police that a black man had entered her house and had forced himself upon her. An intense investigation ensued, with some fifteen to twenty possible suspects questioned during the following six days. On the afternoon of January 8, 1975, two Emporia police officers picked up petitioner and took him to the police station for questioning. Petitioner had been brought to the police's attention by reason of several complaints about his suspicious behavior in the Skippers area of Greensville County, and at a nearby Ramada Inn.

The County Sheriff was notified of petitioner's apprehension and met the two officers and petitioner at the stationhouse. The Sheriff found petitioner about 3:30 or 4:00 o'clock p. m. in a back room at the police station being questioned by the officers. He introduced himself to petitioner and began questioning him concerning the rape and murder of Mrs. Jones. A tape recorder was engaged at this point and remained in operation throughout the questioning of petitioner. One officer operated the tape recorder and two others assisted the Sheriff in the interrogation. The tape reflects that the petitioner found many of the questions incomprehensible, and he revealed to the officers that he had been hospitalized previously for mental disorders. Several inconsistent but incriminating statements were made by petitioner throughout the afternoon and into the night. At 8:30 or 9:00 o'clock p. m., the Sheriff concluded that a visit to the victim's home would trigger, if not a full confession, at least further inculpatory statements. The police escorted petitioner to the victim's home, where, as anticipated, he made further statements placing himself at the victim's home on the night of the murder. These statements were not recorded.

Following this initial visit to the victim's home, the police returned to the station with petitioner and called his parents to join them there. After a brief discussion at the station with the petitioner's mother and step-father, the police returned with them and the petitioner to the victim's home, where petitioner reiterated his actions and remarks. They all returned to the police station and later that night petitioner was committed to Central State Hospital in Petersburg, Virginia.

Several crucial facts are disputed by the parties. Respondents argue here, as did the prosecution at trial, that the police picked up petitioner for questioning concerning the complaints about his suspicious behavior in Skippers and at the Ramada Inn, unrelated to the rape and murder of Mrs. Jones. The Sheriff testified that he questioned petitioner for the same reasons and in the same manner that he had routinely questioned several others pursuant to the murder investigation. Petitioner argues, however, that he was picked up solely for the purpose of interrogation concerning the Jones murder, and that once the questioning began, he was not free to leave, but was instead held in police custody. Respondents assert that petitioner was not being held in any manner and was free to leave at any time prior to the initial visit to the victim's house.

Undoubtedly, the most crucial area of dispute concerns whether petitioner was informed of his rights under Miranda prior to making any incriminating statements. The Sheriff testified that at a point in the interrogation when petitioner appeared to place himself at the victim's house on the night of the murder, the Sheriff left the room in order to call the Commonwealth's Attorney for advice on the most appropriate procedure. Unable to locate the Commonwealth's Attorney, the Sheriff contacted the City Attorney, who allegedly recommended that petitioner be advised of his Miranda rights immediately. The Sheriff testified that he then returned to the interrogation room and read petitioner his Miranda rights from the card he carried for that purpose. The Sheriff insisted that he read petitioner his rights shortly, if not immediately, before the initial visit to the victim's home, in which event petitioner had been questioned for at least four hours prior thereto. None of this conversation appears on the tape of the interrogation.

Petitioner moved, prior to trial, to suppress his statements made at the time of the interrogation on the ground that he had not been properly and timely advised of his Miranda rights. After considering evidence at the suppression hearing on April 29, 1976, the trial court denied petitioner's motion. The Court based its ruling on the following findings of facts:

The defendant was picked off the street in the investigation of some other matter involving Skippers and also the Ramada Inn. He was brought to the Emporia Police Department and during the course of that investigation the defendant was interrogated along the Jones' matter. The Sheriff learned that the defendant had seen a person bearing the description of the victim in the Jones case. At no time during that investigation had the defendant made any admissions affecting his guilt. During that investigation he was not in the custody of the police. He was with them, he could have walked out at any time that he wanted to. There was nothing to prevent him from doing it, the Sheriff said that he could leave any time. He didn't communicate that to the defendant. This was during the investigatory stage of the Jones' murder case, at a time when the Sheriff believed that this investigation might center upon this particular defendant that he would probably have to accuse him, at that time he made the warning. The motion to suppress is overruled.

Petitioner's statements were admitted into evidence at trial over his continued objection and petitioner was convicted of rape and murder. The convictions were subsequently affirmed without opinion by the Virginia Supreme Court.

The instant petition raises the single issue of whether the prosecution bore its burden of proving the use of adequate procedural safeguards under Miranda prior to the admission of petitioner's inculpatory statements into evidence. For the reasons that follow, the Court finds that that burden was not met by the prosecution and that petitioner's convictions secured through the use of such statements must be vacated.

I.

As a threshold matter, the Court acknowledges that the question of whether the prosecution proved the voluntariness of petitioner's inculpatory statements under Miranda is a mixed one, involving both factual and legal determinations. Most of the relevant factual issues were resolved by the trial court at the April 29, 1976, suppression hearing. Consequently, such factual findings are to be presumed to be correct, on habeas corpus review, unless

that part of the record of the State Court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and this Court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record. . .

28 U.S.C. 2254(d)(8) (emphasis added). See Townsend v. Sain, 372 U.S. 293, 316, 83 S.Ct. 745, 758, 9 L.Ed.2d 770 (1963). This statutory standard of "fairly supported" has been held to be the same as the "clearly erroneous" standard employed in federal appellate review of trial findings of constitutional facts. Leavitt v. Howard, 462 F.2d 992, 996 (1st Cir. 1972), cert. denied, 409 U.S. 884, 93 S.Ct. 175, 34 L.Ed.2d 140 (1972). In the event that the trial court applied improper constitutional standards or other principles of federal law to the historical facts, however, this Court may, and indeed, must, make its own determination of law.

The United States Supreme Court held in Miranda that "the prosecution may not...