Nail v. Slayton, Civ. A. No. 72-C-48-H.

• Decision Date: 04 December 1972
• Docket Number: Civ. A. No. 72-C-48-H.
• Citation: 353 F. Supp. 1013
• Parties: Robert Edward NAIL, Petitioner, v. A. E. SLAYTON, Jr., Superintendent Virginia State Penitentiary, Respondent.
• Court: U.S. District Court — Western District of Virginia

353 F. Supp. 1013

Robert Edward NAIL, Petitioner, v. A. E. SLAYTON, Jr., Superintendent Virginia State Penitentiary, Respondent.

Civ. A. No. 72-C-48-H.

United States District Court, W. D. Virginia, Harrisonburg Division.

December 4, 1972.

COPYRIGHT MATERIAL OMITTED

Robert E. Shepherd, Jr., Asst. Atty. Gen., Richmond, Va., for respondent.

OPINION and JUDGMENT

DALTON, Chief Judge.

Petitioner, Robert Edward Nail, has again petitioned this court for writ of habeas corpus. However, he has just recently requested a change of venue from the Western District of Virginia, Harrisonburg Division to the Eastern District of Virginia, Richmond, Virginia, on the following grounds: 1) he is presently incarcerated in the Richmond area, 2) respondent is located in Richmond, 3) his prison job is such that it would be more desirable for him to be close to Richmond; and 4) his legal advisors, although unpaid, are located in Richmond.

Before ruling on the motion to change venue, this court will briefly review petitioner's record in this court. His first petition for writ of habeas corpus was filed February 23, 1971 and alleged the following constitutional defects in his trial:

1) he made statements without the presence of counsel;

2) no cause existed for his commitment in a mental institution;

3) he was never taken before a magistrate;

4) he was denied bond;

5) he was denied a speedy trial;

6) he was denied a fair trial because the state refused to present his witnesses;

7) the court erred in not striking false statements made to the jury;

8) the jury was prejudiced against him;

9) he was denied a presentence report;

10) he was denied his fundamental rights;

11) the Virginia Supreme Court erred when it did not report the correct dates petitioner was tried and sentenced.

This first petition was dismissed without prejudice on February 24, 1971 for failure to exhaust state remedies.

A second petition was filed May 17, 1971 and alleged: 1) a denial of due process and equal protection of the law, 2) a denial of his right against self-incrimination, 3) double jeopardy, and 4) the same allegations which were made in paragraphs 5, 6, 9, and 11 of his first petition. This petition was dismissed without prejudice for failure to comply with an order of the court.

A third petition was filed November 11, 1971 alleging 1) a denial of constitutional rights, and 2) prejudice of the state court judge in his habeas corpus proceeding. The fourth petition was filed November 26, 1971, and it alleged prejudice of both the trial judge and the state's assistant attorney general. These two petitions were consolidated by the court and dismissed without prejudice on January 10, 1972 for failure to exhaust state remedies.

Before enumerating the allegations set forth in the present petition which was filed August 23, 1971, the court, being of the opinion that the present petition has no merit, hereby denied petitioner's request for a change of venue.

Petitioner contends in the following allegations that his conviction and subsequent incarceration are unconstitutional: 1) that the prosecution used inadmissible and illegal evidence during his trials; 2) that he was denied a speedy trial; 3) that proper jury instructions were refused; 4) that the trial court refused to safeguard his right to witnesses; 5) that the trial court improperly denied him bail and bond; 6) that the trial court improperly allowed him to be tried for his two offenses separately; 7) that the trial court failed to recognize discrepancies in witnesses' testimony; 8) that Virginia's single verdict system is unconstitutional; 9) that there was insufficient evidence to convict him; and 10) that perjured testimony was used.

The petitioner was arrested on January 21, 1969 for burglary and malicious wounding. He was taken before the Winchester Municipal Court on January 29, 1969, at which time he requested that the court appoint an attorney to represent him. Counsel was thereupon appointed and a preliminary hearing was scheduled for February 12, 1969. At the preliminary hearing the court bound the case over to the Grand Jury of the Winchester Corporation Court, which indicted petitioner on February 24, 1969.

Immediately after he was indicted his attorney moved that he be given psychiatric and mental examinations, which motion the court granted. After an initial psychiatric examination in which the examining doctor stated that further investigation would be necessary, the court, on motion of defense counsel, ordered petitioner committed to Southwestern State Hospital for further examination. This action occurred on April 14, 1969. On July 11, 1969 the state hospital reported that the petitioner, while having dull normal intelligence, was competent to stand trial.

Petitioner was arraigned on July 28, 1969 for both offenses. At the arraignment proceeding, petitioner's court appointed attorney requested that new counsel be appointed to represent petitioner because of inability and difficulty in working with petitioner in preparing his case. New counsel was appointed, and the trial for the offenses charged in both indictments was set for September 25, 1969.

On September 22, 1969 the Commonwealth's Attorney requested a continuance in the trial for malicious wounding because the victim was then undergoing surgery and would be unable to attend the trial. A continuance was granted, but no new trial date was set.

The petitioner was tried and convicted for burglary on September 25, 1969. On October 27, 1969 his trial for malicious wounding was set for December 23, 1969. Again because of conflicts with his attorney, the petitioner moved on November 5, 1969 that the court dismiss his court appointed attorney. His motion was granted on November 24, 1969, and new counsel was appointed to represent him. Because this attorney was unfamiliar with petitioner's case, he requested that the trial be continued to enable him to adequately prepare for it. Although petitioner objected to this motion, the court decided that to preserve fairness, a continuance should be granted, and on December 22, 1969 the court set March 19, 1970 as the trial date.

Petitioner was tried on this date and convicted of malicious wounding. Appeals from the burglary and malicious wounding convictions were denied on April 28, 1970 and January 19, 1971 respectively.

The court will now consider petitioner's various allegations. Petitioner's first contention is that inadmissible and illegal evidence was used at both trials. The problem revolves around a statement made to a police officer before the Miranda warnings had been given and various other statements made after the warnings were given.

According to the evidence established during the trial, the petitioner was seen leaving the house where the crimes took place. After several requests by police officers to give himself up, he walked over to two police officers and handed one of them his gun. As this officer began to unload it, and before any of the Miranda warnings had been given, petitioner made the following statement: "I think the man I shot upstairs is dead." He was then taken to a patrol car, informed of his rights, and then made various other statements concerning his desire to kill his wife.

At both trials this statement was placed before the jury, and defense counsel in each case objected to its introduction into evidence because no warnings had been given immediately upon petitioner's arrest. The trial court sustained the objection in each case and instructed the jury to disregard it. Petitioner apparently contends that the harm done by this statement could not be rectified merely by instructing the jury to disregard it.

The court does not believe that this statement was so highly prejudicial that it could not be corrected by the judge's instructions to the jury. While the court believes that no substantial harm was done by the statement, the court does not rely entirely upon its own opinion. Based on the law in the area the trial judge would have been justified in allowing the statements into evidence.

The theory behind the Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) was that confessions and statements induced by coercion, fraud, and misrepresentation should not be used against the individual who made them at his trial. Mapys v. United States, 409 F.2d 964 (10 Cir. 1969); Cohen v. United States, 405 F.2d 34 (8th Cir. 1968). The court in Miranda believed that under our system of justice, certain procedural safeguards were necessary to protect the rights of individuals accused of a crime. A person's constitutional rights were violated if his conviction was based in whole or in part on any involuntary confession regardless of its truth or falsity. To insure that every person was aware of his rights, the court required that the arresting officers inform the individual of his rights prior to any interrogation.

The general practice now used by law enforcement officials is to inform the individual of his rights immediately upon his arrest. While this procedure is perhaps the most preferable, Miranda does not require it. Miranda only requires that the individual be apprised of and understand his rights prior to any interrogation or questioning of him by officials. Therefore until the individual was subjected to such questioning or to such surroundings which a court would consider coercive to the extent that involuntary statements might be procured, the individual need not be apprised of his rights. Clearly an individual must be informed of his rights before he is jailed or placed in any type of confinement or isolation which in this court's opinion would include a police car.

Miranda also held that statements given freely and voluntarily without any compelling influences were still admissible. Thus statements made contemporaneously with the individual's arrest have been held to be admissible. Stone...