Rees v. Peyton

• Decision Date: 10 January 1964
• Docket Number: Civ. A. No. 2970-M.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Melvin Davis REES, Jr., Plaintiff, v. C. C. PEYTON, etc., Defendant.

225 F. Supp. 507

Melvin Davis REES, Jr., Plaintiff, v. C. C. PEYTON, etc., Defendant.

Civ. A. No. 2970-M.

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

January 10, 1964.

S. White Rhyne, Jr., Washington, D.C., John J. Brandt, Arlington, Va., for plaintiff.

Reno S. Harp, III, Asst. Atty. Gen., Richmond, Va., for defendant.

LEWIS, District Judge.

Melvin Davis Rees, Jr., now confined in the Virginia State Penitentiary pursuant to a judgment and sentence of execution of the Circuit Court of Spotsylvania County, Virginia, seeks his release via a writ of habeas corpus on the ground that said judgment and sentence are illegal and in derogation of his civil rights, privileges and immunities secured by the Constitution¹ of the United States. He grounds his claim upon the refusal of the Circuit Court of Spotsylvania County to order his transfer from the State Penitentiary at Richmond to the City Jail in Fredericksburg so that he could be near his court-appointed counsel; upon the refusal of the Circuit Court to grant him a change of venue or venire; and upon the admission in evidence, over his objection, of the .38 caliber pistol which was taken by unlawful search and seizure.

Rees raised the same federal constitutional questions herein asserted during his trial in Spotsylvania County and in his appeal to the Supreme Court of Appeals of Virginia. That Court affirmed the Circuit Court, and the Supreme Court of the United States denied certiorari.²

He prays for a plenary hearing, with leave to supplement the State record with additional evidence relative to his constitutional claims; and says, as a habeas corpus applicant he is entitled to a determination of these federal constitutional questions by this Court independent of the conclusion reached by the State court.³

The defendant Cunningham joins Rees in his request for a plenary hearing. He admits this Court has jurisdiction to hear and determine this matter⁴ and prays that the complaint be dismissed.

The request for a plenary hearing was granted, and the transcript of the evidence in the Baltimore hearing⁵ and the complete record in the Spotsylvania County trial⁶ were made a part of the record in this proceeding. In addition, Rees presented numerous exhibits and several witnesses who were not presented before or heard by the State court.

Refusal of State Court to Transfer Prisoner to Fredericksburg Jail

Rees, previous to his trial in Spotsylvania County for the murder of Carroll Vernon Jackson, Jr., had been convicted in the United States District Court for Maryland of kidnapping Mrs. Mildred Jackson and her infant daughter Susan. He had been sentenced to life imprisonment and was then in federal custody. By arrangement of comity between Virginia and the United States, the United States Marshal for this District produced Rees before the Circuit Court of Spotsylvania County for trial. This procedure was based upon sound precedent.⁷

"The trial court is given all the jurisdiction needed to try and hear him by the consent of the United States, which only insists on his being kept safely from escape or from danger under the eye and control of its officer. This arrangement of comity between the two governments works in no way to the prejudice of the prisoner or of either sovereignty." Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607 (1922).

The United States Marshal for this District was charged with the duty of protecting Rees and with preventing self-inflicted harm or escape during his trial in Spotsylvania County, Virginia. In discharging that duty he determined that it was necessary to use the facilities of the Virginia State Penitentiary⁸. (The Fredericksburg City Jail was not approved as a federal prison.)

The State trial judge made certain that Rees could confer privately with his counsel both during the preparation of the case and during the course of the trial. He arranged for private conferences in Richmond if such should be necessary. Before trial the defendant was brought to the Spotsylvania Courthouse six times so that he might confer privately with his counsel for as long as desired. On a number of occasions the State judge recessed the trial in order that counsel might confer privately with the defendant. The United States Marshal offered to and did bring Rees to the Spotsylvania Courthouse as early in the morning as counsel requested, and kept him there after court in the afternoon as long as counsel wished to confer with him.

Defense counsel were furnished a copy of the transcript of the Baltimore hearing in which most of the witnesses had testified. Further, they were given a list of all of the witnesses the Commonwealth intended to call during the trial, and were given the opportunity of interviewing each of them privately.

At no time before or during the trial did counsel for the defendant ever state or infer that they were in any manner handicapped in their defense of Rees as a result of his being confined in the State Penitentiary each night.

One of them now, however, says he was handicapped in defending Rees as a result of the Richmond confinement, and cites an occasion late one Friday afternoon when the Commonwealth called a witness (unknown to the defense). This witness testified he saw Rees in Orange County (near the scene of the crime) on the day of the crime. It was vital to combat this damaging testimony, says defense counsel, and had the defendant been in the Fredericksburg City Jail instead of at Richmond, he could have conferred with him at any time during the night in order to establish that Rees was not in Orange County on the night in question. Instead he had to relay questions to Rees by telephone through the Marshal.

This inconvenience, standing alone, is not enough to prejudice the defendant in his right to a fair trial, especially so when the record discloses that Rees was available on the Friday in question at the Spotsylvania Courthouse for private conference with his counsel as long as either desired. The record also discloses that Rees was present in the Spotsylvania Courthouse all day the following Monday for further consultations, if that were so desired. (This testimony was not presented to the jury until Tuesday morning.)

Rees has no constitutional right, while a federal prisoner, to designate the place of his incarceration. That responsibility rests with the Attorney General of the United States acting through the Bureau of Prisons. 18 U.S.C. § 4082. Keeping him in the State Penitentiary at night in no way prejudiced his right to a fair trial, and the Court so finds.

Refusal of the State Court to Grant a Change of Venue or Venire

"The law Virginia presumes that a defendant can get a fair and impartial trial in the county in which the offense was committed. Hence, in order to overcome this presumption the burden is upon the one requesting a change of venue to show clearly that there is such a widespread feeling of prejudice on the part of the citizens of the county as will be reasonably certain to prevent a fair and impartial trial." Farrow v. Commonwealth, 197 Va. 353, 89 S.E.2d 312 (1955).

The State trial judge found:⁹

"`There was no evidence introduced of mass prejudice against the defendant, of mob action, or threat of such action. There was no evidence of inflammatory newspaper editorials or interviews, of provocative radio or television commentaries. There was no evidence that it was the predominant belief in the county that the defendant was guilty. There was no evidence that it was the predominant belief among the people of the county that the defendant could not receive a fair and an impartial trial.

* * * * * *

"`Interest, agitation, and apprehension concerning the case had diminished over the intervening years. Moreover, the Jackson family were not residents of Spotsylvania County. They lived in Louisa County and there was no evidence to indicate that they were closely related or well known in Spotsylvania County. Nor was the defendant known in Spotsylvania County.

"`Throughout the trial there was no indication of any hostility, prejudice, bias or mob action against the defendant. Often the small courtroom was not filled. * * * The majority of these spectators were women and they appeared to be present out of curiosity. There were no demonstrations of any kind against the defendant — either inside or outside the courtroom.'"

No evidence to the contrary was offered in this proceeding.

Seventy-five jurors were drawn and summoned. Several presented evidence of ill health and they were excused. A number of farmers qualified upon their voir dire examination but upon suggestion of defense counsel were excused. At the end of the first day the panel was exhausted, but nineteen veniremen had qualified under the examination of the court and the searching examination of defense counsel. Twenty-five additional jurors were summoned for attendance the next day and from these the panel of twenty was completed and four alternates were selected, all of whom were qualified jurors. All prospective jurors who had visited the scene and objected to the death penalty, or who had a fixed opinion as to the guilt or innocence of the defendant, were excused from jury service in this case.

The State judge concluded the jury as selected was free from exception and denied the defendant's motion for change of venue or venire. This Court, upon examination of the transcript of the examination of the jurors on their voir dire, reaches the same conclusion.

Without objecting to the inquiries which the State court made on voir dire, and without asserting bias, prejudice or misconduct on the part of the jury as selected, the defendant now says the repeated newspaper articles and radio and television broadcasts making reference to certain prejudicial evidence not admitted during his trial created such an external influence upon the jury as to deny Rees a fair trial.

To substantiate this...