Thomas v. Commonwealth of Virginia, 9926.

• Citation: 357 F.2d 87
• Decision Date: 11 February 1966
• Docket Number: No. 9926.,9926.
• Parties: Delevan Wesley THOMAS, Appellant, v. COMMONWEALTH OF VIRGINIA, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

357 F.2d 87 (1966)

Delevan Wesley THOMAS, Appellant, v. COMMONWEALTH OF VIRGINIA, Appellee.

No. 9926.

United States Court of Appeals Fourth Circuit.

Argued June 29, 1965.

Decided February 11, 1966.

Jack T. Hamilton, Charlotte, N. C. (Court-assigned counsel), for appellant.

Reno S. Harp, III, Asst. Atty. Gen. of Virginia (Robert Y. Button, Atty. Gen. of Virginia, on brief), for appellee.

Before BOREMAN and J. SPENCER BELL, Circuit Judges, and THOMSEN, District Judge.

BOREMAN, Circuit Judge.

A pro se petition for a writ of habeas corpus filed by Delevan Wesley Thomas was denied by the District Court after a plenary hearing at which petitioner was represented by court-appointed counsel. This appeal followed.

Thomas, after waiving a jury trial, was tried by the Circuit Court of Fairfax County, Virginia, convicted of the offense of armed robbery and is now imprisoned pursuant to sentence duly imposed. His principal attack upon his trial and conviction is based upon the introduction in evidence of certain oral admissions of guilt and a written confession alleged to have been extracted from him through coercion. The District Court heard the testimony of the petitioner and other witnesses, resolved the conflicts and found that the admissions and confession were not coerced but were voluntarily given. We shall briefly sketch the facts which find support in the record.

At approximately 4:25 a. m. on November 23, 1962, a car driven by Thomas was stopped by District of Columbia police for a traffic violation (improper lights) and neither Thomas nor any of the other occupants of the car could produce a proper driver's license. In his testimony, Thomas revealed that he had been drinking rather heavily and that he was "booked" for a traffic violation and for drunkenness. In checking the car and its occupants police found a gun under the front seat and Thomas and his five companions were taken to District of Columbia Precinct 9.

The car bore Maryland license tags so the District of Columbia police contacted Baltimore and were informed that the Fairfax, Virginia, police department was looking for this vehicle in connection with an armed robbery of Evan's Inn which had occurred earlier that night or morning in Fairfax County, Virginia. District of Columbia police contacted Fairfax authorities and informed them that the robbery suspects were in custody.

According to witness Boswell, he and Briggman, both Fairfax police officers, arrived in Washington, D. C., around 5 a. m. Mr. Evans, the owner of Evan's Inn, and some of his employees soon arrived at Precinct 9 and in a "lineup" they identified Thomas and two or three of his companions as persons involved in the robbery. Officers Briggman and Boswell talked to the men who had been so identified and they admitted their part in the robbery. These two officers returned to Fairfax around 7 a. m. to secure warrants and, after obtaining warrants for Thomas and his five companions, returned to Washington about 1:30 p. m. Thomas and the others who had been identified then signed waivers of extradition and were delivered to the Fairfax officers about 2:30 p. m. They arrived in Fairfax at approximately 3:30 p. m. and were taken before a magistrate, who was at the jail. The warrants were then served and bail was set.

Boswell testified that sometime between 4 p. m. and 7:30 to 8 p. m. Thomas and two or three of his companions confessed their part in the robbery, a written statement was prepared in question-and-answer form and Thomas signed it. This is the confession admitted in evidence against him at his trial.

Thomas contends that his oral admissions of guilt were coerced (1) by the brutality of District of Columbia police and (2) by false representations by the police that one of his companions had made a confession and had implicated him. There was no complaint with regard to the treatment accorded him after his removal to Fairfax.

The District Court noted that Thomas' petition does not concisely state the contentions but, with the assistance of petitioner's counsel "the issues have been clearly presented."¹ Thomas testified that the District of Columbia police beat him with their hands and fists in the presence of officer Briggman. Two alleged accomplices testified they saw blood running from Thomas' ear and that Thomas told them he had been beaten. However neither of the accomplices witnessed any brutality according to their testimony. The officers denied these charges. After hearing all of the testimony the District Court announced from the bench his findings of fact and conclusions of law. We quote pertinent portions therefrom, as follows:

"The Court has determined the admissibility of the confession without regard to its truth or its falsity. Rogers v. Richmond, 365 U.S. 534 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). Ordinarily the Court would not even receive the evidence on the petitioner\'s participation in the crime, and it was only on the petitioner\'s request that it was received.

* * * * * *

"There is a conflict in the evidence pertaining to police conduct in Washington. The petitioner, Mr. Thomas, charges that the Washington police extracted from him an oral confession by physical abuse. * * *.

"The Court finds that he was not beaten, that there was no physical abuse practiced upon him in Washington. The Court also

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