Toliver v. Gathright

• Decision Date: 22 October 1980
• Docket Number: Civ. A. No. 79-0995-R.
• Citation: 501 F. Supp. 148
• Parties: Larry D. TOLIVER, Petitioner, v. J. S. GATHRIGHT, Superintendent, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

501 F. Supp. 148

Larry D. TOLIVER, Petitioner, v. J. S. GATHRIGHT, Superintendent, Respondent.

Civ. A. No. 79-0995-R.

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

October 22, 1980.

Charles W. Peraino, Richmond, Va., court appointed, and Larry D. Toliver, pro se, for petitioner.

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

MEMORANDUM

MERHIGE, District Judge.

Larry Darnell Toliver, an inmate in the Virginia Correctional system, petitions the court for a writ of habeas corpus, challenging his conviction in the Circuit Court for the City of Richmond on a charge of statutory burglary, for which he was sentenced to a term of six years in the penitentiary. Petitioner attacks his conviction on the grounds that the admission into evidence of an inculpatory statement violated his Fifth and Fourteenth Amendment privilege against self-incrimination.

Jurisdiction is founded on 28 U.S.C. § 2241. Petitioner's appeal to the Supreme Court of Virginia was refused, and defendant concedes that Toliver has exhausted his state remedies. The matter has been fully briefed by counsel, the Court has examined the trial transcript, and the issue is now ripe for disposition.

At trial, there was testimony to the effect that on the afternoon of September 12, 1978, petitioner and an individual named Smith went to a residence in Richmond. At Smith's instruction, Toliver rang the doorbell and engaged the resident in conversation. While Toliver and the resident talked, Smith broke into the house through a screen door at the rear and stole a purse containing approximately $15.00.

The following day, Toliver and Smith were taken into custody by the Richmond police. Petitioner, who is mentally retarded, was interviewed by a Detective Weaver, who testified that he noticed petitioner was "mentally slow."¹ Weaver read petitioner his rights from a standard form, without explanation. Toliver, who asked no questions about the Miranda warnings, wrote his name at the bottom of the waiver form. Weaver then asked petitioner if he wished to make a statement concerning the burglary, to which Toliver replied, "No."

Weaver testified that he then left the interview room in order to speak with Smith. Several minutes later he returned, in the company of a Captain Bernhard. Weaver told Toliver that Smith had made a statement which implicated petitioner in the burglary. Toliver's immediate response is unclear from the record. However, it was undisputed that after he had been informed of the statement Smith made implicating him, Toliver answered questions propounded by Weaver. The questioning lasted for approximately 35 minutes, and elicited a full and detailed confession.

Petitioner makes two arguments in support of his claim that admission of his statement into evidence violated his constitutional privilege against self-incrimination. First, Toliver contends that the totality of the circumstances, in particular his mental deficiency, demonstrate that he could not have made, and in fact did not make, a knowing waiver of his right to remain silent.

It is elementary that in order to execute a valid waiver of the right to counsel or the right to remain silent, a suspect must comprehend the meaning and importance of those rights. "The requirement of `knowing and intelligent' waiver implies a rational choice based upon some appreciation of the consequences of the decision." Cooper v. Griffin, 455 F.2d 1142, 1146 (5th Cir. 1972). Because the rights embodied in the Miranda warnings are crucial to "a fair state-individual balance," Miranda v. Arizona, 384 U.S. 436, 460, 86 S.Ct. 1602, 1620, 16 L.Ed.2d 694 (1966), and because it is the police who control the circumstances of custodial interrogation, "a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived" his rights. Miranda, 384 U.S. at 475, 86 S.Ct. at 1628.

Involving as it does an evaluation of the accused's subjective state of mind, the issue of waiver of constitutional guarantees cannot be made to turn on any single factor, such as whether the suspect signed a waiver form. Cooper v. Griffin, supra; Blackmon v. Blackledge, 541 F.2d 1070 (4th Cir. 1976). Rather, the inquiry must involve a careful analysis of the "totality of the circumstances," Lunnermon v. Peyton, 310 F.Supp. 323, 325 (W.D.Va.1970), aff'd, 440 F.2d 774 (4th Cir. 1971), including the suspect's mental capacity, educational level, and experience with the criminal justice system, as well as the manner in which the Miranda warnings are given, and the nature of any statement or action on the part of the suspect alleged to evince comprehension and waiver of the rights. United States v. Glover, 596 F.2d 857 (9th Cir. 1979); Levallis v. Estelle, 370 F.Supp. 238 (S.D.Tex.1974), aff'd, 500 F.2d 1182 (5th Cir. 1974).

For the reasons which follow, the Court finds it unnecessary to a disposition of this case to decide whether or not the petitioner comprehended his Miranda warnings. The Court notes, however, that it would be hard pressed to find that the state met its "heavy burden" of demonstrating a knowing waiver. It is uncontradicted that Toliver's I.Q. places him within the range of mental retardation.² His rights were read to him in a summary fashion, without elaboration; at trial, petitioner's expert witness, a psychiatrist, expressed the opinion that individuals of Toliver's mental capacity are generally unable to comprehend complex ideas without detailed explanation. While it has been held that the fact that a suspect is of limited mental capacity is not dispositive on the issue of waiver where the circumstances support the conclusion that he did in fact comprehend his rights, Lunnerman v. Peyton, 310 F.Supp. 323 (W.D. Va.1970), aff'd 440 F.2d 774 (4th Cir. 1971); Levallis v. Estelle, 370 F.Supp. 238 (S.D. Tex.), aff'd 500 F.2d 1182 (5th Cir. 1974), this is not the case here.

The trial court refused to allow Toliver's expert witness to give a specific opinion as to whether Toliver was capable of comprehending his rights as they were read to him by Detective Weaver, apparently on the grounds that any opinion to the effect that Toliver was incapable of understanding was "contrary to the evidence."³ In the trial court's view, the fact that petitioner initially declined to make a statement definitively proved that he understood his rights.⁴ The Court, however, is of the opinion that the fact that a suspect initially refuses to make a statement cannot reasonably be seen as tending to show, much less as proving, that he comprehends the full panoply of constitutional protections, or that a subsequent statement is the result of a knowing and intelligent waiver. Indeed, the fact that Toliver said he would not make a statement, just moments after he signed the waiver form, evinces confusion rather than comprehension. Under these circumstances, the holding that Toliver understood and waived his rights does not, in the Court's view, comport with the obligation of courts to "indulge every reasonable presumption against waiver of fundamental constitutional rights." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).

However, even if the Court were persuaded that Toliver did in fact understand his rights, it would nonetheless be required to hold that admission of his confession into evidence violated his constitutional privilege against self-incrimination. For the Court is in agreement with petitioner's second claim: that Weaver's statement to petitioner that Smith had implicated Toliver in the crime constituted interrogation, in violation of the mandate of Miranda to the effect that all questioning must cease once a suspect in custody has invoked the right to remain silent or the right to counsel.

The trial court rejected petitioner's second contention, apparently on the grounds that Toliver could "still remain silent" in the face of Weaver's statement, and that Toliver's breaking silence when confronted with the knowledge that Smith had implicated him was "the common reaction of people in difficulty."⁵ The Court respectfully suggests that such is not the appropriate test; for the standard is not whether a statement could, in some metaphysical sense, be deemed "voluntary", or whether making a statement under such circumstances is "common" or understandable. Rather, the inquiry goes to whether "appropriate measures were taken to safeguard the accused's rights and to ensure that his statements were the product of free choice." United States v. Clark, 499 F.2d 802, 806-807 (4th Cir. 1974).

It was uncontradicted that when Weaver asked petitioner whether he would like to make a statement, Toliver replied, "No." Regardless of the extent to which Toliver understood that in so doing he was exercising a right guaranteed him under the Constitution, his negative response brought into play the special procedural safeguards of Miranda: "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. Footnote omitted."⁶Miranda, 384 U.S. at 473, 86 S.Ct. at 1627.

At this juncture, then, the issue is reduced to whether Weaver's statement to Toliver constituted "interrogation" in violation of Miranda. The Supreme Court has recently clarified the meaning of "interrogation" under Miranda in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). In that case, Innis, at the time of his arrest, was advised of his rights three times. He said that he understood, and that he wanted to speak to an attorney. Innis was then placed in a police car with three officers, to be driven to the police station. En route, two of the officers engaged in a conversation concerning a shotgun involved in the crime of which Innis was accused, which had not been recovered. One of the officers stated that a school for handicapped children was located near the...