Vance v. Bordenkircher, Civ. A. No. 80-0097-E.

• Decision Date: 12 January 1981
• Docket Number: Civ. A. No. 80-0097-E.
• Citation: 505 F. Supp. 135
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Arnold Lee VANCE, Petitioner, v. Donald E. BORDENKIRCHER, Warden, West Virginia State Penitentiary, Respondent.

505 F. Supp. 135

Arnold Lee VANCE, Petitioner, v. Donald E. BORDENKIRCHER, Warden, West Virginia State Penitentiary, Respondent.

Civ. A. No. 80-0097-E.

United States District Court, N. D. W. Va., Elkins Division.

January 12, 1981.

MEMORANDUM ORDER

MAXWELL, Chief Judge.

Arnold Lee Vance, a prisoner at the West Virginia State Penitentiary, seeks, in this petition pursuant to 28 U.S.C. § 2254, to overturn his 1962 conviction of first degree murder, for which he is serving a sentence of life imprisonment.

The petitioner was fourteen years of age at the time the murders of which he stands convicted were committed, and was fifteen years of age at the time of his trial. One of his claims for relief, that he should have been treated as a juvenile rather than as an adult, has been dismissed for reasons stated in an earlier Memorandum Order filed August 11, 1980. In the same Memorandum Order, the Court denied the respondent's motion to dismiss which was based upon the ground that "By coming forward eighteen years following his conviction, petitioner has severely prejudiced the State, bringing himself squarely within the scope of Johnson v. Riddle, 562 F.2d 312 (4th Cir. 1977)." The Court did, however, indicate that the instant petition would be dismissed for abuse of process unless the petitioner amended his petition by (1) explaining his failure to raise the claim that his confession was involuntary in any of the three previous habeas corpus petititons filed in this Court, or (2) showing that such failure was not deliberate, or (3) showing that such ground was not previously known to him.

The petitioner has amended his petition, asserting, in essence, that his failure to present the claim in question in prior petitions was the result of his low mentality and his inability to obtain legal advice except that from other inmates. The record of the trial substantiates that Vance is moderately mentally retarded (full scale IQ of 62), and the Court does not believe, under these circumstances, that the petitioner's failure to raise this issue previously can be construed as an abuse of the writ within the meaning of Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts. Accordingly, the Court will address this claim on the merits, the respondent having acknowledged that the petitioner has exhausted his state remedies with respect thereto.

The plaintiff's trial took place in September, 1962. Therefore, neither Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) nor Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), are applicable in determining whether the petitioner's confession was illegally obtained. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). The voluntariness of the confession must be determined by examination of the totality of the circumstances. Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959).

In order to view the totality of the circumstances surrounding the petitioner's confession in an understandable fashion, it is necessary to give a recitation of the factual background as developed at the trial.

On May 20, 1961, the bodies of Dr. Archer A. Wingrove and his housekeeper, Mrs. Georgia Broyles, were discovered at Dr. Wingrove's home near Scarbro, in Fayette County, West Virginia. Both victims had been shot in the head, and Mrs. Broyles had also been beaten about the head, as a result of which she had several lacerations and a fractured skull. The coroner was unable to establish the time of death of either victim, except to say that both had been dead for more than twenty-four hours. (Tr. 136). However, from the testimony of other witnesses, it was established that Mrs. Broyles was alive at 10:30 p. m. on May 18, 1961. The paper boy had collected his payment from Mrs. Broyles on May 18, 1961, late in the afternoon, and at about 10:30 p. m. that night Mrs. Broyles' niece, Belle Snelson, spoke with her on the telephone. (Tr. 4-5 and 240-241). Although local and state police officers were continuing their investigations of the murders, as of March 29, 1962, no arrests had been made.

On the latter date, the petitioner had been arrested as a suspect in several breaking and enterings. (Tr. 87, 92). He was arrested at his home and was taken to the Oak Hill, West Virginia, city jail. The petitioner's mother was informed that he was being picked up for questioning, and did not accompany him to the jail. (Tr. 92-93). The petitioner told the chief of police that he was seventeen years of age, and the officer obtained permission from the judge of the juvenile court to place him in custody in the county jail. (Tr. 97). The chief of police acknowledged that he was aware that the petitioner was a student at a school for the mentally retarded. (Tr. 102).

The police chief testified that he advised the petitioner prior to questioning him about the breaking and enterings that he had the right to remain silent (Tr. 91-92), and that he had the right to be advised by counsel before making any statement. (Tr. 94). Chief Janney, while questioning the petitioner about the breaking and enterings, routinely asked him if he knew anything about the Wingrove-Broyles murders. (Tr. 88). This occurred in the police chief's office. The petitioner "acted a little funny" about the questions concerning the murders (Tr. 92), and Chief Janney had him put in jail, inasmuch as he had given a statement in connection with the breaking and enterings. Chief Janney then called Trooper C. A. Berkley of the West Virginia State Police, one of the officers involved in the Wingrove-Broyles murder investigation.

Trooper Berkley went to the Oak Hill city jail, and discussed the Wingrove-Broyles investigation with Chief Janney. (Tr. 100, 146). Chief Janney was not familiar with any of the particulars of the case, and Trooper Berkley acquainted him with some of the details in order to aid the chief in questioning the petitioner. (Tr. 100, 146-147). It was determined that Chief Janney would question the petitioner, with Trooper Berkley remaining in earshot, but out of sight.

The plan for questioning the petitioner was carried out, and Vance acknowledged that he and one Roger Belcher had gone to the Wingrove house, supposedly to try to borrow some money, and that the murders were committed while they were...