Wansley v. Com., 5769

Decision Date11 September 1964
Docket NumberNo. 5769,5769
Citation137 S.E.2d 865,205 Va. 412
CourtVirginia Supreme Court

Arthur Kinoy (L. W. Holt; William M. Kunstler, on brief), for the plaintiff in error.

W. P. Bagwell, Jr., Assistant Attorney General (Robert Y. Button, Attorney General, on brief), for the Commonwealth.

Present, All the Justices.


WHITTLE, J., delivered the opinion of the court.

(In considering this case see Wansley v. Commonwealth -- Record No. 5770, this day decided)&gt

Thomas Carlton Wansley was tried in the corporation court of the city of Lynchburg on an indictment charging him with the rape of Kyoko Fleshman. Upon the jury's verdict, finding him guilty of rape and fixing his punishment at death, final judgment was entered on February 12, 1963. We granted a writ of error to review the judgment.

The accused being 17 years of age at the time of the alleged crime, the Juvenile and Domestic Relations court of the city of Lynchburg ordered an investigation to be made upon a petition charging the rape of Mrs. Fleshman. This investigation was made pursuant to the provisions of §§ 16.1-164 and 16.1-176 of the Code of Virginia 1950, as amended. Pursuant to the order the probation officer interviewed the accused on December 10 and filed his written report recommending that the accused be tried as an adult.

At the preliminary hearing on December 13, 1962, the juvenile court adjudged that the accused could not be adequately controlled as a juvenile, ordered that he be tried as an adult, and certified the case to the corporation court to await action of the grand jury.

While the probation officer was interviewing the accused on December 10, 1962 the mother of the accused came to bring him a pair of shoes and the accused asked the jailer to have his mother call an attorney. Whereupon Reuben Lawson, a Roanoke attorney, was retained on December 12, 1962 and represented accused at the preliminary hearing and at all subsequent proceedings.

There was no appeal from the judgment of the juvenile court and the indictment for the rape of Mrs. Fleshman was subsequently returned by the grand jury. Mrs. Fleshman was a married woman of Japanese descent.

By order of February 11, 1963 the corporation court appointed Dr. Benedict Nagler, a psychiatrist, to examine the accused for the purpose of determining whether his mental condition was such that he should be committed to a mental institution for observation. Dr. Nagler's report indicated that, in his opinion, the accused was capable of standing trial. The court also had the written report of Dr. John G. Novak, another psychiatrist, whose findings confirmed that of Dr. Nagler.

On the day of the trial defendant filed a written motion that he be committed to Central State Hospital for mental examination. The evidence of Dr. Robert D. Gardner was offered on behalf of the defendant in support of this motion. At the same time, the court heard the evidence of Dr. Novak and Dr. Nagler, both of whom testified that the defendant was competent to stand trial. Dr. Gardner, on the other hand, testified that he did not have sufficient evidence to determine whether the defendant knew the difference between right and wrong, and refused to accept this as a proper test. The trial court overruled the motion for commitment along with other motions filed by the accused.

Proof of the facts concerning the crime was made difficult because it was necessary at times to have an interpreter clarify Mrs. Fleshman's testimony.

The sufficiency of the evidence is first challenged by the accused. Suffice it to say, there was a direct conflict in the evidence between the prosecutrix and the accused as to what transpired on the occasion. The prosecutrix claimed that she was forcibly raped, while the accused claimed that the act of intercourse was with the consent of the prosecutrix and no element of rape was involved. This direct conflict in the evidence presented a jury question and was properly submitted to the jury.

The next question urged was to the effect that the accused was deprived of the assistance of counsel 'at the earliest possible stage in a capital case' in violation of his rights under the Virginia and Federal constitutions.

Here petitioner claims that he should have had counsel representing him at the time he was interviewed by the probation officer. There is no merit in this assignment. Tilton v. Commonwealth, 196 Va. 774, 85 S.E.2d 368. The only reference to any request for counsel is contained in the report of probation officer Strong where he says 'During this interview with Thomas [the defendant] and this officer at the city jail, his mother came by to leave a pair of shoes. He asked the jailer to have his mother call an attorney'.

This interview was conducted on December 10, 1962 and the record shows that counsel of defendant's own choosing was present and representing him on December 12. Nowhere does it appear that any request by the defendant for the assistance of counsel was denied and nowhere is it claimed that there was any coercion or unfairness in the interrogation or treatment of the defendant. The defendant has in no way been prejudiced by the lack of counsel.

The record is clear that the accused was taken into custody on December 8, 1962, was interviewed by a probation officer on December 10, 1962 and received counsel of his own choice on December 12, pursuant to the request of December 10.

The sole purpose of the interview between the probation officer and the defendant was to determine the question as to whether or and he should be tried as a juvenile or an adult. And it is not contemplated or necessary that counsel for the accused be present at this interview.

The examination of the accused by the police officers was clearly in no way prejudicial to the accused for in this examination the accused stated to the police officers only those things which he admitted and testified to throughout his defense, which were to the effect that the intercourse had with this prosecutrix was entirely with her consent. Cicenia v. Lagay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.ed.2d 1523; Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.ed.2d 1448; Watts v. Indiana, 338 U.S. 49, 57, 62, 69 S.Ct. 1347, 1357, 93 L.ed. 1801, 1807, 1810. (But compare Escobedo v. Illinois (June 22, 1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.ed.2d 977.)

We hold that the accused was at no time denied the assistance of counsel, but, on the contrary, had counsel of his own choosing representing him at all necessary stages.

The crucial question presented in this case is the assignment that the trial judge interfered with the exclusive jurisdiction of the jury in fixing the penalty in violation of the statute (§ 18.1-44 Code of Virginia 1950) and petitioner's right to a fair trial.

In this connection it appears that the jury had retired to the jury room to consider of their verdict. After a while they returned into court and the following exchange occurred between the foreman of the jury and the judge.

'The Court: Who is the foreman?

'Mr. Booth (Foreman): I am, sir. We have not --

'The Court: Wait until you all get out. You may stand right there, if you like.

'Mr. Booth (Foreman): We have not reached a final verdict, sir.

'The Court: Wait until you all get out. All right, gentlemen. I do not believe you have reached a verdict yet, is that correct?

'Mr. Booth (Foreman): That is correct.

'The Court: It is about time for dinner. I was wondering -- I am not trying to rush you, if you want to consider it a little longer, if that is what you want to do, I would be glad...

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15 cases
  • Walker v. Com.
    • United States
    • Virginia Court of Appeals
    • June 17, 1997
    ...302 S.E.2d 520, 525 (1983); see also Clagett v. Commonwealth, 252 Va. 79, 94, 472 S.E.2d 263, 272 (1996); Wansley v. Commonwealth, 205 Va. 412, 416, 137 S.E.2d 865, 868 (1964); Jones v. Commonwealth, 194 Va. 273, 274, 72 S.E.2d 693, 694 (1952); Virginia Model Jury Instruction I-25. Our long......
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    ...(1964). See also State v. Johnson, 43 N.J. 572, 206 A.2d 737 (1965). Apparently, the Supreme Courts of Virginia, Wansley v. Commonwealth, 205 Va. 412, 137 S.E.2d 865 (1964), cert. denied, 380 U.S. 922, 85 S.Ct. 920, 13 L. Ed.2d 806 (1965) and Ohio, McQueen v. Maxwell, 177 Ohio St. 30, 201 N......
  • Com. v. Negri
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    • September 29, 1965
    ...State v. Smith, 43 N.J. 67, 202 A.2d 669 (1964), cert. denied, 379 U.S. 1005, 85 S.Ct. 731, 13 L.Ed.2d 706 (1965); Wansley v. Commonwealth, 205 Va. 412, 137 S.E.2d 865 (1964), cert. denied, 380 U.S. 922, 85 S.Ct. 920, 13 L.Ed.2d 806 (1965); McQueen v. Maxwell, 177 Ohio St. 30, 201 N.E.2d 70......
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    ...Against Adverse Press Coverage, 13 Wm. & Mary L.Rev. 1 (1971). 15 See 384 U.S. at p. 363, 86 S.Ct. at p. 1522. 16 Wansley v. Commonwealth (1964) 205 Va. 412, 137 S.E.2d 865 and Wansley v. Commonwealth (1964) 205 Va. 419, 137 S.E.2d 870 (Carter case). There were originally two cases, both tr......
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  • The Historical Case for Abandoning Strickland
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 94, 2021
    • Invalid date
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