Witt v. Com.

• Citation: 212 S.E.2d 293,215 Va. 670
• Parties: Robert Charles WITT v. COMMONWEALTH of Virginia.
• Decision Date: 10 March 1975
• Court: Supreme Court of Virginia

Page 293

212 S.E.2d 293

215 Va. 670

Robert Charles WITT v. COMMONWEALTH of Virginia.

Supreme Court of Virginia.

March 10, 1975.

J. Gerard Zoby, Norfolk (Decker, Zoby, Collias & Christie, Norfolk, on brief), for plaintiff in error.

Alan Katz, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., Michael M. Weise, Asst. Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

POFF, Justice.

The trial court, sitting without a jury, convicted Robert C. Witt under 16 of 19 indictments charging statutory burglary and sentenced him to a total of 20 years in the penitentiary. Following a finding in a habeas corpus hearing below that Witt had been effectively denied his right to appeal, we granted a delayed appeal from the judgment of conviction.

The crucial issue is whether Witt's written confessions were induced by implied coercion.

Before proceeding to a trial on the merits, the trial court conducted a hearing on Witt's motion to suppress the confessions. The evidence upon which the trial court denied the motion was in conflict. However, certain facts are uncontested. 'Red' Lane, Lane's wife, and other suspects were arrested before Witt was interrogated. Witt concedes that his Miranda rights were timely and properly explained, that he read, signed, and understood the waiver forms, and that he knowingly and intelligently waived his right to counsel. On November 28, 1968, in the presence of Detective Coefield and other officers, Witt wrote and signed confessions concerning eight burglaries. Confessions concerning the other offenses were typewritten by Coefield and signed in his presence by Witt on December 2, 1968.

Witt contends that his confessions were involuntary because they were induced by implied coercion and, under the Fourth and Fifth Amendments, they were incompetent as evidence against him. He says that Coefield implied that if he were 'cooperative', his wife, whom Coefield knew was pregnant, would not be arrested.

Concerning what transpired on November 28, 1968, when he was first interrogated, Witt testified:

'. . . And the first thing they told me was we were all being arrested. They had arrested about four or five people. And, they told me that they had locked up (Red Lane and his wife). . . . So, he asked me if I might talk with them. And, I definitely said, 'No', I wouldn't. So, he said, 'Well, I'll tell you what', he said, 'we've got statements against him, we've got everything we need', these were his exact words, 'We've got everything we need to convict you'. And, he says, 'I want you to think about it for a while. Just sit there and think about it. And, we haven't arrested your wife yet, but I have Lane's wife'. And my wife was eight months pregnant . . .. Well, I was worried that they was gonna arrest my wife, like they did Red's wife. So, I wanted to be cooperative, so, I said, 'Well, I guess you got me in a bind'. I said, 'What do you want to know'. So, I come out and I told them about something that he had recalled to me. And, I said, 'Yes, I did it'. And he recalled something else, and he said--he even said that he was gonna refresh my memory. All right. He asked me if I'd write some statements on that. So, I wrote the statements down . . ..'

Concerning the events of December 2, 1968, Witt testified that Coefield read aloud from certain statements given earlier by Cecil Phelps, another suspect; that Coefield used these as patterns for the confessions he typed; and that Coefield asked him to read these confessions. Witt said, 'I looked at them and went through them' but 'I didn't read them. I already knew what was in them'. Coefield testified that Witt read his confessions before he signed them. A comparison of Witt's confessions and Phelps' statements read into evidence showed some similarities and some differences.

Witt's wife testified that Coefield 'informed me that he would not arrest me pending my husband's attitude toward helping them out with the other ones.'

On appeal, Witt lays much stress upon selected portions of Coefield's testimony. Asked whether he had told Witt that Lane's wife had been arrested, Coefield answered, 'I might very well have done this.' Later, he said, 'I also told him that Red Lane and his wife had been arrested . . ..' Coefield further testified that 'I might have told him that he would not--that I would not charge his wife if he cooperated. I don't recall making that statement.' Later, he said that he told Witt that 'it would be to his best advantage to cooperate.'

The trial court considered these random excerpts from Coefield's lengthy testimony in context with other relevant portions. Asked if he made 'statements to the effect that if he did cooperate his wife would not be arrested, or that if he didn't cooperate that his wife would be arrested', Coefield answered, 'No. No.' He explained:

'I mentioned the fact that there was an investigation, that it was going to be a far sweeping investigation . . . and many people would become involved. And, as to the lesser people involved, his wife, perhaps might be charged. At no time did I state that she will not be charged. I stated she could be charged. And, after we talked to him and advised him of his rights, we told him that as things were progressing, we were learning more details. We learned that his wife was not actively involved in this, and it did not appear she was gonna be charged. But, as I told her, and I told him exactly what I told his wife, that she could possibly be charged, but I didn't think so . . ..'

Concerning his conversation with Mrs. Witt, Coefield testified:

'I told her that this investigation would hinge a great deal as far as she was directly involved, on her husband . . . And I told her that the investigation if it led us to believe, or to determine for sure, that she was directly involved with any of these burglaries . . . that we were investigating, that she would be charged, and that she could be charged. And, I said, 'Now, it's largely depending on your husband for clarification, and the furthering of the investigation and of any aspects of it."

Witt admitted that he had previously been convicted of a felony. Evaluating Witt's testimony quoted above, the trial court also considered what Witt said later:

'I asked him if they arrested my wife. He said, 'No', and I asked him if he was. And, he says, 'Not so far'. And, those aren't his exact words, but I can't recall exact words. . . . And, I believe I did say that if I was cooperative they wouldn't--would they not arrest--they didn't have anything to arrest her for.'

Witt also testified that no express threat was made and that '(n)obody promised me anything', but that '(i)t was understood as far as I'm concerned.'

As Witt points out, the burden is upon the Commonwealth to prove that a confession is voluntary, McCoy v. Commonwealth, 206 Va. 470, 144 S.E.2d 303 (1965), and a 'confession obtained by such methods as to make it involuntary renders subsequent confessions made while an accused is under the operation of the same influences also involuntary'. Bunting v. Commonwealth, 208 Va. 309, 312, 157 S.E.2d 204, 207 (1967). The minimum measure of the Commonwealth's burden, Witt says, is proof beyond a reasonable doubt. Some jurisdictions have so held. The United States Supreme Court has not.

'. . . (I)t is very doubtful that escalating the prosecution's burden of proof in Fourth and Fifth Amendment suppression hearings would be sufficiently productive in . . . (deterring lawless conduct by police...