Wooden v. Com.

• Citation: 159 S.E.2d 623,208 Va. 629
• Parties: Baker Junior WOODEN v. COMMONWEALTH of Virginia.
• Decision Date: 04 March 1968
• Court: Supreme Court of Virginia

Page 623

159 S.E.2d 623

208 Va. 629

Baker Junior WOODEN v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

March 4, 1968.

Thomas J. Middleton, Jr., Fairfax (LaRue Van Meter, Falls Church, on brief), for plaintiff in error.

M. Harris Parker, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendant in error.

Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, GORDON and HARRISON, JJ.

GORDON, Justice.

Baker Junior Wooden appeals from an order entered November 20, 1964 ¹ that sentenced him to thirty years in the penitentiary in accordance with a jury verdict finding him guilty of first degree murder and fixing his term of imprisonment.

The relevant facts, stated in the light most favorable to the Commonwealth, are these:

On July 30, 1964 Wooden, George Adams and two other men agreed that they would 'knock over' Meyers' market in Oakton, Virginia. Shortly before 4:30 p.m. these four men, accompanied by Margaret Marie Settle and another woman, drove to Meyers' market and parked their car beside the building. Wooden went into the market, bought an orange soda, returned to the car and reported, '(c) ustomers in the store'. Shortly thereafter either Wooden or Adams said '(l) et's go in'. They left the car and walked around the corner of the market toward the front entrance. (Margaret Settle, who related these facts, could not say whether Wooden and Adams went into the market because she could not see the entrance.)

At that time only the proprietor, Hyman Meyers, and the butcher, J. L. Hopkins, were in the market. Meyers was at the cash register near the front of the market, and Hopkins was near the back of the market. Hopkins heard Meyers 'holler' and called to ask what was happening. Meyers answered, '(h)e pistol whipped me'. Hopkins then saw Adams coming out from behind the cash register. Adams proceeded towards Hopkins and struck him twice, once with his fist and once with a soda bottle. After Hopkins recovered he picked up a meat cleaver. Adams then 'took off'.

The proprietor's wife, who was upstairs over the market, heard 'noise' downstairs. Mrs. Meyers called to her husband and, receiving no answer, ran down the steps. She saw her husband 'all bloody', 'running up and down outside hollering for help'. Mrs. Meyers saw Adams at the cash register 'taking money', and she saw Hopkins coming from the back of the store with the cleaver in his hand.

Neither Hopkins nor Mrs. Meyers saw Wooden in the market. But during the early morning of July 31 Wooden admitted to a detective that he had entered the market after Adams beckoned to him from within, and that he had seen Meyers and Adams 'struggling'.

Meyers died from the would inflicted by Adams.

Counsel does not contend, nor could he successfully contend, that the evidence was insufficient to convict Wooden of first degree murder. ² He does contend that the trial court erred (1) in permitting the Commonwealth to introduce into evidence Wooden's admissions to the detective, and (2) in refusing to instruct the jury that it could find Wooden guilty of second degree murder.

(1)

At Wooden's trial the attorney for the Commonwealth asked detective Alvin L. Sanders to relate what Wooden had told him at police headquarters during the early morning of July 31. The court then heard the testimony of Sanders and Wooden, out of the presence of the jury, to determine whether Wooden had made the alleged statements to Sanders voluntarily.

Sanders testified that, before questioning Wooden, he advised him of his rights. Sanders said he told Wooden that Wooden did not have to make any statement unless he wished to, that any statement Wooden made could be used for or against him in a court of law, and that Wooden could seek legal counsel if he so desired. Sanders said that Wooden told him 'he (wooden) wanted to talk to his lawyer before he signed a statement'. But according to Sanders, Wooden proceeded, without any threat or inducement having been made, to relate his version of the events of July 30.

Wooden, also testifying out of the presence of the jury, said in effect that Sanders did not advise him of his rights; that Sanders only asked him whether he wanted to make a statement. When asked specifically whether Sanders told him he could see an attorney, Wooden replied: 'No, sir, wasn't an attorney were mentioned'. Wooden said that he first told Sanders he did not wish to give a statement, but that later he told Sanders what had happened after Sanders had promised: 'If you go on and cooperate with me, I (Sanders) can help you'.

The trial court ruled the statements voluntary and admissible in evidence. ³ The jury was then recalled, and Sanders repeated in substance his testimony concerning Wooden's admissions to him on July 31. ⁴ Sanders said Wooden admitted that before he and the five other persons drove to Meyers' market, he had 'overheard part of a conversation in regards to a robbery' and later there had been 'more discussion of this robbery'. (In the statement, as recounted by Sanders, Wooden did not identify the other persons who talked about the proposed robbery.) Sanders said Wooden also admitted that he had entered the market after Adams beckoned to him from within, and that he had seen Meyers and Adams 'struggling'.

Counsel contends that Wooden's oral admissions, as related by Sanders, were inadmissible because Wooden 'did not knowingly and intelligently waive his privilege against self-incrimination and his right to assistance of counsel'. Pointing to Sanders' testimony that Wooden said 'he wanted to talk to his lawyer before he signed a statement', counsel argues:

'It is clear that the defendant understood that counsel could be helpful to him and that he desired the assistance of counsel before doing anything that would place him in jeopardy. The interrogating officer knew, or ought to have known, that the defendant did not understand his constitutional right against self-incrimination and did not know that verbal statements are as damaging as written statements. Yet after being told by the defendant that he wanted to talk to his lawyer before he signed a statement, Detective Sanders responded with continued interrogation and induced the defendant to make verbal admissions which the trial court held to be voluntary and admissible. It is evident that this form of interrogation was adopted by the police solely to obtain a confession.'

Wooden's testimony does not support counsel's contention 'that the defendant understood that counsel could be helpful to him and that he desired the assistance of counsel before doing anything that would place him in jeopardy'. Wooden did not testify that he had told Sanders he desired the assistance of counsel. The clear inference from his testimony is that he was ignorant of any right to remain silent and to consult counsel because Sanders gave him to advice about his rights. Significantly, when Wooden was asked whether Sanders had told him he could see an attorney, he replied: 'No, sir, wasn't an attorney were mentioned'.

Wooden did not even intimate in his testimony, moreover, that he had made oral statements to Sanders under the belief that only written statements could be used against him. Wooden said Sanders' promise to help him, if he would cooperate, had prompted him to make the statements. Sanders testified that he had advised Wooden of his rights, specifically that Any statement could be used for or against Wooden in a court of law; and that he had made no threat or inducement. The trial judge believed Sanders' testimony and rejected Wooden's.

It was the judge's province to determine whether the statements were voluntary and therefore admissible for consideration by the jury. Since his factual finding is supported by the evidence, it is conclusive.

Wooden's counsel concedes that Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is not applicable because Wooden's trial began in November 1964, before the Miranda decision. See Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Counsel contends, however, that Wooden was denied 'his constitutional right to assistance of counsel and his privilege against self-incrimination' under the Pre-Miranda rules.

Counsel relies upon Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), which held a confession inadmissible because the accused had been denied his Sixth Amendment right to counsel. But, as the Supreme Court has made clear, an essential ingredient in the Escobedo holding was the fact that Escobedo, before he made the confession, had requested and been denied an opportunity to consult with his lawyer. Johnson v. State of New Jersey, supra at 733--734, 86 S.Ct. at 1781, 16 L.Ed.2d at 892. That ingredient is missing in this case since Wooden did not request an opportunity to consult with a lawyer before he made the oral statements that were subsequently admitted as evidence.

Wooden's counsel quotes the following excerpt from a footnote in...