a) proceedings-------------------------------7
TRANSCRIPT
TABLE OF CONTENTS
1. NOTICE AND MOTION FOR DISCOVERY, JUNE 15, 1984 ---- 1
2. PRAECIPE, JANUARY 16, 1985 ------------------------ 3
3. NOTICE OF MOTION TO QUASH SUBPOENA DUCES TECUM, JANUARY 22, 1985 ---------------------------------- 4
4. TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE THOMAS R. MONROE IN THE CIRCUIT COURT OF THE COUNTY OF ARLINGTON, VIRGINIA, JANUARY 23, 1985 ---------- 5
a) Proceedings------------------------------- 7 b) Testimony of Mathew Baigns---------------- 15 c) Testimony of William Shelton-------------- 47 d) Testimony of Howard Vick------------------ 59 e) Proceedings------------------------------- 72
5. FINAL ORDER IN THE CIRCUIT COURT OF THE COUNTY OF ARLINGTON DENYING HABEAS CORPUS RELIEF, FEBRUARY 20, 1985 ---------------------------------------------- 95
6. NOTICE OF APPEAL, FEBRUARY 21, 1985 --------------- 97
7. ORDER ON APPELLEE'S MOTION REQUESTING APPELLANT'S COMPLIANCE WITH VIRGINIA SUPREME COURT RULES, AUGUST 5, 1985 ------------------------------------------- 99
8. ORDER DISMISSING APPEAL OF THE ARLINGTON COUNTY CIR-CUIT COURT'S JUDGMENT, SEPTEMBER 30, 1985 --------- 100
9. PETITION FOR WRIT OF HABEAS CORPUS, SEPTEMBER 23, 1985 ---------------------------------------------- 101
10. MOTION TO AMEND PETITION FOR WRIT OF HABEAS CORPUS, JANUARY 29, 1986 ---------------------------------- 119
11. ORDER OF THE SUPREME COURT OF VIRGINIA DOCKETING THIS CAUSE, LIMITING ISSUES AND APPOINTING COUNSEL, FEBRUARY 25, 1986 --------------------------------- 123
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V I R G I N I A
IN THE CIRCUIT COURT OF ARLINGTON COUNTY
RONALD LEROY HOWARD
Petitioner
vs. !
/lr LtJ0 ~Z_5._1~_1 __ _ !wARDEN OF BUCKINGHAM !CORRECTIONAL CENTER
) )
I Respondent ) ~ .. , :.; .:-= ~· -: ~~
--·~ • J : j' ~ ~ ·.J r ] \ .. ~ -.'"' ••. J
j .. .,
/ro: ROBERT Q. HARRIS, ESQUIRE Assistant Attorney General Criminal Law Enforcement Division
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Supreme Court Building 6th Floor 101 North Eighth Street Richmond, Virginia 23219
PLEASE TAKE NOTICE that Petitioner, by Counsel, will move this
Honorable Court pursuant to Rule 4:1 of the Rules of the Supreme
Court for leave to begin discovery of all relevant information in
regards to this cause on Friday, June 29, 1984, at 10:00 a.m. or
as soon thereafter as this cause may be called. You may be present
to protect your interests herein.
RONALD LEROY HOWARD By Counsel
!NEWLON & WILLIAMS, P.C. I
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CERTIFICATE OF SERJICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
··tice and Motion was mailed first class postage prepaid this _ ·e-
day of June, 1984, to Robert Q. Harris, Esquire, at the above
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HE}IRY. ~AI:PIN & ORNITZ • ,..,..,...,, • ....., 0~ ...,.c•a·o..,,., .;~..a .. roo-t
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V I R G I N I A :
IN THE CIRCUIT COURT OF ARLINGTON COUNTY
RONALD L. HOWARD
Petitioner
v.
WARDEN OF BUCKINGHAM CORRECTIONAL CENTER
Respondent
) ) ) ) CIVIL ACTION NO. 25127 ) ) ) ) ) )
PRAECIPE
CLERK:
PLEASE ISSUE Subpoenas for the following persons and records. The persons and records are to appear on January 23, 1985 in the Court to testify on behalf of the petitioner.
1 • Mathew Bangs 2054 North 14th Street Suite 200 Arlington, Virginia 22201
PERSONS
2. Detective William Shelton Arlington County Police 1400 N. Courthouse Road Arlington, Virginia 22201
RECORDS
1. The File In Possession 2. Detective William Shelton's Investigative File Regarding the Prosecution of Ronald Howard.
of the Commonwealth Attorney Regarding the Prosecution of Ronald Howard.
R. Ramsey ~a HENRY, MAURI & ORJS[ItTZ 1515 N. Courthouse Road Suite 100 Arlington, Virginia 22201
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RONALD L. HOWARD By Counsel
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V I R G I N I A :
IN THE CIRCUIT COURT OF ARLINGTON COUNTY
RONALD L. HOWARD,
Petitioner,
vs.
WARDEN OF BUCKINGHAM, CORRECTIONAL CENTER
Respondent.
) ) ) ) ) ) ) ) ) )
Civil Action Number 25127
N 0 T I C E
Please take notice that the Commonwealth of Virginia,
by her Attorney, will, prior to the commencement of the hearing
in this case, move the Court to quash the subpoena duces tecum
heretofore issued at the Petitioner's request for investigative
files in the possession of the Commonwealth's Attorney and
Arlington County Police Department.
Henry E. Hudson Commonwealth's Attorney for The Attorney General of Virginia
CERTIFICATE OF SERVICE
I hereby certify that on this 1~ day of January, 1985, a true copy of the foregoing order was hand delivered to R. Ramsey Maupin, Esq., 1515 North Courthouse Road, Arlington, Virginia 22201.
Henry E. Hudson
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-·ORIGINAI..J-
VIRGINIA:
-IN THE CIRCUIT COURT FOR THE COUNTY
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COH~10NWEALTH OF VIRGIHIA,
-vs-
RONALD HOWARlJ ,
Defendant.
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19931-34
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Arlinqton, Virginia
·····.~ .... ,._ ....
Nednesday, January 23, 1985.
The proceedings commenced at 10:00 o'clock a.m.
BEFORE:
THE HONO~BLE TH01·1AS R. 110NROE.
APPE.'Z\.RANCES :
FR~N~ s. FERGUSON, Esq., Assistant Attorney General.
RA?·1SEY !.JIAUPIN, Esq. , counsel for the defendant.
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WITNESSES
"'Ia thew Baigns
William Shelton
Howard Vick
I N D E X ----
DIRECT CROSS
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EXHIBITS (None)
REDIRECT
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2 THE CLERK: The Commonwealth of Virginia versus
3 Ronald Howard.
4 THE COURT: Mr. Ferguson, do you have an assistant?
5 l-1R. FERGUSON: Yes, this is Louise Allen, Assistant
6 Attorney General. I guess I may be procedurally out of order
7 here. There is a subpoena duces tecum issued by the clerk's
8 office at the request of Mr. Maupin for two items.of documentary
9 evidence. The first being the Co~~onwealth's Attorney file
10 in reference to the criminal motions that are the basis of this
11 case and also a request for the police officer's investigative f"
~ 12 file to be brought to Court today. They are both here with
13 those files, but there also has been a.motion filed by
14 Mr. Hudson, the Co~onwealth Attorney, to quash that supboena
15 duces tee~~. I would join in that motion as counsel for the
16 respondent in that case and ask the Court to quash the Motion ....
17 of the Subpoena Duces Tecum. I am prepared to argue.that.
18 THE COURT: .Mr •. Maupin, you filed the motion for the
19 ..... :. ... prosecution's file and for the evidence in possession of the . 20 Arlington County Police Department.
21 t"iR. MAUPIN: Your Honor, this is a civil proceeding
22 and I believe the discovery rule and the rules of the Supreme
23 Court apply. I looked through them. -.'f~· .• ..
I don't see any obstacle ·
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in the way of obtaining these files. The petitioner intends
to produce evidence and carries the burden by a preponderance
of the evidence to show that is the basic things that I need
the information which I subpoenaed for and that is that the
Commonwealth withheld exculpatory evidence, in that they knew
another individual was the guru~an and had confessed to this
crime. Secondly, that they used that evidence in an improper
fashion making the argument to the jury that the petitioner,
Mr. Hotiard, was the gunman tllhen they kne\..r indeed he was not.
Your Honor is well a\..rare Brady versus Marvland is
self executing. If the Commonwealth Attorney does not forward
this information, then I am left with no way to obtain it othe
than by filing a subpoena duces tecum •. I further point the
Court's attention to Friday, January 23, 1984, I filed notice
in a Motion to Discover in this cause and at that time,
Mr. Robert Harris of the Attorney GeneralIs.· office came up to
argue that motion. We settled it without a court order. I wa
allowed to go down and look through the Commonwealth's Attorne·
file. So I think that any objection t~ey may have had would
seem to me \-las 'tlaivec. by the allowance of me to look through
t~at file. That goes only to the Commonwealth's Attorney file
and not ·to Detective Shelton's file. Without the authority of
this Court to allow this -gentleman to subpoena records in his·~~-
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behalf, I would be hard pressed to show that they withheld
certain evidence in that file since they have not provided it
voluntarily to me.
THE COURT: Mr. Ferguson.
MR. FERGUSON: Of course, I was not privy to the
agreement with Mr. Harris. If he represented that was the
agreement, I am not prepared to say it was not. However, it
did not go to what '"e are here about. That is whether these
are documents going to be presented in Court and available for
inspection and as evidence in this case. Additionally and
really at the outset, the proceedings that are required by the
rules of Court to have these matters brought before the Court
by subpoena duces tecum were not filed. I received no notice
that it was requested. I happened to call ~-1r. Maup·±n and talk
to him and he.mentioned it to me during the course of a phone
conversation. I received ·no formal notice by a written notice
and I believe the rules of Court require ~~at. I think that's
Rule 3A:l2. Of course, that involves a criminal procedure and
talks about subpoenas. in general.
~ subpoena duces tecum does require notice to
opposing counsel particularly regarding habeas cases.which is
this. There is no discovery permissible in a habeas corpus
and Rule lB:S which said.there is no discovery permissible
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1 in a habeas case except by requiring leave of Court. None has
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2 been requested or granted to my knowledge. If there is some
3 agreement under a prior motion filed back in January, that
4 apparently has been complied with and we have no objection to
5 that because that's been done. That does not go to evicence
6 being presented today. I would move to quash those motions on
7 that basis. Additionally the particular items requested are
8 investigative files \~hich are particularly privileged matters
,g by the rules of court which also Rule 41B contained in that
JO same rule. The investigative files of the police, Commonwealt~
'11 Attorney are privileged matters and not discoverable as a
( :12 general proposition.
I 13 f-1R. ~ll\.UPIN: Just briefly, I .think the Court can sol Ire
14 the State of ~he Commonwealth of Virginia's position. I don't
.15 know what'3 in the files. I anticipate finding something that
116 would benefit the petitioner in this case. I would certainly
:17 think it might be proper for the Court to accept that, examine
18 that in camera and if you believe there is nothing in there,
19 I would certainly abide by your order. I believe that we can •. <~,·
20 eleviate the situation which I believe counsel for the Common-
21 twealth is concerned about and that's rne obtaining some kind of
. I 22 ~iscovery. I didn't file motion for that purpose other than
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any related criminal pr~ceedings. I think if, your Honor, would
study that, your Honor, can further direct anything that was
learned by counsel could be sealed.
MR. FERGUSON: He doesn't know what he is looking
for and one of the requirements for a subpoena duces tecum is
some specific i tern, allegation as to what t.,ill be found and
what exist in that doc~~ent and that's necessary for the case
of· the petitioner. Just to allow him to go on a fishing expe
dition to find so~ething that he ho?es ~ay be useful to him
is not an adequate basis for a subpoena duces tecum to be
recognized by the Court. I would oppose any in camera view
for the procedural reasons and the su~stantive law involved.
THE COU~T: Mr. ~-1aupinr your ~otion is a general
motion as ;such and does not particularize as to what the
petitioner would expect to find. It does not adhere to the
formal requirement as set forth in Rule 3A': 12.
MR. !mUPIN: It deals with the criminal proceedings.
This is civil and if you look at the: ·rules, I believe I have
designated at least !.designated today in open Court what
specific item I will be looking for. That is some evidence
that indeed Mr. Howard was not the gunman in the case which wa~
argued to the jury that he was the gunman.
THE COURT: You did have a suppression motion,. did
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you not? You had a suppression motion and did you have the
continuing obligation, was there not of the Commonwealth to
make available to the defendant anything which would be
exculpatory in a nature to the defendant?
MR. FERGUSON: Mr. Haupin did not represent this
defendant at the criminal trial.
THE COURT: Mr. Baigns represented the defendant.
HR. FERGUSON: Yes. The record would reveal
Mr. Baiqns requested a suppression hearing 3nd it was held
prior to trial on criminal matters involved and at that ti~e,
there was an order entered, agreed upon order, by the Co~~on-
wealth and ~r. Baigns for discovery of discoverable material
under the criminal rules and also the wording of the file
reflects all exculpatory evidence as defined in Brady versus
Maryland __ ~nd the cases that follo\'led.
THE COURT: Do we have a situation involving excul-:·
patory evidence that has been withheld from the defendant by
the petitioner by the Commonwealth?
~·!R. FERGUSON: That • s the allegation \'le certainly
deny. I suppose that's what the evidence in the habeas hearin
will be concerned with. It's not so much I don't want him to
see the·file as far as what's in it, the law is clear. He is
not entitled to see it .. Certainly not under the procedures ...... ., .: ..
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"- 1 used thus far and it sets an extremely dangerous precedent
2 in ~y mind to allow defense attorneys or a habeas petition
3 attorney to investigate a file because once they get into therr,
4 I am not saying Mr. Maupin is going to do it, there are
5 attorneys, petitioners, if not attorneys who \-lould be
6 inclined upon access to the file to come in for any possible
7 flaw of procedures that they may find, and then we would face
8 the question of representation of a habeas petitioner. And
9 many new issues being before the Court and that would burden
10 the system beyond requireness and fairness.
11 In this particular case, the procedure requirement
..... 12 has not been met and the substantive law is that he is not
13 entitled to discovery. Furthermore according to representaticns
14 by counsel, certainly .~vir. Harris was representing the respon-
15 dent and agreed to let him review that file. Apparently when
16 he had a chance to revie't'l ·it, anything he needed to know would
li have been available at that time I should thing.
18 THE COURT: Mr. ~aupin, the Court is going to grant
19 the motion for the Subpoena Duces Tecun. If not formerly
20 filed, the rules. Secondly, it is not denied that you had an
21 opportunity to review the file.
22 MR. FERGUSOU: Not both files.
23 THE COURT: I am speaking of the Commonwealth's file~·
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As far as the Arlington County Police Department files that
motion will be denied in this regard. I don't believe this
Court is called upon or should be called upon to entirely open
up the police files to every defendant who would claim that he
has a right to examine that file.
MR. FERGUSON: I have a preliminary motion. That is
simply to have the records of the criminal trial including
the transcript and so forth being made a part of the record
in this habeas proceeding as well. There may be a time for a
transcript or evidence that was presented at the trial and I
would like that made a part of the record and that is standard
procedure in these habeas cases.
THE COURT: Mr. Naupin, do yo.u join in that motion?
MR. t-'f._l\UPIN: I have no objection.
THE COURT: Your motion is being granted. The
transcripts are not contained in the file. Therefore, the ~.
Court is directing the transcript5 be brought to the Court by
the clerk.
:·IR. FERGUSON: I do have copies of those and I think
~tr. :-4aupin also does. Ne are prepared- to proceed without them
at this point, unless the Court wants one available right to i ..
THE COURT: All witnesses eAcluded from the courtroo1~
and do not discuss the case during the time this matter is ·· ... ;.
'Deo Reporting (7031 751·0013
\ TESTIMONY OF MATHEW BAIGNS •
11
pending before the Cou=t. You may discuss it with counsel.
2 MR. MAUPIN: ~-1r. Baings.
3 Whereupon,
4 MATHEW BAIGNS
5 was called as a witness by and on behalf of the Defendant,
6 and, having been first duly sworn, was examined and testified
7 as follows :
8 DIRECT EZNJliNATION
9 BY ~-1R. r-1AUPIN:
10 Q ~-Ir. Baigns, state your full name please for the
11 record?
12 A Mathew P. Baigns.
13 Q You were the Court appointed pounsel who represented
14 ~r. Howard in a criminal proceeding that this is involved with'
15 A Yes, I \-'las.
16 Q Mr. Baigns, waul~ you describe in detail what invest~-
11 gation you did as far as witnesses interviews prior to prelim-
18 inary hearing in this case?
19 A Basically at tnat time, I met with Detective Shelton
~ I had not yet reviewed the file. I met with Detective Shelton
21 and gone over the fact pat tern and met ,_-1i th t.1r. Howard and
22 pursuant· to my conversation with Mr. Howard and discussing the
23 case, ~.fr. Howard indicated to me that at th.at time he did not··
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( " 1 feel like going forward with the preliminary hearing. The
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2 basis for that being, there was a concern, t1r. Maupin, that
3 ~~e witness would have an opportunity to see Mr. Howard in the
4 courtroom and we felt it would, given the fact it was going
5 to be an enormous case, it would be a fairly short and brief
6 type of situation. We didn't feel i_t would be much to be gained.
7 The Commonwealth indicated to me and provided me with an open
8 file and answered any questions I might have to ~~e incident
9 in question prior to us waiving preliminary hearing.
10 Q Did there ever come a time t~at you learned someone
11 other than this gentleman had been identified as the gunman
( 12 in this robbery, alleged robbery?
13 A ~ell, the case was two years old. My recollection
i14 of it is what I had been advised that Mr. Wright had been
15 identified as a participant in the robbery. There was some
16 confusion during my meeting with the prosecution regarding
17 Detective Shelton as to which individual was identified in the
18 file as number one and number two. My recollection of it is
19 that Mr. Shelton, Detective Shelton, told me he wasn't that
20 sure of which was the one. He would have to check and get
21 back to me on that. I raised the fact -- at one point, he
22 is saying the individual described in the: police report was
23 number one and 'liT as Hr. Howard. Later he said he thought he
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might have been individual number t':-.70. He said he would chec~
2 on that and get back to me about it.
3 Q Did you bring your file with you today?
4 A Yes, I did.
5 Q Let me sho\'1 you this and see if the copies of the
6 notes I obtained from your file, can you identify those?
7 A Yes.
8 Q Would you describe what they are?
9 A This is my notes from my meeting with the prosecution
10 or and Mr. Shelton, the first page is. The second page I
11 believe is a later meeting that I had with them. The second ~
:.... 12 one might be actually notes that I took. That second page I
13 am not certain whether that was my notes with Detective Shelton
14 on my motions for the !"lotion to Suppress. The first pacze of rry
15 notes are from the meeting wi~~ the Commonwealth Attorney and
16 Detective Shelton.
17 Q Bottom page of the notes. Does that refresh your
18 recollection that someone else·was named as the gunman?
19 A Yeah. Fran~ly, it does not refresh my recollection.
20 I have to admit that is my handwriting and does seem to
21 indicate Mr. Wright had been identified as the gunman .•
22 Q Where did you say you obtained that information?
23 A That was from Il'\Y revie\'1 of the police report and the
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170317!51·0013
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1 discussion with Detective Shelt0n and Mr. Vick.
2 Q Subsequently to that discussion when you learned thct,
3 were you ever furnished any statement by the police of that
4 nature?
5 A No, I was not.
6 Q That Wtight was the gunman?
7 A I had a conversation "t-vith Detective Shelton at one
8 point ~here he asked me -- I asked him basically what was
9 going on \'lith Mr. Wright's case. He indicated Mr. Nright
;10 acknowledged his involvement. I can't recollect whether he
1.11 said 1-ir. Wright was identified as the gunman or confessed to
( ;12 being the gunman or acknowledged he was involved in the robber~.
:13 I ~,vould have to say if he told me Mr. Wright was actually the
114 gunman, I would have follot..red that up. My recollection is
15 basically ~·Ir. ·wright acknowledged his involvement in the
16 robbery without specifying ~1hether he v?as the gunman . or not. . .
'17 Q Did you ever have occasion to interview Mr. Wright?
18 A No, I did not.
19 Q You don • t kno~..r ~-1hat he said as far as the personal
~0 conversation with hirn?
21 A No, I do not.
22 Q v!as Hr. Nright the co-defendant in the .. ci:irninal
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case ever identified to the best of your recollection for the
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1 Commonwealth?
2 A He was and that=s what that note referred to. He
3 wasn't id:ntified by Ms. Peterson during a photospread which
4 was shO'lln to Mr. I-iausoby.
5 THE COURT: Was not?
6 THE ~1ITNESS: He was, that \-las the information givex
7 to rne.
8 BY HR. ~..A UP IN:
9 Q Did ]OU ever have occasion -- strike that. Did you
10 ever have occasion to speak to Ms. Peterson?
11 A No, she t-1as not present at the preliminary hearing.
12 She was brought pursuant to a subpoena I believe to the ~otior
13 to Suppress. Ho\vever, she did not testify because the Conunon-
14 wealth's indication was she had not identified Mr. Howard
15 and therefore that identification or process vlould not be at
16 I believe that was a stipulation .• issue in her case. They .. , .. f
17 may have made that at the beginning of the Motion to Suppress.
18 Q You say Ms. Peterson was stipulated to at the
19 suppression hearing and could not identify him.
20 A She had not picked hi~ out of the photospread which
21 was complained of at the Motion to Suppress. I think what
22 happened was they had not served the subpoena on her and there
23 was no question as to \'t7hether there 'llould have to be a con-
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1 tinuance because of her failure to appear and due to the
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2 Coamonwealth•s stipulation that she had not identified
3 Mr • HO'Ilard.
4 MR. FERGUSON: If it will be of help, I will stipula~e
5 the transcript from both the suppression hearing and the trial
6 indicates basically what Mr. Baigns said and we will stipulate
7 . to that evidence. And furthermore at the trial itself, it was
8 shown through the examination of ~s. Peterson and the cross
9 examination of Mr. Baigns that when she was first shown a
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10 photo array sometime prior to trial, but after the incident
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she picked out the co-defendant ~·1r. t~!right but did not pick out
...... .12 this defendant, f.1r. Howard. Certainly the transcript will
13 reveal that.
:14 THE COURT: Is this stipulated?
;}5 HR. ~1AUPIN: That • s fine. ¥-7hat I am trying to get tp
·16 is on page 5 and I don•t know whether he would be willing to
i17 stipulate that the representation by the Commonwealth Attorney
18 '.-las that she never fingered, r-ts. Peterson never fingered
19 Mr. Howard as a participant in the robbery either through a •• f
20 photo showup or after seeing hi~ in Court.
21 MR. FERGUSON: Certainly the transcript speaks for
22 itself. I am prepared to show that to the Court. I think tha~•s
23 why it should be made a part of the record. It•s page 5 of th1~
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"'- 1 transcript. The suppression hearing held November 26,. 1982.
2 I think the record says she never seen him or she never
3 identified him from a photo array si1e \•TaG sho'Vln. That includes
4 a picture of Mr. Howard. There has been no in court
5 identification. I think it indicates she had not been in Couzt
6 with him any time prior to that. I am \villing to stipulate tc
7 that. She only seen him at the robbery and through a photo
8 array which she did not pick him out from.
9 !1L~. H..:"\UP IN: That' s fine, your Honor .
10 THE COURT: It's so stipulated.
11 BY ~1R. l\1AUPIN:
12 Q Did you ever -- did you have occasion ~rior to trial
13 to talk to Ms. Peterson?
14 A Prior to trial, no.
15 Q Didn't you think it was important to speak with her
16 to find out what kind of identification if any she could make ....
17 and if she couldn't make an identification, didn't you feel
18 that would be hel9ful to the petitioner?
19 A I felt that· she had not been able to identify would . ·~
20 be helpful to the petitioner. I felt that with Mr. Mausoby
21 being pretty certain due to the motion hearing and his parti-
22 cipation, I felt it was basically her recollection would be no~ . ,.':.
23 as important or tangential. Her recollection would be s:1e did~~ ;·t
. 21 'Deo Reporting
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' 1 remember who the individual was "\vhereas r-1r. Mausoby, you are
2 dead certain that was the man. That was the man. I felt at
3 best it might have some probative value. I didn't feel it
4 was suffic~ent to require her being subpoenaed.
1 5 Q Wasn't it her testimony at trial in essence that she
6 knew the two men who held her up?
7 A She indicated she had seen the men in the store
8 previously.
9 Q You don't think if she said no it wasn't him that
10 would have been important a3 a defense tactic in his trial?
11 A I don't know. Well, no, I believe I was aware the f'
" .;12 lady may have indicated she seen the man previously. Hy
13 approach, Mr. ~1aupin, after the Motion .to Suppress was unsuc-
;14 cessful, the prosecutor told him not to speak to me. I feel
:15 it would be probably the same direction would be given to
.'16 Ms. Peterson. I had no way in getting in touch with her. I
1i did not feel given, r-1r. i'1aupin, the identification ot' the
individual, I f~lt that as I say the major thrust of the case
19 was going to cor.te dot·Tn to !·1r. !4ausoby • s identification.
20 Prior to preli~inary hearing, had you discovered as
21 indicated in your notes that Ms. Peterson's testimony would ha'e
22 been that in fact these people had been in the store over a
23 ~t-lo \'leek period prior to 'this alleged robbery?
19
A I think that was after the preliminary hearing.
- Q May I get your file so you can look at it?
A Go right ahead.
HR. ~L.Z\.UPIN: Your Honor, my client has asked me to
ask the Court if he might ask a question from here from
Mr. Baigns.
THE COURT: He may confer with you towards a questicn
you may ask of Mr. Baigns.
BY ~1R. .MAUPIN:
Q Up in the upper third portion of the page, almost
!halfway down, do you see that it's been in the store two weeks?
A Yes, I do.
Q Does that refresh your recollection as to what her
proffered testiwony was to you?
A Frankly, I think that was once again after the
preliminary hearing that was in the meeting with the prosecutor.
and Detective Shelton. That's what I got from the reading of
the notes. I an \'lri ting notes down as I am sitting there.
~-1y recollection is she seen him in the store sometime in the
two ".'leek period before, but I don • t think she had seen them
two times a week. ~lthou~h, it might interpreted that way.
Q Didn't she testify at trial that the people that
robbed the store had hung around the store? .... ,·
23
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1 A Yes, she did.
2 Q You didn't feel it proper to examine her personally
3 at the store to find out what she might have known or what
4 she might have not known?
5 A As I said, due to my contact with Mr. Mausoby, I felt
6 it would be fruitless.
7 Q I am somewhat confused. You told me the first page
8 of these notes were prior to the ~reliminary hearing.
9 A No, I ~'11 sorry. That was when I ,.,a.s trying to
10 clarify. That was after the preliminary hearing due to the
11 agreement which we reached. Let me see the file and the police ( \.. 12 report, that's when we had the meeting.
13 Q When did r-1r. ~1ausoby tell you the Commonwealth
14 Atto1:ney told him you didn • t have to speak to him?
15 A That Nas right after the Motion to Suppress.
16 Q In bet~·1een the preliminary hearing and the Motion
17 to Suppress, did you attempt to contact Ms. Peterson?
18 A No, I did not.
19 Q You didn't kno~ whether she would talk to you or not~
20 nobody indicated to you they would talk to you?
21 A That's correct.
22 Q Did it come to your attention prior to trial,
23 I'1r. Baigns, there '"~ere two other female subjects who may have
24 'Deo Reporting
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seen a portion of the robbery or a portion of the get away?
. A Yes.
Q Who were they, do you recall?
A I believe Ms. Hoffman and I believe Linda was the
"nforrnation that I got.
Q Did you atte~pt to locate these witnesses?
A I attempted to locate Ms. Hoffman by looking through
I he phone book and I could not locate Peggy.
Ito go on there.
~inda, I had nothing
Q Did you attempt to locate another witness who was
~pparently in the back of the store when whe~ Mr. Mausoby, I I i believe had a sum of money, was stolen?
A Frankly, I do not recollect ever hearing that, any
"nformation about that pe~son's presence until the trial. It
.ay have come out at the Motion to Suppress. I don't recollect
· t coming out there. f1y recollection at the trial '/'las mutual ...
nd a bomb shell type of situation for the prosecution
~ were surprised that there was no mention of her in the I
keport. I don't, frankly as I said, I don't recollect i~ I . . . ut 1n tne Mot1on to Suppress.
Q Mr. Baigns, have you ever met or seen pictures of
1r. Nhi t'e?
A Yes, I have.
25
f.
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Q Have you met him?
A No, I have not.
Q You have seen pictures?
A Yes, I have.
Q Would it be fair to characterize his appearance as
being similar to the petitioner?
MR. FERGUSON: I object. It calls for a conclusion
characterization from this witness which he is not irnpowered
to make and has no qualification and is attempting to retry th
factual issues of the criminal trial. That's not the purpose
lwe are here for. I I I
I THE COURT: Sustained. He indicated he never seen
Mr. Wright. He had seen pictures.
j-.IR. r·1AUPIN: Based on your objection, fine.
BY ~-.1R. r4A.UPIN:
Q The pictures you saw of i~r. Wright, 'tlas that similar
in appearance to this gentleman?
~·1R. FERGUSON: Any objection re~ains. It's calling
he is not qualified to make. It's not a matter that either
falls under any expert opinion or qualification as an expert
and something like that would be a matter of individual opinio
as to whether someone lo6ks like someone else. He can give a
(" -#
23
' 1 description of Mr. ~hite if there is some reason of that, but
2 if some proper foundation is laid, he cannot say he looks like
3 that man. I know he doesn't.
4 THE COURT: Overruled.
5 BY ~~IR • ~-1AUP IN :
6 Q Did the picture that you observed were there
7 haracterizations similar if so, describe the similarities?
8 A Yes, sir. Black males and my recollection of the
9 hotographs were they both have facial hair.
10 Q Similar in skin color?
11 A The photograph that I saw was a xerox of the photo-,
·- 12 raph. It's hard to say what the skin tone looks like on a
13 erox.
14 Q You never went out to see I•lr. t·~right to see how
15 imilar in appearance he ~as?
16 A No, I did not.
17 Q Didn't you think that might have been an issue to
18 aise in the trial mis-identification?
19 A I certainly did.
20 Q nut yet you didn't go out to see how similar he might
21 ave looked to you?
22 A No, I didn't.
23 Q Why didn't you?
27
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1 A Basically because after the conversations with
2 r-1r. Ho~vard, we basically agreed it wollld be fruitless to call
3 ~r. Wright because the danger of Hr. 1i'7right might hold --
4 r1r. Ho~vard had identified him as a participant in another
5 robbery for which he was being prosecuted out in Fairfax Count .
6 Q Let me ask you this, Wright ~~as picked out by one of
7 the individuals who pi~ked him out of a photo lineup, is that
8 correct?
9 A That's correct.
10 Q i4r. Ho~.vard was picked out by Mr. Hausoby?
11 A That's correct. r {
. 12 ........ Q Didn't you think it ~vas important to have these peop e
13 see these individuals, eyewitnesses see. them?
14 A Perhaps Mr. Ho~1ard' s recollection is different than
15 .ines. He and I went over this at length. I can't say how
16 atly times we met and talked about it. N'e went around and
t; round vlhether ~·Ir. ~·Tright should be called or not. Initially,
18 1r. Howard request was that ~r. Wright should be called as a
19 itness for him. After I 9ointed out to him the fact that
20 r. t·;right was being prosecuted or for :t crime, ~·1r. Ho~vea.rd
21 pparently identified him as a participant in this prosecution
22 nd a prosecution was taking place out in Fairfax. I argued
23 o him strenuously what's· the point of calling him if he is
28 !
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1 going to take the Fifth A.T:len·~tment because of his involvement
2 in this crime or because of the fact he might be angry at him
3 because of the fact he identified him as a participant in a
4 robbery.
5 Q Let me ask you this, would it be fair to say you
6 didn't talk to any of the witnesses to the report before the
7 trial other than Mr. Mausoby during a suppression hearing?
8 -~ Yes.
9 Q You didn't talk to any of the witnesses?
10 A Yes.
11 Q ~id you make any attempt to talk to any of the wit-I
12 I 1nesses other than going through a phone book and trying to fin I
13 names, Peggy Hoffman?
14 A I might point out I did discuss it with Mr. Howard.
~ We had a discussion about that. My impression --
16 Q (Interposing} You were counsel of record? ·
17 A Oh, yes 1 that's correct. I \-lill point out my theory
18 of practicing in sene of these cases is to make a recommendati n
lbut to leave the final decision up to the client.
I 19
i Q During the suppression hearing, did you and the I 20
21 ttorney for the Conmon\o~eal th 1 Hr. Fields at that time during
22 the sup9ression hearing, did the t~._ro of you have knot.._rledge tha
• ••• 0
23 somebody had confessed to this crime?
29
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A No.
Q You didn't know that Johnny ;·Jright confessed o·r made
~ statement he was involved in the crime?
A When I say confessed, I had been advised by Mr. Howa d
and Detective Shelton that Mr. Wright acknowledged his involve
ment in this crime.
Q Did you ever pass information to ~1r. Howard that you
had learned that Johnny Nright had indeed implicated himself
as the gunman?
A I believe the information he passed \'las he implicate
himself in the crime. I don't recollect -- I have to say I
I don't think I ever told him that Johnny ~'!right said he was
the gunman.
t.fR. r1.Z\UPI:'1: That's all the questions I have, your
Honor.
CROSS EXAMINATION
BY M..,q. FERGUSON:
Q ~-ir. Baigns, you have been practicing law for hot'l lon ?
A A little over five years.
Q And you are obviously admitted to the bar in the -
State of Virginia for over five years I take it?
A Yes.
Q You went to undergraduate school, where? . .,. ' :
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A University of Virginia.
Q Law student?
A Catholic University.
Q During your five plus years of practice, have you
been engaged in other criminal offense work other than cases
of Mr. Howard?
A Yes, I have .
. Q Any estimate as to how many criminal cases you
I I jdefended during that time?
I A Total criminal cases would be in the neighborhood
between a hundred and two hundred.
Q Including in that felonies and jury trials?
A Yes.
Q And you a~e in fact on the Court appointed list in
Arlinguon~County?
A Yes.
Q And appointed from tine to time for defense wvrk
by the Court?
A Ye:3, sir.
Q you were ~ppointed in this particular
I cast;! c:\S t·lell I take it? I I
A· Actually I was appointed to -- I believe initially I he was arrested on a marijuana charge for carrying a concealei
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I weapon and driving on a sus~~endf-:'~l charge o
i I.
Q At some time thereafter, these additional robbery
charges came up?
A That's correct.
Q In fact and the transcript will bear it out, in fact,
the evidence at trial and all along indicated there were two
individuals involved in the robbery?
A That's correcto
Q One "tvas identified as ~lr o HO'V'lard and apparently
somebody somehow Mro Wright was identified as being the other
individual?.
A That's correcto
Q You were not representing ~v~r .• Wright?
.l\. I was not o
Q You y.-1eren' t aware of what kind of proceedings what
was charged with?
A I was receiving information about some of these thilgs
1 from l\1r. Howard., He apparently had some conununication v1ith ! I
jMro Wright while they were in the jail together and also I I J
~received information about it later from the detective ouce I .
we gotten to the agreement regarding the open files.
Q · Apparently from your corr.r.tent~ in response to
Mr. Maupin~s question, you found out that there were other
'Deo Reporting . . " • ·.rv -. • ~. "
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29 I I robb. eries that the t'.'TO ,)f them had been involved in together?
~1R. MAUPIN: Objection, I don't know what relevance
that has to this proceedings. 'tAle are talking about the two
before the Court in '82. 1 THE COURT: Nr. Maupin, you elicited it by Mr. Baign.
I on his reply to the relationship and -v1hy he would suggest that I
!Mr. Wright would not be called because of some robbery in
!Fairfax County. I think the door was opened at that tinLe. i I I THE WITNESS: Yes, I believe and once again t'''o
lyears ago and I don't r~ally, I am not a hundred percent certa n. I I
jMy recollection ''~as r·1r. Wright and Hr. Howard had been i.nv'='l ve I !in a number of incidents and among the~ involving a cab driver I
l1
picked up in Arlington and taken out tq Fairfax and robbed outl I
!there. I BY T-1R. FERGUSON:
Q Were you aware that Mr. Wright was prosecuted in
!Fairfax on a robbery charge?
I A He '.Yas prosecut~d in Fair fa~:. '1y recollection is
!Mr. Howard was called· to testify in that proceeding and I
physically resisted any t~stirnony being given on his part.
Q He was called on behalf of the Commonwealth?
A I don't knol.-1 who called hiza. I believe it was the
Commonwealth. I believe"he had a scuffle with the deputies on
33 'Deo Reporting
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there way to take him out there.
2 · Q · At any rate based on this knowledge··ias you determine
3 in an in depth discussion with r.~Ir. Hot,v ard, it was your decision
4 based on that information not to call ~1r. Wright as a witness?
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A Basically yes. As I said, I felt the potential for
a bQemerrang effect that he could come in here and take the
!Fifth \~hich I felt wouldn't help the case any or two, he could i ibe angry. This is what the big issue was. He would be angry
lthat•:he had been identified by Mr. Ho~1ard in that incident.
IHr. Ho-:11ard had made !1is own deal "IIi th the police officei.·s I ldithout me being present. I I I
I I
Q Was that after you had been appointed to represent I
I him? I
I I
A Yes.
I :-tR. ~1AUP IN: I am going to object if he knows how an,
Ideals were made if h~ wasn~t present. It would be hearsay.
THE COURT: Sustained.
BY !"iR. FERGUSON:
Q t·lere you told that by ~r. Hov1ard?
A Yes.
:-1R. FERGUSON: If it comes fr0~:i the petitioner
'I, HE cou:aT: (Interposing) ~vhat the petitioner said
he may repeat.
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THE ~7ITNESS: Basically he had gone to see the
detective. I had been appointed on the case two or three mont s.
I carne over to see him one day after t.he visit and he aC.vised
me he had been seeing the detective and I was very upset about
that. Mr. Howard indicated to me he felt sufficiently confi-
dent to negotiate the situation with the detective on hi~ own.
They reached an agreement whereby Mr. Iloward would clear cer-
ltain cases for them by acknowledging his participation and
!therefore they would close those cases out and would not
prosecute him on those. As to this one case, they woula go
a!lead and go all the way through wi ti1 it.
Q To your knowledge, did the police uphold their end
!of the bargain? I
A Yes, as far as I can tell.
I ~ You are not aware of any oth~r prosecution that carne
i iUP against )tr. Howard?
I I I I
A Not as far as I am aware.
Q Mr. Baigns,·r also understand your testimony t0 say
that in fact Mr. Howard agrged with the decision made, the
decision himself that Mr. Wright would not be a pr9per witness
A That was my recollection th~~ we discussed it. That
initially he was concerned that he felt Mr. Wright should b~
'Deo Reporting 17031 751·0013 . ~.;.:{·.::~'':: .• . •
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,,called but that my v~ew • of the situation prevailed and that I
2 he advised me basically don't bother calling him. Don't bathe
3 going to see him and that was that.
4 Q Nr. Baigns, you also indicated that the Commonwealth
n made available to you an open file, essentially to look at the
6 Commonwealth's file as you saw fit.
i A Right.
Q ~vas that in fact done?
9 A Yes, it was.
10 Q Do you recall how long prior to trial that you had
11 made that inspection?
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A I would say it was approxim.:t tely a month, ttt1o months
I
before.
Q
A
lit is
!after I I I
Q
lpoint, I
I believe --
(Interposing) Normally I put the dates on my notes.
not on that one page. I frankly am not certain. It was
the preliminary hearing.
You had been in the case some period of time at that
but still some· peri~d of time before the trial was to
~o commence.
21 A That's cor.r•1ct.
Q Would it be fair to say that one of the reasons you ....
requested the suppression hearing was jased on what you learne
'Deo Reporting 17031751·0013 • .. ~ ~:~·~·t":· .. . •..
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lin the review of that file?
I I
r-m. IJJ.AUPIN: Objection, calls for an assumption.
THE COURT: The foundation has been laid by previous
questions and answers, overruled.
THE WITNESS: Based upon my review of the file, my
discussions with the detective and my discussions with
~r. Ho~vard.
BY r.-1R . FERGUSON :
I Q I believe your notes referred to by Mr. Maupin in hi
!direct examination indicated that duriag the discussions with
!the Commom.,ealth and with your review of their file, you i !learned that someone else had been identified in the same case I !besides Mr. Howard?
l.i
A That's correct.. l\1y memory is corning back a little
lbl.' t . d h f. I more ~n regar s to that one page. we went t rough the ~lf
1 in discussing it. I was taking my notes do\o~n and they were
giving me information verbally as I was taking notes down.
I When he got to the bottom, he says he !~ad been identified as
lg~n111an that ~lr. Nright hacl been identified as gunman number i
I said that doesn't quite jive ~Tith Nhat's up here on the I I
numbers you are giving me up there. T:1at' s when they said they I
will check into that and let me know.
Q You become aware there may have been some discrepanc
iat that time? I
cneo Reporting
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A Yes.
Q ~ suppression hearing was held?
A Yes.
Q I think the transcript reflects that you examined,
cross examined extensively both witnesses, both eyewitnesses
regarding their identifications, is that correct?
A At the ~lotion to Suppress, I cross exaTllined Detectiv i jShelton and Mr. Mausoby. I don't believe I cross examined
l!!s. Peterson. l I
I I
Q I believe that's correct. nt the trial, they both
'testified, did they not?
1 A Yes.
I
' I I I I
Q And you cross examined both of them?
A Yes.
Q You cross examined them particularly in reference to
~an identification of Mr. Howard as being present and as being
I 1the gunman?
I ! That•s
Q I
! ~1s. Peterson and ~r. Mausoby both eyewitnesses also
'turned they were the alleged victims of the robbery?
A Yes, yes.
Q Hr. Baigns, regarding the other witnesses, now you
'indicated that you did iri fact try to interview Mr. Mausoby bu
!
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I he indicated the Co~nonwealth told him he didn't have to talk
to you.
A Words to that effect. He basically declined to spea
Ito me about it. I don't khow whether he used the words the
Commonwealth told me. I had witnesses tell me that. My
recollection on the elevator is I would like to talk to you
I about this and no, I don't think I should, something to that
I
1 event.
I Q You made ef£orts and he declined? I
I A That's correct.
Q I believe one of the things brought up on the I
l transcript, the
I some difficulty I
suppression hearing indicates that there is
in finding Ms. Peterson at one time, is that
j true?
A ~Y recollection is I had a subpoena issued but the
!Shariff had not served it at that address.
she moved.
I don't know wheth r
Q Nas she no longer emplcyeC.
lthe subject of t~e robbery?
l I don't know. A
Q In an:." event, she did make it for the trial?
Yes, she did.
Q She was cross ·examined?
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A Yes, she was.
Q You indicated on direct examination that you discuss d
all of the witnesses matters with ~r. Howard?
A That's correct.
Q Was that including Ms. Peterson?
A Frankly I can't recollect whether we went over it,
the entire situation with all the witnesses. I kn0'~-1 Freshner
Mas ri6t discussed.
Q The other person?
A Yes, the lady in the back.
I Q Which you indicated was a ~urprise to both you and
! jthe Commonwealth as to \>lhether this person exist~d?
I. I I I
A
Q
Yes.
Did ~-1r. Ho\.;a:cd give you name~ of witnesses he didn't
I
~rant present?
I A Nright was one he indicated that he wanted to ha e I
bresent at the trial an~ as I indicated, I say two or t~ree r ~eeks of kicking it around and given the I fact there were these I
in Fairfax and that ~-la5 part of the decision
I
bngoing things I I
r'aking process involving th.1t Fairfax case was still ongoing.
1
tt. Howard was being subpoenaed out ~1ere and he had a dispute
~ith the deputies about going up there. And basically refused
lo cooperate.
I All those ·things I f~lt were leading into a
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1 potential circumstance for ar. Nright to be angry and upset
2 and not only that to take the Fifth ~-nendment. And he would
3 feave ups with the potential for a co-conspirator. The only
4
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concern I had was from my discussion with my client that
~r. Wright was involved in other robberies with Mr. Howard.
My recollection is Mr. Wright and Mr. HO\'lard had conuni tted a
robbery many years ago which I think bnck in the early 70's
I and the danger I iel t t-1as there. The Commonwealth might have I !opportunities if Mr. Wright did not take the Fifth, the
lcommom~ealth might have a right to brillg out a long term I
11 relationship and may be bring in the prior crime. I thought
12 lthe
I I I A That was the other factor. His record was such I
danger of that corning in in a robbery case was substantial
Q At any time Mr. Wright would.have not been credible?
14
15 don't think the jury would have believed him one way or the
16 other.
Did you at any time become aware -- I understand frof
:that you did become a\Yare that 11r. Wright irnpli-1 I
I I
had!
li
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It e test~mony
1
cated himself
I I
in the ·rob~ery.
18
19
20 That's correct.
:!1 ... Q I also take it you did not understand Mr. Wright
exonerated·' r·1r. Howard?
A No .
41 'Deo Reporting
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Q Or in fact said ~r. Howard had not been the gunman
and he had been?
A No.
Q lvould it also be fair to say that all those things
hat you have been questioned about by ~1r. !-1aupin and myself,
he decisions were made were decisions rather than oversights
I n your part?
I
! A Yes, they were.
MR. FERGUSON: Thatls all.
.. i ~EDIRECT EXAMINATION
BY HR. Y.t.AUP IN:
Q You say i4r. Wright never exonerated Mr. Ho\varci?
.n. Ho.
Q How do you know, you never talked to him?
A I an merely saying based upon what I am aware of.
Q You never talked to him, is that a fact?
That's correct, pursuant to :.vir. Wright and Mr. Howardi' $~; I
A
·eterrnination not to have him called. I
! i I i
Q ~'lhen you talked ·t;:li th the det8cti ve and the Conunon·..vealrh
Attorney, you said concerning the notes there were some con-
I
I fusion as to who was the gunman and you further said on cross
they would find that out.
A Yes, that's correct.
'Deo Reporting ··' , . ... . ... . . . . . . .. · .. :.: \.
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Q What did they ever find out?
A Not a thing.
Q ~vhy would you suppose that the Commonwealth would
do work that would benefit you? Did you look into it?
A I didn't supose they would do anything. First off
in my dealing with Detective Shelton, I felt that I could
rely upon Detective Shelton's honesty and integrity in his
dealings with me. I did· .not take anything Letective SheLton
told to be cart blanche. I felt the fact of the matter i.s th t
it ~-1ould clear itself with the ; Iv1otion to Suppress \-then it~ \'las
heard. I felt as the case would move along, these facts wou
come to life in a further conversation with f1Ir. Howard, thG'
Motion to Suppress, further review wi~~ Detective Shelton
T11ith what was t~ere. I never been involved with a case ~-1ith
Detective Shelton previously, but I became very impressed
with Detective Shelton t.vhen he made off the record deals \'lithj I
my client when I wasn't there not to prosecute him on any j I !
other ca3es t.·lhen my client admitted his complicity. He didn't i
have to live up to that agreement as far as I was concerned
I and he was going to abide by it and stick with it. My client!
felt he had honesty and integrity. He went to speak to him
on his o~n and making a deal and advising me later ..
Q
-· . .... ··. · ....... .. :. . .... ,.~;J,: .... ;~/~..;=;_..:,.;t~
You said afte~ the indepth discussions with
'Deo Reporting 17031 75t·OOt3
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IMr. Howard that the two of you reached the decision that you
~weren't going to call Johnny Wright?
A That's correct.
Q Did you indicate what Wright would testify in regard
to Mr. Ho\otard?
A I think I went over the same facts. I went over
!the theory that there was a danger and I listed the various
1danaers. Hr. Howard had more information as to whether he
lwou~d exonerate :hLn or not. Mr. 'tlric;ht and '·!r. Howard were I
!communicating with each other while incarcerated in Arlington. I j Q You had gone out to talk to Johnny Wright and he sai
i :r was the lone robber and gunman and ~~Ir. Ho'.vard "t"asn' t ~'lith me I !How would that pose a problem in Mr. Ho'.vard.' s case?
I A The only problem it would have posed -v1as ~Yt4. ~·lright' I i . 1credicility would have been attacked. i
I I i
I You ~an't change that, could you, his credibility? -r
I Q
I
lspeak to I ! I
I A
No.
You didn't feel it was a smart tactic to go out and
him?
It wasn't that. ~r. Wright initially was in the
i i
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Arlington County Jail. I
While we were discussing whether I sho~ld i
speak to Mr. Wright or not and this was all going on,
Mr. Wright was transferred to Fairfax. At that point,
"··r-
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I Mr. Howard:t.s line of communication with Mr. Wright had broken
ldown. At that time, the Fairfax charges were pending out
_there. At that point, the whole situation became very unclear'
and I advised r1r. Howard of that. All I can say it was a
decision that I advised, recommended that we not call
I-1r. 111right, but if l1r. Ho\vard and I left it to him, I left
I it to him that if you want me to call him and if you want me
! to go see him, I will do so. Basically, he said no just for-
get it.
Q Did you discover that Wright had made some statemen ,
is that correct?
A That's correct.
Q What was the contents of th~ statement that Wright
made?
A Basically was he acknowledged his involvement in
robbery.
Q How did you discuss that?
A That was from Detective Shelton advising me that an
also :-tr. Howard advising rae of that.
Q Did you ask 0etective Shelton if Wright said I am
the gunman?
A Did not.
Q \•Jere you confused as to who the gunman was?
45
'Deo Reporting "#> • •
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A At the time of the first meeting with the:.:·p~osecutio I .
I I
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and going over the file, there was some confusion. The con-
tusion in my opinion going to clarify all the difficulty at
~~e Motion to Suppress. I was going to call Ms. Peterson and
call Mr. l·1ausoby and the other witnesses Peggy Hoffman and
Linda. And I was going to call r-1r. ~ausoby and let them
testify at the Mbtion to Suppress so I would find out who was
saying what about who and also bring forth the identification
procedure used in the case.
Q Ms. Peterson never appeared at the suppression motio ?
A That's correct.
Q You didn't seek a continuance, did you?
I A That was something I was trying to reco~lect. I
ldon It bP.lieve I did r no.. Basically the prosecution had
stipulated she had not been able to identify Mr. Howard. I
felt that was the only good news for us.
Q There wasn't a conspiracy charge pending against thi~ gentleman, was there? I
A No, there was not.
Q In your cross examination, y~u testified that you ha~ i I I
some problems with a co-conspirator, Johnny ~vright, implicating
him or taking the Fifth Amendment, there was no conspiracy
charge?
. ( ~
(
'--.
TESTIMONY OF WILLIAM SHELTON
43
A No. I meant co-defendant.
2 Q Mr. Baigns, had Wright made this statement or
3 ~confession however you want to characterize it that was made,
4 II assume to Detective Shelton from what you learned/
j A That's correct.
6 Q Did you ever hear the recording or did you ever read
; a transcript of what was said?
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A Uo.
Q Did you ever ask to?
~\. No, I did not.
I·1R. MAUPIN: Nothing further.
MR. ~ERGUSON: Nothing further.
~-1R. ~1."\.UPIN: Detective Shelton.
Whereupon,
WILLIAM SHELTON
was called as a witness by and on behalf of the Defendant, I I
I !
and having been first duly sworn, was examined and testified
as follows:
DIRECT EXAMI!'~ATION
BY ='1R. ~1AUPil~:
Q State your full name for the record and your
~ occupation?
A William C. Shelton, Police Officer, Arlington County
47
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Police Department.
Q Detective, you were the investigator that was con-
rlucting the investigation in the case of an '82 robbery
concerning the Mini Mart?
A That's correct.
Q Detective Shelton, let me ask you this, there was
another individual who was inv0lved in this, is>that correct?
A That's correct.
Q Do you know who that individual was?
A Johnny ~·lright.
Q Did Mr. Wright make any implicating statements to
Q He and Lott or Ronnie?
A He and ~onnie.
Q Did he say·he was the gunman?
I
I A That·r can't recall. I checked my report and I don'ft.
recall who. he said had the gun. I I
Q You recorded this statement that he made, didn't you?
A No, we did not. .···
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Q You didn't record it?
A No.
Q Did you have a stenographic recording?
A No, it was not legally admissible the statement at
time.
Q Why is that?
A We did not l4irandize him. !.ole talked to him about it
Q He didn It implicate he -- ha didn r t say \'lho the gun-
:man was, Johnny W:::-ight? I I I I of I I I I
A He may have but I don't recall. I didn't take notes
it in the supplemental report.
Q Did you have occasion to meet with one of the Common
l~ealth Attorneys and Mr. Baigns after the preliminary hearing
!in this cause that ·..:as waived? Did you have occe.siom:to open ! lup the files and show him, his counsel what your investigation
!was? I
I A
I Q I
I don't recall. I may have. I don't know.
You don • t recall v1hether Johnny Wright did tell you I I ; !he \-las the gunman? I i A I think he may have mentioned it. I don't recall
what he said.
Q ~vould you have told that to the Conunonweal th Attorne
in all likelihood who the gunman was?
49 'Deo Reporting
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There were several cases and there may have been
I different people holding guns in different cases. If we had
that information and I knew it at the time, we may have told
the Commonwealth Attorney.
I Q ~"las Johnny ~vright ever prosecuted to your knowledge
lin Arlington County for the crimes committed at 5511
Columbia Pike?
A No, he was not.
Q Do you kno-v1 why I
that decision was made not to prose-t I
I cute him?
I A Yes.
Q Could you tell I us v1hy? I
I
i A There 'N'ere two ba~ic robberies that we vere I I
:investigating both Johnny v7right and nonald Howard. And ;ve
decided at our level with both Mr. ~vright and t.fr. Howard aware
of it that we would prosecute Johnny in one case and prosecute
Lott in the other case and both would get a free ride on the
ones we didn't prosecute.
Q Nas Nright -prosecuted in Arlington?
A For a robbery?
Q Different robbery?
A Different robbery?
Q Were you preseht in the courtroom when Mr. Vick
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made his closing argument in the trial of Ronald Howard?
A I don't remember.
Q You can't recall?
A Probably not.
Q You don't recall who the gunman was in this particul r
robbery according to Johnny Wright?
A Not according to Joh~ny Wright.
Q You believed Johnny ~~7right, didn't you?
!·1R. FERGUSON: I'll object to that, that's not
1relevant.
I
i i i I
THE COURT: How is it relevant?
MR. M2\UPIN: If you believe --
THE COURT: (Interposing) The prosecut~on has been
had.
~-1R. I--iAUPIN: '(Continuing) If he believes Johnny
Wright \~as believeable and that he referred to something he
recalled to the Commonwealth Attorney that it's believeable
and then the Commonwealth Attorney gets up and makes son~e
statement to the jury
THE COURT:
and the events of the trial brought out by both counsel.
51
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BY liJR. M..~UPIN :
Q Did you rely on 'toJhat Johnny Wright had told you in
your investigation of this case?
I i
I I
A
Q
A
Q
Partially, not whole.
Not totally?
Obviously not totally.
When did l•lr. Wright make a statement implicating
i himself to you in this crime to you? I i A In relation to this, I can't give you a date. i.
I Q In ~elation to the preliminary hearing, the su~1pres
sian hearing and the trial?
A Of >lr. !"7right or Mr. Howard?
Q ~1r. Wright?
A Obviously it was prior to his being charged.
I can't tell you how far. \ve probably charged him t.l-).at very .
I day whenever the prelizninary hearing ~vas, ten days, . two \'leek~
I Q It was before the preliminary hearing?
I A Oh, yes.
! Q Then I take it, it was before the photo spread
was shown to the alleged victim, the statement was made ~>Y
Wright was made before the alleged photo spread?
A. Of what case?
Q Of the 5511? ·
·. :~--:.,.,. ... -· ... ~:~ ~ --~ .... . . ;=~:·~~;, ... ·-v.·~ .. ~~~~~~-..
~eo Reporting 17031 751 ·00 13 . ·J~· •. > .. •. . .
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1 A Yes.
2 Q As I recall when you showed the photo spread to the
3 individuals at 5511, the victims in essence did either
4 Ms. Peterson or Mr. Mausoby pick out Johnny Wright? J
5 A No.
6 Q Neither one of them picked him out?
i A No.
Q Ms. Peterson picked someone out, didn't she?
9 A I don't believe I ever showed Ms. Peterson a photo
10 spread.
11 f4R. I-1AUPIN: That's all I have.
( 12 CROSS E7.AHIU?\TION
13 BY ~1R. FERGUSON:
14 Q Detective, reaching to the file and a transcript,
15 for the record page 73 of the transcript, December 8, 1982,
16 !Detective Sh~lton, you recall testifying at the trial in this
17 matter, the c~iminal charges that arose?
18 A I recall that I testified, yes.
19 I 1 Q I realize it's been sometime ago, but just to I
::!0 lrefresh your memory I want to ask you if these were questions 1
21 or if you recall them being asked. Paqe 73, "Did Ms. PetersoJ
22 see a picture of him";'arid him refers to Hr. Ho'llard and"' ~{our
... ·- - "Did Ms. Peterson state that was'· lanswer was "yes, she did."
53
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so
not the robber? 11 11 No, she did not state that was the robber.
She did not p±ck him out ... Was she able to identify anyone
.of the photographs 1.-1hich she was given? 11 "Yes, she did
identify another individual. u :udAnd I take it that was it.
A I don't recall showing her any pictures.
Q You have no idependent recollection to date showing I
I her photographs, is that your answer?
A I am surprised to hear it. I didn't think I had
shown her any photographs at all during that investigation.
Q You don't dispute the fact that you may have? j
Oh, no, anything is possible. Until today, I didn'~ realize I testified at the trial. ~~
A
Q I believe your testimony was two or three pages lon . . '
You were questioned by Mr. Maupin regarding the statement
made by Johnny Nright.
THE COURT: You mean ~lr. Maupin's questions this
morning •.
BY }lR. FERGUSON:
Q Yes. Detective Shelton, to repeat in answer to
. ·.· · ..... ·. . : .·l-:··· . . . · .
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-Deo Reporting C7031751·0013 .·::·:~.":•.'' . .' .: ••
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51 1 course of the conversation in investigating these various
2 robberies, is that accurate?
3 A Yes, sir.
4 Q Your recollection at this time is that he implicated
5 himself in this robbery at the Mini r.lart, the one that gave
6 rise to Mr. Howard being convicted but you don't recall whethe
7 he said who the gunman was and who he said the gunman was, is I I
~ 'that correct?
9 A His statement was that he ~nd Ronnie had been invol
10 ved. I am sure he probably said \>Iho the gunman was during th
11
12
13
; course of that conversation. I don't recall. j I
Q You don't have any recollection of
A No, I don't.
it now?
I 14
15
indicated did reflect I Q You that your notes not w!let..'l,r
he said who the gunman was or who it ~-'las? I
16 A Off the record we told him up front that this con-
ti versation is off the record. I didn't include that in the
18 police supplemental report.
19 Q As far as you knm·l or recall today, have you e.t any I 20
21
t-me become a\-lare through.-Hr .·.Wright that this man was not I the gunman?
1
,
A. No.
Q Did you relay·any information of that sort to
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Mr. Vick or any agent of th~ Commonwealth?
A That I relayed information?
Q In other words, I take it then you did not tell
Mr. Vick or any one else in the Commonwealth's Attorney office
or any one else then that this man was not the gunman?
t4R. r~UPIN: I am going to object on the basis of
he can't recall whether Mr. Wright or anybody else told him
who the gunman was. I don't kn0\-7 how he can possibly answer
that question.
~1R. FERGUSON: I think we are talking about tv;o
1 different things v1hether he recalls telling any one this man I i 1the gunman. I
I THE COURT: It's a little di-fferent.
:-!R. I1AUPIN: Very well.
THE COORT: I will allow it to be answered.
THE WITNESS: It still confuses me. I never told
anybody that Ronnie Ho· .. ,a~d did not do the robbery or he '\vas n t
the gunman.
BY i·lR. FERGUSON:
Q To clear up one other matter brought up on direct
examination this morning, apparently from what you say
Mr. Howard and ~r. Wright jointly engaged in more than one
robbery, is that correct?
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1 A That's correct.
2 - Q From your information at least?
.A Yes, sir.
4 Q The deal if you will or agreement or decision that
5 1was reached with knowledge of both Mr. Wright and Mr. Howard
6 ould be prosecuted on the Mini Mart only one and Mr. Wright
i would be prosecuted on some other robbery charge?
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I i A I That's right.
I Q t-1r. Howard was not prosecut:~d on that other robbery I
bharge, was he?
·;-.
A
Q
A
Q
A
That's correct.
!-ir. Wright on the Mini Mart robbery?
That's correct.
~viR. FERGUSON: Nothing further.
REDIRECT EXAMINATION
BY MR. MAUPIN:
You don't recall sho1'1ing Ms. Peterson a photo spread,
No, I don't. 1
Q If you testified at the trial and shmm her? I A hpparently I did, but I do not recall it at all. I
Q When you show a photo spread, do you generally tell Jl
don't know whether there is any robber or criminal in her
did the thing?
57 'Deo Reporting
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A I tell them I wasn't there. I don't know who did i
2 and I don't know if the person is in these photoes. I would
3 .like to ask you to look at them and see if you can recognize
4 any one.
5 Q Even if you do know if someone is?
6 A Especially if I had somebody in that did the crime.
7 Q In regards to the question he asked that confused
A you, did Johnny Wright, did you ever relate to the Common-
9 wealth's Attorney office the information that Jonnny Wright
10 said he wasn't the gunman?
11 A 'iJho wasn 1 t? I \_
12 Q Johnny Wright \vas~··.not the gunman?
13 A No, because the other case 'lias my partner 1 s case.
\
14 Q I am talking about the 5511 robbery. Did you ever
15 tell the Co~~onwealth Attorney one way or the other whether i
16 was Mr. Howard or Mr. Wright who was or was not the gunman? , I
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A I don • t kn'.)\·T if I did or not. Johnny ~'lright not t'
being a defendant in that case was discussed very little as f r
as his involvement in the case. l Q You understand what you said about being the gunman~
I A As I recall, Johnny Wright's name came up very sel-
I 22 dom.
! ~--· 23 MR. MAUPIN: That's all the questions I have •.
5 1
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~eo Reporting 17031751·0013 .•·• #'Oo •.· •• •
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TESTIMONY OF HOWARD VICK
I
55
I
2 I I
H~. !r:..:.\U.t?IN: i•ir. V:i.=lt:.
I. \"lhereupon ~
HO~v.?\.RD VI(;~{
5 ~·;as ca.lled as a wi tnes~ oy and on beha.J.f of the Defendant,
6 and, having been first d 1.1ly s-.:·1orn, ~vas examined and testified
7 as folloHs:
8
9 .31 ~·lR. 7Yil\G?I!~:
10 State your ~arne for the C~~rt?
11 A
12 Q '-lr. Vicl<, \•Tould it be f::t ~,.. tQ say that yon :""'r~.3·3cute
13 the r,ase .-.... gainst Ronald Hct·!arJ a couplE-l of year::; .t.g<J·~
14 A I did, Dece~~e~ 8, 1J82.
15 -~·1r. HotoTard, le~ :1e ask ~'ou this --
16 A ( Interpos inc:!) ·1r. ·.: ~CJC.
17 Q Mr. Vi=k, did it ever co~e tc your attention f~om
I
18 jDetecti .. ,e She! ton ~vho t::a gun:nan 'N·=.lS
19 jc:olumbia ?ike"?
:20 .l"\ I :::an' te tell yc·t t·lhere I ~.:;_;:~"it learned it c.nd i.·;h:;re 1 I
I :21 I ul tir-1a tely learned t·7~10 th ~ •]Unm~n -:1n.:: • :Ces, I do kno¥7 who
22 the gun1.1an \1-Tas in the rc;~·!.:>ery.
:23 Q
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1 A None.
2 Q No confusion as to who the gunman was?
3 A There were two \'li tnesses in ·the matter, Carolyn
4 Peterson and Mr. Mausoby. Throughout the~~reparation of the
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case and all I know of Mausoby's testimony and the statements
prior to testifying, he had no doubt as to who the gunman was.
I understand from reviewing the file t~·1is morning that C~J:olyl£
,Peterson did have some confusion as to who the gunman was at I jone point, but that confusion was cleared up prior to trial.
I IAt the time of the trial, I had no question whatsoever w~o the
gunman was.
I Q Did you ever have occasion to have relayed to you in
!either writing or orally from the Poli~e DepartmeFt any state-1-I jments made by Johnny Wright in regards to the robbery we are I ld. . ~scuss~ng?
I
A Not that I know of. I cannot state definitely that·
I did not. My memory is primarily what's contained in the filts
and from having revie\•Ted the file, there is nothing in the fil
Jindicating any statements by Jo:1nny Wright. I
Q Let me a3k you this, Mr. Vick, was Mr. Wright ever
prosecuted to your knowledge?
A I don't know.
Q You would be in a position to know, would you,
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jwouldn't you having been a Co~~onwealth Attorney?
I A Not necessarily. At the ti~e, I was prosecuting
.there were ten assistants and Hr. Hudson is the Commonwealth • s
Attorney and cases were assigned to us on the basis of who
conducted the preliminary hearing unless there was a particula
case which we have to be the li~isan with that particular
department. In the ~on Ho,~ard case, the case was assigned to
me by Mr. Hudson and I 'vould have kno·.:n nothing about wJ::.a·tever
happened to Mr. ~ight unless that was assigned to me aldo. I
Q Did you condcut the preliminary hearing in this causF?
A I don't believe that there '~as a preliminary hea.r ing.
I believe it scheduled -- I think I have to review it. I tookl
the waiver and that would be consistent with my h~ving ~etten
the case.
than Ron Howard?
THE NIT:JESS: &\s I reme!!'be= it, she had identified
!Johnny Nright. S~e had not identified Ron Howard. She had i
identified Johnny Wright us being involved in the robbery.
HR. FERGUSO;J: That 'tlas the stipulation earlier and
the transcript reflects it. That was one of the stipul~tions
referred to earlier.
61 'Deo Reporting
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1 MR. ~mUPIN: I had forgotten.
2 THE COURT: Then you accept the stipulation?
':1 MR. MAUPIN: Yes.
4 BY ~·1R. MAUPIN:
Q Did you ever have occa3ion to look at pictures at th
G photo spread?
7 A I don't have any specific recollection of the photo
~ spread. I am sure I did look at the photo spread.
9
I
1• Q Do you have any recollection of any stmilarities
Jbetwe~n Johnny ~lright and Ron Howard?
( 12
I A
~f the photo spread. I
I would be speculating. I don't have a clear me~ory
13 I Q Mr. Vick. let me ask you this, after th' waiver of I
14 jthe preliminary hearing was taken, did you open your files to
15 ~~r. Baigns, counsel for ~r. Howard, so that he can review your
16 files?
li A :·Ir. Baigns had access to my files to the best of my
'18 ,recollection.
19 i Q Have you had occasion before your taking the stand
:.!0 lthis morning to look over your files? I
I
21 A Yes, I have very briefly.
22 Q Is there any indication in there that Johnny Wright I I ··t
23 as the gunman?
I I
6 I
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A Yes, there is an indication in there that Johnny
Wright was the gunman. In the initial police report that was
~aken at the scene of the robbery that evening, it was clear
I
lfrom the description given by Carolyn Peterson it was her
lbelief whoever it was that went to the back room with Mausoby
that turned out from the testimony from Mr. Mausoby to be
I Ron Ho~1ard. I can't tell you hm-1 t.:·!is haPpened. There was an I I
jindication by Detective Shelton who prepared the supplemental I I
!report that Carolyn Peterson thought Johnny Wright was the gun I
! I :man. : I
Again I am fuzzy as to how it clcard up. That matter
!was rectified at a suppression hearing. I
Q You weren't present at the suppression hearing? I
i A No, I wasn't. i·
Q vlhen you say recti£ ied, you don' ·t::know •for a fact?
A I don't know.
I Q Isn't it a fact to the best of your knowledge that
jCarolyn Peterson didn't appear at the suppression hearing?
A That's true. I do know Carclyn Peterson the first
. I
time she appeared fo~ any of the proceedings w~s the trial. I Q Did you have Detective Shelton go out and investigat~
I
I \·Tho the gunman was to find out so your argument to the jury 1
I would be correct?
A I don't know what you are speaking to, my argument
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the jury.
· Q You had a confusion as to who the gunman was?
A Not at that time of the trial, there was no confusio •
Q I misunderstand you.
A Perhaps you did. I said there was no confusion.
There was apparently some statement.in the file that indicated
at some point for whatever reason, ~etective Shelton stated in
!there Carolyn Pe·terson said Johnny Hright was the gunman. In
~y interview with Carolyn Peterson and the preparation for tri 1
land my examination of her at trial, there \vas no doubt \-Thatso-• I
lever on her part as to who the gunman wa~ and it was Ron Howar i I
!as her testimony goes. I don't know what you are talking abou I
lin my argument to the jury. You have to be specific.
haven't reviewed the transcript.
I
Q If you had knowledge that Mr. Wright was the gunman?
A I had no knowledge that Mr. Wright was the gunman.
Q Other t~an Detective Shelton's prior report?
A That's correct.
Q Did you attempt to clarify that report?
A I am sure I did. I can't tell you the specifics.
At the time I took the case to trial, there was no doubt in my
ind who the gunman was and who stayed out front.
Q You spoke to M~. Peterson before trial?
'Deo Reporting . 17031 7!5 I ·00 I 3 '':"·'! , .,. , , ·; . ·• ..
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I I A Yes, I &id. I went to her apartment and interviewed I j
!her.
Q When, if ever, prior to trial did she have occasion
to see Ronald Ho\>~ard?
A In what respect.
Q When did she see him?
A You know based on the previous questions that she
1was shown a photo spread with Ron Howard's picture.
i I
I !
i I I I
Q
A
Wnen did she see him in person?
I don't believe she saw him between the time of the I j"robbery and her testimony at trial. I
I Q The only time she saw him or a resemblance of him \~a l Ia picture of him that may have been included?
I .1\ To the best of my recollection, soe~was not present
at the suppression motion and not there at the preliminary
I hearing.
Q You testified that a few minutes earlier the confusifn
that had been raised by Detective Shelton's report sayir.g I
!wright was the gu~~an· had been cleared up at trial? 1
I
i I I ~lR. FERGUSON: I would ask he re~hrase the question.
'The evidence has been Detective Shelton's report said
as. Peterson picked out ~1right at one time and sa.id he was the
gunman. There is nothing in the report that says Wright is th
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gunman. We need to be clear on that.
BY ~1R. MAUPIN:
Q In the report Detective Shelton gave you that
indicated f.1s. Peterson had indicated Wright was involved and w s
the gunman. you cleared that up prior to trial?
A As I previously testified at the time I took this
matter to trial, there was no doubt whatsoever as to what
jRon Hott~ard' s role in the robbery was and that is he \V'as the
I lgun~an and he went into the back and robbed Mr. Mausoby while
I ~ohnny Wright stayed in the front with Carolyn Peterson at the i
~cash register. The testimony at trial bore that out. I canna
:recollect to tell you the truth would be speculating to say
rhat \~as done concerning that statement in the re)i>Ort.
I ~Before the matter went to trial, there was no confusion gener-
ted by that statement in the report.
Q ~lr. Mausoby' s identification through the photo sprea
asn't a hundred percent sure. Wasn't his testimony that this
is the closest one I can pick out or something to those words?
I ~lR. FERGuSON: At this point, I object because we ar
now trying the evidence. That's been tried the first ti~e
at the suppression hearing and then by the jury at the t=ial.
~r. Mausoby identified him and continued to identify him throu h
the procaedings on the s~ppression hearing and at trial.
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back and try to impeach his identification is not the purpose
2 ,of this hearing. I
We must refer ourselves to the petitioner's
3 ~~llegation which I might point out includes nothing about the
1identification made by Carolyn Peterson, only about anything
5 said by Johnny Nright. I want to give the petitioner the
6 opportunity to have any complaints aired before the Court.
7 Those issues of Carolyn Peterson are not proper before the
A Court at this time.
9 THE COURT: This Court was ordered to make an inves-
10 tigation and to hear testimony concerning certain itemized
11 situations. I don't see where this i3 covered.
12 IvlR. ~v-1-Z\UPIN: If there were some confusions in the
13 Com..TUOn'\'leal th' s Attorney mind, I believe for __ him tp elicit and
I' 14 say that's not true then.that vi6lates the confusion.
In I believe it's contained in the order from the Supreme Court.
16 MR. FERGUSON: ne testified that it was no confusion
17 in his mind.
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I I confusion.
I hearing.
NR. :1:\UPIN: I am trying to show there is indE:ed
I think that's within the~perimeters of this
i THE COURT: I believe we will look at kn~ingly and i
intentionally make a mis-statement of the facts and the closin~
arguments of the State's. case in chief. That's all.
67
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MR. MAUPIN: I d.:i.r~ .. :::-:: t:1e Court 1 s attention to
Waters versus Texas. The prosecuting attorney failed to
90rrect a misleading impression to the jury. It's prejudicial
jand reversible error.
I THE COURT: I am confined to those things determined
by the Supreme~Court of Virginia for this Court to look into
I and decide. It does not open up the entire case.
! MR. FERGUSON: I agree. Furthermore, I would ask i i jthe Court to look at Mr. Howard's original petition which we I jrnust go back to as a basis for these allegations. His ! I
!supporting affidavit says "specifically petitioner states the ! .Commonwealth's Attorney office was in possession of a statemen I i
lin which Johnny Wright alleged I· I lthe individual who entered the
!heard no evidence about that.
barolyn Peterson's testimony.
co-defendant confe~sed he was
office of Sohil Mausoby.~ We
It has nothing to do with
!'1R. MAUPIN: I will withdra':.Y it.
BY :1~. ~·!AUPIU:
Q The reports· that Detective Shelton furnished the
Common·;~ealth' s Attorney office, you ul tirnately came into
possession of. You indicated in there it said Carolyn I I I
Peterson in her testimony or her speaking with Detective Shelt~n
~i-n_d_~_·c_a __ t_e_d __ W_r_~_· __ gh_t __ w_a_s---t--he_·_g_u_n_m_. __ an-?--------------------------------~~· .•· .· ·. .
. ~~£&1~:~~~.::-.:.~;j·;.~).i;·· ~
... . 65
1 I A Detective Shelton had an entry in his supplemental
2 !report which indicated that Carolyn Peterson at some point sai
3 it. How he came to that conclusion, I don't know.
4 I Q Were you aware Wright ever made a statement directly
Ito Detective Shelton?
6 A Yes, I was.
7 Q What were the contents of those statements?
I do
A I would be speculating as to the exact contents. I
know the thrust of those statements were that Johnny Wright
8
9
10 was involved in the robbery and he was involved in the robbery
11 t .. 1i th Ron Howard.
( 12 Q Did those statements contain anything about who the
1:1 gunman was?
14 A Not that I recqllect.
15 Q You don't recollect. Did you ask specifically
16 Detective Shelton?
17 A I ~on't know. I certainly know they contained
18 nothing exculpatory.
19 Q Was t1r. Nright called to testify against Nr. Howard? • •".!-
:..:'
20 A I don't believe he was.·
21 Can you tell me why you made the decision not to caljl i
Q
22 him?
·- 23 A I didn't need "him. I don't know that I ever con-
69 'Deo Reporting .. .
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lsidered calling JOhnny Wright.
66
MR. MAUPIN: That's all the questions I have.
CROSS EX.ZU-tiNATION
BY t-1R. FERGUSON:
Q Mr. ~ausoby who was the victim in the back room,
the manager and \'lhorn the evidenced sho"i..;ed Mr. Howard went into
his office and held the gun on him, is that correct?
A That's correct.
Q At all times Mr. Mausoby identified this man,
iRon Howard, as being the person who carne into his office with i
Ia gun? I
A
Q
Yes, and his identification ~as unequivocal.
And also I understand you don't recall ~xactly how
A That's correct.
Q You felt there was nothing exculpatory in!your file
that Mr. Baigns had not seen?
A ~r. Baigns ·saw the entire file.
Q If anything was in there that was exculpatory, he hatl I
access to it?
A He had access. In the file the question Mr. ~aupin
has been asking about Catolyn Peterson of what Detective Shetf n
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1 said, it was highlighted in yellow. I would assume it stood I
2 ·out in Mr. Baigns' review.
3 Q Right there for him to see not hidden in the file
4 or disguised?
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A Not at all.
I Q And particular!~ regarding Johnny Wright anything
!that you knew about Johnny Wright had said or information he I I 1 had said was certainly not excuplatory could be characterized
I . . . t. ? 1as ~ncr~rn~na ~ng. I
·I i i I I
A It was absolutely incriminating.
~1R. FERGUSON : That's all.
REDIRECT EXAHINATION
DY ~·IR. MAUPIN:
How did you kn~w Ms. Peterson was going to identify
15 Ronald Howard prior to trial?
16 A I believe and again it's been two years, but I
1i believe when Ron Howard \vas brought in the courtroom, Carolyn
18 Petersen was in the courtroom and indicated to me yes, she cou d
l9 identify him prior to· trial.
20 ··lR. =1..i\UPI!J: ::'!1a t' s all.
21 THE COUR~: We will take a brief recess.
22 (W~ereupon, Court in recess at 11:55 a.m.)
23 n·Thereupon, Court in session at 12: OS p.m.)
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MR. !'!1"\UPIN: That concludes the petitioner's case.
MR. FERGUSON: The respondent will rest also.
HR. l-1AUPIN: Your Honor, I believe under these pro
cedures it's my burden by a preponderance of the evidence to
show Mr. Howard was denied a fair trial. He's made several
allegations contained in the Supreme Court order. I will
!address the Inassistance of Counsel first. We heard testimony
I from !1r. Baigns today that in his mind there was confusion
las to who the gunman was. He said in his hotes .-.:.hef!had::1.. I
jJohnny Nright listed as the gunman. Yet, he failed ever.: to:;, i
jtalk to Johnny Wright. He failed to interview any of the
iwitnesses. I believe that without going out and speaking to i !witnesses against your client, and to advise your\client as to ! lhow to proceed is simply impossible. I say this because if
an attorney for the accused does not know what's going to be
!
elicited from the witness stand, how can he advise the client
to.accept an agreement? How can he advise him to go to trial?
It's simply beyond my comprehension.
I would further point out to your Honor as defense
counsel, you must clear up in your own mind any of the
ambiguities or at least an attempt to. Mr. Baigns never
interviewed a single witness against Mr. Ho'l.vard. The only
people he talked to -- I ·stand corrected, he interviewed
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1was Detective Shelton. He was not at the crime scene. Did
lnot see what \'lent on. He learned his knowledge from hearsay i !
3 information of interviewing the other witnesses. Your Eonor,
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I think it 1 s incredible to believe counsel would·not go out an
jatternpt to interview these witnesses. With the confusion that
was demonstrated from the witness stand, I just feel that it
lv1as in effective counsel on l'lr. Baigns' part in the way he I
~proceeded to trial with b~is case witnout gaining the knowledg
i 1of the reports. The trial record ha.s been made a part of the
I . ievJ.dence in this case and in that trial record when r-1s. Peters n I ltook the witness stand, she had not identified !41:. Howard
:~hrough the photo lineup, but she comes in and points a finger I ~t him from the witness stand. The cross examination in that I I fegard was not sufficient.
I I will now address the issue of this. I will take
Fe improper argument, the denial of giving exculpatory
tvidence as one i tern. It appears as t!'lough Johnny ~Tright made
I confession. Now what Detective Shelton says is he doesn't I I
~ecall the contents of the statement. He recalls the
I. t. basis of I
Yes, Ron Howard and Johnny r·1right co:r.rnitted this robbery i I
ogether. He doesn.'1t remember who the gunman was. The notes
~ s evidenced to that were relied upon by Detective Shelton to
23 Common\iealth Attorney, Hr. Toby Vi=k, who indicated that
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in those notes ~s. Peterson had identified to Detective
Johnny Wright \'las the gunman. Ne then get to trial, your
l\t the trial, Hr. Vick testified that Ms. Peterson would
identify him. It had been stipulated at the suppression
hearing she hadn't fingered him, wouldn't finger him and could
not finger him. I direct the Court's attention to page 5 of
the suppression hearing transcript wherein the stipulation was
ito that effect.
I ~·1R. FERGUSON: I believe that's correct.
MR. i·tAUP IN : With that basis, Mr. Baign~~never
where in the trial transcript that the.individual,who pulled
this robbery had been around the store for two weeks or in the
preceding two weeks. I am not sure what basis the Court
wants to put on that testi:nony. They~were·~kilC?'t-ln to Ms. Peters n
and at least she has seen them before. Mr. Baigns didn't ask
her whether this individual had been there two weeks before
lor whether Nright \•as. the individual or some other indh•idual. I I I think what •.ve have here, your Honor, is a case of improper
preparation for trial by a Court appointed attorney. I think
the nature of the preparation for trial is such that it
doesn't meet the con~unity standards of trial prepar~tion on a ..
.. ..
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71
criminal case by defense cc~nsel.
2 For those reasons, I believe .that the petitioner by
~ .a preponderance of the evidence to show, one, he was d~nied
4 !effective assistance of counsel. Two, exculpatory evidence
;, was not given to him which should have been given to him and
6 lthe imp~oper argument and the improper testimony was solicited
i lon behalf of the Comrnonwealti1's case. For those reasons, I I
R !would strongly ask the Court to crward a writ o£ habeas corpus
9 and award Mr. Howard a new trial.
10
11
1:!
t-1R. FERGUSON: Your Honor, a·~c.in at the outset I
would like to say a couple of general remarks. First of all aF
I noted earlier we are bound by the order from the Supreme
13 Court and their order predicated speci~ic allega~ions of
14 Mr. Howard's original pe~ition. Those allegations involved
1- excuslively as far as in effective assistance of counsel, :)
16 ~vir. Baigns alleged failure to present evidence from Johnny
ti .Nright and to investigate Johnny Wright and to m.=tke prepar-
18
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23
! ations regarding Johnny t'lright. There is nothing ir.. those i 1original allegations'that say anything about his alleged i ~failure to investigate other witnesses other than Mr. Wright. I II didn't object to that. I didn't object to ~r. Maupin's
argument on that because it's certainly our position that we
want all these matters to be resolved today. In fact, it was
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respondent's motion that we are having this hearing today.
The respondent didn't move the Supreme Court to orde
.~his hear±ng so that they are not clear from the records that
it could be resolved. Having said that, I would submit to the
Court that the petitioner failed to present evidence of any
wrongdoing by any one. By his attorney or by the Commonwealth.
Taking first the question of in effective assistance of
icounsel, specifically to Mr. Wright. The testi~ony froffi
Hr. Baigns is that he and his client :liscussed indepth at a
great length the decision of whether they needed to talk to
I Mr. tvright and wanted to have him as a ~1i tness for the defense' I i : in that case. The decision ··'\-tas made by :lfr. Howard according i !to the testimony uncontradicted testimony in this' case, a
!decision was made by ~. Howard and agreed to by the attorney
for his decision not to have Wright brought to trial as a
witness, and not to bother to subpoena him or investigate him
because of these things that they knew about Wright.
I They knew Nright was a co-defendant. They kne't·T he
jwas involved in robberies as well. At most, he might say I ;
making a discrepancy into the evidence that the Commonwealth
witness said. He was going to finger this man as in any
identiiication question would have been cleared up yes, Ron
Howard and I went to th~ Mini Mart and robbed it together.
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Clearly there was a substantial basis for the decision by
Mr. Baigns not to call Johnny Wright, not to use him in the
~efense's case. I might point out to the Court that the
decision as to who to call is a matter of trial tactics as
ruled such by the previous habeas corpuses. It's not reviewab e
even if the tactics show it to be proved \'/rang. I don't think
they have been shown to be wrong. Even if it had been, it
I j\'IOUld not be a matter to give to this defendant habeas relief.
I I
Both Virginia cases and Federal cases stand for that, I
I Abbott versus Patton, a 1971 case. In regards to that, I migh
I
!point out that the general standard for judging the compentenc
I :of trial counsel in a criminal case was enunciated in the I
Virginia case of Stokes versus Washington and has,been essen~
tially the same format aqopted by the u.s. Supreme Court.
That's a 1974 case. It has not been published in the official
u.s. Reports.
THE COURT: Strickland versus Washington.
~R. FERGUSON: Yes, sir. The Virginia case which
sets out essentially ·the same standards of Virginia Courts
are Stokes versus Ward, a 1983 case. In fact as recently as
this past s~~er, the case of Clark versus Commonwealth was
decided· and that was a death penalty case and it was a case
that came out of Northern Virginia. Mr. Clark had been con-
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1 victed by a jury and received the death penalty. The trial
2 Court gav.e·.!him life imprisonment on the basis that he felt
3 defense counsel had been remissed in their duties of in effect
4 ively representing Mr. Clark regarding the evidence that shoul
5 have been presented at the sentencing phase. The Supreme Cour
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reversed that decision and reimposed the death penalty, and
did so because under the standards of Strickland and Stokes,
there was no in effective representation shown. In effective
~representation does not equate effective representation.
Every defense counse who had ~ client convicted waul
be before the Court and a habeas proceeding and that's not
jtrue law. The Court said, the Virginia Court and the Su~reme
!court, that the standards must be judg~d by the a~torne~'' s I I
!confidence which is a standard that a reasonable competent
15 attorney would give the skills and ability that he woula bring
16 to a similar case under similar circ~~stances. Certainly it.
17 is petitioner's burden to show the attorney has not done that.
~18 t-loreover euen if an attorney's imcompetence is sho~vn, the
19 !petitioner has further the burden of showing prejudice before
~20 habeas relief is granted. The case of Strickland versus
21 Washington and also the Commonwealth versus Clark case or
I 22 Clark versus Commonwealth came out of the June Supreme Court
I 23 hearing. I believe that·it stood for the proposition that
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li even ; f · t · h · d · t b h 1 • ~rncornpe ency ~s s own, preJU ~ce mus . e s o~n a so.
There has been no evidence at all presented today
that would show prejudice to the petitioner. To go back to
the substantive nature of the allegations against Mr. Baigns,
the evidence has in fact shown Mr. Baigns interviewed the
pe~itioner here today Mr. Howard. He interviewed Detective
!Shelton a man who had available to him all the information I
:regarding the offense. He was investigating the officer. He
interviewed the witnesses. He made an attempt to interview th
witnesses who at that point seemed to be the one who was going
to positively identify Hr. Howard. ~ir. r1ausoby refused to tal ...
to him. That was his perrogative and he had no power to orderl
ihim to talk to him. He made efforts to find Peggy Hoffman. Hr
lmade efforts obviously he was unable to find Linda. There was
nothing for him to go on. If it refers to this witness
~ts. Peterson which he did not interview, he told us why he did
lnot do this. He talked it over with his client and he would
1talk to Detective Shelton, and was aware up until that point
I lshe had been unable t6 identify this man. As far as he was
concerned, that was all good news. It was his informed
deciston it would be fruitless to press her. It's arguable
he pressed for an identification, she ·may have come out and
identified him which would be harmful to the defendant.
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In fact, this decision v1~-:.s ~::1ade concerning Mr.
He had at his disposal information that the police had regardi g
what Ms. Peterson would say. It would prove to be correct
with the exception of her subsequent identification of
·Mr. Howard that she was able to do it once she saw him in pers n
in Co·urt. She had not been able to do it through a lineup
which brings up to the next matter which is the alleged
;commonwealth's improper conduct by wit~holding .that evidence. I !That is not true. The evidence born o~t, th~y did not hold I I I
!the evidence. They made Mr. Baigns aware that Ms. Peterson
I
ihad made an identification of the co-defendant. Had not I I
iidentified this man. Hadn't said he was there and wasn't • I !The only discrepancy is who was the gupman. She ,said at one j'
!point the co-defendant was the gunman. The defense counsel
is aware of this. He was given an open file. He was allowed
to view it and in l4r. Vick's testimony, it was highlighted in
lyellow. ~r. Maupin had notes from Mr. Baigns' file. He was
shown well before trial.
~1r. Vick was allowed to tr7 to clear up that rna tter.
He doesn't recall how it cleared up. ~!e does know by the·;·<.·~:.
time he got to trial, there was no doubt in his mind this man
was the gunman and the other gentleman involved was not the
I person who had gone back and robbed Hr. Mausoby. In fact,
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IMr. l1ausoby said that throughout. He was al,.,ays positive of
jhis·identification and clearly the Co~nonwealth had a right to
~ely upon that in their assessment of the case. The question
of improper argument I think if the Court will review the
!transcript of the opening statement by Mr. Vick does not say
that Ms. Peterson is going to identify Mr. Howard. It eoesn't
say she said he was there. He was the person. If he had said
lit, it would have been all right. He didn 1 t say.that. It's
a general opening statement that gives a narrative summary of
what happened. Certainly using Mr. Howard's name is a person
that did t.~at, Mt:-.· ~ausoby and Ms. Peterson was able to identify
• I lhim once in person. I I The law is in Court identification is n?t nec~ssarilt
improper. There is nothing wrong with it. ~he Commonwealth ir
not relying on her. They are relying on Mr. Mausoby's testi-
1
mony. His co~~ents in clOsing argument was justifie4 because
lhe had the testimony of two eyewitnesses who positively
!identified this man after being conducted from a rigorous
~ross examination. Mr. Baigns got everything he needed to get I
lfrom these witnesses through his cross e~amination and I fail
to see where any fu~ther cross examination by him would have
made any impact on that testimony or caused him to present
rdditi6nal witnesses or change his mind on any trial tactics.
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Your Honor, before I conclude, I should mention ther
~are a number of sub-allegations involving such things as
lthe Co~~onwealth Attorney making improper objections during th
r !closing arguments. There has been no evidence about those and
ask they be dismissed and a review of the transcript would
jindicate there were no improper objections made during tha
I ~closing argurnent. In my review of the case, I counted six
1obj ections made by Mr. Vick and r1r. Baigns and four of those
lere sustained by the Court. So clearly it is not improper
and the other two while there was no express ruling made by tht I jcourt, it resulted in an admonishment to both counsels to stic*
ito the instructions given to the evidence. Just as a general' I !admonishment to both counsels. I don'~ think thefe is any ! !basis for that allegation and ask the Court to dismiss those.
I \•rould ask the Court to dis~aiss all of the allegati ns
lmade because again the petitioner has been made to carry the
burden by a preponderance of the evidence. He does have the
!burden o~ proof here. He is not cloaked with any kind of
lpresumpt1on of innocence or no burden put on the State to prov
~anything. But in fact, I would submit to the Court the I 1evidence presented from the witness stand today by trial couns 1
for Mr. Howard, by the prosecuting attorney and by the police
investigator all indica ted these allegations merit less and:, · · ·_,· ···
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in fact both ~tr. Baigns and Mr. Vick as far as that go,
Detective Shelton behaved and conducted themselves in a prope
.manner, ethical manner. Did nothing which unduly influenced
the jury or the fact finding functions of the Court. Nothing
impeding upon the fundamental fairness of trial and went so
far as to give this defendant every possible advantage he cou d
hope for.
I Detective Shelton made a deal where he would not
I prosecute him fer any other charges. He was not bound by any
I deal made between the two of them without the concurrence of
I the Commonwealth Attorney. Detective Shelton honored this I i agreement. There is no complaint he diun't. Mr. Vick made 1 i
i available to defense counsel everything which he,wanted to
I know. He opened up his file to him partly in consideration
of this defendant waiving preliminary hearing. Mr. Baigns
testified there was good reason in his mind and
decision to hot-.. have a preliminary hearing. He
a good tactictl
didn't want
to give a \vi tness an::addi tiona! opportunity to review this
defendant when the identification "\-Tould be primarily the
issue in the case. Certainly some people may have used
different preparation techniques in trial than Mr. Baigns.
This Court can't say today what he did was improper or in
effective. He gave the·man the best ~epresentation he could.
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He gave him represantation that met the standard
as enunciated in Strickland and Stokes versus Ward and in fact
~as been no prejudice shown by anything he may have done,
shouldn't have done or failed to do that he shouldn't have don
The record reflected that this defendant though convicted and
convicted on the strength of two positive eyewitnesses and no
contradictory evidence from the defendant, the jury gave him
I jonly seven years on each robbery w~en the maximum could have
!been life and the minimum was five. And of course the firearm I I
jcharge, the jury had no objection or discretion of what senten e ! jto impose in those cases. They gave him one to three as ! ;required by the law at that time.
I I would submit to the Court that petitipner has not
!shown the improper conduct by the Cownonwealth Attorney and no
prejudice against him as a result of anything he might claim.
~-1R. iviAUPIN: To correct the Attorney General, there
is no issue raised as to the interviewing of any witness and
I direct the Court's attention to the attached schedule A, I I
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page 2, subsection D ·where if he wants to have that reviewed.
Secondly, the Attorney General, your Honor, stands up and saysl
i I Hr. Vick didn't argue that this \t~oman -~ould identify him as
the gunman, I direct the Court's attention to page 7 about
the next to last paragra"ph from the bottom of page 17. In
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there, he says "this t·tas the man who put the gun in her face.
2 This was the man carrying the small revolver" speaking in
3 reference to Mr. Howard. Concerning the opposing counsel's
4 argument that prejudice hasn't been shown, when I look through
5 the jury instructions, Mr. Howard was not charged as using a
6 gun as a principle in the second degree. He was a principle
i in the first degree. Clearly if he were not the man with the
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I 'gun, he couldn't have been convicted as the gunman. I don't
jthink there is anything more clearer than that. I
i l ! I
I think he has demonstrated prejudice .in this regard
!and further, I think that the ~epresentation which he had did : lnot meet the requirements as required by the law of the ' I I
!Affective Assistance.of Counsel. For those reasons, I v1~uld I . \ I
ask the Court to grant this petitioner a new trial.
~R. FERGUSON: He brought up a couple of matters on
16 his closing that were not bro~ght up in his original.argument.
li HR. ~·lAUPIU: I think that • s improper. He made his
18 closing and I made mines. I would object.
19 THE COURT: . This natter is concluded.
20 MR. FERGUSON: Note my objection.
21 THE COURT: I am going to take a recess for lunch an
22 reconvene at 1:30.
23 (Whereupon, at·l2:30 o'clock p.m., the hearing was
;recessed.for lunch, to rec~nvene at 1:30 p.m.)
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1 a~TERNOON SESSION (2:40 p.m.)
2 THE COTJRT: The Court returns to render its decisio
_The petition of writ of habeas corpus having been heard this
4 morning and there being present, the petitioner, Mr. Ho\.;·ard,
counsel Mr. Ferguson, Assistant Attorney General, Ms. Allen,
6 Assistant Attorney General, and !-1r. t.1aupin \iho is attorney fo
7 Mr. Howard. The defendant has asserted that he received
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I in effective assistance of counsel in that Mr. Mathew naigns,
1 Co~rt Appointed counsel, failed to contact, interview and I
i I subpoena Johnny Wright to testify to a suppression hearing an
i at trial. It is unconverted that John~y ~~Tright was involved i I
I lthis robbery and that he admitted to his involvement.
l)lr. Baigns, the petitioner's attorney during the 'trial testifi~d
!today that he had met with Detective Shelton before the
scheduled preli~inary hearing. That Detective Shelton advised I lhirn that Johnny !\'right had admitted his involvement in this ··
jrobbery without specifying whethe= he was the gunman. He
I I !attem-::>ted to locate the witnesses at ti1e scene of the robbery. I -I
!That he used a telephone dir3ctory to locate one Peggy E~ffman , i
iwithout success at that time.
That one lady only identified as Linda was not found
and he had an insufficient basis and i11formation to locate her.
He indicated that he did. not tal~ with Ms. Peterson not only
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because she \vas not avail:~b::..-= at that time, but because she w s
I suppose to have identified Wright from the photo spread as
_being the person involved. At the suppression hearing, it was
stipulated Ms. Peterson could not identify the petitioner,
Mr. Howard. Further testimony was received from Mr. Baigns
that he had full discussion with the petitioner with regards
to subpoenaing and the use of Mr. Wright as a witness. rie
I
jadvised he would take the Fifth Amendment or that he could or
lthat he might testify and state ~he involvement of Mr. Howard I
I in the 5511 Columbia Pike robbery beci.\v.se Wright was being I i prosecuted also in Fairfax County. That also the Comrnon\veal th
:Attorney could tie in the relationship between this petitioner ' ~and (·1r. ~·Tright to a robbery they were participant\3 in· the I
!1970's.
I I!e further indica ted the petitioner \van ted him to
subpoena Wrigbt as a witness he would do so. He would go to
Fairfax in order to intervie'.v Mr. 1ivright. He then indicated
that after an analysis of hari!l froi!l Hr. Wright that he could
!him as a witness. Th~ petitioner, Mr. Howard, said forget i
I lAs f~r the other ~itnesses and interviewing them, only I
IMr. Mausoby remained as a witness at t~e site of the robbery.
He attempted, ~r. Baigns, to talk to him on the elevator and
Mausoby declined to speak with him. Mr. Baigns testified of
87 'Deo Reporting .....
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( • II l his further inve:::·~::.=~ ·· . · :i. ·)n and conference with Detective
84
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2 Shelton who likewise testifed concerning their meetings. I
3 The fact that the petitioner on his own had talked with
4 ~etective Shelton about oth~r robberies and Mr. Johnny ~right.
5 Mr. Baigns stated that he was impressed with the honesty and
6 integrity of Detective Shelton and th'-·L t the petitioner was not
7 tried on any other robberies.
8 Has the petitioner carried the burden of proof by a
9 clear and convincing evidence th~t M=. Baiqns rendered in effec-
10 tive assistance of counsel? In Stokes versus Hard ~·lhic.I-.:. is
Ll decided on September 9, 1983, the Virginia Supr~me Court r t
12 '\.. ad"J~ted the =~asonable confidential st::ndards by whic4: the
13 ~~~lity of representation is measured in the foll~wing l~nguag~.
l4 That the constitutional ~uarantee of assistance of counsel
'15 includes the care and skill which a reasonable competent
16 attorney would exercise for the similar services under t~e
17 ci=cumstances. Stokes makes clear th~t not every error ~ade
18 by an attorney during a trial constit~te any in effective
19 assistance of counsel. Moreover an attorney's trial tactics
20 while altogether appropriate at the ti:·e, they are made and
I Cill \"'
may v~ry well appear to ~e erroneou~ in retrospect.
I
! 22 In this case and in this petition, there has baen no I I
showing of error committed by Hr. Baic,;ns. :Ie has investigated
'Deo Reporting 17031 751·0013
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( • 1 the circumstances of t~e robbery and interviewed the available
as
2 witnesses and with a final a?p~oval of the petitioner ~efraine~
3 from calling Johnny Wright as a witness at the suppression
4 hearing and at trial. There has been no showing that the
5 decision to call Wright as a witness had been made in the
6 affirmative. That the results of the trial would have been
7 different. That the petitioner has suffered no prejudice as a
8 result of counsel's conduct and this Court finds no error
9 in the tactics used by his counsel. S:e Strickland versus
10 Washington which is the Supreme Court decision decided in I
11 1984.
( \ 12 Regarding the allegation that the Conunonwealth Attor~ey
13 deprived petitioner of due process of ~aw in a fafr trial in
14 that, one, they withheld and suppressed exculpatory evidence.
15 And two, knowingly and intentionally elicited and introduced
16 evidence which they knew to be false. Mr. Howard Vick testifi~d
li that he ·11as called by the petitioner that he allowed Mr. Baign;
18 to examine his file on Mr. Howard. And that among other thing:;
19 Hs. Peterson statement and report of the robbery was under-.~ ..
20 scored in yellow. There was no exculpctory evidence found
21 therein. Hr. Baiqns attorne of rE::!cord had no exc.ulpatory
22 language therein or he:did not find any language which he ;,·
23 reported in this regard. · Therefore, the Court concludes there
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is an absence of exculpatory evidence in the possession of the
86
2 Commonwealth. Mr. Vick additionally testified that on the date
3 of trial Ms. Peterson could positively identify the petitioner,
4 Mr. Howard, as the gunman. He also testified that a surprise
5 \-li tness, r'is. Freshman, then appeared. !.Ve t.L"len come to the
6 selectively and vindictively prosecuting the petitioner or
7 inpermissible consideration while the declining to prosecute
8 another. I think that goes to the situation of ~1r. Wright
9 and Mr. Howard both:being charged and both being involved
10 in this robbery, one, and likewise being involved in other
I 11 robberies.
;12 When Hr. Howard himself went to !)etective Shelton
!13 and then thoroughll' discussed the matter with hiw' undo~btedly
:14 an agreement was reac~e1 whereupon based on the information
i15 then given by Ivlr. HO\-lard to the detective in order to clear up
;16 these cases, then there was in fact no prosecutionro~
.17 Mr. Howard of those other cases. As to the ppening statement
:18 oi the Commonwealth Attorney and as being a material mis-state
'19 ment of facts, The Court h~s found no mistake of the statement
20 of facts. Likewise, the Court would indicate a cautionary
21 instruction is t]iven to the j11ry by th,; Court ,...,hich says the
22 argument of counsels are not evidence and ~"le jury is not
23 bound by that. It is only an attempt of the attorney to
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clarify the situation to the jury. The jury ¢ertainly is not
bound by the arguments of counsel in ··this -regard. In any .
~vent, the Court does not find any material mistake of the
facts. As to the final question invoi ved ·.here as to the
Commonwealth's eontinuingly interrupting.defense counsel's
closing argument,· ·it appears from this · Court's reading of the
transcript that the objections made by the Commonwealth were
not numerous ones.'· Secondly,·they were-valid objections ruled
on by the Court and that they mate'rially went to the· instructi ~ns
of the Court, and whether or ·not these were the true words of
the instructions or whether or not they were mis-representatio)s
of the instructions.
The Court having told the jury and have ,told counsel
that they must rely on the instructions and not on any other
type of refractions thereof. As we view the entire petition
today, the Court is of the opinion that this petitioner ~as
shown no prejudice by the acts of Mr. Baigns, his attorney and
for that reason the writ of habeas corpus is overruled.
Mr. Ferguson, you should prepare an appropriate ·order for entrj
pf the Court preserving of the exceptions of the petitioner.
Mr. Maupin, you are entitled to Court appointed fees, are you
not?
MR. MAUPIN: Your Honor, to be quite candid, I never
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looked at the statute dealing with writs of habeas corpuses.
2 I
I
· 3 dollars.
,4 I
THE COURT: The Court awards a fee of two hundred
MR. FERGUSON: In the Court's finding, I noted the
5 Court indicated a surprise witness was heard at the trial and
lis perhaps in the presentation of the evidence we both gave that I
' 7 impression. I think the transcript will reveal, if Mr. Maupir I
I Ia will agree, that the witness was not present at the trial ! !
i I
9 but the existence of another person being at the scene of the
I
robbery first came to be known to the Commonwealth Attorney 10
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and Defense counsel.
THE COURT: I believe that p~rson's name is
Freshman.
~R. FERGUSON: Just to clarify that.
THE COURT: That was the woman who testified by
!18 not aware of a prior trial and as far as he could tell, the
19 Commonwealth Attorney. was not aware. I think the transcript
~o shows he was present in the office along with Mausoby.
21 THE COURT: That was in the rear of the office itseJf.
b The Court stands corrected.
MR. MAUPIN: I.have some long distance phone bills
'Deo Reporting 17031 7!51·0013
• 89
1 from speaking with the petitioner down in Buckingham. Might
2 I be compensated for out of pocket expenses?
3 THE COURT: I think it allo~~s for reasonable costs.
4 MR. t'lAUPIN: I have to go through my phone bills
5 to get the precise figures.
6 THE COURT: Mr. Ferguson, allow a blank space for
7 counsel fees and costs.
8 (Whereupon, at 3:00 o'clock p.m., the proceedings
9 in the above-entitled matter was concluded.)
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CERTIFICATE OF REPORTER
I, Curtis Royal, do hereby certify that the foregoing
proceedings were taken by me in stenotypy and thereafter
reduced to typewriting under my supervision; that said
proceedings are a true record of the testimony given by said
witnesses; that I am neither counsel for, related to, nor
employed by any of the parties to the action in which these
proceedings were taken; and further, that I am not a relative
or employee of any attorney or counsel employed by the parties
hereto, nor financially or otherNise interested in the
ioutcome of the action. I I I I
Curt~s Royal, ,curt Report~r
Veo Reporting .~ . ..,~.·.. ...
--t-----Hl __ .... ~ .. ;;...~:.;,::.:~~~~i;~~;.~-~L~t~~:_ 17031 751·0013 . ~ ... ~ •.. •'l .. ·. · !~;:~tr.r·- ·. ~- ·;:.:·:.:;~ .. , ·'··
·~'P.'i~--~ ·-~~~::;~,.
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~~VIRGINIA: • ··~ IN THE CIRCUIT COURT OF THE COUNTY OF ARLINGTON e •
... ..... : .. - ~
(.) c·:
RONALD L. HOWARD, No. 132254,
Petitioner,
WARDEN OF THE BUCKINGHAM CORRECTIONAL CENTER,
Respondent.
CIVIL ACTION NO. 25127
FINAL ORDER
On January 23, 1985, came Ronald L. Howard, the petitioner,
in person, and by R. Ramsey Maupin, Esquire, his court-appointed
attorney, and came also the respondent, by counsel, Frank S.
Ferguson, Assistant Attorney General, to be heard upon the
petition for a writ of habeas corpus upon pleadings duly received
and filed and Orders heretofore entered.
After hearing evidence and argument by counsel and upon
consideration thereof, the Court finds, and is of the opinion
that the prayers of the petitioner should be denied and the
petition dismissed for the reasons stated forth in its findings
of fact and conclusions of law set forth to the record which by
this reference are made a part hereof.
Now, therefore, for the reasons set forth the Court
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ADJUDGES, ORDERS and DECREES that the prayers of the petition for
a writ of habeas corpus be denied and the petition dismissed, the
writ discharged and the petitioner remanded forthwith to the
custody of the respondent. Petitioner's objections are noted and
his exceptions are preserved.
It is further ORDERED that R. Ramsey Maupin, Esquire, shall
be allowed a fee of /3 tl «' • d a for his services in
representing the petitioner and reimbursed in the amount
of #Jf5fi.. for his necessary out-of-pocket expenses.
It is further ORDERED that the Clerk of this Court shall
certify copies of this Order to the petitioner, R. Ramsey Maupin,
Esquire, and Frank s. Ferguson, Assistant Attorney General,
Supreme Court Building, 101 North Eighth Street, Richmond,
Virginia 23219.
Entered this...(ad day of ,;3-~,4"7 , 1985.
~£ m~ Judge
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V I R G I N I A : . FEB211915 c l........ .. -· ., ···- . ~-
IN THE CIRCUIT COURT OF ARL GTON mum:~=~~;_:_: . .:: CIRCUIT COURT,;.;.1Wi"G"I:.'!.: ..
RONALD L. HOWARD
Petitioner vs.
• ...l
) ) CIVIL ACTION NO. 25127 )
WARDEN OF BUCKINGHAM CORRECTIONAL CENTER,
) ) )
Respondant )
COMES NOW, Ronald L. Howard, by his court appointed
counsel, and states that he is aggrieved by the FINAL ORDER
entered by the Honorable Thomas R. Monroe denying his Petition
for a Writ of Habeas Corpus. He further states:
1. A transcript of the hearing held on January 23, 1985
and other incidents of the trial shall be filed and made
a part of the record.
2. Petitioner, having been declared indigent pursuant
to law, requests to proceed in forma pauperis and a
waiver of the $25.00 filing fee.
3. The Appellant's name is Ronald L. Howard, P.O. Box
430, Dillwyn, Virginia 23936. The Appellee's title
(name unknown) is Warden of the Buckingham Correctional
Center, P.O. Box 430, Dillwyn, Virginia 23936.
4. Appellant's court appointed counsel's name, address
and phone number is R. Ramsey Maupin, 1515 N. Courthouse
Road, Suite 100, Arlington, Virginia 22201 ·,
( 703) 528-5151 • Appellee's counsel's name, address and
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phone number is Frank S. Ferguson, Office of the
Attorney General, 101 N. 8th Street, Richmond, Virginia
23219, (804)786-2071.
RONALD L. HOWARD 1 By Counsel
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22201
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing was
mailed, prepaid, to opposing counsel at his address as listed
herein and to the Clerks Office of the Court of Appeals of
,, Virginia on this~day of ..J:. , 1985.
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VIRGINIA:
fin. thr. Coud of :dlppr.a[J. of CL1't~i.ni.a on. Monday
Ja.!J of August, 19 8 5
thr. 5th
j Ronald L. Howard, Appellant,
j against Record No. 0247-85 Circuit Court No. 25127 I
I Warden of the Buckingham Correctional Center,
I Appellee.
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Upon an appeal of right from a judqment rendered by the Circuit Court of Arlington County on the 20th day of February, 1985.
On consideration of the motion of the appellee, filed July !:
1• 16, 1985, to compel the appellant to comply with Rule SA:25, it is
i ordered that the appellant re-file his appendix and opening brief. The
~~appendix shall be prepared in accordance with Rule 5A:25. The opening ,, r brief shall contain appropriate references to the pages of the i ! appendix, pursuant to Rule SA_: 2·1 (c). I
An extension of time is hereby granted the appellant until
September 16, 1985, to re-file his opening brief and appendix, with
the time for filing the appellee's brief to commence when the opening
brief is filed.
A Copy,
Teste:
David B. Beach, Clerk
By:
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VIRGINIA:
I:
In the Court of Appeals of Virginia on Monday the 30th
day of September, 1985.
I:, . : Ronald L. Howard,
against Record No. 0247-85 Circuit Court No. 25127
o;
: ~! Warden !I i! ,, il l ~ ., II
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of the Buckingham Correctional Center,
Appellant,
Appellee.
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Upon an appeal of right from a judgment rendered by the Circuit Court of Arlington County on the 20th day of February, 1985.
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It appears to the Court that the appellant has failed to
with the order entered herein on August S, 1985.
Accordingly,. this appeal is dismissed.
A Copy,
Teste:
David B. Beach, Clerk
By: 'f?LttCct~ ~412~~ Deputy Clerk
~ 5() 1~1 IN THE ___ s_u_P_R_EM_E_· -------.COURT OF ___ v_IJ_{G_I_N_IA ________ _
__ · 'ROftALD.LERoY. HQWARD 9132254 Full aame and prat. IIWftbet
Y. (If aarl of Peaia-...
&, Me-Mtmen Warden :.'"f · , ... 'J
Buckingham Correctional Center
Cue No. cro .,. aupplled by the Clerk ol the Court)
PETITION FOR WRIT OF HABEAS CORPUS
IDSUUCtions-Read Carefully
Ia order for this petitioa to receive coasideratioa by the Court, it must be legibly haadwriueo or typewritten. 'siped by the petiliOMI' and verified (notarized). It must set forth in c:oocise form the aaswen to eac& applicable quesdoa. U accessary, petitioner may finish his adSWer to a panicular questioa OG aa additiooal page. Petitioocr mUll .U.·k.dcar to which qucstioa any such continued answu refen. The pctitioacr may also submit exhibits. .
SiDce every·petidoo for·habeu·corpus must be sworn to UDder oath, any false stltemeut of a material !act tbeJeiD may sene u tbe. basis of prosecutioa and coovictioa for perjury under § 18.1-273. Petitioacn should, there· fore,.eU~C~JC care to assure that.~ answen are true aad correct •.
Whe1l the petitioa is completed, the original aud two copies (total of three) should be mailed to the Clerk of the Court. Tbe pctitioaer shall keep oae copy. . ..
NOTICE TO niB PEni"IONER
1be paatiq ~ a writ Cl habeas corpus docs Dot entitle the pctidoaer to dismissal ol the charges for convic· doa_.~w~he is beiDrdetaiDcd, but~ pia·bim DO more thaa a DOW triaL P·O. ~ 4 "l;()
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Place ~ deteatioD: Buckingham Correctional Center, Dillwyn, VA 23936 -04 30
A. Criminal Trial
1. Name aad locaticm of court which imposed the senteace from which you seek relief:
Circuit Court of Arlington County, Arlington, Virginia
2. 1be offense or offenses for which sentence was imposed (iocludc indictmcnc number or numben if known) :
Two counts of Robbery - Indictment Nos. 19932 and 19933; L __ ._. ______ ._.._.._..._._. __ ._. __ .._._. __ ._.._.._.._..._ ______________ ._. __ ._. ________ ___
Two counts of use of a firearm in commission of a felony- Indictment Nos. L9911 b. 8:&8 l99d4t c. ____________________________________________________________ ._.._. ______ ___
3.' The date upon which sentence. was imposed and the terms of the sentence:
Sentenced to seven (7) years consecutive on each count of robbery a. ~~~~~~~~~~~--~~~~~~~~~~~~~~~~~~--._ ________ __
b. Sentenced to three years on use of a firearm in commission of a felony, indict····- · -~ment No, C-19931; and one year on indictment No. C-19934 - Sentenced December
a. 8, 1983
4. Check which pJca you made and whether erial was by jury:
Plea of pilty· Plea of not guilty• X ; Trial by Jury:_!__; Trial by Judge without jury:
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5. The name and address of each auomey, if any, who represented you at your criminal erial:
Matthew P. Bangs, 2054 North 14th Street, Arlington, Virginia 22201
• 6. Did you appeal the conviction? ~~S:r.....------------------------
I i. 7. If you answered ••yes•• to 6. state:
the result and the date in your appeal or petition for certiorari:
a. Petition for App~al denied June 29. 1983. by Virainia Supreme Coyrt of Appe~ls
~ --------------------~~----~------------------------------------citations of the appellate court opinions or orders:
LRonald Leroy Howard v. Commonwealth of Virginia, Record No. 830404
I' ~ ---------------------------------------------------------------------------1
I 1 8. List the Dame aod address of each attorney, if any, who represented you on your appeal:
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. Matthew P. Bangs, 2054 North 14th Street, Arlingtoo, Virginia 22201
. · B. Habeas corpus
9. Before this petition did you file with respect to this conviction any other petition for habeas corpus in either
... State or federal court? ....:Y.:::,e:;:.s ________ _
10. If you aoswered .. yes" to 9, list with respect to each petition: the name aDd location of the court iD which each was filed:
~ Supreme Court of Virginia - Richmond, Virginia L ---------------------------------------------------------------------------
~ --~--~----------------------------------------------------~-----the dispositioa and the date:
L Denied - January 1985
~ R. Ramsey Maupin, Arlington Count~v~~----------------------------------tbe Dame and address of each attorney, if any, who ·re~resented you on your habeas corpus:
L --------------------------------------------------·--------------------
~ -----------------------------------------------------------------II. Did you appeal from the disposition of your petition for habeas corpus? I requested my attorney 1
appeal but he didnot perfect the appeal. 12. If you answered ••yes" to 11, state:
the result and the date of each petition:
-~;·-----------------------------------------------------------------------b. ~~--~-----------------------------------------------------------citatioaa of coun ~pinions or orders on your habeas corpus petition:
.. ---------------------------------------------------------------------· b. ··-· ..
the name and -d~-:ess of each attorney, if any, who represented you on appeal of your habeas corpus:
L --------------------------------------------------------------------------·
C. Other Petitions, Motions or Applications
13. List all other petitions, ·motions or applications filed with· any court following a final order of conviction and not set out in A or B. Include the 'nature of the motion, the name and IOc:ation of the coun, the result, the date. and citations to opinions or orden. Oive the name and address of each attorney, jf any, who represented you:
a. NONE
.. b.-----------~-----------~----------
c. ------------------------------------------~-------------------------------
d·--------------------------------------------------------------
e. ----------~---------------------------------------------------------------
D. Present Petition
14. Slate tho srounds which mak~ your detention unlawful, induding the facts on which you intend to rely:
L --~S~e~e~A~tt~a~c~h~e~d~----------------------------------------------------------
·--b;--_-·_· ----------------------------------
~ ---------------------------------------------------------------------------
~ ---------------------------------------------------.------------------
--------------------------------------------------~ _l
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1,. Ust each pound set forth in 14, which hBk been· presented ill aoy other proc:eediag:
L------------------------------------------------------------------~-------------------------------------------------------c·----------------------------------------------------------------
·---·~·--
------------------------~---------------------------
0.~~~~~~~~77--~--~----~~-----------------------------Ust the proceedinp in which each ground was raised:
··----------------------------------------------------------------~-------------------------------------------------------~--------------------------------------------~------------------
~-----------------------------------------------------&------------------------------------~------------------------
'· 16. 1f any p:ound set fonh in 14 has not been presented to a court, list each ground and the reason why it was not: •
L This is the first forum in which I have had to raise the enclosed grounds.
~ ---------------------------------------------------------------------·-----~------------------------------------------------·------------·------
c. ------------------------------- -----------------------------------------
d. ------------------·----------------------------------------------
-------------------------------------e. -·----------------------------------------------------------------------------
------·---·-------------- ··-
-------------Slpature of PcticioDcr
...
STATE OF VlRGJNIA
CITY /COUNTY OF A::~~~:=:=~;;CZ::!!!:::Z!.-=~--Tbo above aamed petitioner being fint
1. He siped the foregoing petition;
2. The facts stated in the petition are true to the best of his information and be!ief.
~~4d£iiJ Sipature of Petitioaer
Subscn1Jed aacl swom to before me
thls~Y~~i~-· --~
· Notary Public
My COIIUDissi011 expires /o1-@'7/K7
The petidoa wiD DOt be filed without payment of court costs unless the petitioner is entitled to proceed in forma pauperis and has executed the attached.
-FORMA PAUPERIS AFFIDAVIT
nAn~~~m" ·
crrY/COVNTY OF . ~ ~4 "'A.-/
ne petitioner being duly swom, says: 1. He is unable to pay the costs of this action or give security therefor;
-~ H"~. assets amount to a total of s 0 aw.e£/ cf. ~J Sianoture ol Petitioner
Subscribed and s~om to before me
dayotSye~
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ATTACHED SCHEDULE A
Allegation 11:
Petftfoner alleges that he was dented hfs constitutional right
to the effective assistance of counsel guaranteed under.the Sixth
and Fourteenth Amendments to the Constitution of the United States,
in that, the representation of petitioner by Attorney Matthew P.
Bangs (•counsel• hereinafter) was not within the range of no~al
competence demanded of attorneys tn criminal cases. Petitioner
alleges that counsel was ineffective fn the following respects:
(a) Petitioner alleges that counsel failed. to conduct
an independent vofr dire of the prospective jurors or to object
to-1th8 jury composition, when there existed basts for objection.
Petitioner states that, during the selection and impaneling of the
jurors tn hfs criminal proceedings, two jurors, namely, Nancy
Crouch and Carl Stack, expressed basis for exceptions to jury.
service. Juror Crouch stated that, "My husband works far the
Arlington Police Department.• (Tr. p. 7). Juror Stack stated,
. "Yes, sfr. 1 was fn the Military Police trained by the Army
National Guard.• (Tr. p. 9). Notwithstanding the basts for
abjection, counsel failed to conduct any vafr dire of said jurors,
directly or through the court, to inquire as to their impartiality
nor dfd counsel object to said jurors being members of petitioner's
ventre facias. Petitioner alleges that counsel's failure to timely
object to said jurors qualfffcattons and partiality, and counsel's
failure to conduct a adequate voir dire examination, dented petitioner a
panel of twenty (20) jurors free from abjection and exception, as ts
provided under Section 8.01-346 of the Code of Virginia (Repl. Vol. 1975),
thereby, depriving petitioner of a fafr trial before an impartial jury
and constituting ineffective assistance of counsel.
(b) Petitioner alleges that counsel failed to object to the
impaneling of Paul Flame on the jury, after said juror had been excused
from the voir dire examination. for cause and replaced by another juror.
(Tr. pp. 8-11). Petitioner alleges that the failure of counsel to object
to the aforesaid irregularity prior to the Jury being sworn and impaneled,
resulted fn a juror being selected who was subjected to only a part of
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ATTACHED SCHEDULE A, Continued Page Two
thevotr dire examination and precluded petitioner from raising
·--sa·td error on appeal, thereby, depriving petitioner of a impartial
jury and a fair trial, in violation of the Sixth and Fourteenth
Amendments to the Constitution of the United States. Petitioner
alleges that counsel's failure tn this regard constituted ineffective
assistance of counsel and prejudiced petitioner's defense, in violation
of the Sixth and Fourteenth Amendments to the Constitution of the United
States.
(c) Petitioner alleges that counsel failed to contact,
interview and subpoena petitioner's requested witness, John Wright,
to testify at the suppression hearing and trial, thereby, depriving
petitioner of material testfmontal evidence which would have been
beneficial to his defense , in that, it would have contradicted the
Commonwealth's identification evidence. Petitioner states that counsel
was aware that John Wrf~had confessed to committing the offenses
fn question and that petitioner had been misidentified by the victims
of said offenses as the perpetrator. Petitioner alleges that counsel's
failure to contact, interview and subpoena John Wright to trial, knowing
that said witness would have testified that he was the person who the
witnesses had identified as being petitioner, greatly prejudiced the
petitioner's defense and constituted ineffective assistance of counsel
at the suppression hearing and trial, in violation of the Sixth and
Fourteenth Amendments to the Constitution of the United States.
(d) Petitioner alleges that counsel failed to conduct an
adequate investigation of the victims and others who were fn the vicinity of
the alleged crime, in order to ascertfan whether other witnesses to the
crime could provide material testimony in petftfoner•s behalf, notwith
standing petitioner's request that counsel conduct such an investigation.
Petitioner states that individuals identified by the victims as "Linda",
"Freshda" and "Peggy Hoffman•, were known by counsel to be in the proximity
of the alleged robberies and allegedly observed the perpetrators. However,
although counsel believed that said witnesses could provide beneficial
testimony, he did not endeavor to investigate the alleged crime by con
tacting and interviewing the fndfvtduals identified as linda,Freshda
and Peggy Hoffman. Petitioner alleges that counsel's failure to con-
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ATTACHED SCHEDULE A, continued Page Three
duct an adequate investigation in this regard constituted ineffective
assistance of counsel and greatly prejudiced petitioner's defense, tn
violation of the Sixth and Fourteenth Amendments to.the Constitution
of the United States. (e) Petitioner alleges that counsel failed to raise colorable
issues on appeal which petitioner had requested be included in the appeal
and further failed and refused to discuss the issues with petitioner
prior to filtng the appeal. Petitioner states that he requested
counsel to raise on appeal the issue of the trial court•s refusal to
allow petitioner to question the commonwealth's witnesses and to
argue the fairness and reliability of the photographic display before
·-the-.1urY to enable the jury to draw its own conclusions in that regard •
. Petitioner submits that counsel's failure to raise the aforesaid tssue
and his failure to discuss· same with petitioner prior to filing the
appeal, constituted ineffective assistance of counsel and prejudiced
petitioner's ·case by depriving him of an adequate appeal, in violati.on
of the Slxth and Fourteenth Amendments to the Constitution of the
United States.
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Allegation 12:
ATTACHED SCHEDULE B Page Four
Petitioner alleges that the Commonwealth's Attorney$,
William s. Fields an~ Toby Vfck, deprived petitioner of due process
of law and a fair trial during his criminal proceedings, in
violation of the Ftfth. Stxth and Fourteenth Amendments to the
Constitution of the United States, in the following respects:
(a) Petitioner alleges that the Commonwealth's Attorneys
withheld and suppressed exculpatory evidence which was favorable
to the petitioner's defense, notwithstanding petitioner's request
for such evidence, and that said suppressed evidence was material
to the innocence or guilt of the petitioner. Specfftcally, the
petitioner states that the Commonwealth's Attorney's Office was fn
possession of a statement fn which John Wright, the alleged co-
defendant, confessed that he was the individual who entered the
office of Soheil Rasavi, the alleged victim, and coaattted the
robbery therein, whereas, the Commonwealth's Attorneys took the
position that petitioner was the tndivtdual who entered said office.
Petitioner avers that the production of the aforesaid exculpatory
statement would have discredited the eyewitnesses• identtftcatton
of petitioner, and the failure of the Commonwealth to disclose informa
tion material to the question of guilt of petitioner violated
petitioner's right to due process and deprived him of a fair trial
before the jury, in violation of the Due Process and Equal Protection
Clauses o~ the Fifth and Fourteenth Amendments to the Constitution
of the United States.
(b) Petitioner alleges that the Commonwealth's Attorney
knowingly and intentionally elicited and introduced testimony which
he knew or should have known was false and that there was a reasonable
likelihood that the false testimony would affect the verdict of the
jury. Specifically. petitioner states that the Commonwealth's Attorney
elicited from witness Soheil Rasavt testimony that petitioner entered his
office with a gun and committed robbery therein. However, petitioner
avers that the Commonwealth's Attorney was aware that John Wright. the
alleged co-defendant, had confessed to the robbery and that he. not
the petitioner. entered the office of Rasavi and robbed him. However,
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ATTACHED SCHEDULE B, continued Page Fhe
the Co~nwealth's Attorney allowed the false testimony to be intro
duced "'ithout correction, thereby, 'depriving petitioner of a fatr trtal
and due process of la"'· Further, pettttoner alleges that the
Commonwealth's Attorney presented the theory tn h1s.opentng statement
and clostng argument, as well the case-tn-chtef, that the petitioner
entered the office of Rasavi and I"'bbed htm, "'ith full knowledge that
John Wright actually confessed to entering the office and camattttng
the robbery, thereby, r.~akfng 1111terial mtsstat~~~ents of facts t111plyfng
petitioner's guilt, thus, prejudicing his defense.
(c) Petitioner alleges that the Commonwealth's Attorney
abused his prosecutorfal discretion, by his selective and vindictive
prosecution of petitioner on impermissbl• consideration and "'hile
declining to prosecute another party stmflarly situated, in vtolatton
of the Due Process and Equal Protecttqn Clauses of the Fifth and
Fourteenth Amendments to the Constitution of the Unfted States.
Petitioner avers that a subject fdentffted as -John Wright was appre
hended and interrogated an the offenses of whfch petitioner was
subsequently convicted. Petitioner states that Wright confessed to
the offenses and, in fact, tnfonaed agents of the Common .. alth that
he actually committed the robbery of Rasavi, the vtcttm who had mis
identfffed the petitioner. However, armed wfthWrtght's confession.
and knowtng that the victim had mistdentfffed petitioner as the
perpetrator of the crime, the Canmonwealth's Attorney elected nat
to prosecute John Wright, but did tnd1ct and prosecute the petitioner.
Petitioner states that, based on information and belief from John
Wright and law enforcement officers, the Commonwealth's AttorneY
elected to prosecute petitioner because he was •suspected• of having
participated fn other criminal activities for which there was no
---proof to indict and try him 1n a formal criminal proceeding. Petitioner
states that the Commonwealth's Attorney's decision to prosecute the
petitioner and not Wright, and the basis upon which said decision "'as
predicated, constituted an abuse of prosecutorfal discretion and
violated petitioner's rights to due process and equal protection of
law.
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(d) Petitioner alleges that the Commonwealth's Attorney
and Investigator William c. Shelton intentionally and knowingly made
material misstatements of facts fn the opening statement, closing
argument and case-in-chief, regarding the ident1ffcat1on of the
petitioner·by Soheil Rasavf, as being the person who robbed htm,
thereby, prejudicing the jury agatnst petitioner by said misstate
ments. Petitioner alleges that the Commonwealth's Attorney repeatedly
argued to the jury that the victims of the robbery were •too percent
sure•· that the petitioner was the perpetrator of the crime. (Tr.
pp. 107-10). Further. Investigator Shelton contended that Rasavt•s
identification of petitioner as the person who robbed hfa •was 100
percent• sure. (Tr. p. 77). The testimony of Rasavi at the suppression
hear1"ng and trial disclosed that hfs photo 1dent1f1cat1on of the
petitioner was expressed as •this ts the closest one I can go for.•
(Tr. pp. 35-~6); and, •1 believe he's the one.• (Tr. p. 62-Trfal
transcript). Notwithstanding the confession of John Wright
admitting that he was the person the victims had misidentified
petitioner as, and t~e ~inconclusive identification testimony of
the victims, the Commonwealth 1s Attorney failed and refused to.
correct the material misstatements of Investfgatpr Shelton which
avered that the identification of petitioner by Rasavf •was 100
percent• sure. Petitioner states that the acts and omissions of
the Commonwealth•s Attorney served to prejudice the petttioner•s
defense before the Jury and deprived petitioner of a fair trial
due process and eqHal protection of law, fn violation of the Fifth,
Sixth and Fourteenth Amendments to the Constitution of the United
States.
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(e) Petitioner alleges that the Co~mGnwealth's Attorney
continuously interrupted defense counsel's closing argu~ent with
improper and unnecessary objections which were calculated to prejudice
the petitioner's defense before the jury. Petitioner states that hts
counsel attempted to present a closing argument which conformed to
the jury instructions and the evidence presented in the case. Notwith
standing counsel's privilege to argue along the line of the jury instruc
tions given by the court, the Commonwealth's Attorney_ continuously
objected to counsel's reference to •beyond a reasonable doubt•, by stating
that •the instructions speak for themselves.• (Tr. pp. 113-14). Petitioner
alleges that the Commonwealth's Attorney's objections were calculated and.
in fact did, serve to prejudice the petitioner's defense by excluding
further.clarification of a reasonable doubt froa the Jury's consideration.
thereby. depriv~ng petitioner of a fair trial, due process and equal
protection of law. in violation of the Fifth. Sixth and Fourteenth
Amendments to the Constitution of the United States.
(f) Petitioner alleges that the Commonwealth's Attorney
committed prosecutorial misconduct by commenting in his closing argument
on the credibility of the Commonwealth's witnesses: that they had
nothing to gain by being untruthful; and tmtJustice could only be done
if petitioner was convicted, •because he was-the person who convicted (sic)
the crime.• (Tr. pp. 110-11). Petitioner avers that the Commonwealth's
Attorney's statements implied that the witnesses for the Commonwealth
were being truthful and the petitioner was guilty because the Commonwealth
said so under the cloak of authority of said office. Petitioner states
that the Commonwealth's Attorney's statements in this regard deprived him
of due process and equal protection of law in violation of the Fifth
and Fourteenth Amendments to the Constitution of the United States.
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ATTACHED SCHEDULE C Page Efght
Petitioner alleges that the trial Judge of the criminal
proceedings of December 8, 1983, abused hts discretion in said pro
ceedings and, thereby, deprived petiti~raf due process and equal
protection of law, and a fair trial, in violation of the Fifth,
Sixth and Fourteenth Amendments to the Constitution of the United
States. Specifically, petitioner alleges as fallows:
(a) The trial judge failed to conduct an adequate voir dire
of the prospective jurors, prior to impaneling said jury, to ascertain
whether the jurors possessed any av~ar latent prejudices against
petitioner or petitioner's class of offender, thereby, constituting
grounds for challenge far cause. Petitioner states that two Jurors
confessed that they were an had been connected to a law enforcement
agency, thereby, fnferrfng potential prejudicies. (Tr. pp. 7, 9).
However, the trial court fafled and refused to conduct further voir
dire of safd jurors to ascertain the ability for said Jurors to sit
impartially at petitioner crfmfnal trfal. Petitioner states that,
although, the jurors in question were not selected for the panel, the
presence of said jurors deprived petitioner of a panel of twenty (20)
jurors fr~ which to select hfs jury who were free from exception,
thereby, deprfvfng petitioner of his right to a fair trial by an impartial
jury, in violation of the Sfxth and Fourteenth Amendments to the Constitution
of the United States.
(b) Petitioner alleges 'that the trial judge relied an second
hand information and guessations as to the ruling on the photographic
display by the court at the suppression hearing and erroneously dented
petitioner an opportunity to present a line of direct and cross-examination
questions at trfal challenging the reliability and fairness of the
Commonwealth's tdentitication evidence, tn order that the jury could
. draw its own inferences and conclusions as to the reliability and fairness
of the fdentiffcatfon procedure employed by Investigator William c. Shelton. On the objection by the Commonwealth's Attorney to defense
counsel's attempted cross-examination of Shelton on the photographic
display, the court ruled:
Argument fs not going to be permitted that the use of them LPhotograph!T was fnadmfssfbly suggestive. It will not be. It has been ruled
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ATTACHED SCHEDULE C, continued Page Nine
an as a &Utter of law.
(Tr. p. 80). Therefore, petitioner's attorney was not peraitted to
reconstruct the photographic display or argue the fairness of the
display before the jury, tn order that the jury might draw fts own
conclusions from reasonable inferences as to the fairness and reliability
of the identification, thereby, denying the petitioner due process and
equal protection of law, and a fair trial fn violation of the Fifth,
Sixth and Fourteenth Amendments to the Constitution of the United
States.
(c) Petitioner alleges that the trtal judge failed to
afford petitioner the right to allocution, prior to pronouncing sentence
on Indictment Numbers C-19933 and C-19932, to advance reasons why
judgment should not be pronounced, thereby, preJudicing petitioner at
sentencing and depriving petitioner of due process and equal protection
of law, and a fair trial. Petitioner states that, prior to the pronounce
ment of his s~ntences, he desired to express to the trtal court reasons
why judgment should not be pronounced or, tf pronounced, why punishment
should not be severe. Specifically, petitioner had intended to apprise
the trial court that another individual had in fact confessed to the
offenses for which petitioner had been convicted and that satd party had
not been indicted or tried, notwithstanding the Com.onwealth•s AttorneY
having personal knowledge of said confession.· Further, petitioner had
intended to apprise the trial court that the aforesaid party was the
tndivtdual the victims had tdenttfted as being petitioner and that the
Commonwealth•s Attorney was also aware of said •isidentfffcation of the
petitioner, but concealed same fro• the court. However, when the trial
court dented petitioner an opportunity to aake safd statement and express
the aforesaid reasons for consideration, but did initially tapose sentence
on petitioner for the two robbery charges, a total of fourteen (14) years,
without extending an opportunity of allocution, pettttoner was led to believe
~~~- did believe that the trial court had tn fact pronounced sentence on
the aforementioned offenses, and that for the petitioner to advance the
satd reasons would be an act of futility. Petitioner avers that the omission
of allocution deprived him of due process and equal prot•ctiQn of law, and a
fatr trial, tn v1olat1on of \he F1f\h tnd FoYrtttft'~ Alift~fttl to tht Constitution of the United States.
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Allegation 114
I was denied my constitutional right of an appeal of the dismissal of the
habeas corpus proceeding by the Circuit Court of Arlington County, Virginia, to
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~~ Sup~eme Court of V~rginia. I requested my court appointed attorney to appeal
the dismissal of the habeas corpus proceeding and my attorney advised me that he \
wo~d appeal the dismissal. The habeas corpus petition was originally filed in
the Supreme Court of Virginia and then subsequently referred back to the Circuit
Court of Arlington County by the Supreme Court of Virginia. When the Circuit Court
dismissed the petition, I requested my attorney to appeal and he advised that he
would appeal. My attorney advised me that it was not necessary to contact the
court concerning my request for an appeal and that he would take care of the matter.
My attorney did not perfect the appeal and I submit that I have been denied my
cons.titutional right of an appeal to the Supreme Court of Virginia of the dismissal
of the habeas corpus proceeding.
Allegation 115
I submit that the Circuit Court of Arlington County erred in the habeas corpus
proceeding in denying discovery of the papers in the files of the Commonwealth
Attorney. I requested the court to subpoena all records from the Commonwealth
Attorney's file in that I had evidence of exculpatory evidence being in that
file which the Commonwealth Attorney had not come forward with. The court denied
my right to the papers in the Commonwealth Attorney's files and I submit that the
court erred in this decision. I submit there was evidence in the file showing
that Ms. Peterson stated that I was not involved in the robbery and that Johnny
Wright was the gunman. My attorney advised me that he took notes from the file
of the Commo~wealth Attorney which showed that Ms. Peterson had indentified
Johnny·Wright as the gunman. Att~he trial, Ms. Peterson identified me as the
gunman. (See notes of Attorney attached hereto)
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1 Allesation 66
The court erred ~n admitting into evidence inadmissible hearsay evidence as
may be seen from reviewing pages 73, 74, 75, and 76. Detective Shelton was
testifying as to the results of an array of pictures being shown to MS. Peterson.
MS. ~eterson was an alleged witness to the crime and she had been shown an array
of pictures and she had failed to identify your petitioner. Your petitioner's
' photograph was included in the array of pictures. However MS. Peterson had
identified another individual who she alleged was involved in the robbery. The
! Commonwealth Attorney was trying to get Detective Shelton to testify tht Ms.
' Peterson had identified another defendant from the array of photographs who
was involved in the robbery. My attorney objected to this as being hearsay evidence.
I submit that the court erred in allowing Detective Shelton to testify that Ms.
Peterson did identify another defendant who was involved in the robbery. This
was clearly hearsay evidence and very prejudicial to your defendant. This was
1 used to bolster the creditability of Ms. Peterson showing that she had identified
another defendant who had been involved in the robbery. MS. Peterson had not been
1 able to identify your petitioner and therefore her identification of another
defendant who was convicted in another trial should not have. been submitted
to the jury. Ms. Peterson was unable to identify your petitioner and this is
all that should have been submitted to the jury from Detective Shelton. This
, was very prejudicial for the hearsay evidence to come in and your petitioner . I
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1: submits that he would not have been found guilty without the admission into I
1 evidence of this hearsay testimony.
Allegation 117
Improper conduct of the Commonwealth Attorney - Your petitioner submits disclose
I that the Commonwealth Attorney did not I exculpatory evidence to your I' ·----·
I petitioner. Your petitioner submits that the Commonwealth Attorney knew that the
Ma. Pataraon hac:l previOusly identified Johnny Wright as I gunman and then
allowed her to testify at the tria·l that your petitioner was the gunman.
~ attorney ~our petitioner submits that h~s/reviewed the Commonwealth Attorney's file and
made notes from the Commonwealth Attorney's file. Copies of those notes are
attached hereto. Those notes wial indicate that Johnny Wright was reflected . \the.:.o _
as;/'guaman in the Commonwealth Attorney's file. However at trial Ms. Peterson
identified your petitioner as the gunman. In the files of the Commonwealth
Attorney, there were notes stating that Ms. Peterson had never seen your petitioner
before. The attached notes were taken by your petitioner's attorney from the
Commonwealth Attorney's file. Therefore your petitioner submits that the Commonwealth
Attorney withheld exculpatory evidence from your petitioner.-
Allegation /18
Ineffective assistance of counsel - In respect to the allegations set forth in
the proceeding allegation, your petitioner submits that his attorney was ineffective
in not reporting to the court that the Commonwealth Attorney was not disclosing
exculpatory evidence in his file. Your petitioner submits that his attorney
knew.about the exculpatory evidence that Ms. Peterson had identified Johnny
Wright as a gunman and did not report this to the Judge. Your petitioner submits
that his attorney allowed the Commonwealth Attorney to put Ms. Peterson on ed the
and allow/Ms. Peter~on to identify your petitioner as I gunman when she had made
a prior inconsistant statement. Therefore your petitioner submits that his
attorney was ineffective in this.· Further the attorney was ineffective. in not
advising the Court that Ms. Peterson had made a prior inconsistent statement
that she had never seen your petitioner before the lineup was conducted.
Allegation 119
Ineffective Assistance of Counsel - Counsel was ineffective for not objecting
to the Court's error set forth in allegation #5 and moving for a mistrial.
Allegation /110
Ineffective ~ssistance of counsel - Counsel was ineffective for not raising
alOU!gation #6 in appeal.
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-No tea of Petitioner' a Attomey made fram .revievins the file of the Co11110nvealth
At toney •
VIRGINIA:
IN THE SUPREME <XXJRr
RONAW LEROY OOWARD, NO. 132254
Petitioner,
v.
WARDEN OF THE BUCKINGHAM
CORRECTIONAL CENTER,
Hespondcn l ,
IN RicmniD
MOTION TO AMEND ALLEX:iATION NO. 5
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HIDJHD NO. 850751
Petitioner subni ts that on Npvember 26, 1982 be1'ore the Honorable·
Paul D. Brown, Petitioner rootioned for Exculpatory Evidence under Brady. ThL'
Honorable Paul D. Brown granted Petitioner 1 s notion, sta tin~ thu L Brady was
self executting. (Page 51 and 52 of Suppression Hearing). The Court ordered
that evidence be produced by the tine of trial or at trial if known.
Mr. Wright confessed to being the gururan sorretirre before June lU, 1982.
Ms. Carolyn Jane Peterson identified Mr. Wright as the bTtllliiUn on June 16th,
1982. Petitioner was tried December 8th, 1982.
Suppression by the Prosecution of evidence favorable to an accuser upon
request violates due process where the evidence is rra.terial either to the
guilt or to the punishment, irrespective of the good faith or bad faith of
the Prosecution. Brady v. Maryland 373 U.S. 83 . 87 ( 1963) .
The Brady Rule was refined and expanded in United States v. Agurs. 427
u.s. 97. 103-107 (1976) See Chavis v. North carolina. 637, F. 2d 213(4th. Cir.~
119
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19HO) suppression of Exculp:ttory Evidence constitutes denial of due process in
three following distinct situations.
A. Prose<.!Ulion • s cas( .. ' includL"Ci J~I"JUrL~ tcstinuny, proSL~ut ion knew or
should have known of perJury LJut failL~ to di~lu~ fal't, and thL·t·L·
is roa~unahlt• likclihuxt that fal::;c testirruny could h.avL~ aftcl'tLd
Judgt..lfl'Cnt <>1' .Jury.
B. llefcn~· rcqut•stLttl but Wd~ dt•nhttt prc.xluct.ion of SJ.X..'l"i fie evidL·nt~c.·
nHlcriul to is~Ul.' of ~rui lt, and undisclo~ evidencl' mi~ht havv
aff~elL-'ll outcutl.~ of defendunts trial. In C1lavis, Fourth ('irt·utl
t..·•quattttf affL'c.:t in~ thL' uUll'txtl' tvsl t.o harmless error rult·. :\l'\\ trt~tl
i~ rL~ui rt'\i i l t hL·rL· \..-..1~ :·, ... a.:::>lmable po.ssi l>i 1 i ty that und 1 sL·l oSt ·d
evidence would h&lVL' rruterially affectL-'<.1 Vl'r<.tict. u~.i7 F. at at ~~:3.
Goverm~nt:-; failw·c to respond to spcciJic rL~IUL'SlLtti for cL·rtain
nutcrial i~ ~htc.:xn if ~ver t•xc.;usahlc Uni l< .. '<i Stal.l.'S v. 1\z'Urs ·1~7 ll.~.
at 100.
t'. Govcrnm:.mts duty tu disc loS<:.' appl it's whether pro~·cut illll ur Pol it·c.·
have info.nnation Boon~ v. Padcrick, 541 f'. 2d ·1·17 (·1th Cir. 1V7G)
even in case where infomation is in Publin Hccurd. Anderson v.
South Carolina 709 F.2d 887 ( 41th, Cir. 1983)
Wherefore the Petitioner states that the Circuit Court ~lTL"li in thL'
Habeas Corpus proceeding in denying Petitioner discovery uf favorable evidencL'
in the files of the Canoonwealth Attorney in that the trial records conc~rning
the Brady issue had already been resolved and detennined by the trial Court, and
it abused its discretion in its denial by not taking in consideration which \Y"clS
was available for the co~ts review. J:leti tioner brought forth the Habeas
Corpus Petitioner to bring attention to the oversight and lack of objection~
by COWlsel.
Petitioner states that the Circuit Court should have acted on what had
already been granted to the Petitioner by The Honorable Paul D. Brown if the
Petitioner foWld that the Ccxtnnnwealth withheld exculpatory evidence.
/
For the reasons the Petitioner prays that this court will consider this
anendnent to his Petitioner filed September 20th, 1985, and November 1985.
Respectfully SUbmdttcd,
) c.'· .F'ilc...l(f this " I lliy of ----
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CERTIFICATE OF ~ERVICE
On this J. Cf day of January 1986 I hereby certify that a copy of a motion to
Amend Allegation No. 5 was mailed to Frank S. Ferguson, Assistant Attorney General, Supreme Court Building, 6th, Floor, 101 North Eight Street, Richmond, Virginia 23219
RONALD LEROY HOWARD 132254
. ..
VIRGINIA:
$v~~ ~~~~,aZJk~ ~~~Jk
~~~~ Tuesday £he 25th ~~February, 1986.
Ronald Leroy Howard, No. 132254, Petitioner,
against Record No. 850751
Warden of the Buckingham Correctional Center, Respondent.
Upon a Petition for a Writ of Habeas Corpus
The Court has considered the petition of Ronald Leroy
Howard for a writ of habeas corpus ad subjiciendum, the motion to
dismiss filed in answer to a rule to show cause entered herein on
September 30, 1985, the petitioner's response thereto, and petitioner's
amendment to allegation number 5. Applying the mandate of Code
§ 8.01-654(B)(2) to petitioner's allegations 6, 8, and 10; the rule
in Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974), to peti
tioner's allegation 5; and the rule in Hawks v. Cox, 211 Va. 91, 175
S.E.2d 271 (1970), to petitioner's allegations 1, 2, 3, and 7, the
Court dismisses the petition for writ of habeas corpus as· to these
allegations.
On further consideration whereof, it is ordered that this
cause be docketed, limited to the issues of 1) whether a writ of
habeas corpus lies to correct errors alleged to have been committed
by counsel in a prior habeas corpus proceeding; 2) adequacy of
habeas counsel in perfecting petitioner' s appeal (petitioner-' s
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allegation 4)J and 3) adequacy of habeas counsel in failing to
object to the habeas court's denia~ of discovery (petitioner's
allegation 9).
It is further ordered that Edward D. Barnes, Esquire, a
discreet and competent attorney at law, be, and he is hereby appointed
to represent the petitioner herein.
It is further ordered that 20 copies of th~ petitioner's
brief be filed with the clerk on or before April 16, 1986, that 20
copies of the respondent's brief be filed on or before May 12, 1986,
and that 20 copies of the petitioner's reply brief, if any, be filed
on or before May 27, 1986.
A Copy,
Teste:
·~~ ~~ Clerk
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