Arnold Lee VANCE, Appellant, v. Donald E. BORDENKIRCHER, Warden, West Virginia State Penitentiary, Appellee, 692 F.2d 978

WIDENER, Circuit Judge: Arnold Lee Vance filed this habeas corpus petition pursuant to 28 U.S.C. § 2254 asserting that his 1962 conviction for first degree murder was the result of an involuntary confession. The district court denied the requested relief. Vance v. Bordenkircher, 505 F.Supp. 135 (N.D.W.Va.1981). We affirm. I On May 20,1961, the bodies of Dr. Archer A. Wingrove and his housekeeper were discovered in Dr. Wingrove’s home near Scarboro, West Virginia. Both victims had been shot in the head, and the housekeeper also had been beaten about’the head.

An extensive investigation by local and state police during the ensuing ten months failed to lead to any arrests. 505 F.Supp. at 135-37. On March 29,1962, petitioner Vance was arrested as a suspect in several breakings and enterings unrelated to the Wingrove murders. He was arrested at his home in Oak Hill, West Virginia and taken to the Oak Hill police station at approximately 4:45 p.m. The petitioner’s mother was informed that he was being arrested, but she did not accompany him to the police station.

The petitioner told the chief of police that he was 17 years old (even though he was only 15), and the chief obtained permission from the juvenile court to place him in jail. The chief acknowledged that he was aware that the petitioner attended a school for the mentally retarded. The police chief testified that prior to any questioning he advised Vance that Vance had the right to remain silent and the right to be advised by counsel before making any statements.

The chief proceeded to question Vance on the breakings and enterings and, at the conclusion of these questions, asked Vance, as a matter of routine, if he knew anything about the Wingrove murders. The chief testified that Vance “acted a little funny about it” when asked about the murders, so, following some additional questions, Vance was placed in jail pending further questioning. The latter questioning took place after the chief had called a state trooper who was investigating the murders. The trooper then listened in on the questioning of Vance but was out of sight.

It was during this questioning that Vance first revealed that he and another individual had gone to the Wingrove house intending to borrow some money. The murders happened instead, although, at this point in the questioning, Vance claimed that the other individual actually shot the victims. This statement, which was made between 7:30 and 8:00 p.m., was later reduced to a writing beginning at approximately 9:15 p.m. Questioning continued intermittently through the evening, and Vance eventually drew, or was assisted in drawing, a floor plan of the Wingrove home.

During this period, Vance purchased several soft drinks and some candy, and also was brought coffee and sandwiches by the officers. The state trooper, who later joined the questioning, testified that Vance did not appear to be sleepy or tired during the questioning. Finally, Vance made a second statement on the events which transpired at the Win-grove home. In this statement, which was reduced to writing between 1:50 and 2:30 a.m., Vance stated that he, and not his companion, had actually shot Dr. Wingrove and the housekeeper.

The state trooper and the Oak Hill police chief both testified that the various confessions were offered voluntarily, without any force or threat of force, and without any offer of reward or leniency, or any other inducement. The next day, Vance was taken to the state police station, where, at his request, he was given a polygraph examination. As part of this examination, Vance made a statement in which he again admitted the murders. Vance also made statements which amounted to confessions to a newspaper reporter and to an inmate at the jail, but these are not at issue.

At the ensuing trial, both written confessions and the oral confession were introduced into evidence. Prior to the introduction of each, the judge excused the jury and heard extensive testimony as to the voluntariness and circumstances surrounding the confessions. The judge decided that sufficient groundwork had been laid for the statements and that the issue of voluntariness was a question for the jury.

The jury was instructed to consider “all the circumstances under which the alleged confessions and admissions were made and determine their exact nature, import and meaning.” The jury returned a verdict of first degree murder, and the petitioner was sentenced to life imprisonment. The record does not disclose whether the conviction was appealed to the West Virginia Supreme Court. In 1970, a federal district court denied a habeas corpus petition by Vance which was based on a claim that Vance had been wrongfully denied protection of West Virginia statutes dealing with youthful offenders.

In 1979, Vance petitioned the West Virginia Supreme Court for habeas corpus relief, which was denied, with two justices dissenting. The present action was brought in February 1980, and the district court denied the petition. Vance v. Bordenkircher, 505 F.Supp. 135 (1981). After evaluating the record, the district court concluded that it was not prepared to say that the findings of voluntariness were erroneous. II The trial of Vance took place in September 1962 and thus neither Escobedo v.

Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), nor Miranda v, Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), are applicable in determining whether Vance’s confession was obtained illegally. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). So the only question to be resolved is whether or not the confessions were voluntary. In resolving the question of whether a confession was the result of undue influence, we must independently determine the ultimate issue of voluntariness. Thomas v. North Carolina, 447 F.2d 1320, 1322 (4th Cir.1971).

Furthermore, it is important to recognize that confessions by juveniles require special scrutiny by the courts. Gallegos v. Colorado, 370 U.S. 49, 52-53, 82 S.Ct. 1209, 1211-1212, 8 L.Ed.2d 325 (1962); Haley v. Ohio, 332 U.S. 596, 599, 68 S.Ct. 302, 303, 92 L.Ed. 224 (1948). Finally, the evaluation as to whether the confession was voluntary must be made on the basis of the totality of the circumstances surrounding the confession. Gallegos, 370 U.S. at 55, 82 S.Ct. at 1213; United States v. Miller, 453 F.2d 634, 635 (4th Cir.), cert. denied, 406 U.S. 923, 92 S.Ct. 1790, 32 L.Ed.2d 123 (1972).

The appellant has placed great emphasis on his mental capacity and physical age at the time of the confessions in order to demonstrate involuntariness. At the time, Vance was 15 years old. A psychiatrist testified that he had a full scale IQ of 62, with moderate mental deficiency, and a mental age of nine. Vance has also emphasized the length and conditions of the interrogation preceding the confession.

While he has cited numerous cases where confessions by youthful or mentally retarded individuals have been held to be involuntary, none of these cases hold, as a matter of law, that the confessions are involuntary. In Miller v. Maryland, 577 F.2d 1158 (4th Cir.1978), this court upheld the finding of voluntariness in the confession of a 16 year old to charge of murder. We noted, “But ‘[y]outh by itself is not a ground for holding a confession inadmissible.’ Williams v. Peyton, 404 F.2d 528, 530 (4th Cir.1968).” 577 F.2d at 1159. Similarly, in United States v.

Miller, 453 F.2d 634 (4th Cir.1972), we upheld the validity of a 14 year old’s conviction for juvenile delinquency relative to the possession of stolen mail and the forging and uttering of stolen Treasury checks. We said: We are not prepared to hold that a boy of fourteen is never capable of making an intelligent waiver of his rights. Although the age of the individual is a factor to be taken into account in ascertaining if the waiver was voluntary, no court has held that age alone is determinative. Id. at 636. On the issue of mentally deficient individuals confessing to crimes, in United States v.

Young, 529 F.2d 193 (4th Cir.1975), we considered the voluntariness of, and held admissible, a confession to a charge of possession of stolen mail. We said: While defendant Young had a below-average I.Q., limited education and reading problems, these factors are not in themselves determinative of the voluntariness of a waiver, for one must examine the totality of the circumstances surrounding the waiver. Id. at 195 (footnotes omitted). Looking at the totality of the circumstances in the instant case, we do not believe that it may be said that Vance’s confession was involuntary.

As noted above, his youth and intelligence level does not make the confession involuntary as a matter of law. Vance was advised of his rights not to answer any questions posed to him, yet he proceeded to answer questions on the breakings and enterings. Unlike Moore v. Ballone, 658 F.2d 218 (4th Cir. 1981), and Thomas v. North Carolina, 447 F.2d 1320 (4th Cir.1971), there was no effort made to restrict Vance’s access to outside adults during the questioning. Rather, his mother was made aware of the arrest and she voluntarily chose not to accompany him to jail.

Another important difference between this case and some finding confessions involuntary is that Vance’s initial confession did not come at the end of an extended interrogation. E.g., Gallegos v. Colorado, 370 U.S. 49, 54, 82 S.Ct. 1209, 1212, 8 L.Ed.2d 325 (1962) (five day detention); Thomas, 447 F.2d at 1321 (14 hours of interrogation in a 17 hour period).

While the second confession did not occur until several hours after the initial questioning, Vance’s initial indication that he might know something about the murders came in response to a routine question during questioning about totally unrelated crimes and his acknowledgment came after a relatively short period of questioning. Furthermore, there is no indication in the record that Vance was denied food, that he was tired, or that he requested that questioning end. See, e.g., Moore, 658 F.2d at 221-22.

We think Vance’s handling at the hands of the police altogether seems to have been quite proper, with no pressure, rough language, tricks, threats, inducements, or the like, used at all. Indeed, the chief of police told him: “Boy, if you didn’t do that and don’t know anything about it, don’t you tell us that you did do it. Don’t play any games.

It is a serious thing.” The principal fact which tends to show that the confessions may have been involuntary is Vance’s mental capacity, but we think that, while the issue is not entirely free from doubt, the record does not support the conclusion that Vance did not realize what he was doing or that he confessed against his will. We have also considered especially Vance’s age and the period of questioning.

But the intermittent rather than sustained questioning, and youthful age, we think, together with all the other facts in the case will not support a finding of involuntariness absent overreaching of some kind on the part of the police which simply has not been shown. We are thus of opinion and find that Vance’s confessions were voluntarily given. The judgment of the district court is accordingly AFFIRMED. . The appellant argues that this court’s decision in Moore v. Ballone, 658 F.2d 218 (1981), establishes a per se standard in this circuit against the admission of confessions by mentally deficient individuals.

The present case, however, is clearly distinguishable from Moore. The basis for the appellant’s argument is the statement in Moore that, “The evidence in the record of Moore’s mental condition, standing alone, should have sufficed for the state court to determine that he could not have knowingly and intelligently waived his rights.” 658 F.2d at 229. At issue in Moore, unlike the present case, was whether the state had met the “heavy burden” of proving that the petitioner had knowingly waived his Miranda right to counsel. Id. at 228. See Miranda, 384 U.S. at 475, 86 S.Ct. at 1628.

Here, the inquiry is only whether the confession was voluntary, because, as noted above, Vance was not protected by the Miranda requirements. Furthermore, the Moore petitioner, unlike the petitioner here, asked unsuccessfully for the interrogation to end. . There is no evidence in the record contradicting the prosecution’s witnesses as to what transpired during the questioning. Vance did not testify. . We note in passing that Vance was quite well represented at the criminal trial. His attorneys were alert and well prepared.