Williams v. Zahradnick

• Decision Date: 02 October 1980
• Docket Number: No. 79-6210,79-6210
• Parties: Frank Daniel WILLIAMS, Appellant, v. Robert F. ZAHRADNICK and the Attorney General of the State of Virginia, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 353

632 F.2d 353

Frank Daniel WILLIAMS, Appellant, v. Robert F. ZAHRADNICK and the Attorney General of the State of Virginia, Appellees.

No. 79-6210.

United States Court of Appeals Fourth Circuit.

Argued Nov. 5, 1979.

Decided Oct. 2, 1980.

Carter Glass, IV, Richmond, Va. (Mays, Valentine, Davenport & Moore, Richmond, Va., on brief), for appellant.

Alexander Conlyn, Asst. Atty. Gen., Richmond, Va. (Marshall Coleman, Atty. Gen., of Virginia, Robert H. Herring, Jr., Asst. Atty. Gen., Richmond, Va., on brief), for appellees.

Before BUTZNER, RUSSELL and MURNAGHAN, Circuit Judges.

MURNAGHAN, Circuit Judge:

I

On June 30, 1975, an armed man attempted unsuccessfully to perpetrate a robbery on Beverly D. Bell, Sr., a Safeway Store security guard in Henrico County, Virginia. The security guard was wounded in the encounter. Frank Daniel Williams, the appellant, was arrested for and convicted of attempted robbery ¹ and of malicious wounding ² by the Circuit Court of Henrico County. He received two concurrent 20-year sentences.

After an unsuccessful appeal to the Virginia Supreme Court, appellant filed, in the United States District Court for the Eastern District of Virginia, a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254. The petition was denied. Appellant contends here, as in the district court, that the state's references at the trial to his postarrest silence were used unconstitutionally to impeach his alibi defense. The state argues that, pursuant to the doctrine of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), habeas corpus review of that issue is precluded by the Virginia Supreme Court's affirmance, allegedly premised on Virginia's contemporaneous objection rule. The state further contends that, should we decide to address the constitutionality of the reference to the postarrest silence, if there was error, it was harmless.

II

The trial took place in the Circuit Court for Henrico County, Virginia in January 1976. The events surrounding the crimes were recounted at trial by the victim, Beverly D. Bell, Sr. He left the Safeway store at approximately 10:15 p. m. to make a $16,000 night deposit for his employer. As he proceeded across the well-lit parking lot towards his car, he casually noticed a man sitting in a 1962 Chevrolet, one car away from his vehicle. Just as he began to UNLOCK HIS CAR, HE HEARD A VOICE SAY, "Hold it right there." bell quickly looked up and saw a Black man pointing a shotgun at him. Instinctively, he reached for his gun but before he could shoot, the assailant fired, wounding him in the head. A brief exchange of gunfire occurred between the two men before the assailant emerged from the car, firing a handgun, and fled across the parking lot towards the Winston Street Apartments.

Bell testified that the parking lot was illuminated by parking and neon store lights which enabled him to see his assailant. He stated that he saw his assailant's full face while he was in the car and saw the assailant's body profile as he ran across the parking lot. The parties stipulated at trial that Bell's assailant was approximately 15 feet from him when he obtained the full-face view. Bell described his assailant as a Black male, approximately 5'7 to 5'8 tall, weighing 150-160 pounds with a long chin and small features.

Four weeks after the incident, Bell identified appellant as his assailant on two separate occasions: once in an 8-man photograph display and again in a 6-man lineup in which every man, except appellant, uttered the words, "Hold it right there." Although appellant was the only lineup participant who refused to say the phrase, Bell testified that he recognized him as soon as he saw him even though he did not inform Detective Spicer, the officer present and responsible for the investigation. In court, Bell again identified appellant as his assailant. He also opined that appellant's voice resembled that of his assailant. To the best of Bell's knowledge, he had never seen appellant prior to the crime.

Detective Spicer, of the Henrico County Police Department, had responded to the crime and was responsible for the criminal investigation. His testimony supported Bell's with respect to the lighting conditions present in the parking lot. When Spicer arrived at the crime scene, he examined the car in which the assailant had sat. No keys or fingerprints were found inside the vehicle nor was there any indication that the car had been "hot-wired." Spicer, after discovering that the car belonged to Frank Carson, proceeded to question him. Then he transported Carson to the hospital where Bell was being treated to see whether Bell could identify him. Bell could not.

Spicer's one-month investigation culminated with the arrest of appellant in his apartment at the Winston Street Apartments. At that time, Spicer gave appellant Miranda warnings. Spicer confirmed that Bell made the two out-of-court identifications of appellant. According to Spicer, Bell was able to identify appellant at the lineup before the participants were requested to speak.

Frank Carson, the owner of the Chevrolet, testified that appellant was an acquaintance, who had borrowed his automobile 2 or 3 times but never without permission. According to Carson, his car could be driven without keys when the ignition was not locked. Carson testified that, on June 30, 1975, he used his car last between 8:00 and 8:30 p. m., and that shortly thereafter his car mysteriously disappeared only to be found later in the Safeway parking lot. To the best of his recollection, the ignition had been locked prior to its temporary disappearance.

The next witness for the state was 18 year-old Rose Marie Green. Green, who admitted that she was currently serving a sentence for a felony, testified that two weeks before the attempted robbery she had met appellant and James Dickson in her apartment where the subject of their conversation was robbing a Safeway store after closing. According to Green, appellant suggested that a female decoy be used and stated that he would use a sawed-off shotgun to commit the crime. Although no specific Safeway was mentioned as the target of the crime, when the two men discussed that the security guard had a gun, appellant allegedly said, "Yeah, but I'm not gonn'a worry about that," to which Dickson said "No, 'cause Beverly works there." On cross-examination, Green admitted that she and Dickson had been discussing the robbery before appellant arrived.

Appellant's defense consisted of his testimony and that of his girlfriend, Ruth McAllister, with whom he lived at the Winston Apartments. McAllister testified that she had asked appellant to go to the Safeway to purchase a few items for her on the evening of June 30, 1975. Because appellant did not own a car, she let him borrow her Ford Thunderbird. She watched him drive away. Despite her inability to remember the exact time when appellant left, she said it was late and that he returned about 30 to 35 minutes later. When he returned with her car he told her that there had been a shooting after a man had attempted to rob the security guard in the Safeway parking lot. McAllister said that she and appellant shopped at the Safeway on a regular basis both before and after the shooting and that appellant had said hello to Bell previously. She testified that she had never been convicted of a felony.

Testifying in his own defense, appellant repeated a story essentially identical to McAllister's but in more detail. He stated that when he left the Safeway he witnessed, along with the other customers, the exchange of fire between Bell and the would-be robber. After the incident he was standing near Bell and the store manager when he overheard the latter reprimand Bell and inform him that he would be suspended for violating a store rule because he responded violently to a robbery attempt. Appellant said that, as a regular Safeway customer, he had seen Bell in the store on numerous occasions. While he knew Carson, he claimed that he had only borrowed his car once and that he had not used it on the night of the crimes. In contradiction of Green's testimony, he denied knowing her, much less having ever been in her apartment. He stated that he knew who Dickson was but he did not know him personally.

On cross-examination, appellant admitted that he had been convicted of grand larceny in 1970. In response to the prosecutor's questions, he explained to the court that, pursuant to counsel's advice, he refused to utter the requested phrase at the lineup. Then this exchange occurred, without objection, between the prosecutor and appellant:

Q. Did you ever tell anyone in the police department about being in the Safeway?

A. No, I didn't.

Q. Never have told 'em about that?

A. They didn't even know I was there.

Q. Never told 'em before. This is the first time you've ever told anyone about this.

A. Right. This is the first time.

Q. Never told Spicer.

A. Never told Spicer or nobody anything. Spicer asked me about it and I'd look at him and laugh, and he said, "Go on, go on and get locked up." He act like he has a grudge or something against somebody.

Q. But you didn't tell him then that you were there and you'd been there?

A. No. When he asked me, he said, "What's this about a Safeway robbery over there by where you live at?" I looked at him, and shake my head, and laugh 'cause I know good and well I wouldn't do nothing like that near where I live at.

Shortly thereafter, during the cross-examination of Williams, this colloquy among the court, prosecutor, and defense counsel occurred:

(Prosecutor): Why is it you've waited until today to tell anyone about you being at the Safeway store?

(Defense Counsel): Your Honor, I object to this line of questioning.

(Court): I think we've been over this once all ready ...

In closing argument, the prosecutor, attempting again to impeach appellant's alibi testimony, referred to his silence when...