Brickhouse v. Com.

• Decision Date: 04 March 1968
• Citation: 159 S.E.2d 611,208 Va. 533
• Court: Virginia Supreme Court
• Parties: , 40 A.L.R.3d 219 Elvin BRICKHOUSE, Jr. v. COMMONWEALTH of Virginia.

Page 611

159 S.E.2d 611

208 Va. 533, 40 A.L.R.3d 219

Elvin BRICKHOUSE, Jr. v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

March 4, 1968.

Rehearing Denied April 22, 1968.

J. Hugo Madison, Norfolk (Edward Delk, Norfolk, on the brief), for plaintiff in error.

D. Gardiner Tyler, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on the brief), for defendant in error.

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

EGGLESTON, Chief Justice.

At the September, 1966 term of the court below three separate indictments were found against Elvin Brickhouse, Jr., a Negro, charging him, respectively, with rape, robbery and abduction of Vera Lynn Shaw, a white woman. ¹ On November 22 the defendant pleaded not guilty to each of the charges, by consent a jury was waived, and he was tried by the court. After hearing the evidence the court dictated an opinion finding the defendant guilty on all three charges and entered an order to that effect. Subsequently, after consideration of a presentence report, it sentenced the defendant to death upon the charge of rape and to imprisonment in the State Penitentiary on the other charges.

Through court-appointed counsel the defendant has appealed, claiming that (1) the finding of the trial court that he was identified beyond a reasonable doubt as her assailant is contrary to the law and the evidence and not supported by the evidence; (2) the court erred in admitting the testimony of William E. Whitehouse, Jr., who was present in the courtroom and heard part of the testimony of the prosecutrix after he and the other witnesses had been excluded from the courtroom; and (3) the court erred in sentencing him to death on the charge of rape, because 'such punishment for the alleged offense is reserved in the State of Virginia for Negroes and thereby violates this defendant's constitutional rights as guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States.'

Vera Lynn Shaw, the prosecutrix, a young woman nineteen years of age, testified that on Sunday, July 24, 1966, about 5:00 A.M., she left her home on West Thirtieth Street, in the City of Norfolk, for the purpose of catching a bus at Granby and Twenty-first Streets which would take her to the place of her employment, restaurant near the Naval Operating Base. After walking eastwardly along Thirtieth Street, she turned and walked southwardly down Granby Street. As she passed Twenty-eighth and Granby Streets she heard voices and laughter which attracted her attention to a house on Twenty-eighth Street, a short distance from Granby. Looking in that direction, she saw 'three colored men on the porch.' As she continued down Granby Street she saw two of the men coming off the porch and following her. One of these she identified as the defendant Brickhouse.

When she reached Twenty-second and Granby Streets the defendant Brickhouse grabbed her from behind and pushed and knocked her down. The other man who had been following her, later identified as Bernard Ross Fogg, then came across the street and joined in the attack on her. When she was knocked down her pocketbook, containing $2.60, fell out of her hand and was picked up by Fogg. She pleaded with her attackers, saying: 'Take anything, take the money, take anything you want, just leave me alone.' Brickhouse replied: 'We aren't going to hurt you,' and commanded in foul language that she shut her mouth.

After she had been knocked to the ground and beaten in this manner, she was grabbed by the two men and dragged to the rear of a near-by warehouse. There her assailants, despite her screams, tore off her clothes and took turns in raping her, Fogg first and then Brickhouse. During the assault Brickhouse kicked her in the face. After completing their sexual attack the two men left the scene. The prosecutrix, with only a blouse to protect her nude person, ran along Twenty-second Street to the next intersection and thence to Twenty-first Street where she was seen by M. J. Deans, a passing motorist, who, at her request, took her to the Norfolk General Hospital. Deans' testimony corroborated that of the prosecutrix as to the circumstances under which he came to her assistance and their trip to the hospital.

Dr. Karl Opderbeck testified that he examined the prosecutrix at the hospital shortly before 6:00 A.M. on the day of the attack. He said that she was 'extremely upset' and stated that she had been beaten and raped about 5:00 o'clock that morning. On her face were 'black and blue marks' which showed that she had been severely beaten. He took smears from her vagina and turned them over to the police. A subsequent examination of these showed that they were positive for seminal fluid. An examination of the trousers and undershorts of the defendant Brickhouse likewise showed the presence of seminal fluid stains.

Marvin J. Hawk, who lived at 106 West Twenty-eighth Street, testified that he was one of the three persons sitting on the porch as the prosecutrix passed along Granby Street on the day of the alleged assault. He said that he had known Brickhouse for 'about a year' prior to the incident and that Brickhouse was one of the two men who left the porch and followed the girl down the street.

The defendant does not question the sufficiency of the evidence to establish the fact that the prosecutrix was cruelly assaulted and raped. His contention is that the evidence was insufficient to warrant a finding by the trial court that he was identified beyond a reasonable doubt as one of her assailants. We do not agree with that contention.

The prosecutrix clearly and positively identified the defendant as one of the two men who had attacked her. She said that during the assault she got 'a good look at the two persons' and was able to recognize them. As she stated, 'After being raped and having their faces crammed in your face, it wouldn't be hard to recognize them any place. The face would stick in your mind a long time.'

She gave the police a description of her assailants but said that while she was in the hospital she was shown a number of pictures from which she was unable to identify either of them. However, she said that when she next saw the defendant Brickhouse at the preliminary hearing in the Municipal Court she picked him out and identified him as one of her assailants and so told her companion, William E. Whitehouse, Jr., who was seated by her side at the hearing. In this she was corroborated by Whitehouse.

The defendant contends that the evidence shows that the prosecutrix and not identify him at the preliminary hearing until after the attorney for the Commonwealth had pointed him out to her as one of her assailants. On the contrary, the record shows that despite a vigorous cross-examination the prosecutrix insisted that she had identified the defendant as soon as he came into the room and so told her companion Whitehouse, and that thereafter her identification was confirmed by the attorney for the Commonwealth.

The defendant did not take the stand nor was there any proof of alibi or direct evidence in contradiction of his identification.

It is true that the burden was on the Commonwealth to prove the identity of the accused beyond a reasonable doubt. Terry v. Commonwealth, 174 Va. 507, 516, 6 S.E.2d 673, 677 (1940), and cases there cited. Clearly, we think the related evidence, which the trial court sitting as a jury has accepted, was sufficient to meet this requirement and warrant a finding that the defendant was identified beyond a reasonable doubt as one of the persons who assaulted and raped the prosecutrix. Such finding in conclusive on appeal. Shields v. Commonwealth, 147 Va. 640, 644, 136 S.E. 495, 496 (1927); Booth v. Commonwealth, 165 Va. 794, 798, 183 S.E. 257, 259 (1936).

The defendant next contends that the trial court erred in admitting in evidence the testimony of Whitehouse who was present in the courtroom and heard a part of the testimony of the prosecutrix after he and the other witnesses had been excluded from the courtroom. At the commencement of the trial, on motion of the defendant, the witnesses were ordered to be excluded and pursuant to this command Whitehouse left the courtroom. Later, while the prosecutrix was testifying, the court's attention was directed to the fact that Whitehouse was present and he was ordered to leave the courtroom.

When Whitehouse was called as a witness for the prosecution counsel for the defendant objected to his testifying, on the ground that he had heard a part of the testimony of the prosecutrix. The trial court then inquired into why Whitehouse had returned to the courtroom after having been excluded. His explanation was that he understood that someone had called his name and directed his return to the courtroom. It turned out that Whitehouse had mistaken a call for 'Whitehurst,' the attorney for the Commonwealth, as a call for him, 'Whitehouse.' Upon hearing this explanation the court held that the presence of Whitehouse in the courtroom was due to 'an honest mistake' and overruled the defendant's objection to his testifying.

Whitehouse testified that he was in the courtroom for 'approximately two minutes' and that while he heard a part of the testimony of the prosecutrix he did not hear her say that she had identified the defendant to him at the preliminary hearing.

Code § 8--211.1, as amended (Repl.Vol.1957, Cum.Supp.1966), provides: 'In the trial of every case, civil or...