Fogg v. Com.

• Decision Date: 04 March 1968
• Citation: 159 S.E.2d 616,208 Va. 541
• Court: Virginia Supreme Court
• Parties: Bernard Ross FOGG v. COMMONWEALTH of Virginia.

Page 616

159 S.E.2d 616

208 Va. 541

Bernard Ross FOGG v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

March 4, 1968.

Rehearing Denied April 22, 1968.

Peter W. Rowe, Norfolk (Sterling W. Walker, Cowper & Rowe, 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.

This is a companion case to Brickhouse v. Commonwealth, Va., 159 S.E.2d 611, decided today. According to the record in the present case, Bernard Ross Fogg, a Negro, was indicted at the October, 1966 term of the court below for the rape and robbery of Vera Lynn Shaw, a white woman. ¹ At the November term he was indicted for the abduction of the prosecutrix. 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. Upon consideration of the evidence adduced the trial court announced its decision, finding the defendant guilty on all three charges and entered an order to that effect. Subsequently 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 is contrary to the law and the evidence and insufficient to sustain a conviction, because 'the identification of the defendant was not clear, positive and convincing' and 'was based upon an improper and unlawful method of identification;' (2) the court erred in sentencing the defendant to death, because 'the courts of the Commonwealth of Virginia have manifested a fixed and continuous policy of unjust, arbitrary, and discriminatory administration of the laws under which the death sentence for the crime of rape' is applied only to persons of the Negro race, in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States; and (3) the imposition of the death penalty for rape constitutes a cruel and unusual punishment, in contravention of the Constitution of Virginia and the Constitution of the United States.

The evidence on behalf of the prosecution shows that Vera Lynn Shaw, age nineteen, resided on West Thirtieth Street in the City of Norfolk. On Sunday, July 24, 1966, about 5:00 A.M., she left her home for the purpose of catching a bus at Granby and Twenty-first Streets which would take her to the place of her employment, a 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 was three 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 the men, later identified as Elvin Brickhouse, Jr., was on the same side of the street along which she was walking while the other, later identified as the defendant Fogg, was on the opposite side.

She testified that when she reached Twenty-second and Granby Streets, Brickhouse 'came up from behind and dragged me down. He put his hand over my mouth and knocked me down, and then the other one, Fogg, * * * came running across the street' and joined in the assault. She pleaded with her attackers, saying, 'Please take anything you want, money, but please leave me alone.' Brickhouse replied: 'We aren't going to hurt you,' and commanded in foul language that she shut her mouth. During the assault her pocketbook, containing $2.60, fell out of her hand and was picked up by Fogg.

After she had been knocked to the ground and beaten in this manner she was dragged by the two men to the rear of a near-by warehouse. There her assailants, despite her screams, tore off her clothes and raped her, Fogg first and then Brickhouse. After completing their sexual attack the two men ran from the scene toward the direction of her home on Thirtieth Street.

The prosecutrix, with only a blouse to cover her nude person, ran along Twenty-second Street to the next intersection and thence to Twenty-first Street. There she fell in the street and was seen by M. J. Deans, a passing motorist, who, at her request, took her to the Norfolk General Hospital.

Dr. Karl Opderbeck testified that he examined the prosecutrix shortly before 6:00 A.M. on the day of the attack. He said that she was 'extremely upset and crying' and stated that she had been beaten and raped about 5:00 o'clock that morning. An examination showed that she had been 'severely beaten around the face with contusions and swelling about both eyes, the left eye being closed.' He took smears from her vagina and turned these over to the police. A subsequent examination of the smears showed that they were positive for seminal fluid.

Marvin J. Hawk, a witness for the prosecution, testified that he lived at 106 West Twenty-eighth Street which is across the street from the 'Top Hat Snack Bar;' that he (Hawk), Brickhouse and Fogg were seated on his porch during the early morning of July 24, 1966, and had been there since the snack bar had closed, around 2:00 A.M.; that when 'it was getting morning' he and his companions left the porch; that he went to bed and Brickhouse and Fogg 'went back across' Twenty-eighth Street. On direct examination he said that while he had not known Fogg previous to that night he positively identified him as one of the two men who had been on his porch during the night and had left early the next morning.

On cross-examination this was developed:

'Q. You don't know this man, do you?

'A. I said that night was the first time I ever saw him. No, I definitely don't know him.

'Q. You are not even sure this was the man you saw, are you?

'A. I wouldn't stake my life on it, no.

'Q. So you tell His Honor you are not certain this was the man?

'A. That is the first time I saw the man that night, as I said before.

'Q. But you are not sure it was this man?

'A. I wouldn't stake my life on it, no.'

The prosecutrix testified that while she was in the hospital she gave the police a description of the two men who had attacked her and told them that they were 'colored males,' both 'neatly dressed,' and one wore a beret. She further testified that while in the hospital the police showed her several pictures of suspects and later she was shown a picture of the defendant Fogg. From these pictures she was unable to identify Fogg as one of her assailants. As she explained, 'I can't tell hardly anything from pictures, but when I see a person, I can tell if that is the person.' She said that she was present at the preliminary hearing on September 29, 1966 and when the defendant Fogg was brought into the room she immediately identified him and said to her companion, Mrs. Horn, 'That is him!'

At the trial in the Corporation Court she was confronted by the defendant and thus clearly and positively identified him as one of her assailants:

'Q. Miss Shaw, do you here today tell His Honor that this is the man?

'A. Yes.'

Doris Jackson, a sister-in-law of the defendant Fogg, and her husband, John Jackson, Jr., called as witnesses for the defendant, testified that the defendant spent the night of Saturday, July 23, 1966, in their home at 209 West Twenty-eighth Street. When they returned to their home about midnight they found the defendant asleep on a couch in the living room. Upon their insistence, about 2:00 o'clock in the morning, the defendant left the couch and went to sleep in a bedroom in which the couple's eleven-year-old son was sleeping. Mrs. Jackson said she next saw the defendant between 6:30 and 7:00 A.M. when he helped her prepare breakfast. Jackson testified that he left home about 8:00 A.M. without seeing the defendant again after the latter had retired about 2:00 A.M.

The eleven-year-old son testified that he saw the defendant sleeping on the couch in the living room and later come into the room where he, the child, was sleeping, and slept there the remainder of the night. 'A little before daybreak,' he said, the defendant prepared a bottle for the baby who had become restless. Thereafter, in the morning, he said, the defendant fed the baby and gave him a bath, and then put on his clothes and departed. On cross-examination the child admitted that he was not certain of the day or the time the defendant came into his room.

The defendant testified that he was twenty-two years old and that in July, 1966 he was in the service and stationed at the United States Naval Air Station at Patuxent, Maryland. While married, he was not then living with his wife. He said that on Saturday night, July 23, 1966, 'around 12 o'clock,' he went to bed at the home of his sister-in-law, Mrs. Jackson, and 'was sleeping off a drunk.' He corroborated the testimony of his sister-in-law and her husband that about 2:00 A.M., at their insistence, he left the couch in the living room where he had been sleeping and went to bed in the room then occupied by his nephew. He said that he stayed in the bedroom until he got up, between 6:30 and 7:00 that morning, and helped his sister-in-law prepare breakfast. During the early morning, he said, he had prepared a bottle for the baby.

The defendant admitted that he knew Bruckhouse when he had seen at the Top Hat Bar across the street from the Hawk residence. Indeed, he said, the Jackson house where he spent the night was 'just a short distance away,' that is, 'a block and a half,' from the Top Hat Bar and the Hawk residence. However, he said that he was not acquainted with Hawk, had never seen him until the day of the trial, and was not at the Hawk residence with Brickhouse and Hawk during the night and early morning on which the attack occurred....