Hammer v. Com.

• Decision Date: 13 June 1966
• Citation: 207 Va. 135,148 S.E.2d 878
• Court: Virginia Supreme Court
• Parties: James C. HAMMER v. COMMONWEALTH of Virginia.

Page 878

148 S.E.2d 878

207 Va. 135

James C. HAMMER v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

June 13, 1966.

Harry J. Kostel, Herbert H. Bateman, Newport News (Jones, Blechman, Woltz & Kelly, Newport News, on brief), for plaintiff in error.

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

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

GORDON, Justice.

The Commonwealth charged Hammer with entering an apartment at 225 Revere street, in the city of Newport News, on the night of May 12, 1964 with intent to commit rape. He pleaded not guilty and waived a jury upon advice of court-appointed counsel. The trial judge found Hammer guilty and sentenced him to a term of four years, to run concurrently with another sentence.

I

Hammer asks us to reverse the conviction because his incriminating statement was admitted in evidence. He says the statement was inadmissible because he made it without assistance of counsel and under duress.

The police arrested Hammer on the night of May 12, and he made the incriminating statement on May 14. So we will begin our statement of the facts with a description of the events leading to Hammer's arrest, followed by the events through the making of the incriminating statement.

At about 8:30 p.m. on May 12, detective sergeant Calhoun of the Newport News police force heard detectives in another police car acknowledge a radio call to go to 225 Reverse street 'in reference to a complaint'. Sergeant Calhoun then proceeded north on Warwick boulevard. Shortly thereafter, he received a description of the person who had entered 225 Revere street and had 'attempted to assail a woman there in the house'. Sergeant Calhoun said the person was described as wearing a blue hooded sweatshirt, woolen or cotton gloves, dark pants and tennis shoes. He had a knife in his possession.

As sergeant Calhoun was driving north on Warwick boulevard, he saw 'a subject fitting this description' walking along the boulevard at a point 1 or 1 1/2 miles from 225 Revere street. This 'subject' was Hammer. Sergeant Calhoun drove around the block twice before he saw Hammer again, standing on the opposite side of the boulevard. Sergeant Calhoun said 'there he is', and Hammer 'broke and ran between two houses'. Sergeant Calhoun turned left at the next intersection, drove a short distance down the street, and got out of his car. He ran up a driveway 'in hopes that the subject would come that way'. He 'heard some noises in the weeds and bushes and * * * just waited and then * * * heard a creak on the fence.' Hammer jumped over the fence. Sergeant Calhoun drew his revolver and arrested him. It was then about 8:45 p.m.

Hammer was wearing a blue sweatshirt with a hood, dark pants and tennis shoes. Sergeant Calhoun found a pair of cotton or woolen gloves in the pocket of the sweatshirt. A hunting knife in a brown leather sheath was found later, lying on the ground in the immediate area of the arrest.

Hammer told sergeant Calhoun he ran because Calhoun was in an unmarked black Ford, and earlier in the night boys in a black Ford had 'used some abusive language toward him (Hammer)'.

Sergeant Calhoun drove with Hammer to 225 Reverse street, where he found lieutenant Hiser and another officer. Hammer remained in the police car until he was taken to police headquarters at 10:00 or 10:30 p.m. Lieutenant Hiser advised Hammer that he had been arrested 'in reference to a complaint we had in the Ferguson Park area (where 225 Revere street is located) where the subject had broken into the home and threatened a woman with a knife'. Hammer did not ask permission 'to get in touch with anybody'. He told lieutenant Hiser only that he wished to go home, that he 'would like to be home when his wife got there' after work.

In the effort to identify the assailant, the officers conducted two voice tests on the night of May 12, one outside the prosecutrix' apartment shortly after Hammer's arrest and the other at police headquarters later that night. Each time the officers asked the prosecutrix if she could identify the assailant's voice after listening to words spoken by Hammer and policemen, who were not visible to her. After the first test, she said 'I'm not sure. I can't tell. I'd like to hear them again.' After the second test, she did not identify Hammer's voice definitely, but at one time after he spoke she said 'it sounded like the voice'.

Later that night, Hammer was 'lined-up' beside two officers in the presence of the prosecutrix. She identified Hammer as the assailant. He was in the same attire as at the time of his arrest. The officers had removed their police jackets, and they were apparently wearing sport coats. The faces of the three men were partially obscured by handkerchiefs.

Lieutenants Shanz and H. D. Martin began questioning Hammer when they came on duty at approximately 11:30 p.m. on May 12. After about thirty minutes of questioning, lieutenant Martin decided to bring other witnesses to headquarters, that is, persons who had reported 'break-ins' in the recent past. Lieutenant Shanz testified Hammer 'was faced (on the night of May 12-13) by the witnesses that picked him out of the lineup and was told to his face that he had raped them or attempted to rape as the case may have been'. Lieutenants Shanz and Martin were engaged in questioning Hammer or in 'getting witnesses in for one thing or another' until after 3:00 a.m. on May 13.

Hammer was taken to the desk sergeant for 'booking' at about 3:20 a.m. The desk sergeant asked lieutenant Shanz what Hammer was charged with, 'and I (Shanz) told him what he was charged with'. The desk sergeant recorded four counts of rape, three counts of attempted rape and seven burglaries on his charge book, but he did not record the names of the victims. Lieutenant Shanz testified that when Hammer was 'booked' he was asked if he wished to make a phone call, but Hammer made no call. After Hammer was 'booked', he was taken upstairs to jail.

Hammer was brought downstairs from his cell sometime between 5:00 and 6:30 a.m. on May 13, when he was shown allegedly stolen articles that had been seized by officers who had searched his home. Then Hammer was taken back to his cell, where he remained until approximately 7:30 a.m. Hammer was questioned between 7:30 and 9:00 a.m. He did not admit anything, but lieutenant H. D. Martin said 'He started making statements that he vaguely remembered certain things'.

Hammer appeared before the municipal judge in open court at 9:00 a.m. on May 13. The judge advised Hammer that he was accused of four rapes, three attempted rapes and seven burglaries, that the charges were serious, and that he was entitled to a continuance so that he might make whatever arrangements he felt necessary for trial. Hammer asked no question, and he made no request and no complaint. The hearing was continued until May 22 on motion of the Commonwealth. ¹

After the appearance before the municipal judge on May 13, lieutenants Shanz and H. D. Martin questioned Hammer at police headquarters for thirty or thirty-five minutes. From approximately 10:00 a.m. to 2:30 p.m., lieutenant Shanz and another officer drove with Hammer to various places in the city of Newport News where offenses had occurred. During this interval, Hammer's father and brother came to the police station and asked to see him. They testified that lieutenant F. L. Martin told them 'it was impossible to see him now.' ²

Beginning at 2:30 p.m., lieutenant Shanz 'took statements from him (Hammer) in various cases' but he said Hammer made no admission of guilt. These statements were not introduced in evidence. Hammer was taken back to jail at 4:00 p.m.

Lieutenant Mapes brought Hammer from jail to chief Peach's office at about 9:00 p.m. on May 13. Chief Peach alone talked to Hammer for about twenty minutes. Then lieutenant Mapes returned, and chief Peach left after telling Hammer 'you can tell him (Mapes) the truth about these matters'. Lieutenant Mapes told Hammer 'anything that he stated to me could be used for or against him in Court'. He questioned Hammer until 2:15 a.m. on May 14. At 12:30 a.m. he asked Hammer 'if he felt all right to continue' and Hammer 'stated yes'. Lieutenant Mapes said that he terminated the interview at 2:15 a.m. on May 14 'because he (Hammer) appeared tired to me even though he stated it was all right to continue'.

Lieutenant Mapes questioned Hammer about many different complaints during the night of May 13--14, using the police files of unsolved crimes. Lieutenant Mapes testified:

'* * * I would have the complaint * * * before me. I would question him with relation to it and I would give him the complaints, the date and time it happened, where it happened and I would asked him, 'now, what is your version of this complaint? Did you or did you not do this' and he would relate to me what he did do.

'COURT: He would just relate off to you what he did?

'A. Yes, and in the beginning of the interview he said he was going to tell the truth. He had not told the truth earlier that day but he was ready to tell the truth now and was going to. That's the basis under which I had to talk to Mr. Hammer.'

Hammer apparently signed or initialed incriminating statements during this interview. The record does not disclose whether any of these statements related to this case; none was admitted in evidence.

Lieutenant F. L. Martin, who was assigned to Hammer's case on May 14, began his questioning at about 9:00 a.m. Lieutenant Martin 'advised him at that time that he didn't have to make any statements unless he wanted to but any statement that he did make could be used as evidence either for or against him in Court'. Lieutenant Martin told Hammer also 'if he employed an attorney he could talk with him anytime he wanted to', but Hammer never requested an attorney--'he said he couldn't afford...