Hill v. Com.

• Decision Date: 19 August 1986
• Docket Number: No. 0024-85,0024-85
• Court: Virginia Court of Appeals
• Parties: Ronald HILL, a/k/a Ronald Edwin Hill v. COMMONWEALTH of Virginia. Record

Page 913

347 S.E.2d 913

2 Va.App. 683

Ronald HILL, a/k/a Ronald Edwin Hill v. COMMONWEALTH of Virginia.

Record No. 0024-85.

Court of Appeals of Virginia.

Aug. 19, 1986.

J. Harold Eads; Malfourd W. Trumbo (Carter, Roe, Emick and Moore, P.C., on brief), for appellant.

W. Mark Dunn, Asst. Atty. Gen. (William G. Broaddus, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and COLEMAN and MOON, JJ.

KOONTZ, Chief Judge.

Appellant, Ronald Hill, was convicted by a Botetourt County Circuit Court jury of robbery in violation of Code § 18.2-58, entry of a banking house with the intent to commit larceny while armed with a deadly weapon in violation of Code § 18.2-93, and the use or display of a firearm in the commission of robbery in violation of Code § 18.2-53.1. On appeal, he raises the following issues:

I. Whether the trial court erred in not sustaining Hill's motion to suppress the testimony of the four eyewitnesses (three savings and loan employees and Leonard Eugene Tucker) because:

A. Hill's constitutional right to counsel at a lineup was violated;

B. The eyewitnesses' identifications of Hill were tainted by improper use of photographs and lineup procedures;

C. Tucker's view of Hill at his workplace was tainted by improper procedures;

D. The alleged contradiction in the testimony of the witnesses showed that views of Hill produced tainted evidence.

II. Whether the trial court erred in not striking the Commonwealth's evidence on the charges of robbery and entry of a banking house with the intent to commit larceny while armed with a deadly weapon in that the elements of the two charges are the same and the charges should be merged.

III. Whether the evidence was sufficient as a matter of law to convict Hill on all three charges.

We find no reversible error. Accordingly, we affirm the three convictions.

The Daleville Branch of First Federal Savings and Loan in Botetourt County was robbed by an armed gunman on May 1, 1984, at approximately 5:15 p.m. Branch Manager Diane Hundley, along with tellers Donna Guill and Christine Ulrich, were in the branch at that time. The gunman, an unmasked black male wearing a jogging suit, entered the savings and loan and pointed a handgun at Guill. He ordered the two tellers to lie face down on the floor, then forced Hundley to empty the cash drawers at gun point. Hundley was then told to lie face down on the floor. The gunman removed a plastic bag from a trash can before leaving the building with over $11,000.

Leonard Eugene Tucker was mowing grass at the Sovran Bank located between First Federal Savings and Loan and Botetourt High School on May 1, 1984, at approximately 5:00 p.m. He saw a black man get out of a car parked in the high school lot. The man, who was wearing a blue jogging suit, walked toward First Federal. At first Tucker thought the man was an acquaintance; however, once the man got closer, Tucker realized his mistake. Shortly thereafter, Tucker saw the same man jog past him in the direction away from First Federal, and toward the high school parking lot.

That evening, an investigator for the Botetourt County Sheriff's Department spotted a red Chevrolet Nova with primer spots parked on a street in the city of Roanoke. It matched the description he had of the vehicle which was involved in the robbery. While the investigator was inspecting the unoccupied automobile, Hill approached and asked if he could be of assistance. After repeated inquiries, Hill identified himself and stated that the car belonged to Stacy Layne. Hill repeatedly asked the investigator why he was interested in the vehicle. He then left the scene in another automobile, occupied by others.

Stacy Layne testified for the Commonwealth at trial. At the time of the robbery Layne and Hill were dating. When she testified at trial in the instant case, Layne had been convicted for her involvement in the First Federal robbery but had not yet been sentenced. Layne gave the following account of the events surrounding the robbery. She and Hill drove by the Daleville First Federal Branch in her red Nova on the afternoon of May 1. Hill asked Layne, who had an account at the Daleville First Federal, how many employees worked in the branch and whether there was a glass partition separating the customers from the tellers. Hill instructed Layne to pull into the Botetourt High School parking lot. Once parked, Hill left the car, went into First Federal, and came out minutes later carrying a plastic yellow trash bag. Later, Layne saw that this bag contained a considerable amount of cash and Hill told her to forget what she had seen. Later that night, Hill phoned her to say that he had left her red Nova parked on a Roanoke street.

At trial, Hill testified on his own behalf. He stated that he saw Layne on May 1, but denied any involvement in the robbery. He admitted that he took Layne's car to Roanoke that evening where he saw the investigator. He then went to Greensboro, North Carolina, for a day, before taking a bus to New York City, where he left $6,000 with his sister. He stated that he accumulated this money in the "night life" by doing "favors."

Botetourt Deputy Sheriff Jerry Caldwell was involved in the investigation of the robbery. He showed photographs of black males to the three savings and loan employees and Tucker. One photograph was of Hill, which contained the notation "Edwin 112355, State Penitentiary, Richmond, Virginia."

Subsequently, Tucker was asked if he thought he could identify the man he saw on May 1. Tucker, along with Deputy Caldwell, the Sheriff, and another deputy went to Catawba Hospital--Hill's workplace. Tucker and the others were to act as if they were construction workers. They proceeded to the cafeteria, where Tucker identified Hill as the man he had seen on May 1. One other black male besides Hill was in the cafeteria. Tucker testified that he identified Hill immediately, but wanted to get a better look to make certain. He also stated that he "liked playing into the thing, too, I wanted the experience to last a little while."

Arrest warrants were issued on May 14 charging Hill with violating Code §§ 18.2-53.1 and 18.2-93 and he was arrested on that day. On May 16, at 1:16 p.m., he was taken to court where counsel was appointed for the two charges. At 5:28 p.m. that same day, an additional arrest warrant was issued charging Hill with violating Code § 18.2-58. (Counsel was not appointed on this charge until May 18.) Still later on the evening of May 16, at 6:48 p.m., Hill was placed in a lineup with five other black males ranging in height from 5'8" to 6'2". Hill's height is approximately 5'10". Hill did not waive any right to counsel he may have had at the lineup. Counsel was not present at the lineup, nor had he been informed that it was to take place. The three First Federal employees viewed the lineup, and each identified Hill as the robber. Hill did not meet with his attorney until the morning of May 17.

A preliminary hearing was held on June 8. The grand jury handed down indictments on October 1. The arraignment took place on October 29. The suppression hearing concerning the pre- trial identification procedure occurred on November 20. The trial took place on November 27.

I.

A. Right to Counsel at the Lineup

Hill contends that his sixth amendment right to counsel was violated when he was not given the opportunity to have his court-appointed lawyer present at the May 16 lineup. We need not address this issue because we find that the eyewitnesses' in-court identifications had a source independent of the lineup. Thus, even if it was error for the trial court to admit evidence of the lineup identifications, that error was harmless beyond a reasonable doubt.

The United States Supreme Court in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), established the test to be followed to determine if a denial of the right to counsel at a lineup precludes a witness who has participated in such a lineup from thereafter making a valid and admissible identification of the accused. The Court stated:

[T]he proper test to be applied in these situations is that quoted in Wong Sun v. United States, 371 U.S. 471, 488 [83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963) ], " '[W]hether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' Maguire, Evidence of Guilt 221 (1959)." See also Hoffa v. United States, 385 U.S. 293 [87 S.Ct. 408, 17 L.Ed.2d 374 (1966) ]. Application of this test in the present context requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup.

Wade, 388 U.S. at 241, 87 S.Ct. at 1939. (footnote omitted).

The Wade Court concluded that there was insufficient evidence in the record to determine whether the in-court identifications had a source independent of the illegally conducted lineup. Id. at 242, 87 S.Ct. at 1940. See also Gilbert v. California, 388 U.S. 263, 272, 87 S.Ct. 1951, 1956, 18 L.Ed.2d 1178 (1967).

In the instant case, however, we conclude that ample evidence is contained in the record to indicate that the in-court identifications of Hill made by the three savings and loan employees had an origin independent of the lineup; thus, such identifications were not tainted by the lineup even if it had been...