Martin v. Com.
| Decision Date | 27 April 1970 |
| Citation | 173 S.E.2d 794,210 Va. 686 |
| Parties | David Neal MARTIN v. COMMONWEALTH of Virginia. |
| Court | Virginia Supreme Court |
Leo R. Andrews, Jr., Arlington, for plaintiff in error.
A. R. Woodroof, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendant in error.
Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.
David Neal Martin, the defendant, was convicted by a jury of attempted robbery, and his punishment was fixed at eighteen months in the penitentiary. The trial court approved the verdict and imposed the sentence fixed by the jury. The defendant was granted a writ of error.
The evidence shows that at approximately 2 a.m. on January 28, 1968, Robert Mason was asleep in an automobile parked on Walter Reed Drive in Arlington County. He was awakened when he 'was bodily pulled out of the car,' at which time he saw two men. One of the men struck him in the face four or five times. Mason asked 'what the problem was.' He was then struck 'several more times' by the same person and was told to turn over his wallet. Mason struggled with his assailant and then was 'hit from behind' with an object resembling 'an antenna' in the hands of the other man. The victim was knocked to the ground, and when he got up, he 'yelled for help.' The two wouldbe robbers fled the scene.
The Arlington County Police Department received a report of a 'man screaming for help on the 800 block of Walter Reed Drive.' Several police cars were dispatched, and Mason was found on Walter Reed Drive with his clothing disarranged and blood on his face.
Mason gave the police a description of his assailants, and the information was broadcast over the radio. Mason immediately was taken by one of the officers, James R. Jenkins, to a nearby location where another officer had stopped an automobile occupied by three men. The men were asked to alight from the vehicle for possible identification by Mason. After he viewed the men, Mason stated that 'they were definitely not the ones.'
Officer Jenkins then took Mason to a location 'about six blocks' from the scene of the crime. There a policeman had stopped 'two subjects * * * walking down the street' who matched the description the officer 'had gotten on the radio.' Mason remained seated in the police cruiser some 60 feet from where the defendant was standing. The defendant was directed to step into the beam of the cruiser's headlights. When he did so, Mason said to Officer Jenkins, Mason identified the defendant's companion, who turned out to be a Francis Fletcher, as 'the other one.'
The defendant and Fletcher were then charged with the attempted robbery of Mason. Fletcher was found to be wearing a coat with 'what appeared to be blood stains on it.' Upon analysis, the stains were shown to be blood of the same type as Mason's. Fletcher also was observed to have scratches and blood on his hands and he 'appeared to have been in a fight.'
At trial, Mason testified on direct examination that the defendant was the person he had identified on the night of the crime as 'the heavy set man who hit (him) in the back.' However, on cross-examination, Mason was asked if he could 'besure' that the defendant 'was the man who struck (him) on the night of the 28th.' Mason replied, 'No, I cannot.' On redirect examination, Mason was asked if he had been 'absolutely sure' when he identified the defendant on the night of the offense. Mason replied, 'I was reasonably sure, yes.'
The Commonwealth then placed Officer Jenkins on the witness stand. He testified that on the night of the crime, Mason identified the defendant as one of his assailants. Officer Jenkins pointed out the defendant in the courtroom as the same person Mason had earlier identified as the 'one who hit (him) from behind.'
The defendant first contends that the court erred in admitting evidence of Mason's identification of him. His attack here is twofold. He first argues that under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), he had 'the absolute right to the assistance of counsel' at the time Mason identified him on the street and that the failure of the police to warn him of his right to counsel rendered inadmissible the evidence concerning the on-street identification. He argues, secondly, that pursuant to Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the circumstances under which Mason identified him on the street were 'so unnecessarily suggestive' as to deprive him of due process of law and to require exclusion of all identification evidence.
At trial, before any witness identified the defendant, the Commonwealth's Attorney advised the court that the Commonwealth proposed to 'introduce identification testimony' and suggested that the matter should be considered out of the presence of the jury. The court agreed, and the jury was ordered to retire. The court heard the proposed testimony, considered the defendant's objections thereto based upon Wade, gilbert, and Stovall, and ruled that the evidence was admissible. Testimony relating to both pre-trial and in-court identification was then presented to the jury.
In Wade, the Supreme Court held that the accused was denied his Sixth Amendment right to counsel when, following arrest and indictment and the lapse of 15 days after appointment of counsel, he was placed in a lineup in a courtroom at the county courthouse without notice to his counsel. The same ruling was made in Gilbert where, following arrest and indictment and the lapse of 16 days after the appointment of counsel, the accused was placed in a lineup in an auditorium without notice to his counsel.
In Stovall, the accused was arrested the day following an assault committed during the course of a robbery. The day after his arrest, he was taken by the police to the hospital room of the victim who was in critical condition as the result of the assault. The police asked the victim if the defendant 'was the man,' and the victim identified the accused as her assailant. At trial, the victim identified the defendant in court and also was permitted to testify concerning her hospital-room identification of him.
The Supreme Court ruled in Stovall that the Wade and Gilbert decisions should have only prospective effect and since Stovall's pre-trial identification had occurred before the date of those decisions, the lack of counsel at the confrontation did not invalidate his conviction. However, the court considered as a recognized ground of attack, independent of the question of right to counsel, a contention that the hospitalroom confrontation 'was so unnecessarily suggestive and conducive to irreparable mistaken identification that (the accused) was denied due process of law.' In ruling that the identification of Stovall was not lacking in due process because 'an immediate hospital confrontation was imperative,' the court stated that a determination of alleged illegality of a single-suspect confrontation 'depends on the totality of the circumstances surrounding it.' 388 U.S. at 302, 87 S.Ct. at 1972, 18 L.Ed.2d at 1206.
In the wake of the Wade, Gilbert, and Stovall decisions, a spirited debate has waged over the breadth and scope of their applicability. This is so because the language employed by the Supreme Court in those decisions suggests that the applicability is not limited to the factual situations there presented. For example, in Wade, the court said that its prior right-to-counsel decisions required it to 'scrutinize any pretrial confrontation of the accused to determine whether presence of his counsel is necessary.' In Gilbert, the court discussed the necessity of a per se exclusionary rule as a sanction against 'lineups as presently conducted.' And in Stovall, the court observed that the 'practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.'
The Supreme Court itself has not clarified the meaning of its holdings in Wade, Gilbert, and Stovall. However, decisions of lower appellate courts, both state and federal, have almost unanimously rejected the proposition that the Wade-Gilbert-Stovall trilogy requires the presence of counsel at every witness-suspect confrontation or prohibits any single-suspect identification.
Typical of those cases so interpreting the Wade-Gilbert decisions is ...
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Perryman v. State
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...the clothes rather than the person. We disagree with Satcher. We think this case is controlled by our decision in Martin v. Commonwealth, 210 Va. 686, 173 S.E.2d 794 (1970). In that case, the victim was beaten by two men in an attempted robbery about 2:00 a.m. one morning. The two assailant......
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