Ware v. Com.

• Decision Date: 14 January 1974
• Citation: 201 S.E.2d 791,214 Va. 520
• Court: Virginia Supreme Court
• Parties: Stanford WARE, Jr. v. COMMONWEALTH of Virginia.

Page 791

201 S.E.2d 791

214 Va. 520

Stanford WARE, Jr. v. COMMONWEALTH of Virginia.

Supreme Court of Virginia.

Jan. 14, 1974.

Paul M. Lipkin, Norfolk (Robert H. Anderson, Jr., Goldblatt, Lipkin, Cohen, Anderson, Levy & Jenkins, Norfolk, on brief), for plaintiff in error.

Gilbert W. Haith, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

POFF, Justice.

The trial court, sitting without a jury, found Stanford Ware, Jr., guilty under two indictments, tried jointly, one charging abduction and the other rape of Mrs. Carolyn Mays, and fixed his punishment at confinement in the penitentiary for a term of 30 years on each charge, the sentences to run concurrently. By his several assignments of error, Ware challenged the sufficiency of the evidence to establish venue on the rape charge or to support either conviction.

About 1:00 a.m. on March 19, 1972 as Mrs. Mays was returning to her car with groceries purchased at the Giant Open Air Market in the Wards Corner area of Norfolk, she was accosted by a man who placed a gun against her head, threatened to kill her if she did not remain quiet, forced her to lie on the floorboard on the passenger side of her car, removed her glasses and placed a rag over her face. Although she could not see the direction of travel, Mrs. Mays felt that the man drove the car east along Little Creek Road at a normal speed, made 'a lot of turns', and after five or ten minutes, parked at a spot she could not identify. After the attack, the assailant again forced her to lie on the floorboard while he drove to a point in Norfolk near the intersection of Chesapeake Boulevard and Little Creek Road, parked the car, warned his victim not to report the crime and fled. Mrs. Mays immediately went to a nearby taxicab office, called the police and accompanied them to the hospital. She testified that her assailant was a Negro male, about 20 years old, with a thin mustache and sideburns to the bottom of his ear, that he was wearing a red checkered shirt and khaki blue trousers, and that she smelled a heavy odor of alcohol on his breath.

A week later on March 26, 1972, Norfolk police detective Robert W. Towe arrested Ware in the bedroom of his father's home where he was living with his parents, two sisters and two brothers. Towe testified that, after displaying his badge, he 'informed (Ware) he was under arrest for a felony' and before he could warn him of his rights, Ware made the spontaneous statement, 'I didn't rape that white woman.'

Mrs. Mays made a positive in-court identification of Ware.

Dr. James C. Demetrius, a medical doctor and psychiatrist at Central State Hospital where Ware had three times been a patient, diagnosed Ware's mental condition as 'schizophrenic condition of paranoid type in remission', a condition in which Ware was capable of understanding the difference between right and wrong. Dr. John F. Hacker, a state psychiatrist who had treated Ware over a period of seven years, monthly over the past three years, confirmed the diagnosis and testified that he had discouraged Ware's desire to learn how to drive. He further testified that Ware was mentally incapable of formulating and executing the methodical plan for abduction and rape described by Mrs. Mays.

Ware testified that he was not Mrs. Mays's assailant and, in explanation of the spontaneous statement he made to Towe said that several days before his arrest he had been approached in a doughnut shop by an officer who asked for his name and address and told him 'he was looking for somebody in so many words'; that he told his father about the incident and his father read him a newspaper account of the rape; and that the recollection of these events prompted the remark he made to Towe. Concerning the newspaper story,...