Zeigler v. Com.

• Citation: 186 S.E.2d 38,212 Va. 632
• Parties: Stanley Tyrone ZEIGLER v. COMMONWEALTH of Virginia. Don C. HAWKINS v. COMMONWEALTH of Virginia.
• Decision Date: 17 January 1972
• Court: Supreme Court of Virginia

Page 38

186 S.E.2d 38

212 Va. 632

Stanley Tyrone ZEIGLER v. COMMONWEALTH of Virginia.

Don C. HAWKINS v. COMMONWEALTH of Virginia.

Supreme Court of Virginia.

Jan. 17, 1972.

Barry S. Comess, Richmond (Harrison Bruce, Jr., Richmond, on brief), for plaintiff in error, Stanley Tyrone Zeigler.

Katherine Hardwick Johnson, Alexandria, for plaintiff in error, Don C. Hawkins.

James E. Kulp, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

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

COCHRAN, Justice.

Stanley Tyrone Zeigler was tried by the court without a jury and found guilty, under one indictment, of armed robbery in Williamsburg on October 29, 1969, and, under another indictment, of armed robbery in James City County on October 10, 1969. He was sentenced to serve 15 years in the State penitentiary for the Williamsburg robbery and 20 years for the James City County robbery, the court suspending execution of sentence for the latter conviction and placing Zeigler on probation for life.

Don C. Hawkins was tried separately by the court without a jury and found guilty of the same armed robbery in Williamsburg of which Zeigler was convicted. He also was sentenced to confinement in the State Penitentiary for 15 years.

We granted Zeigler and Hawkins writs of error to the judgments of conviction to consider questions arising from their identification by witnesses at pre-indictment lineups conducted in the absence of counsel. The other assignments of error have insufficient merit to warrant discussion here.

The evidence shows that the Williamsburg robbery occurred shortly after 10 p.m. Jeanne Westwood, Harriet Hines and Michael Jenkins, employees of Inez Cushard, Inc., T/A Holiday Inn East, were on duty. Jenkins told Mrs. Westwood that someone at the front desk wished to register. Proceeding to the desk, Mrs. Westwood began to discuss accommodations with a young man in a large beret and dark green army-type coat, when he suddenly pulled a sawed-off shotgun from his waistband, trained it on her across the counter, and told her that this was a 'stick up'. A second man wearing a white shirt came behind her with a pistol. A third man entered the lobby carrying a bag into which he emptied the contents of the cash drawer and safe. This unarmed third man was the only robber whose face was concealed; he wore a black turtleneck sweater pulled up over his nose. Before leaving, the robbers also stole purses containing money belonging to Mrs. Westwood and Mrs. Hines.

During the robbery, which consumed about ten minutes, the robber with the shotgun remained facing Mrs. Westwood. She identified him in court as Zeigler. The robber with the pistol faced Jenkins, who identified him in court as Livingston, with whom we are not here concerned. Jenkins also testified that Zeigler resembled the man who held the gun on Mrs. Westwood.

Mrs. Westwood identified the third robber as Hawkins, testifying that when he had bent over to look in the safe his sweater had slipped down from his face so that she 'could see his features closely'. She had observed his face for three or four seconds from a distance of about two feet.

Mrs. Westwood, who painted and sketched faces for a hobby, promptly furnished to the police a description of the three robbers, including their approximate ages, heights, weights and wearing apparel.

The evidence shows that the James City County robbery took place at the Howard Johnson Restaurant about midnight. A man with a sawed-off shotgun, accompanied by two other men, one armed with a pistol and the other wearing a turtleneck sweater pulled over his face, made the manager, James Herring, and the cook, Tommy Brown, lie down on the kitchen floor. Herring was then forced to open the office safe and surrender the keys to the cash register, both of which were robbed by the intruders. The robbers also stole Herring's billfold containing $580.

At the trial, Herring testified that Zeigler appeared to be 'similar' to the robber with the shotgun. Herring could not be sure because Zeigler was dressed differently.

Linda Bailey, a waitress at the Howard Johnson Restaurant, testified that she had seen the robber with the shotgun before he fled. She identified him in court as Zeigler, testifying that while she could not be sure 'it looks like him'.

Brown, the cook, identified Zeigler in court and testified that, after the robbery, he recalled having known Zeigler when they had attended school together.

About a month after the Williamsburg robbery, the investigating officers received word that three robbery suspects were being held in Henrico County jail. Lineups, arranged by the Sheriff of Henrico County, were conducted there on November 28, 1969.

On that date Mrs. Westwood viewed two lineups of the same six men in different order. She identified Hawkins and Zeigler in each lineup but was never sure about the identification of the third robber. Jenkins was unable to make any positive identification at the lineups.

Miss Bailey independently viewed the same two lineups and identified Zeigler in each.

Prior to trial, motions were filed by Zeigler and Hawkins to suppress evidence of the lineup identification by Mrs. Westwood because the lineups were conducted without notice to and in the absence of counsel and without a waiver of the right to counsel, and to suppress in-court identification testimony by her as tainted by these same lineups. After a pre-trial hearing, at which extensive evidence was introduced, the motions to suppress were overruled and the cases proceeded to trial.

During Hawkins' trial, motions were made and overruled to strike the Commonwealth's evidence of the lineup identifications and the in-court identification testimony for the reasons previously argued at the hearing on the pre-trial motion to suppress. Zeigler's counsel did not object at trial to the introduction of evidence of the lineup identifications and he assigned error only to the failure of the court to exclude the in-court identification.

At the time of the lineups Zeigler and Hawkins had counsel representing them on the charges for which they had been arrested and were then being held in Henrico County jail. Their counsel were not notified that the lineups were to be conducted and were not present, nor were Zeigler and Hawkins advised that they were entitled to have counsel present. They contend that the lineups were therefore invalid as infringements upon their rights to counsel as delineated in 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).

In Wade, a federal prosecution, it was held that a post-indictment pre-trial lineup was a 'critical' stage of the prosecution of an accused. To conduct such a lineup without counsel present, or without an intelligent waiver of the right to have counsel present, was held to be a violation of the accused's Sixth Amendment right to counsel. But the Court also held that in-court identification testimony would be admissible at trial if the prosecution showed that it was not 'tainted' by the constitutionally invalid lineup. In Gilbert, the same rulings were, under the Fourteenth Amendment, applied to a state court prosecution. Moreover, the Court there held that all testimony of witnesses regarding the illegal lineup must be excluded from the trial.

The reaction to Wade and Gilbert has been diverse. The Congress of the United States has undertaken to overrule Wade in Federal prosecutions by a provision of Title II of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C § 3502 ¹, the constitutionality of which has not yet been tested. Some courts have strictly construed Wade and Gilbert as applicable only to post-indictment lineups. ² Others have held that they should apply to all pre-trial witness-suspect confrontations, including pre-indictment ³ and even pre-arrest ⁴, lineups. Many courts, while assuming that absence of counsel at preindictment lineups violates the Wade-Gilbert rule, nevertheless have affirmed convictions by finding that in-court identifications had independent sources. ⁵ The Supreme Court itself has not extended, modified or clarified Wade and Gilbert as to lineups since holding in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), decided the same day, that they would not be applied retroactively.

We held, in Buchanan v. Commonwealth, 210 Va. 664, 173 S.E.2d 792 (1970), that Wade-Gilbert would not be applied to a pre-indictment lineup conducted 12 hours after arrest and before appointment or employment of counsel. In Martin v. Commonwealth, 210 Va. 686, 173 S.E.2d 794 (1970), decided the same day as Buchanan, we held that no counsel was required at a confrontation for identification purposes between victim and suspect fifteen or twenty minutes after the crime.

In Williamson v. Commonwealth, 211 Va. 57, 175 S.E.2d 285 (1970), we considered the validity of a pre-indictment confrontation between the victim and a suspect who was under arrest on an unrelated charge. There, a lineup was held before counsel had been appointed. The victim tentatively identified the suspect but was not sure. Several days later, at a preliminary hearing on the unrelated charge, the victim was present and positively identified the suspect. The same day a warrant was issued. Although the record did not clearly show whether the suspect had been advised that he had a right to counsel at the lineup, we held that absence of counsel 'is not of itself a sufficient ground to exclude from evidence an in-court identification', that the lineup was properly conducted, and that Williamson was not prejudiced thereby unless it tainted the in-court identification.

No exclusionary pre-trial hearing had been requested nor was any objection made at the trial that the victim's in-court identification had been...