Opinion
Record No. 1045-93-1
Decided: August 16, 1994
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY, Benjamin A. Williams, Jr., Judge Designate
Affirmed.
Sheldon C. Worrell, Jr., for appellant.
Robert B. Condon, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The appellant, Samuel Boykins, contends that the evidence is insufficient to support his convictions of maliciously maiming Kenneth Lee Holiday and of using a firearm in the commission of the maiming, in violation of Code Sections 18.2-51 and 18.2-53.1, respectively. We find the evidence sufficient to sustain the convictions and affirm.
Holiday was selling drugs on a street corner in Franklin, Virginia, when a vehicle occupied by four men approached him. One of the men in the front passenger seat, whom Holiday later identified as the appellant, ordered Holiday to give him drugs. When Holiday refused and ran, the person he identified as the appellant pulled a handgun and fired two shots. One shot hit Holiday in the abdomen. The men drove away, leaving Holiday lying wounded in the street.
Clarence Brooks, who was walking approximately thirty feet from where Holiday was shot, saw the vehicle pass by him. He heard a voice from the car say, "hey, mother fucker, you want some too." Moments later, he heard a shot that was fired by someone from the front seat of the automobile. Brooks could not identify the occupants of the vehicle.
Two blocks away from Brooks, William Flythe was standing on the street talking with friends. Flythe saw the vehicle that had passed Holiday and Brooks slow down. As it passed him, a person in the front passenger seat, whom Flythe later positively identified as Boykins, the appellant, pointed a handgun at Flythe, fired a shot at him, and stated, "I'm going to kill you, mother fucker."
After the first shooting, Holiday was taken to Southampton Memorial Hospital, where he underwent major surgery. While at the hospital, two days after his surgery, Holiday was shown a photographic lineup, at which time he identified a photograph of Bobby Turner as the man he thought had shot him. At the time, Holiday was taking pain medication. Approximately one month later, in a physical lineup at the police station, Holiday identified Samuel Boykins as the man who had shot him.
At trial, Holiday testified that he was positive Boykins was the man who shot him and pointed to Boykins, the defendant, as the person who had shot him. During cross-examination, however, defense counsel asked Holiday, "you're sure that the photograph you looked at [while at the] . . . hospital is the person that shot you?" Holiday answered, "right." At the time, defense counsel did not show Holiday the photograph that Holiday had identified at the hospital. It is apparent from Holiday's testimony that he thought the photograph that he had previously identified was a photograph of Samuel Boykins.
The jury, after hearing all the evidence and the testimony of Holiday, Flythe, and Brooks, found that Boykins was the person who shot Holiday and found Boykins guilty of malicious maiming and of using a firearm in the commission of maiming.
"It is well settled in Virginia that the credibility of witnesses and the weight to be given their testimony are questions exclusively for the jury." Coppola v. Commonwealth, 220 Va. 243, 252, 257 S.E.2d 797, 803 (1979). "The identity of the accused and the conflicts in the evidence [are] questions solely for the jury and their finding is conclusive" unless plainly wrong or without evidence to support it. Booth v. Commonwealth, 165 Va. 794, 798, 183 S.E. 257, 259 (1936).
The fact that a witness makes inconsistent statements concerning material facts in a case does not render his whole testimony nugatory or justify the jury in disregarding it. It is the province of the jury to pass upon such inconsistent statements and to give or withhold their assent to the truthfulness of the particular statement. Morris v. Commonwealth, 208 Va. 331, 335, 157 S.E.2d 191, 195 (1967).
Boykins does not contend that under the holding in Neil v. Biggers, 409 U.S. 188 (1972), Holiday's in-court identification of him as the person who shot Holiday should have been suppressed because a great likelihood of misidentification existed. Rather, he contends that because Holiday continued to identify at trial someone other than Boykins as the person who shot him, the Commonwealth failed, as a matter of law, to prove beyond a reasonable doubt that Boykins was the person who shot Holiday. Boykins argues that because Holiday could not differentiate at trial between which of two people shot him and because he offered no explanation for identifying different people as his assailant, the Commonwealth's evidence is insufficient to sustain the convictions.
In evaluating the likelihood of misidentification of an accused for purposes of determining whether to permit an in-court identification, the court considers "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Townes v. Commonwealth, 234 Va. 307, 331, 362 S.E.2d 650, 663 (1987) (quoting Neil v. Biggers, 409 U.S. 188, 199-200 (1972)), cert. denied, 485 U.S. 971 (1988). Although the admissibility of Holiday's in-court identification is not challenged, the Biggers factors are significant circumstances that may be considered, along with all the other evidence, in determining whether the evidence is sufficient to prove beyond a reasonable doubt that Boykins was the person who shot Holiday. In that regard, we consider not only the circumstances surrounding Holiday's opportunity to observe his assailant, but also whether a reasonable basis exists for the jury to have disregarded Holiday's reaffirmation of his identification of the photograph of Bobby Turner as depicting his assailant. In addition, we consider any other evidence, aside from Holiday's identification, that is sufficient to identify Boykins as the person who shot Holiday.
First, in light of the jury's verdict, we consider whether a reasonable basis existed for the jury to have discredited, as it is apparent that it did, or give no weight to Holiday's identification of the person in the photograph as the person who shot him. The jury was entitled to consider that Holiday made a positive in-court identification of Boykins as his assailant. They were entitled to consider the circumstances concerning Holiday's opportunity for observing his assailant. The jury was entitled to consider that Holiday was hospitalized and on medication after his surgery when he made the photographic identification. They were entitled to consider that at trial Holiday was not shown the photograph that he had previously identified. The photograph was not introduced into evidence, and the jury could not determine the extent to which the person in the photograph may have been similar in appearance to the defendant. Under these circumstances, the jury was entitled to conclude that, based upon Holiday's identification of the defendant, Boykins, as the person who shot him and his reaffirmation that the person in the photograph was the person who shot him, Holiday believed that the person in the photograph was Boykins.
While the foregoing circumstances would justify the jury in discrediting Holiday's photographic identification, nevertheless, without Holiday providing an explanation for his double identification, his in-court identification of Boykins, standing alone, would be insufficient to sustain the conviction. However, independent evidence corroborates Holiday's identification of Boykins and places Boykins at the scene of the crime and is sufficient to connect him to it. This evidence provides an additional basis upon which the jury could discredit Holiday's photographic identification. More importantly, it is evidence that independently tends to prove that Boykins was the person who shot Holiday and corroborates Holiday's in-court identification. The testimony of Clarence Brooks and William Flythe proves that moments after Holiday was shot and a very short distance away, a person in a vehicle of the same description as the one from which Holiday was shot threatened Brooks. The vehicle proceeded a few blocks from Brooks, where a person in the vehicle, whom William Flythe positively identified as Samuel Boykins, pointed a handgun at him and made threatening remarks. The testimony of William Flythe and Clarence Brooks was sufficient circumstantial evidence to prove that Boykins was the person who shot Holiday and corroborated Holiday's in-court identification of Boykins as the person who shot him.
Accordingly, we hold that the jury had before it evidence that justified it in discrediting and giving no weight to Holiday's identification of the person in the photograph as having shot him. We find the evidence sufficient to prove beyond a reasonable doubt that Boykins is the person who shot Holiday. Thus, we affirm his convictions for violating Code Sections 18.2-51 and 18.2-53.1.
Affirmed.