Opinion
Record No. 1305-92-1
March 1, 1994
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON NELSON T. OVERTON, JUDGE.
Stephen K. Smith (James, Richardson, Griffin Blanchard, on brief), for appellant.
Robert B. Condon, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Baker, Barrow and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
In this appeal from his jury convictions for breaking and entering, grand larceny, and abduction, approved by the Circuit Court of the City of Hampton (trial court), William C. Howard (appellant) contends (1) that the trial court erred when it failed to sustain his motions to suppress identification evidence given by the eyewitness to the crimes, and (2) that the evidence is insufficient to support the convictions. Finding no error, we affirm the judgments of the trial court.
As the parties are familiar with the facts produced at the suppression hearing and at trial, we recite only those essential to an understanding of this opinion. The facts are stated as viewed most favorably to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
During the daylight on April 22, 1991, Janet Edwards (Edwards) discovered a white male intruder in the house of her employer, Hampton District Court Judge William C. Andrews. The intruder forced her to sit in a living room chair. She observed him and his accomplices unlawfully remove from the house approximately $9,000 worth of the Judge's property. After the thieves left the house, Edwards reported the crime to the police and gave a detailed description of the intruder. She described him as a white male, twenty-five to thirty years old, medium height, slim build, reddish-brown complexion, blue eyes, shoulder-length dark brown hair, unshaven and having a mustache.
Approximately six weeks later, Edwards was shown a photo spread consisting of six pictures, one being a four-year-old picture of appellant. Edwards selected appellant's picture but declared that she was not absolutely certain that it was a picture of the intruder.
In August 1991, appellant was arrested; however, his preliminary hearing was not held until May 12, 1992. On that day, before appellant was brought into the courtroom, an Assistant Commonwealth Attorney showed Edwards a single picture, saying, "[t]his is the guy they're bringing in today." Edwards later described the picture as not being "very good." At the time the picture was displayed, Edwards acknowledged that she was not certain that it was a picture of the intruder; however, when appellant entered the General District courtroom, she immediately declared that he was the intruder.
At trial, Edwards testified that the single picture she had been shown did not look like the intruder but again pointed to appellant as the criminal agent. She also testified that the single picture shown to her at the courthouse before the preliminary hearing did not influence her in-person identification. The trial court condemned the procedure of displaying the single photo in the manner that it had been shown to Edwards but opined that it had not influenced Edwards' identification of appellant as the intruder she observed in April 1991.
After Edwards again identified appellant as the intruder at trial, Hampton Deputy Ronald Isom testified that at the preliminary hearing stage appellant's case had mistakenly been placed on Judge Andrews' docket. The Judge recused himself and appellant was returned to a holding cell, where he exclaimed, "of all the courts and all the judges that [I] would have to go before, [I] had to go before the judge whose house [we] went into."
Appellant asserts that when the Assistant Commonwealth Attorney displayed the single photograph to Edwards immediately prior to the preliminary hearing, it tainted any subsequent identification she might make of appellant and rendered such evidence inadmissible. As authority for his contention appellant relies on Simmons v. United States, 390 U.S. 377 (1968).Simmons recognized that such displays could result in "irreparable misidentification" but declined to reverse Simmons' conviction. The Court held that each case must be considered on its own facts and "that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Id. at 384. The Court held that Simmons had failed to meet that test. Id.
The record here shows that Edwards could not positively identify appellant from the photo line-up, although she selected his picture from the others. The single picture was not "a very good one," and she did not identify appellant as being depicted by it. Here, there is no doubt that the positive identifications of appellant made at the preliminary hearing and at trial were correct. We agree with the trial court's condemnation of the identification prior to the preliminary hearing. We further agree that the record supports its finding that the display did not influence Edwards' in-court identification of appellant. See id. at 385.
When factors are considered, such as the opportunity of Edwards to view the intruder at the time of the crime, her degree of attention to him at that time, the accuracy of the description of him given by her when she reported the crime to the police, the level of certainty she displayed when she first confronted him in the General District Court, and her selection of his picture from the photo line-up, it is clear that the single photo did not give rise to the likelihood of irreparable misidentification. See Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
Appellant further asserts that the evidence is insufficient to support the verdicts. We disagree. Appellant was positively identified as the intruder and spoke words to the deputy that disclose an admission of guilt.
For the reasons stated, the judgments of the trial court are affirmed.
Affirmed.