Opinion
Record No. 1488-91-1
August 3, 1993
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK WESTBROOK J. PARKER, JUDGE.
S. DeLacy Stith (S. DeLacy Stith Associates, P.C., on brief), for appellant.
Virginia B. Theisen, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Baker, Willis and Bray.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The judgment of the trial court is affirmed.
Wilkins first contends that the out-of-court identification procedures used by the police officers were unnecessarily suggestive, making his in-court identification unreliable. We disagree. Officer Feggans made his first drug purchase from Wilkins on the night of June 7, 1990. Feggans saw Wilkins again the next day. On June 8, Officer Washington gave Feggans a Suffolk High School yearbook. He told Feggans that the man who fit the description that he had given was named Wilkins. Thumbing through the yearbook, Officer Feggans identified the picture of Wilkins on page thirty as the man from whom he had purchased drugs.
Wilkins argues that because Feggans knew his name and the pictures in the yearbook were identified, use of the yearbook was an impermissibly suggestive method of identification. He further argues that Officer Feggans' identification of Wilkins was unreliable, because the officer passed over a picture of Wilkins on page twenty-one.
Two rules govern the introduction of out-of-court identifications. They are as follows:
Such evidence will be admitted if either (a) the identification was not unduly suggestive, or (b) the procedure was unduly suggestive, but the identification is nevertheless so reliable . . . that there is no substantial likelihood of misidentification. Second, even if evidence of the out-of-court identification cannot be admitted, an in-court identification may still be made if the origin of that identification is independent of the inadmissible out-of-court identification procedure.
Miller v. Commonwealth, 7 Va. App. 367, 373, 373 S.E.2d 721, 724 (1988) (citation omitted).
The use of the yearbook for identification was not impermissibly suggestive. Officer Feggans testified that he picked out Wilkins' picture only on the basis of Wilkins' appearance therein and that he did not look at the names listed on the side of the yearbook page. This testimony was credible and uncontradicted. The trial court was entitled to believe it. The trial court noted that the picture of Wilkins on page twenty-one was not very clear and that Wilkins was not the primary subject of that picture. The record supports this determination.
Furthermore, as a police officer, Officer Feggans was trained to observe carefully. His initial purchase from Wilkins was made under circumstances that permitted him to observe Wilkins. He understood the importance of being able to make a future identification. He saw Wilkins again before picking his picture out of the yearbook. No substantial likelihood of misidentification existed.
Finally, Officer Feggans purchased drugs from Wilkins on June 7. He saw him again on June 8. He made a second purchase on June 10. On all three occasions, he was able to observe Wilkins for purposes of future identification. These facts, coupled with the officer's professional training, provided a sufficient predicate for the in-court identification.
Wilkins next challenges the sufficiency of the evidence to support his conviction. He points to discrepancies in the police officer's testimony and to the large number of alibi witnesses who testified for the defense.
"[T]he finding of the judge, upon the credibility of the witnesses and the weight to be given their evidence, stands on the same footing as the verdict of a jury, and unless that finding is plainly wrong, or without evidence to support it, it cannot be disturbed." Yates v. Commonwealth, 4 Va. App. 140, 143, 355 S.E.2d 14, 16 (1987).
Officer Feggans' testimony, describing his two purchases of cocaine and identifying Wilkins as the man from whom he made those purchases, sufficiently supports Wilkins' conviction.
The judgment of the trial court is affirmed.
Affirmed.