Currie v. Com.

• Decision Date: 15 June 1999
• Docket Number: Record No. 0477-98-4.
• Parties: Reznick Devole CURRIE v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

515 S.E.2d 335

30 Va. App. 58

Reznick Devole CURRIE v. COMMONWEALTH of Virginia.

Record No. 0477-98-4.

Court of Appeals of Virginia, Alexandria.

June 15, 1999.

Jeffrey T. Barbour (J. Amy Dillard, Deputy Public Defender; Office of the Public Defender, on brief), for appellant.

Leah A. Darron, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., LEMONS, J., and DUFF, Senior Judge. FITZPATRICK, Chief Judge.

Reznick Currie (appellant) was convicted in a jury trial of burglary, attempted rape, and assault and battery. On appeal, he contends the trial court erred in: (1) excluding five proffered categories of testimony by an eyewitness identification expert; (2) denying him access to exculpatory evidence; (3) excluding proffered pages of the complaining witness' sworn preliminary hearing transcript; and (4) denying his motion to strike the evidence because the Commonwealth failed to establish that he was the perpetrator of the alleged crimes. For the following reasons, we affirm.

I. BACKGROUND

Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, the prevailing party below, granting to it all reasonable inferences fairly deducible therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997)

. So viewed, the evidence established that on August 4, 1997, the victim was in the bathroom of her ground-floor apartment when she heard a noise in the living room. As she exited the bathroom, she saw a stranger standing in her living room with his pants down and his penis exposed. The man, whom the victim later identified as appellant, grabbed her breast and she kicked him. The man produced a knife, grabbed the front of the victim's pants and began to pull them down. The victim pushed the man, ran to her bedroom and telephoned for help.

The victim testified that her assailant was close enough to grab her and that he was face-to-face with her. When the police arrived, she described the man's physical appearance, including his having a missing upper tooth and various marks on his arms and a rash on his neck. He wore a long-sleeve shirt and gloves.¹ Based upon her description, Detective Robert Hickman produced a composite sketch of the attacker.

A few days after the offense, the victim reviewed a photographic lineup and identified a photograph of appellant as her assailant. She stated, "I knew that it was him, that one." The victim also identified shoes and pants that appeared similar to those worn by her attacker. At trial, the victim again identified appellant as being her assailant.

Appellant argued at trial that the victim was wrong in her identification and that he was not the perpetrator of the crime. The jury found appellant guilty of the offenses charged.

II. EYEWITNESS IDENTIFICATION EXPERT

In his defense, appellant called Dr. Solomon Fulero, an expert on eyewitness identification, who testified generally on the theory of memory and on the issue of cross-racial identification. Pursuant to a pretrial ruling, Dr. Fulero was not allowed to testify on the following five topics relating to eyewitness identification: (1) the correlation between eyewitness certainty and accuracy; (2) the effect of viewing time and stress on eyewitness accuracy; (3) the perpetrator's display of a weapon and its effect on eyewitness accuracy; (4) the effect that participating in preparing a composite sketch of a subject has on the accuracy of subsequent identifications; and (5) the concept of transference. Concluding that these topics were within the lay knowledge of the average juror and could be adequately argued to the jury in closing arguments, the trial court ruled as follows:

The proffered testimony of Defendant's expert regarding the theory of memory in the field of psychology (acquisition, retention and retrieval) as set forth in paragraph 2 of Defendant's memorandum, and the problems in cross-racial identifications as set forth in paragraph 5 of Defendant's memorandum, will be admitted subject to the reliability hearing, if any. These are matters the Court finds are not within the common knowledge and experience of the average juror and, hence, could be the subject of expert testimony.

* * * * * *

The remaining areas of expert testimony the Court finds are within the common experience and knowledge of the average juror and the proffered testimony will not be allowed. Further, Defendant's expert will not be allowed to testify as to the specific identification in this case as to its reliability nor as to its validity. Such testimony would usurp the function of the jury to determine the credibility of witnesses.

(Emphasis added).

On appeal, appellant contends that Dr. Fulero's proffered testimony in the five excluded categories was "vital to [the] jury's understanding of whether the identification made [was] correct." He argues that his expert should have been allowed to explain to the jury the psychological and scientific principles underlying the identification process. We disagree.

Where the admissibility of expert testimony is challenged on appeal, the standard of review is whether the trial court abused its discretion. See Archie v. Commonwealth, 14 Va.App. 684, 694, 420 S.E.2d 718, 723 (1992)

. "Expert testimony is appropriate to assist triers of fact in those areas where a person of normal intelligence and experience cannot make a competent decision." Utz v. Commonwealth, 28 Va.App. 411, 423, 505 S.E.2d 380, 386 (1998). "The expert testimony must be relevant, and the trial judge must determine whether the subject matter of the testimony is beyond a lay person's common knowledge and whether it will assist the trier of fact in understanding the evidence or in determining a fact in issue." Id.

In Rodriguez v. Commonwealth, 20 Va. App. 122, 455 S.E.2d 724 (1995), we addressed the issue of the admissibility of expert testimony on the subject of eyewitness identification. We noted as a preliminary matter that "[t]he refusal to admit expert testimony on the subject of eyewitness testimony is a matter within the [sound] discretion of the trial court." Id. at 127, 455 S.E.2d at 727.

In excluding expert commentary on eyewitness identifications, courts have consistently found that this type of testimony interferes with the jury's role as fact finder and its duty to weigh the credibility of witnesses. [T]he trustworthiness of eyewitness observations is not generally beyond the common knowledge and experience of the average juror and is, therefore, not a proper subject for expert testimony. In addition, [t]he weaknesses of identifications can be explored on cross-examination and during counsel's final arguments to the jury. Another concern is that this type of testimony frequently has the potential of turning trials into battles between experts over the value of eyewitness identifications.

Id. (citations and internal quotations omitted). However, we recognized that in some "narrow" circumstances, expert testimony may be useful to the jury, including in the following areas: "such problems as cross-racial identification, identification after a long delay, identification after observation under stress, and psychological phenomena as the feedback factor and unconscious transference." Id. (citations omitted).

Nevertheless, we held that the decision whether to allow expert testimony concerning an eyewitness identification is a decision left to the sound discretion of the trial court. See id. at 128, 455 S.E.2d at 727. "By asking an expert to render an opinion about the propriety of lineup procedures and the reliability of eyewitness identifications, a defendant in effect asks the expert to comment upon the credibility of the identifying witness, an issue clearly within the jury's province." Id.

In the instant case, the trial judge permitted Dr. Fulero to testify about the mechanical processes of memory and cross-racial identification because these subjects were not within the common knowledge and experience of the jurors. However, the trial judge specifically found that the additional five categories of testimony proffered by appellant were within the common knowledge and experience of the jurors.

We find no error in the trial court's limiting testimony concerning the correlation between eyewitness certainty and accuracy. As we noted in Rodriguez, "the uncertain relationship between eyewitness confidence and accuracy" was not the type of "narrow" circumstances requiring expert testimony. Id. at 129, 455 S.E.2d at 728. Similarly, the trial court properly excluded the proffered expert testimony about the unreliability of subsequent identifications and the effect of short viewing time, stress, and the display of a weapon. See id. (holding that "the unreliability of a subsequent identification" and "the prevalence of misidentification in situations involving stress, poor lighting, or delay" are topics "within the lay knowledge of the jurors").

Additionally, appellant's counsel addressed in argument to the jury the issues limited by the trial court, such as the reliability of the victim's identification given the short period of time of the assault, the fear and stress involved in the situation and the effect of the attacker's display of a weapon. Counsel also challenged the reliability of the victim's identification based upon the theory of transference.² Counsel stated, "Did she pick out a familiar face that she had seen in McCrory's that weekend? You heard testimony that she was in McCrory's as was [appellant]. Or was she just plain wrong?"

The jury was capable of evaluating whether the victim's identifications of appellant were reliable or whether the identifications were incorrect based on the suggested problems associated with memory. For these reasons, we hold that the trial court did not abuse its discretion in excluding the proffered expert testimony.

III. EXCULPATORY...