Curtis v. Com.

• Decision Date: 11 September 1990
• Docket Number: No. 1597-88-2,1597-88-2
• Parties: Aaron Lamont CURTIS v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 386

396 S.E.2d 386

11 Va.App. 28

Aaron Lamont CURTIS v. COMMONWEALTH of Virginia.

Record No. 1597-88-2.

Court of Appeals of Virginia.

Sept. 11, 1990.

[11 Va.App. 29] Russell C. Williams, Lawrenceville, for appellant.

Birdie H. Jamison, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BENTON, COLEMAN and DUFF, JJ.

DUFF, Judge.

Aaron Lamont Curtis was tried September 29-30, 1988, on charges of malicious wounding and use of a firearm in the commission of a felony. The jury found Curtis guilty as charged and the judge, in accordance with the jury's verdict, sentenced him to ten years in the penitentiary on the charge of malicious wounding and two years for the use of the firearm. On appeal, Curtis contends that the court erred in permitting the victim to identify him, before the jury, as the man who shot him, knowing that the victim's identification may have been tainted by an improper out-of-court photograph identification. After consideration of the briefs, the record, and argument of counsel, we affirm the convictions.

I.

On February 27, 1988, Kevin Lee White attended a party held at the San Souci Apartments in Richmond, Virginia. As he was leaving the party he stopped and spoke to a friend, Chenella Jackson. Jackson's boyfriend approached White and pushed him into another person, Jerry Bassfield, a friend of White's. The situation escalated and a confrontation between White and several people ensued. Ultimately White was pushed into the pool.

After White climbed out of the pool he saw the defendant and another person "come from behind" the crowd and approach him. The defendant then shot White in the finger, arm and shoulder.

White was hospitalized as a result of his wounds. The following day he was visited by Detective Hutson, to whom he described his assailant as a black male, nineteen or twenty years old, five foot nine inches tall, with a slim build and short hair. Hutson showed White a side view photo of the appellant, identified the appellant by name, and asked White if this was the man who shot him. White stated that he did not know. Later that same day White contacted Hutson and told him that the person in the photo resembled the person who shot him.

A preliminary hearing was held on May 6, 1988. At that time White positively identified the appellant as his assailant as soon as he entered the courtroom.

Trial was held on September 29 and 30, 1988. At trial the appellant objected to any in-court identification by White. Out of the jury's presence defense counsel represented to the trial court that the Commonwealth had agreed that White would not testify that the appellant was the man who shot him because the suggestive out-of-court photo identification had tainted White's ability to make an in-court identification.

The judge questioned White, who testified that his identification of the appellant was based upon seeing him in person at the preliminary hearing. The judge also questioned White concerning the photo identification at the hospital. White explained that his failure to identify the appellant initially was due to the fact that he had been on medication and also that he did not want to upset his mother, who was present in the room. White stated that he became certain that the appellant was the one who shot him when he saw him at the preliminary hearing. He further stated that his identification was based on seeing the appellant in person and not the photo. Based on this information the court allowed White's in-court identification of the appellant, finding from the evidence that White was relying not on the photograph, but on his own independent recollection.

II.

Initially we consider the out-of-court identification by White. The United States Supreme Court, in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), established a two-step test to determine the admissibility of an out-of-court identification. A court must first determine whether the identification process was unduly suggestive. Biggers, 409 U.S. at 198, 93 S.Ct. at 381. In Wise v. Commonwealth, 6 Va.App. 178, 367 S.E.2d 197 (1988), this Court found the use of a single photo display to be one of the most suggestive methods of identification and impermissibly suggestive per se. Wise, 6 Va.App. at 184, 367 S.E.2d at 200-201; see also Hudson v. Blackburn, 601 F.2d 785, 788 (5th Cir.1979), cert. denied, 444 U.S. 1086, 100 S.Ct. 1046, 62 L.Ed.2d 772 (1980). We find no exception here, and hold that the single-photograph display used by Detective Hutson was unduly suggestive.

Under Biggers, we next must determine whether the out-of-court identification was nevertheless so reliable that no substantial likelihood of misidentification existed. Biggers, 409 U.S. at 198, 93 S.Ct. at 381. The factors for making this determination are:

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.

Id. at 199-200, 93 S.Ct. at 382.

Viewing these factors in light of the evidence before us, we find that White had ample opportunity to view the appellant at the time of the crime. He testified that he saw the appellant approach him and that he made eye contact with him just prior to being shot. We also find that White displayed a seemingly normal degree of attention for someone in his circumstance and provided the police with a detailed description of his assailant prior to the photograph identification. We are unable to determine the accuracy of the victim's recollection, however, because there is no description of the appellant in the record other than that provided by White. We further find that White was unable, when first shown the photograph of the appellant, to identify him as the person who shot him. Finally, we find that the length of time between the crime and the in-court identification was not so great as to raise significant concerns about memory loss.

The victim's inability to identify the appellant when first presented with his photograph is, in our opinion, critical. While mindful of the reasons offered by White for this lapse, we nevertheless feel that this lack of certainty, combined with our inability to verify the accuracy of his post-crime description of his assailant, is sufficient to make the out-of-court identification unreliable.

III.

We next turn to the admissibility of the in-court identification made by White. This Court stated in Hill v. Commonwealth, 2 Va.App. 683, 347 S.E.2d 913 (1986), that "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 In Wise v. Commonwealth, 6 Va.App. 178, 367 S.E.2d 197 (1988), we dealt with a similar argument. After ruling that out-of-court identifications made by two witnesses were inadmissible, we reviewed their in-court identifications. In both cases, we held that the identifications were not independent of the tainted out-of-court identifications. Our findings were based on the hesitant and uncertain nature of the testimony of the witnesses, as elicited by counsel for the defense on cross-examination, and the references by both witnesses to the pictures used.

                of the inadmissible out-of-court identification procedure."  Id. at 693, 347 S.E.2d at 918.   The appellant contends that nothing in the record separates the in-court identification from the out-of-court identification.  Thus, he argues, the in-court identification is not "independent" and therefore is not admissible.  We disagree
                

When White first viewed the single photograph of appellant, he was unable to make a positive identification. We have already held that this uncertainty renders his subsequent out-of-court identification inadmissible. With regard to the in- court identification, however, we find no evidence of similar uncertainty. White's unimpeached testimony was that he had eye-to-eye contact with his attacker, that he positively identified the appellant as his assailant when he saw him at the preliminary hearing, that his in-court identification was based entirely upon his observations at the time of the shooting and that the photograph of the defendant was not the source of the identification.

The United States Supreme Court, in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), stated that evidence such as that presented here:

is for the jury to weigh. We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature ... [t]he defect, if there be one, goes to weight and not to substance.

432 U.S. at 116-17, 97 S.Ct. at 2254.

We hold that the suggestive photographic display affects only the weight to be given the later in-court identification, not its admissibility. Based on the evidence presented to us, we find that White's in-court identification of the appellant had all of the necessary indicia of independence and reliability so as to permit its introduction into evidence.

For the foregoing reasons, we

Affirm.

BENTON, Judge, dissenting.

Because of the suggestive photograph identification, the Commonwealth's attorney and defense counsel reached an agreement that the victim would not identify Aaron Lamont Curtis as the person who shot him. The Commonwealth was prepared to try Curtis without the identification. However, as the victim was testifying on direct examination at trial the following discussion occurred:

A: Well, after that I fell into the pool. It was like maybe from where I am to the jury. And, I saw Adriane...