Irving v. Com.

• Decision Date: 29 September 1992
• Docket Number: No. 0440-90-2,0440-90-2
• Parties: Lawrence IRVING, a/k/a "C.C." v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 471

422 S.E.2d 471

15 Va.App. 178

Lawrence IRVING, a/k/a "C.C." v. COMMONWEALTH of Virginia.

Record No. 0440-90-2.

Court of Appeals of Virginia.

Sept. 29, 1992.

Stefan M. Calos, Hopewell (Vergara & Associates, on brief), for appellant.

Michael T. Judge, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, BAKER, BARROW, BENTON, COLEMAN, DUFF, ^* MOON, WILLIS, ELDER and BRAY, JJ.

UPON REHEARING EN BANC

JOSEPH E. BAKER, Judge.

A panel of this Court in an opinion, Irving v. Commonwealth, 13 Va.App. 414, 412 S.E.2d 712 (1991), reversed and remanded the conviction of Lawrence Irving (appellant), holding that "the use of the 'mug shot' photographs is prejudicial to an accused's right to a fair trial" (emphasis added).

A dissenting opinion was filed with the panel decision. We granted the Commonwealth's petition for a rehearing en banc.

I. THE PHOTOGRAPH

State Trooper Cox, working under the supervision of Hopewell Police Sergeant Bage, purchased cocaine from appellant. Bage was not involved in the transaction. The target drug dealer was not appellant. Bage knew appellant and placed his police record photograph (mug shot) among forty others and showed them to Cox, who selected appellant's picture as the person who sold the drugs to him. When cross-examining Cox, appellant attempted to cast doubt on Cox's ability to make the photo line-up identification. The Commonwealth offered the mug shot as evidence to corroborate Cox's testimony. Appellant's only objection to its admissibility was as follows: "I'm objecting to the relevance of it" (emphasis added). On appeal, appellant argues that the picture was inadmissible because it showed he may have been guilty of "other crimes" and because it was prejudicial. These arguments were not made to the trial court. Thus, by an evenly divided

Court, we affirm the ruling of the trial court admitting evidence concerning the photographic identification because appellant did not state in the trial court his reason for objection with the specificity required by Rule 5A:18, and the ends of justice do not require reversal. See also Branch v. Commonwealth, 225 Va. 91, 96, 300 S.E.2d 758, 760 (1983).

II. BIAS

The record supports the trial court's finding that when Cox was afforded the opportunity to purchase cocaine from appellant, Cox had targeted another drug dealer, not appellant. Bage was not involved in that transaction. Appellant attempted to show that Bage was biased toward appellant and to that end asked Bage a series of questions irrelevant to the issue. The trial court sustained objections to those questions; however, when told by appellant that he intended to show Bage had targeted appellant, the trial court permitted appellant to ask Bage what control and/or direction he gave Cox. The trial judge said that depending on Bage's answers, appellant might be permitted to pursue the matter further. When Bage denied giving any order "to pick on the defendant" and admitted inserting appellant's picture among the forty pictures reviewed by Cox, appellant made no further effort to develop his theory. We find no error in the trial court's rulings related to the alleged bias issue.

III. CLOSING ARGUMENT

Appellant further argues that the trial court erroneously permitted the prosecutor to argue that Cox had seen appellant on a number of occasions and, therefore, was able to identify appellant as the criminal agent. Appellant asserts that the record did not contain facts upon which that argument properly could be made. The record discloses that between October 25 and December 29, Cox saw appellant "on several occasions." The trial judge confirmed that he did not sustain an objection to that testimony when asked in a different form after a leading question objection previously had been sustained. The trial court did not err in refusing to sustain appellant's objection made during the Commonwealth's argument.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.

BENTON, Judge, with whom KOONTZ, Chief Judge, BARROW and ELDER, Judges, join, dissenting. COLEMAN, Judge, joins in Part I of the dissent.

I.

The trial court admitted a police record "mug shot" of Lawrence Irving in contravention of the decision in Johnson v. Commonwealth, 2 Va.App. 447, 345 S.E.2d 303 (1986). The majority's order states that the ruling is affirmed by "[a]n evenly divided Court ... because appellant did not state in the trial court his reason for objection with the specificity required by Rule 5A:18." However, the record is clear that at trial Irving's counsel specifically objected to the admissibility of the mug shot, stating "I'm objecting to the relevance of it." That objection was specific and accurate. The majority's order also states that the argument Irving's counsel made to this Court is different than the objection stated at trial. However, at pages eight through eleven of "Answering Brief of Appellant Upon Rehearing En Banc," Irving argues that a relevance objection was appropriate to oppose admission of a photograph that prejudicially proved other crimes. See Appendix.

Invoking the bar of procedural default, five judges of this Court have apparently determined that counsel's objection in the trial court that the photograph was not relevant was not the appropriate objection. However, the term "relevance" is used to encompass the concept of weighing the probative value of evidence against the risk of unfair prejudice.

There are two forms of relevancy: logical and legal. The relevancy of a fact to the issue being tried is ordinarily a question of logic, rather than one of law. Logically relevant evidence is "evidence [L]ogically relevant evidence "may yet be inadmissible if it is not legally relevant." Section 90.403 sets forth the test for legal relevance, providing that "[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence."

tending to prove or disprove a material fact." Section 90.401, Florida Statutes.

Johnson v. State, 595 So.2d 132, 134 (Fla.App.1992) (citation omitted). The case law in many jurisdictions demonstrates the continuing viability of that usage. See State v. Sladek, 835 S.W.2d 308, ---- (Mo.1992) (en banc ); Johnson v. State, 595 So.2d 132, 132 (Fla.App.1992); People v. Engelman, 434 Mich. 204, 213 n. 16, 453 N.W.2d 656, 661 n. 16 (1990); State v. Bradford, 56 Wash.App. 464, 465, 783 P.2d 1133, 1135 (1989); Byrd v. United States, 551 A.2d 96, 100 (D.C.App.1988), cert. denied, 493 U.S. 968, 110 S.Ct. 415, 107 L.Ed.2d 380 (1989); State v. Catsam, 148 Vt. 366, 534 A.2d 184, 189 (1987); Rawlings v. State, 740 P.2d 153, 161 (Okla.Crim.App.1987); Mobley v. General Motors Corp., 482 So.2d 1056, 1062 (La.App.1986); Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 145 n. 8, 491 A.2d 389, 395 n. 8 (1985); State v. Schlanger, 197 N.J.Super. 548, 485 A.2d 354, 356 (1984); Hinds v. State, 469 N.E.2d 31, 38 (Ind.App.1984); Good v. A.B. Chance Co., 39 Colo.App. 70, 565 P.2d 217, 221 (1977). See also E. Cleary, McCormick on Evidence, § 185 (3d ed. 1984).

Some federal courts also use legal relevance to describe the process by which the probative value of the evidence is weighed against the danger of unfair prejudice and determined to be admissible. See Brumley Estate v. Iowa Beef Processors, Inc., 704 F.2d 1351, 1356 (5th Cir.1983) cert. denied, 465 U.S. 1028, 104 S.Ct. 1288, 79 L.Ed.2d 690 (1984); Rozier v. Ford Motor Co., 573 F.2d 1332, 1347 (5th Cir.1978); Post v. United States, 407 F.2d 319, 323 (D.C.Cir.1968), cert. denied 393 U.S. 1092, 89 S.Ct. 863, 21 L.Ed.2d 784 (1969); United States v. Reed, 376 F.2d 226, 229 n. 3 (7th Cir.1967), cert. denied, 393 U.S. 984, 89 S.Ct. 457, 21 L.Ed.2d 445 (1968); Cotton v. United States, 361 F.2d 673, 676 (8th Cir.1966); United States v. Costello, 221 F.2d 668, 674 (2nd Cir.1955), aff'd 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956).

Specifically addressing the issue of relevance and the use of photographs, courts have held

The admissibility of demonstrative evidence such as photographs is a question of legal relevance for the trial court. Photographs are admissible when the probative value is not outweighed by the danger of unfair prejudice to the defendant.

Diaz v. State, 728 P.2d 503, 512 (Okla.Crim.App.1986) (emphasis added). See also Rawlings, 740 P.2d at 161.

In Johnson v. Commonwealth, 2 Va.App. 447, 345 S.E.2d 303 (1986), this Court adopted an analysis similar to those cases and held that reversible error occurs when "mug shot" photographs admitted into evidence do not meet the following conditions:

(1) The Government must have a demonstrable need to introduce the photographs;

(2) The photographs themselves, if shown to the jury, must not imply that the defendant has a prior criminal record; and

(3) The manner of introduction at trial must be such that it does not draw particular attention to the source or implications of the photographs.

Id. at 454, 345 S.E.2d at 307. This Court reviewed cases from several jurisdictions in the Johnson opinion and settled upon the standard announced in United States v. Harrington, 490 F.2d 487, 494 (2nd Cir.1973), as the criteria to be applied in Virginia to determine the admissibility of "mug shots." Those standards are similar to the criteria used in many of the jurisdictions cited above to determine relevance.

The Johnson opinion does not contain a clear, succinct term that should be used to describe the type of objection that this Court expects an attorney to make in order to invoke the analysis required in Johnson. The determination of the relevancy and materiality of a photograph is left to the sound discretion of the trial judge. Photographs that are calculated to arouse the sympathies or prejudices of the jury are properly excluded, particularly if they...