Rountree v. Commonwealth, Record No. 0155-06-2 (Va. App. 7/24/2007)
| Decision Date | 24 July 2007 |
| Docket Number | Record No. 0155-06-2. |
| Court | Virginia Court of Appeals |
| Parties | PIPER ANN ROUNTREE<SMALL><SUP>*</SUP></SMALL>, v. COMMONWEALTH OF VIRGINIA. |
Appeal from the Circuit Court of Henrico County, L.A. Harris, Jr., Judge.
David B. Hargett (Hargett & Watson, PLC, on brief), for appellant.
Susan M. Harris, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present:Chief Judge Felton, Judges Benton and Petty.
A jury convicted Piper Ann Rountree (appellant) of first-degree murder in violation of Code § 18.2-32 and use of a firearm during the commission of a felony in violation of Code § 18.2-53.1. On appeal, she argues the trial court erred in denying her motion to suppress several out-of-court and in-court identifications based on a single photograph display that was shown to each witness during the police investigation. Appellant contends that "[e]ach of the out-of-court identifications were not so reliable as to overcome the overly suggestive nature of the police practices in this case." She further contends that the in-court identifications made by the witnesses were inadmissible because they were not independent of the overly suggestive out-of-court identifications. For the following reasons, we affirm the judgment of the trial court.
On the morning of October 30, 2004, Fredric Mark Jablin was shot and killed in his driveway while retrieving a newspaper in the pre-dawn darkness. Investigators from the Henrico County Police Department immediately developed appellant, Jablin's former wife, as a suspect and retraced her activities from October 21 to October 30, 2004. During the course of their investigation, investigators showed one of three casual photographs of appellant to several individuals who had come in contact with a woman identifying herself as Tina Rountree.1 The photograph of appellant shown to witnesses in Houston, Texas, was a color, close-up shot, taken outdoors with good light, in which appellant's facial features were clearly displayed. Appellant was wearing a sleeveless red top, and had shoulder-length, sandy blonde hair. Investigator Colby Kelley testified that the photograph was pulled from the wall in one of the children's bedrooms at the victim's home. The photograph shown to witnesses in Williamsburg and Norfolk was also a color photograph. In that photograph, appellant, with shoulder-length, sandy blonde hair, was sitting on a curb looking at the camera, wearing a blue top. The photograph shown to witnesses in the Richmond area was a black and white copy of the photograph of appellant sitting on the curb. None of the photographs were dated, and appellant does not contest the authenticity or the accuracy of the photographs.
Seven of the individuals interviewed identified appellant as the woman each had encountered in either Texas or Virginia in the days immediately preceding the shooting and on the day of the shooting. Prior to trial, appellant moved to suppress the identification testimony of these individuals contending that the single photograph shown to each witness was overly suggestive and would taint any in-court identifications. At the suppression hearing, the Commonwealth conceded that the use of a single photograph was suggestive, but argued that the out-of-court identifications were nevertheless so reliable that no substantial likelihood of misidentification existed. It further argued that it was not necessary to determine whether the in-court identifications were independent of the pre-trial identifications unless the trial court found the out-of-court identifications to be unreliable.
The trial court overruled appellant's motion to suppress the identification testimony of each of the seven witnesses, holding that
when you look at the totality of all these [identifications], I, I see nothing in the out-of-court procedure that would lead to a substantial likelihood of a misidentification. There obviously are discrepancies that go to the weight, certainly the trier of fact will consider them, but as far as the admissibility, I see nothing that would keep them from being admitted.
The trial court further held that it saw "nothing from the out-of-court I.D.s that would lead to the inadmissibility . . . of an in-court I.D."
At trial, the Commonwealth's evidence established that appellant purchased two wigs, one blonde and one red in color, from an online merchant on October 21, 2004, nine days prior to the shooting death of Jablin. The wigs were "long" in length. The Commonwealth's evidence also placed appellant at a gun range in Houston, Texas on October 26, 2004, practicing shooting. Two days later on October 28, 2004, appellant purchased a roundtrip ticket, in the name of her sister, Tina Rountree, using Tina's identification, departing that same day from Houston's Hobby Airport to Norfolk. Appellant declared a firearm for the flights to Norfolk. Upon arriving in Norfolk, appellant rented a van, again using Tina Rountree's identification, and drove to a suburb of Richmond where she spent the next two nights in a local motel. On the morning of October 30, 2004, appellant drove from the Richmond area back to Norfolk, stopping for gas in Williamsburg. She returned the rental van in Norfolk before flying back to Houston that same day.
Appellant, testifying in her defense, described herself as five feet, three inches to five feet, four inches in height, weighing 103 pounds with dark, short hair.2 She admitted to purchasing the two wigs online, but claimed she bought them for a Halloween party. She also testified that she "rented some guns to go do target practice" at the 59 Gun Range the afternoon of October 26, 2004. Appellant told the jury that she was in Galveston, Texas on October 28-29, 2004. However, no evidence in the record corroborates or substantiates her presence there during that time period.
The jury found appellant's testimony to be incredible and returned guilty verdicts on both charges. It also fixed her sentence at life imprisonment, plus three years. The trial court sentenced appellant in accordance with the jury's sentence. This appeal followed.
On appeal of a denial of a motion to suppress, we consider the evidence adduced at both the suppression hearing and the trial, DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 542-43 (1987), and we view it in the light most favorable to the Commonwealth, the party prevailing below. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). "[W]e are bound by the trial court's findings of historical fact unless 'plainly wrong' or without evidence to support them." McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc). However, we review de novo the trial court's application of legal standards to the particular facts of the case. Ornelas v. United States, 517 U.S. 690, 699 (1996).
A. Out-of-Court Identifications
Appellant first contends that each of the seven witnesses' out-of-court identifications was unreliable as a result of the investigators' unduly suggestive photograph identification procedure, and, therefore, should not have been admitted as evidence at trial.
"At trial, the Commonwealth bears the burden of proving the identity of the accused as the perpetrator beyond a reasonable doubt." Blevins v. Commonwealth, 40 Va. App. 412, 423, 579 S.E.2d 658, 663 (2003) (citing Brickhouse v. Commonwealth, 208 Va. 533, 536, 159 S.E.2d 611, 613-14 (1968)), aff'd on other grounds, 267 Va. 291, 590 S.E.2d 365 (2004). An out-of-court identification "`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.'" Miller v. Commonwealth, 7 Va. App. 367, 373, 373 S.E.2d 721, 724 (1988) (quoting Hill v. Commonwealth, 2 Va. App. 683, 693, 347 S.E.2d 913, 918 (1986)).
The Commonwealth does not dispute that the use of a single photograph in its pre-trial identification process was suggestive. See Wise v. Commonwealth, 6 Va. App. 178, 184, 367 S.E.2d 197, 200 (1988) . The inquiry on appeal, therefore, is whether the out-of-court identification was "'nevertheless so reliable . . . that there is no substantial likelihood of misidentification.'" Miller, 7 Va. App. at 373, 373 S.E.2d at 724 (quoting Hill, 2 Va. App. at 693, 347 S.E.2d at 918). In evaluating the reliability of a suggestive identification, we look to the totality of the circumstances and consider factors including:
the opportunity of the witness to view the criminal at the time of the [confrontation], 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.
Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
The application of this standard to the out-of-court identifications of each of the seven witnesses supports the trial court's finding that the identifications were not so unreliable that there was a substantial likelihood of misidentification.
We begin our analysis by considering the unique circumstances surrounding each of the seven witnesses' out-of-court identifications. Unlike a typical photograph display, the single photograph investigators showed each of the witnesses was a casual picture of appellant, not a police mug shot that would suggest that appellant had been arrested for perpetrating a crime or that she was a suspect in the police investigation. Similarly, investigators did not inform the witnesses of...
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