Smith v. Commonwealth
| Decision Date | 19 December 2017 |
| Docket Number | Record No. 1938-15-2 |
| Court | Virginia Court of Appeals |
| Parties | WESLEY CARLTON SMITH v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges Decker, Malveaux and Senior Judge Clements
Argued at Richmond, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
Julia B. Dillon (Law Office of Julia B. Dillon, PLLC, on brief), for appellant.
Aaron J. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Wesley Carlton Smith ("appellant") was convicted of two counts of robbery, in violation of Code § 18.2-58, and one count of conspiracy to commit robbery, in violation of Code §§ 18.2-22 and -58.1 On appeal, appellant argues that the trial court erred in denying his motion to suppress an out-of-court identification of him. Appellant further argues that the evidence was insufficient to sustain one of his robbery convictions where there was no evidence of an actual taking of property from the person that accompanied the violence.
On the evening of November 23, 2013, Lorenzo Jones, III drove his BMW to Fredericksburg from Richmond. Diontae Washington accompanied him. Jones and Washington stopped at the Olde Forge apartment complex to see Washington's cousin, appellant. John Pegram was also in the apartment. They agreed to "catch a lick," a slang phrase meaning to commit a robbery.
The four men traveled to a nightclub in Jones' BMW. In the nightclub's parking lot, appellant saw Rodney Beanum and asked Jones to follow Beanum. Jones followed the vehicle Beanum was driving, a white Scion, for about ten minutes to the Mayfield neighborhood in Fredericksburg, at which point appellant told Jones to pull up beside Beanum's car.
Delante White and Travon Thomas were riding with Beanum in his car. Thomas was in the front passenger seat, and White was in the backseat. Upon leaving the nightclub, they drove to Thomas' house, where Thomas exited the car. White then got into the front passenger seat.
Once Jones' vehicle had pulled up beside the white Scion, appellant got out of the BMW and went up to Beanum's vehicle. Appellant pulled a gun from his waist as he opened Beanum's door and told him to "get on the floor." Washington and Pegram, both armed with guns, also got out of the BMW. They went over to White, opened the passenger side door, and told him to get out of the car and "get on the floor." Washington and Pegram told White to empty his pockets and took money from him. One of the men struck White in the head with a pistol and he fell to the ground. Both men started kicking him. They asked White where his cell phone was, and when White answered it was inside the car, Pegram started "ransacking" the car.
On the other side of the car, appellant was heard telling Beanum "I told you don't." White heard a gunshot and then heard Beanum yell. Washington and Pegram, still on thepassenger side of the car, "started panicking." White heard another gunshot, and subsequently got off the ground and ran up a sidewalk. White then heard at least five to eight more gunshots. White did not hear Beanum say anything after his initial yell. White eventually returned that night to Thomas' house.
Appellant, Washington, and Pegram got back into Jones' car and drove off. Jones parked the car, removed his Tennessee license plate from the vehicle, and threw it into a nearby bush.
When police arrived at the scene, they found Beanum's lifeless body lying face down next to the driver's side door of the Scion. The deceased had sustained eight gunshot wounds to his head and three in his torso. Police also noticed that the Scion had a "piece of molding" attached to the trunk with "Hello Kitty"-branded duct tape.
A few weeks later, on December 4, 2014, police discovered Jones' Tennessee license plate, White's iPhone, a roll of "Hello Kitty"-branded duct tape, a pistol, a knit cap, an iPhone charger, a firearm magazine, and a nine millimeter bullet round all located together in the Mayfield neighborhood. Appellant could not be eliminated as a contributor to the DNA profile developed from a hair recovered from the knit cap.
On the morning of November 24, 2013, hours after the robbery, White went to the Fredericksburg Police Department. White told Detective Wayne Hunnicutt that there were four individuals involved in the robbery the previous night and that he had never seen any of them before. White was only able to give a general description of the individuals involved.
White was charged with obstruction of justice. Detective Hunnicutt testified at the preliminary hearing that he charged White with obstruction of justice because his "supervisor forced [him] to do so." However, he later testified at the suppression hearing that White was charged with obstruction of justice for "several reasons," including the fact that White initiallytold Hunnicutt that he hid beside a red barn for six hours after Beanum was killed, which police questioned because of the cold temperature that night. White eventually told Hunnicutt that he was at Thomas' house.
Detective Hunnicutt interviewed White three more times, on December 2, 7, and 12. Hunnicutt showed White photo lineups on each occasion. Pursuant to department policy, each time he showed White six photographs contained in ten folders. The police department followed this policy to ensure that when a witness was opening a folder, investigators would not know which picture the witness was looking at and thus could not "subtl[y] hint" as to whom they were trying to identify.
Appellant's photo was not included in the first two lineups. On December 12, appellant's image was included in the photo lineup, and White identified appellant, indicating that he was fifty or sixty percent sure that appellant was involved in the incident.
White's obstruction of justice charge was dismissed a few weeks after his identification of appellant on December 12.
Prior to trial, appellant moved to suppress White's out-of-court identification of him. At a hearing on the motion, appellant argued that White's identification in the photo lineup was unduly suggestive because White was facing criminal charges at the time. White testified at the hearing that he did not think he had to make an identification to have his obstruction charge dismissed.2 At the conclusion of the hearing, the trial court ruled that the photo lineup was not unduly suggestive and denied the motion to suppress. The trial court specifically relied on White's testimony that he did not feel pressure from law enforcement to identify someone in order to have his obstruction charge dismissed.
Following a three-day jury trial, the jury convicted appellant of both counts of robbery and conspiracy to commit robbery.
On appeal, appellant argues that the trial court erred in denying the motion to suppress the out-of-court identification because White was pressured by law enforcement to make an identification.
On review of the denial of a motion to suppress, this Court is "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, this Court "review[s] de novo the trial court's application of legal standards to the particular facts of the case." Logan v. Commonwealth, 51 Va. App. 111, 114-15, 655 S.E.2d 30, 32 (2008).
Our Court utilizes a two-part analysis to determine the admissibility of an identification. 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 burden is on a defendant to "establish that the photographic lineup procedure was impermissibly suggestive." Winston v. Commonwealth, 268 Va. 564, 593-94, 604 S.E.2d 21, 38 (2004) (quoting United States v. Wilkerson, 84 F.3d 692, 695 (4th Cir. 1996)). Absent evidence of a process so suggestive as to "giv[e] rise to a 'very substantial likelihood of irreparable [mis]identification,'" the identification evidence is admissible, and "the weight to be attributed tothe evidence [is] for the [fact finder] to decide." Bryant v. Commonwealth, 10 Va. App. 421, 427, 393 S.E.2d 216, 220 (1990) (quoting Manson v. Brathwaite, 432 U.S. 98, 116 (1977)).
On appeal, appellant contends that White's obstruction of justice charge and multiple interviews with law enforcement amounted to pressure and undue influence which created an unduly suggestive photo lineup.3
Appellant contends that White's pending obstruction of justice charge pressured him to make an identification, rendering the photo lineup unduly suggestive. This argument is without merit. White himself testified at the suppression hearing that he did not feel coerced to identify a suspect because of the obstruction of justice charge, and the court relied on this testimony in making its determination. The conclusion that the photo lineup was not unduly suggestive is also clear from White's identification itself—White only stated that he was somewhat certain of his identification of appellant, and never definitively pointed to appellant as the perpetrator in order to relieve himself of the obstruction of justice charge.
Additionally, appellant claims that the multiple interviews created pressure on White to make an identification, thus contributing to an unduly suggestive photo lineup. White was interviewed four times by law enforcement, and at three interviews was shown photo lineups. White was only shown appellant's photo at the third photo...
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