Walker v. Commonwealth

• Decision Date: 05 April 2022
• Docket Number: Record No. 1211-20-4
• Citation: 74 Va.App. 475,870 S.E.2d 328
• Parties: Jacques Lamar WALKER v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

74 Va.App. 475

870 S.E.2d 328

Jacques Lamar WALKER

v.COMMONWEALTH of Virginia

Record No. 1211-20-4

Court of Appeals of Virginia.

APRIL 5, 2022

Catherine French Zagurskie, Chief Appellate Counsel (Virginia Indigent Defense Commission, on briefs), for appellant.

Katherine Quinlan Adelfio, Assistant Attorney General (Mark R. Herring,¹ Attorney General, on brief), for appellee.

Present: Judges Russell, Lorish and Senior Judge Annunziata

OPINION BY JUDGE WESLEY G. RUSSELL, JR.

Jacques Lamar Walker was convicted in a jury trial of abduction for pecuniary benefit, four counts of robbery, and four counts of use of a firearm in the commission of those robberies, three of which constituted second or subsequent offenses. On appeal, he contends the evidence was insufficient to allow the jury to consider whether he committed the offense of abduction and that the trial court erred in its sentencing instructions by instructing the jury that three of the four convictions for use of a firearm in the commission of a felony were to be considered "second or subsequent" convictions under Code § 18.2-53.1. He also asserts the trial court erred by allowing a witness who had not identified him outside of a court proceeding to identify him in court as the robber. Finally, he contends that the trial court erred in denying his motion to suppress the evidence obtained from a search of his cell phones. For the reasons that follow, we disagree with Walker and affirm the judgment of the trial court.

BACKGROUND

"In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial." Gerald v. Commonwealth , 295 Va. 469, 472, 813 S.E.2d 722 (2018) (quoting Scott v. Commonwealth , 292 Va. 380, 381, 789 S.E.2d 608 (2016) ). On appeal, we discard any of appellant's conflicting evidence, and regard as true all credible evidence favorable to the Commonwealth and all inferences that may reasonably be drawn from that evidence. Id. at 473, 813 S.E.2d 722.

On May 23, 2016, at about 3:40 p.m., a man carrying a black handgun entered the front door of a Wells Fargo Bank. He was wearing a mask covering his nose and mouth, a gray hoodie, and a yellow vest.

Edlin Cottrell, a teller at the bank, stated that the man "barge[d] in," and upon hearing a scream she ducked behind her desk. The man was pointing a gun "at everyone" and told employees to put money in a bag he was carrying. Cottrell put about $2,000 from her drawer in the bag. A bank surveillance video that was played at trial showed the masked man enter the bank just as Cottrell had recounted. Cottrell described the man as black, "not skinny but not fat," and taller than her height of five feet, but she could not say by how much. Cottrell further characterized the man as "serious" and "demanding."

Another teller, Teona Letodiani, recalled the robber pointing his gun "everywhere" and demanded money in a "rushed" tone.

Irene Caison, the service manager for the bank, screamed upon seeing the masked, armed man. She stated that the robber went "[s]traight to the teller line." He then struck a customer, José Galvez, "to remove the customer away from [Letodiani's] station." The man pointed his gun toward the tellers, demanding, "Give me all of your money." Because she was afraid, Caison knelt behind the counter, but when the man said he was "not playing," she pulled herself out from behind the teller counter and put money in the man's bag. Caison testified that some of the bank's money was wrapped in currency straps marked with the Wells Fargo Bank stamp, the bank branch number, a date stamp, and the initials of bank employees.

Caison stated that the robber was "very close" to her, "within arm's reach," and she could have touched him. Caison testified that she "was looking at [the robber]. [She] was staring at his eyes, because that's all [she] could see." Caison positively identified Walker in court as the robber. She testified that she recognized him from "his eyes," stating, "I remember his eyes."

José Galvez was speaking to a teller at the counter when suddenly he heard a voice coming from behind him.² He turned and saw a man wearing a yellow vest come near him. The man, holding a gun in his right hand, struck Galvez across the face and neck with his right arm. In response to being hit, Galvez said he "threw myself to the ground because I saw that person with a weapon and I was fearful, I felt threatened." Because the man had a gun, Galvez "put [his] head on the ground and ... stayed there fearful" until the man left the bank. Galvez stated that he felt like he had to stay on the floor because he was "scared and there was an armed man there and [he] did not know what was going to happen."

Galvez testified that he was five feet, four inches tall and that the robber was taller than that. Galvez later discovered a black BB pistol in the mulch located in the bed of his truck, which had been parked in the bank's parking lot during the robbery.

The bank's drive-through teller, Gary Grooms, heard Caison scream. He turned to see a man carrying a black ABC bag and holding a small pistol in his right hand. Grooms testified that the man was using the gun to "direct" tellers to fill the bag with money and that the man was "forceful" and "[d]emanding." Grooms put money in the bag, then the perpetrator told Grooms to help gather more money. Grooms remembered that he "might have" put money from another teller's drawer into the bag.

A customer outside the bank, Mauricio Trigo, photographed the robber as he was leaving the bank. He observed the robber enter the passenger side of a white Acura that was parked on the street. Trigo described the driver of the Acura as a "big person."

Around "lunchtime" of the day of the robbery, Deliese Ganzert, an employee of a BB&T bank located near the Wells Fargo Bank, noticed a white Acura parking in a lot close to her. Being on alert because of incidents occurring in her bank, she wrote down the license plate number of the Acura. She observed that a "shorter and heftier" black man was driving the Acura and a "taller and thinner" black man was in the passenger seat. She watched as the men "pulled on other shirts over their shirts." She positively identified Walker in court as one of the men in the Acura.

On May 25, 2016, two days after the robbery, Maryland State Trooper John Dressel stopped the white Acura in Maryland. The Acura bore the same license plate number that Ganzert had recorded on the day of the robbery, and the vehicle was registered to Walker. Ja'Michael Lindsey, Walker's brother, was driving, and Walker was the passenger. Walker had approximately $2,600 in his pocket. In the back seat of the vehicle, Dressel located a suitcase containing "about $9,060 ... inside of a black and yellow drawstring backpack." The money had Wells Fargo bands on it and the initials of Caison and another teller. Dressel also recovered two cell phones. Dressel placed Walker in custody.³

A search of the electronic data of the cell phones showed that on May 23, 2016, one of the phones had a "web history" that showed a news article referencing "[a] man in a yellow vest robs Tackett's Mill Wells Fargo." The article had been "pulled up" "multiple times" that evening. The search also revealed that at 5:33 p.m. on May 23, 2016, a Google search was conducted for "Do sweat have DNA." Walker admitted at trial that this information was recovered from his phone, although he noted that others had access to the phone.

In an interview with Prince William County Detective Garry Mendoza, Walker told Mendoza that on May 23, 2016, he was working for Labor Ready performing a "moving job" until 3:00 p.m. Walker "waited around" for his brother to pick him up some time after 5:00 p.m. Walker also told Mendoza that he recently had purchased the white Acura.

Kathy Gray, a former assistant manager for Labor Ready, confirmed that Walker worked at Labor Ready from February 2016 through May 2016. Gray saw Walker "almost every day" and had personal interactions with him. Gray testified that Walker worked a "moving job" on May 23, 2016. A Labor Ready time sheet showed that Walker started the job at 9:00 a.m. on May 23, 2016, and a site manager "signed off for four hours," which is the minimum amount of time that Labor Ready pays associates, meaning Walker could have worked less than four hours that day.

At trial, Gray looked at photographs of the robber produced from bank surveillance video stills. According to Gray, the yellow vest worn by the robber, a Class 2 vest with reflective stripes, was "the same type" of vest issued by Labor Ready to its associates. From one of the bank surveillance camera photographs, Gray positively identified Walker as the perpetrator. She stated that she knew it was Walker even though he was wearing a mask in the photograph because Walker began working for the company in the "colder months" when "a lot of the workers come in very bundled up so you learn to recognize them when they're coming in." She also recognized Walker because she had worked with him for four months and he came into the office almost every day looking for work.

Prince William County Police Officer R.T. Griffin found a reflective vest and a gray hoodie on the side of the road not far from the bank. A pair of work gloves was inside the vest. Farther down the road, officers found a pair of wet blue jeans and a black ski mask. There was not enough DNA present on the vest or the sweatshirt to develop a DNA profile. A forensic scientist developed a DNA mixture profile from the mask and could not eliminate Walker as a major contributor to this DNA mixture profile. A forensic scientist also developed a DNA mixture profile from a sample taken from inside the interior waist of the jeans, and she could not eliminate Walker as a contributor to this DNA profile.

Walker presented alibi evidence that he was working as a mover at the time of the robbery,...