Wise v. Com.

• Decision Date: 05 April 1988
• Docket Number: No. 0969-86-4,0969-86-4
• Citation: 6 Va.App. 178,367 S.E.2d 197
• Parties: Adrian Eugene WISE v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 197

367 S.E.2d 197

6 Va.App. 178

Adrian Eugene WISE v. COMMONWEALTH of Virginia.

Record No. 0969-86-4.

Court of Appeals of Virginia.

April 5, 1988.

Barbara L. Kimble, Falls Church, for appellant.

Richard A. Conway, Asst. Atty. Gen., Mary Sue Terry, Atty. Gen. (Margaret Poles Spencer, Asst. Atty. Gen., on brief), for appellee.

Present: DUFF, KEENAN and MOON, JJ.

KEENAN, Judge.

Adrian E. Wise was convicted by a jury on three counts of robbery and one count of use of a firearm in the commission of a robbery. The issues presented in this appeal are: (1) whether the trial court erred in denying Wise's motion to suppress certain identification evidence; (2) whether the trial court erred in admitting evidence found in Wise's car several months after the offenses; and (3) whether the trial court erred in denying Wise a jury instruction on eyewitness identification. We reverse Wise's convictions based on our finding that the trial court erred in admitting into evidence certain identification testimony.

I.

The evidence showed that on September 27, 1985, shortly after 8:00 a.m., Pamela Wampler, Hanan Phelps, and Jeffrey Lee were robbed while working at the First American Bank in Fairfax County. Joe Woods, a bank courier, also witnessed the robbery. During their investigation, the police prepared a photographic array containing Wise's photograph. At a suppression hearing in this case, Investigator Gary Healy of the Fairfax County Police testified that on January 24, 1986, he showed a photo array consisting of six photographs, to Hanan Phelps and Joe Woods. At that time neither was able to identify Wise as the robber.

Healy further testified at the suppression hearing that on February 24, 1986, he showed the same photo array to Jeffrey Lee and Pamela Wampler. On this occasion, Healy also brought a bank surveillance photograph depicting a man who had robbed a Maryland bank. Healy testified that he first showed Lee and Wampler the Maryland bank surveillance photograph and then showed them the photo array. He stated that Lee identified the man in the Maryland photo as being the man who robbed him; Wampler stated that she was eighty percent sure that he was the man who robbed her. Lee was later unable to identify the robber in the photo array. Wampler, however, made a positive identification of Wise from the photo array. Healy testified that on February 24, 1986, he also showed the Maryland bank photograph to Phelps. He stated that she identified the man in the photograph as the man who robbed her. He further testified that she then picked Wise's picture out of the photo array.

At the suppression hearing, Wise argued that the process the police used in securing the identification evidence was unduly suggestive. He further argued that the photo array identifications made by Phelps and Wampler were tainted because Healy showed them the Maryland bank surveillance photograph first. Wise moved to suppress the witnesses' identification on this basis. He also moved to exclude the gun, fake hair, and sunglasses found in Wise's car four months after the robbery on the grounds of relevance, contending that no evidence connected these items to the robbery of the First American Bank. After examining the photo array and the Maryland bank photograph, the trial court denied the motion to suppress the identification evidence and denied the motion to exclude the gun, sunglasses and fake hair found in Wise's car.

At trial, neither the Commonwealth nor Wise presented any testimony regarding the Maryland bank photograph and the fact that several witnesses had seen it. The photo array, however, was received in evidence.

Investigator Healy testified at trial that on February 24, 1986, the second date that the photo array was shown to Phelps, she identified Wise's photograph. He further testified that before the array was shown to her on that occasion, Phelps told him that the robber was the man in the middle of the top row of the photo array she had seen earlier. The man in the middle of the top row was Wise. Healy also testified that when first shown the photo array one month earlier in January 1986, Phelps was unable to identify Wise. Healy further testified that Wampler was able to identify Wise when the photo array was first shown to her in February 1986.

Joe Woods testified that on the morning of the robbery, as he began to enter the bank, he was shoved from behind and pushed inside the bank. He testified that a man holding a gun ordered him to step back behind the teller's cage. Woods described the robber as being black, wearing white surgical gloves, a hat, dark clothing, sunglasses, and having a moustache that appeared to be false. In court, Woods identified Wise as the man who committed the robbery. However, on cross-examination, he conceded that another black male with a similar build and facial structure might have been the robber.

Wampler testified that about 8:20 a.m. on the morning of the robbery, she unlocked the bank door to allow Joe Woods to come inside. She stated that as Woods came in, another man pushed his way into the bank. Wampler testified that this man produced a gun and ordered her and the other tellers, Phelps and Lee, to fill a bag with money. Wampler described the robber as being about five-feet-ten inches tall, of medium build, and weighing one hundred fifty to one hundred sixty pounds. She testified that the robber was wearing a maroon jacket, a ski cap, dark pants, dark sunglasses, and a fake goatee. At trial, Wampler identified Wise as the man who robbed her.

Lee testified that the robber was a black male, approximately five-feet-ten to five-feet-eleven inches tall, of medium build, and weighing about one hundred thirty-five to one hundred forty pounds. He stated that the robber was wearing a green ski cap, sunglasses, a maroon windbreaker, surgical gloves, brown pants and a fake mustache and goatee. Phelps testified that the robber was a black male, five-feet-ten to five-feet-eleven inches tall, weighing about one hundred seventy-five pounds. She further testified that the robber wore dark glasses, a dark ski cap, a blue or maroon windbreaker, surgical gloves, and a fake mustache and goatee. At trial, both Lee and Phelps identified Wise as the individual who robbed them.

Margaret Cornell testified that her residence is approximately two and one-half blocks from the First American Bank. She stated that at about 8:00 a.m. on the morning of the robbery, while she was in her kitchen preparing coffee, she observed a young black man walking by her house. She described the man as being tall and slender, wearing a maroon windbreaker, rust colored pants, and carrying what appeared to be a rolled-up laundry bag. She testified that a few minutes later, she saw the same man return and get into a white car parked in the Saint Louis Catholic Church parking lot. Cornell identified Wise as the man she saw that day.

After the robbery, the police used a tracking dog to determine the route of the man observed by Cornell. The dog led the police from Cornell's house to the First American Bank and then to the Saint Louis Catholic Church parking lot. Officer John Brocco, the policeman who handled the dog, testified that while in the parking lot, he noticed a black furry substance on the ground. Officer Andrew Johnson later identified that black furry substance as being a fake mustache and goatee.

Investigator Hendren testified that in January, 1986, Wise was arrested on an unrelated charge. Hendren stated that subsequent to that arrest, he conducted a search of Wise's car in which he found a gun, sunglasses, and a strand of fake black hair. Wise objected to the admission of the gun, sunglasses, and fake hair obtained from his vehicle. He argued that the Commonwealth was attempting to introduce testimony concerning another arrest and improperly introduce into evidence items discovered at the time of that arrest. Wise argued that the Commonwealth never linked the items found in his car to the robbery of the First American Bank. The trial court overruled Wise's objection.

Wise did not testify. He called Aleasha Mae Wilson as his sole witness. Wilson testified that Wise came to her house shortly after 8:00 p.m. on September 26, 1985. She further testified that he became inebriated and fell asleep. Wilson stated that Wise remained in her house throughout the night and did not leave until approximately 9:15 a.m. on September 27, 1985.

After the close of all the evidence, Wise submitted to the trial court jury instruction R which addressed the issue of the reliability of eyewitness identification testimony. Wise argued that in view of the identification testimony introduced into evidence, the jury needed to be cautioned regarding that evidence. The trial court denied the instruction, stating that it would be commenting on the evidence if it gave this instruction.

The jury returned a verdict of guilty on the three counts of robbery and the one count of use of a firearm in the commission of a robbery. Wise was sentenced to a total of twenty years incarceration for the robbery charges and two years incarceration on the firearm charge.

II.

Wise first argues that the trial court erred in refusing to suppress the identification evidence given by Phelps and Wampler. He contends that Investigator Healy should not have shown them the single Maryland bank photograph. Wise argues that this was a suggestive presentation which denied him due process of law because it tainted the subsequent photo array and in-court identifications by these two witnesses.

The Commonwealth contends that Wise's claim is procedurally barred because the Maryland bank photograph, the subject of the allegedly suggestive identification procedure, was not admitted into evidence and was not made part of the record for this appeal. The Commonwealth also argues that even if this court is able to review the merits of Wise's claim, presentation of...