Abdul-Malik Ramadan Salaam v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: August 22, 2000
• Docket: 1694992
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Humphreys and Senior Judge Overton Argued at Chesapeake, Virginia

ABDUL-MALIK RAMADAN SALAAM MEMORANDUM OPINION * BY v. Record No. 1694-99-2 JUDGE SAM W. COLEMAN III AUGUST 22, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Thomas N. Nance, Judge

Patricia P. Nagel, Assistant Public Defender (David Johnson, Public Defender, on brief), for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Abdul-Malik Salaam was convicted in a bench trial of

attempted murder of a police officer, in violation of Code

§ 18.2-31(6), and grand larceny, in violation of Code § 18.2-95.

On appeal, Salaam argues that the evidence is insufficient to

support his convictions. We disagree and affirm the convictions.

BACKGROUND

On January 26, 1999, Robert Ramsey was at a gas station in

Richmond. At approximately 10:30 p.m., as Ramsey was about to

enter his green Honda Civic, two men approached him. Holding

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Ramsey at knifepoint, the two men demanded the keys to the

vehicle. Ramsey surrendered the keys, and the men took the

vehicle. Ramsey described the men simply as "two young

African-American gentlemen." Ramsey was unable to describe the

perpetrators' clothing or remember whether they had facial hair.

Ramsey admitted that he had consumed one alcoholic drink before

the incident.

Ramsey's vehicle was recovered ten days later. At that time,

Ramsey was asked to determine whether he could identify the men

who stole the vehicle from a photographic line-up. Although a

photo of Salaam was included in the photo spread, Ramsey was

unable to identify anyone from the photographic line-up as one of

the thieves. However, when Ramsey encountered Salaam in person at

the preliminary hearing, he identified Salaam as one of the two

men who stole his vehicle. Ramsey stated that although it was

dark, the gas station was well lit. He estimated that the

incident took less than one minute.

On February 5, 1999, Richmond Police Officers Arthur Rucker

and Gerald Brissette were in uniform and on bicycle patrol when

they observed two men, Muhammad Fox and Jihae Fox, run out of a

store and across the street, pushing people out of the way as they

ran down the sidewalk. The officers followed the men, and Rucker

apprehended Jihae Fox. Brissette followed Muhammad Fox into an

alley, ordering him to stop. There was only one entrance and exit

- 2 - in the alley. When Brissette and Muhammad Fox reached the end of

the alley, Brissette drew his weapon. Muhammad Fox got into the

passenger side of a green Honda Civic, Ramsey's stolen vehicle,

which was backed into the rear of the alley, approximately ten

feet away from Brissette. Brissette testified that, after

Muhammad Fox entered the vehicle, the vehicle's engine revved and

the vehicle proceeded toward him. Brissette, who stood between

the vehicle and the exit of the alley, moved to his right,

attempting to remove himself from the path of the vehicle. The

vehicle turned and proceeded toward Brissette. The vehicle

brushed Brissette's leg, and he fired three shots at the vehicle.

Just prior to hitting Brissette, the vehicle hit a retaining wall

in the alley. Brissette testified that, as the vehicle drove past

him, he observed only two individuals in the vehicle. His view

was unobstructed, and he identified Salaam as the driver.

The vehicle proceeded down the alley, and it was pursued by

Detective Allen Reid. Reid continued to pursue the vehicle until

it drove through a metal fence and came to a stop at the end of a

guardrail. Reid then observed two individuals run onto

Interstate 95. Reid testified that, from his vantage point, he

would have been able to see if a third person had fled the

vehicle. Salaam and Muhammad Fox were quickly apprehended. Both

Reid and Brissette testified that there were only two people in

the vehicle.

- 3 - Jihae Fox and Salaam both testified that Salaam was not

living in Virginia at the time Ramsey's vehicle was stolen.

Salaam testified that, on the day of the incident, he and his two

brothers, Jihae and Muhammad Fox, had just finished doing laundry

and were walking home when Salaam's friend, Odie, approached them

and asked them if they wanted a ride. Salaam testified that he

got into the back seat of the vehicle, behind Odie. The four men

drove downtown, and Jihae and Muhammad Fox exited the vehicle and

were gone for approximately ten or fifteen minutes. Salaam

testified that he was lying down in the back seat when Muhammad

Fox returned to the vehicle. Salaam them observed Brissette

following Muhammad Fox with his weapon drawn. Salaam stated that

the vehicle "pulled out slow" and "started making the turn" when

Brissette began shooting. Salaam stated that he "ducked" down in

the back seat. When the vehicle finally crashed to a stop, Salaam

got up from the back seat and realized that Odie had fled. Salaam

and Muhammad then tried to escape, running across the interstate.

ANALYSIS

"On review of a challenge to the sufficiency of the

evidence, we view the evidence in the light most favorable to

the Commonwealth, the prevailing party, and grant to it all

reasonable inferences fairly deducible therefrom." Robertson v.

Commonwealth, 31 Va. App. 814, 820, 525 S.E.2d 640, 643 (2000)

(citing Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d

- 4 - 263, 265 (1998). "The judgment of a trial court sitting without

a jury is entitled to the same weight as a jury verdict, and

will not be disturbed on appeal unless plainly wrong or without

evidence to support it." Beck v. Commonwealth, 2 Va. App. 170,

172, 342 S.E.2d 642, 643 (1986) (citations omitted). "The

credibility of the witnesses and the weight accorded the

evidence are matters solely for the fact finder who has the

opportunity to see and hear that evidence as it is presented."

Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,

732 (1995) (citations omitted).

A. Attempted Capital Murder

Salaam argues that the evidence is insufficient to support

his conviction for the attempted murder of Officer Brissette. He

argues that the Commonwealth failed to prove that he was the

driver of the vehicle. Salaam argues that Brissette's testimony,

which was the only evidence offered to show that he was the driver

of the vehicle, was inherently incredible. Even assuming he was

the driver, Salaam argues that the Commonwealth failed to prove

that he had the intent to kill Brissette. Rather, he asserts that

the driver's intent was merely to flee the scene and avoid

apprehension.

Although the incident occurred very quickly and occurred

while the vehicle sped past Brissette, brushing up against his

leg, and while Brissette was firing three rounds into the

- 5 - vehicle, Brissette's identification of Salaam was not inherently

incredible. See Robertson v. Commonwealth, 12 Va. App. 854,

858, 406 S.E.2d 417, 419 (1991) (stating that in order to

disregard a witness' testimony as a matter of law, the evidence

must be inherently incredible or the witness' account of the

events must be unworthy of belief). The trial court was

entitled to weigh the evidence concerning the circumstances

surrounding the offense in determining Brissette's credibility

and Salaam's guilt. Brissette had an unobstructed view of

Salaam as he drove past him in the vehicle. Brissette

positively identified Salaam as the driver and testified that

only two people were in the vehicle. Neither officer saw a

third person occupying the vehicle or flee from the vehicle

after it crashed, and Salaam was irrefutably an occupant of the

vehicle. The trial judge was entitled to disbelieve Salaam's

and Jihae Fox's testimony that Odie was driving and to conclude

that Salaam and his brother were lying to conceal Salaam's

guilt. See Marable v. Commonwealth, 27 Va. App. 505, 509-10,

500 S.E.2d 233, 235 (1998) (citation omitted).

Next, Salaam, relying on Haywood v. Commonwealth, 20 Va.

App. 562, 458 S.E.2d 606 (1995), argues that, even assuming he

was the driver, the Commonwealth failed to prove that he

intended to kill Brissette. He asserts that the evidence

- 6 - "clearly shows" that the driver intended only to flee the scene

and avoid apprehension. We disagree.

In Haywood, the defendant, who had been drinking heavily,

had a verbal altercation with another boater at a park. The

defendant became belligerent, took a baseball bat, and hit the

hood of the other person's vehicle with the bat. The defendant

then got into his truck and sped off toward the park exit. The

victim promptly called the police. Three officers in separate

vehicles tried to stop the defendant, who was traveling down the

middle of the road at a high rate of speed. Two officers,

individually, set up roadblocks by placing their vehicles in the

defendant's path. Each time the defendant approached a

roadblock, he failed to slow down. The officers had to take

evasive action to avoid a collision. The defendant was

convicted of two counts of attempted capital murder of a police

officer. We reversed the conviction, finding that the

Commonwealth's evidence failed to exclude the reasonable

hypothesis of innocence, that being the defendant was merely

attempting to avoid apprehension. We noted, however, that

"[t]here was no evidence that [the defendant] ever swerved or

aimed his truck to hit the police cars when they pulled out of

his path or that he turned his truck around in an attempt to hit

the police cars after passing by them." Id. at 567, 458 S.E.2d

at 608-09.

- 7 - Code § 18.2-31(6) provides that "[t]he willful, deliberate,

and premeditated killing of a law-enforcement officer . . . when

such killing is for the purpose of interfering with the

performance of his official duties" shall constitute capital

murder. "'"An attempt to commit a crime is composed of two

elements: (1) the intent to commit it; and (2) a direct,

ineffectual act done towards its commission."'" Haywood, 20 Va.

App. at 565, 458 S.E.2d at 607-08 (citations omitted). "A

person cannot be guilty of an attempt to commit murder unless he

has a specific intent to kill." Id., 458 S.E.2d at 607 (citing

Merritt v. Commonwealth, 164 Va. 653, 661, 180 S.E. 395, 398

(1935)). "Intent is the purpose formed in a person's mind and

may be, and frequently is, shown by circumstances. It is a

state of mind which may be proved by a person's conduct or by

his statements." Barrett v. Commonwealth, 210 Va. 153, 156, 169

S.E.2d 449, 451 (1969); see also Nobles v. Commonwealth, 218 Va.

548, 551, 238 S.E.2d 808, 810 (1977). "[A] person is presumed

to intend the immediate, direct, and necessary consequences of

his voluntary act." Id. at 551, 238 S.E.2d at 810. "[W]hether

the required intent exists is generally a question for the trier

of fact." Id. "A motor vehicle, wrongfully used, can be a

weapon as deadly as a gun or a knife." Essex v. Commonwealth,

228 Va. 273, 281, 322 S.E.2d 216, 220 (1984).

- 8 - We hold that the evidence proved that Salaam had the

requisite intent to kill Brissette. Here, Brissette testified

that after Muhammad Fox entered the vehicle that was waiting for

him in the back of the alley, Salaam revved the engine and drove

toward Brissette. Brissette saw the tires of the vehicle turn

completely in his direction, away from the alley exit. See

Moody v. Commonwealth, 28 Va. App. 702, 707, 508 S.E.2d 354,

356-57 (1998) (finding that, although defendant warned the

victim to move out of the way, the defendant formed the specific

intent to run over the victim had he not moved out of he way).

Moreover, the defendant's assertion that he only struck

Brissette with his vehicle while attempting to escape is belied

by the evidence that Salaam could have driven from the scene

without steering toward Brissette or without hitting the

retaining wall. The evidence proved that the vehicle was

only 63 inches wide while the mouth of the alley was more than

300 inches wide. From this evidence, the fact finder could

infer that Salaam intended to kill Brissette.

B. Grand Larceny

his conviction for grand larceny because the victim's

identification of him was unreliable. He asserts that Ramsey was

able to identify him as the perpetrator only after seeing him in

the "suggestive setting" of the preliminary hearing.

- 9 - Although Salaam does not contest the admissibility of

Ramsey's identification, the factors set forth in Neil v. Biggers,

409 U.S. 188 (1972), are relevant in determining whether the

identification evidence is sufficient, standing alone or in

combination with other evidence, to prove beyond a reasonable

doubt that Salaam was one of the two people who stole Ramsey's

vehicle. See Smallwood v. Commonwealth, 14 Va. App. 527, 530, 418

S.E.2d 567, 568 (1992) (applying the Neil v. Biggers analysis even

though the accused did not appeal the trial court's denial of his

motion to suppress the identification); see also Currie v.

Commonwealth, 30 Va. App. 58, 73, 515 S.E.2d 335, 343 (1999)

(stating that the factors enunciated in Biggers are "significant

circumstances that may be considered along with other evidence").

These factors include:

the opportunity of the witness to view the criminal at the time of the crime, 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.

Id. at 199-200.

Here, the evidence established that the theft of Ramsey's

vehicle occurred in an area that was well lit and that Ramsey had

a good opportunity to view the two assailants. Although Ramsey

was unable to identify Salaam "for sure" from the photographic

line-up, Ramsey unequivocally identified Salaam after seeing the

- 10 - defendant in person for the first time. Ramsey's identification

of Salaam occurred only after seeing him at the preliminary

hearing; however, Ramsey attributed his ability to identify Salaam

to the "differences in seeing someone in person and seeing

photographs." See Thomas v. Commonwealth, 16 Va. App. 851, 859,

434 S.E.2d 319, 324-25 (1993) (holding that the fact that the

defendant was handcuffed during the showup and wearing "jail

garb" at the preliminary hearing did not invalidate the

identifications), aff'd en banc, 18 Va. App. 454, 444 S.E.2d 275

(1994). Although Salaam intimates that Ramsey may have been

intoxicated because he conceded that he had a drink just prior to

the incident, there is no evidence to suggest that Ramsey was

intoxicated or that his judgment was impaired. Most importantly,

Salaam was observed driving Ramsey's vehicle ten days after the

theft. Unexplained or unsatisfactorily explained possession of

recently stolen property supports a reasonable inference that the

person in possession is the thief. See Bright v. Commonwealth, 4

Va. App. 248, 251, 356 S.E.2d 443, 444 (1987) (holding that "the

unexplained possession of recently stolen goods permits an

inference of larceny by the possessor"). Further, although Salaam

testified that he was living in New Jersey at the time of the

incident and that he did not return to Richmond until eight days

after the incident, the fact finder was entitled to reject

Salaam's self-serving testimony and conclude that he was lying to

- 11 - conceal his guilt. Accordingly, we find the evidence is

sufficient to prove beyond a reasonable doubt that Salaam was the

perpetrator of the crime.

Accordingly, we find the evidence sufficient to affirm the

convictions.

Affirmed.

- 12 -