Hopkins v. Commonwealth

456 S.E.2d 147, 20 Va. App. 242, 1995 Va. App. LEXIS 364

• Court: Court of Appeals of Virginia
• Decided: April 18, 1995
• Docket: Record 0110-93-2
• Status: Published

Opinions

UPON REHEARING EN BANC

WILLIS, Judge.

On appeal from his convictions of first degree murder, attempted robbery, use of a firearm in the commission of murder, and use of a firearm in the commission of attempted robbery, Troy D. Hopkins contends that the trial court erred (1) in denying his motion for a new trial based on after-discovered evidence, and (2) in receiving into evidence an eyewitness’s identification that Hopkins contends resulted from undue suggestion.

On September 6, 1994, a panel of this Court held that the trial court did not err in admitting the eyewitness identification into evidence, but reversed and remanded Hopkins’s convictions on the new trial issue. See Hopkins v. Commonwealth, 19 Va.App. 1, 448 S.E.2d 316 (1994). We granted the Commonwealth’s petition for rehearing en banc and stayed the September 6, 1994 mandate. Upon rehearing en banc, we affirm the judgment of the trial court and vacate the September 6, 1994 mandate.

I.

On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it.

Josephs v. Commonwealth, 10 Va.App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc). This standard governs our review of the trial judge’s rulings.

Janice Talley testified that on July 21, 1990, at about 4:00 a.m., she and Curtis Kearney went to a location on Afton Avenue in Richmond. Kearney got out of their automobile and she followed at a distance of about six feet. A person with a red mask on his face approached Kearney with a gun and demanded money. That person shot and killed Kearney with what Ms. Talley recognized and identified as a .32 caliber handgun. The mask fell off the assailant’s face and she heard him say, “Curtis—I just shot Curtis.” She ran back to her car. When the police arrived, Ms. Talley reported, “I heard— I heard the name, Squeeky, before ... the thing came off his face. I heard, ‘Squeeky, why did you shoot that man?’ ” Although she had never seen the assailant before, she described him to the police as “about 5'5" or 5'6", ... weighed about 130 pounds, ... had short hair, and ... he happened to have gold teeth in his mouth, up in his right side.” She reported that he was wearing blue jeans and a blue striped shirt.

About a month after the incident, Ms. Talley selected a photograph of Hopkins from an array of six photographs. A month later, shown another array of six photographs, she again picked a photograph of Hopkins. In the courtroom, she identified Hopkins as the assailant.

Officer Bohannon testified that when he arrived at the scene of the shooting, Ms. Talley told him that a person named “Squeeky” had shot Kearney. Detective Quick testified that Ms. Talley described the assailant as follows: “Black, male, dark skinned, young looking, 15 to 16, 5'6", 130 pounds, possibly a gold tooth on the upper side____ He had a red scarf over the lower part of his face, which he removed at one point, and then a white shirt with blue stripes, and blue jeans.” Detective Quick further testified that Ms. Talley reported that someone had called the assailant “Squeeky.” He described her identification of Hopkins from the two photographic arrays.

James Branch testified in Hopkins’s defense. He said that Kearney asked him for drugs, and that as Kearney walked away, three boys approached him. One of the three, a fifteen year old about five feet, two inches tall, light skinned, and known as “Scooby” shot Kearney. He denied that either Ms. Talley or Hopkins was present. He testified that Hopkins did not shoot Kearney. He admitted that he told no one of “Scooby’s” involvement until he learned that Hopkins had been accused.

Hopkins did not testify. The jury convicted him on all charges.

Hopkins moved for a new trial, alleging after-discovered evidence. He submitted affidavits identifying Adrian Epps, known also as “Scooby,” as the murderer. After an evidentiary hearing, the trial court denied the motion. The transcript of that hearing was not timely filed. Upon appeal, this Court remanded the case to the trial court for reconsideration of the new trial motion. On July 30,1992, the trial court again heard and denied the new trial motion. This appeal addresses that denial.

At the July 30, 1992 hearing, Hopkins produced five witnesses: William Wilson, Marvin Robinson, Melvin Hawkins, Charmane Kearney, and Adrian Epps. These witnesses all waited at least one year from the time of the murder before coming forward. None reported any information to the police prior to Hopkins’s conviction.

William Wilson testified that he was thirty-five to forty feet away from the location of the shooting. Although he did not see the shooting, he did not see Hopkins at the scene.

Marvin Robinson testified that he was not at the crime scene and knew only what others had told him.

Adrian Epps testified that he was at the crime scene with Melvin Hawkins. He said that Curtis Kearney and a lady came down the street, Melvin Hawkins walked up to Kearney, and they talked. Epps said that he walked up to Kearney and asked for a cigarette. They had a few words, and, because Kearney looked as though he was reaching for a gun, Epps shot him. Epps testified that after the shooting, he threw the gun in a creek. He testified that he was fourteen years old at the time of the shooting and that he had been advised that if he were prosecuted for murder, he could be held only until he was eighteen years old. At the time of the hearing, Epps was sixteen years old. He testified that he had no gold in his teeth.

At the February 26,1991 hearing, Epps testified under oath that he was present at the crime scene with Melvin Hawkins and George Epps, that the three of them were standing in the crowd, that he did not see the shooting take place, and that he was not involved in any way with the shooting.

Shortly before the July 30, 1992 hearing, the police showed Epps a photograph of the victim, Kearney, taken at the crime scene. Epps stated that the person in the photograph did not look like the person he had shot. Six or seven times, he denied to the police that the victim in the photograph was the man he had shot. At the July 30, 1992 hearing, during redirect examination, Epps testified that the man in the photograph (Kearney) did not look like the man he had shot. The trial court observed Epps’s demeanor on the witness stand at the February 26, 1991 hearing and at the July 30, 1992 hearing. It concluded that Epps, who, at one time or the other, had committed perjury, was incredible.

Melvin Hawkins testified that he was at the murder scene, getting drunk with Adrian Epps. Kearney approached him and (contrary to Epps’s testimony) asked for some “works” (hypodermic syringe and needle to inject drugs). According to Hawkins, Kearney had purchased cocaine from him earlier and wanted a needle to inject it. Hawkins testified that Kearney became upset and that Epps shot Kearney “because [Kearney] was about to hit [Hawkins].” Hawkins said that after the shooting, Epps tossed the gun to him, and he (Hawkins) threw it on a roof.

Hawkins testified that Kearney was wearing a gray work uniform and gray cap. A photograph of Kearney, taken by the police at the crime scene, showed that he wore blue pants, a white shirt, and a black hat. Hawkins’s testimony significantly contradicted Epps’s. They gave different versions of what happened on the night of the shooting, including the disposition of the murder weapon.

Charmane Kearney testified that she had known Adrian Epps since they were in the fifth grade. She testified that she saw Hawkins, Epps, and a couple of other young men walk up to Kearney and the lady who had gotten out of the car. She heard Epps say, “I will kill you.” She testified that when Kearney said that he had no money, Epps pulled out a gun and shot him.

Asked to describe what Epps was wearing, Ms. Kearney testified that he wore all black. Hawkins testified that Epps wore burgundy pants, black Reebok shoes, a “Raiders” cap pulled down to his eyebrows, and a towel wrapped around his face. Hawkins testified that Epps had worn this attire all day. When asked what he was wearing at the time of the shooting, Epps testified, “black and black and burgundy or gray or one of them.”

Recalled as a witness by the Commonwealth, Janice Talley observed Adrian Epps in the courtroom and testified that he was not the person who shot Kearney. The evidence, including photographs, established that Hopkins has a gold tooth in the upper right part of his mouth and that Epps does not. Counsel agree that photographs confirmed that Hopkins and Epps do not resemble each other.

The trial court found Hopkins’s witnesses incredible and ruled that their testimony was so unreliable that it would not produce a different result upon retrial. Accordingly, it denied the motion for a new trial.

II.

Motions for new trials based on after-discovered evidence are addressed to the sound discretion of the trial judge, are not looked upon with favor, are considered with special care and caution, and are awarded with great reluctance.... The applicant bears the burden to establish that the evidence (1) appears to have been discovered subsequent to trial; (2) could not have been secured for use at the trial in the exercise of reasonable diligence by the movant; (3) is not merely cumulative, corroborative or collateral; and (4) is material, and such as should produce opposite results on the merits at another trial.

Stockton v. Commonwealth, 227 Va. 124, 149, 314 S.E.2d 371, 387, cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984).

None of the five witnesses called by Hopkins in support of his motion for a new trial came forward until after Hopkins’s trial. The record contains no basis for concluding that their testimony could have been secured for trial through the exercise of due diligence. While their testimony might be deemed cumulative of the testimony given by James Branch at the trial, the controlling issue before us is whether the trial court erred in ruling that their testimony was so incredible that it should not produce an opposite result on the merits at another trial. We hold that the record supports the trial court’s ruling.

Of the five witnesses called by Hopkins in support of his motion, two, William Wilson and Marvin Robinson, gave no testimony of any material value.

Adrian Epps, who confessed the shooting at the hearing on appeal, had denied the shooting under oath at a prior hearing, and thus had committed perjury. Furthermore, at the hearing on appeal, Epps repeatedly denied that Kearney was the person he had shot.

Epps testified that he fired because the man he shot appeared to be drawing a gun. Melvin Hawkins testified that Epps fired because the victim was about to strike him (Hawkins). Epps and Hawkins gave conflicting accounts of the disposition of the murder weapon.

Epps, Hawkins, and Charmane Kearney gave conflicting descriptions of Epps’s attire at the time of the crime.

At the hearing on Hopkins’s motion for a new trial, Janice Talley reaffirmed her identification of Hopkins as the killer and, viewing Epps, specifically denied that he was the killer. Hopkins had a gold tooth. Epps did not. The evidence established that Hopkins- and Epps did not resemble each other.

The foregoing circumstances fully support the trial court’s conclusion that the witnesses called by Hopkins were unworthy of belief and that their testimony was not such as should produce an opposite result on the merits at a new trial. This assessment lay within the sound discretion of the trial court. Id. We find no abuse of that discretion.

In its decision, the panel majority relied upon Hines v. Commonwealth, 136 Va. 728, 117 S.E. 843 (1923). We find Hines to be distinguishable from the case at bar. In Hines, no eyewitness observed the commission of the crime. The conviction was based altogether on circumstantial evidence. The after-discovered evidence, upon which the Supreme Court ruled a new trial should have been awarded, involved not only a third party confession, but also undisputed testimony that a man resembling the third party was seen running from the crime scene, that a cap found at the crime scene resembled one known to belong to the third party, and that the third party was known to carry a weapon of the type involved in the crime. The Supreme Court said:

If this were a case in which we could say that the evidence as actually introduced was conclusive of the guilt of the accused, then we could ignore the after-discovered evidence. The jury found upon the original evidence that he was guilty beyond a reasonable doubt, and as they were the sole judges of the weight and credibility of the testimony, their verdict thereon could not be disturbed. But the vital facts upon which that verdict was based were disputed, and this new evidence, if they heard and believed it, would necessarily have produced a different result. We do not undertake to say what weight a jury would give to the new evidence, but it certainly ought to change the result if it is worthy of belief, and whether it is worthy of belief is a question which ought to be settled, not by the court, but by a jury.

Id. at 750-51, 117 S.E. at 849-50. This holding, while acknowledging the sufficiency of the evidence to support the jury’s verdict, recognized as well the vulnerability of that circumstantial evidence to question and the arguable sufficiency of the after-discovered evidence to support a contrary decision.

Unlike Hines, this case presents a verdict based on uncontradicted, corroborated, and reaffirmed eyewitness testimony. Unlike Hines, this case presents after-discovered evidence that is self-contradictory, perjured at least in part, and plainly unworthy of belief. That testimony is insufficient, as a matter of law, to frame a legitimate question for jury determination. Therefore, we hold that the evidence “as actually introduced was conclusive of [Hopkins’s] guilt.” Id.

On point with our holding is Odum v. Commonwealth, 225 Va. 123, 301 S.E.2d 145 (1983). In Odum, the victims identified the defendant as the perpetrator of the crimes against them and denied that the crimes had been committed by his brother, who appeared at trial. At the hearing on a motion for a new trial, the defendant’s mother testified that the defendant’s brother had confessed the crimes to her shortly after their commission. The brother acknowledged his guilt. The defendant and his brother resembled each other. At the hearing, the victims reaffirmed their identification of the defendant as the culprit, and, testifying that they could distinguish between the two men, reaffirmed their denial that the crimes had been committed by the brother. Affirming the trial court’s denial of the motion for a new trial, the Supreme Court said:

[W]hile the evidence, if believed, was material, the trial court, assessing the credibility of defendant’s witnesses both at trial and at the motion hearing, properly could find that it was not such as should produce opposite results on the merits at another trial. At a future trial, the contents of [the brother’s] “confession” would be only the latest in a series of inconsistent statements. More importantly, the trial court was justified in concluding that because of the positive, credible, largely unimpeached identification of defendant by the victims, the same results would occur upon retrial.

Id. at 131, 301 S.E.2d at 149. See also Payne v. Commonwealth, 233 Va. 460, 472, 357 S.E.2d 500, 507-08 (1987); Mundy v. Commonwealth, 11 Va.App. 461, 484-85, 390 S.E.2d 525, 538 (1990) (en banc).

III.

Janice Talley identified as pictures of the perpetrator of the crimes two different photographs of Hopkins, contained in two separate photographic lineups conducted a month apart. The record discloses that she made those identifications without hesitation. Furthermore, she identified Hopkins personally in open court. The record discloses nothing suggestive about the composition of the photographic lineups or the manner in which they were displayed to Ms. Talley. She had a good opportunity to observe the perpetrator at the time the crimes were committed. She promptly gave a detailed description of the perpetrator to the police. Hopkins fit that description. We find no error in the trial court’s receipt of her identifications into evidence. See Hill v. Commonwealth, 2 Va.App. 683, 347 S.E.2d 913 (1986); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

The judgment of the trial court is affirmed.

Affirmed.