COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner Argued at Salem, Virginia
JOHN RANDOLPH HAIRSTON MEMORANDUM OPINION * BY v. Record No. 2896-97-3 JUDGE RUDOLPH BUMGARDNER, III JANUARY 12, 1999 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE Charles M. Stone, Judge Elwood Earl Sanders, Jr. (S. Jane Chittom; Public Defender Commission, on briefs), for appellant.
Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
John Randolph Hairston appeals his conviction of robbery.
He argues that the pretrial and in-court identifications of him
were insufficient to support his conviction. Finding no error,
we affirm the conviction.
The defendant neither challenged the admissibility of the
evidence nor claimed it violated his rights to due process
because it was not reliable. The issue is whether the evidence
was sufficient to identify the defendant as one of the two men
who robbed the victim. When reviewing the sufficiency of the
evidence, we view the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible from the evidence. See Martin v. Commonwealth, 4 Va. * Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. App. 438, 443, 358 S.E.2d 415, 418 (1987).
Viewed by that standard, two men robbed the
eighty-one-year-old victim while he was walking down an alley.
The robbers approached from behind, cornered the victim, sprayed
pepper in his eyes, and took his billfold. The victim yelled and
attempted to chase them though he had dropped his glasses and
cane. Walter Webster heard the yelling as he was driving down
the street. He got a good look at the man who was running away.
The victim told Webster that the man running away had robbed
him. Webster went down the street and saw the defendant, who was
the man he had seen run away, meet another man and then take off
together. Webster went to the police station and reported the robbery.
He described the robbers as two black males, one light skinned,
the other dark. The codefendant was wearing a dark green or
brown jacket, and the taller defendant wore orange. Officer
Gilbert drove Webster around for thirty to forty minutes when
Webster said, "Those are the two men I saw" and identified the
defendant and the codefendant. Officer Gilbert arrested the two
and found a canister of pepper spray in the defendant's front
pocket.
David Joyce, an attorney, heard a noise outside his office
and went outside to investigate. He noticed a grocery bag, hat,
and cane in the alley, saw two black males walking away, and then
saw the victim. Joyce recognized the victim, helped him retrieve
- 2 - his things, and accompanied him to the police station. When
leaving the station, Joyce observed two black males with Officer
Gilbert. He returned to the station and reported that the two
were wearing the same clothing as the men he had seen earlier.
While at the police station, the victim heard a radio
transmission that they had arrested two suspects. An officer
told him that "one of the officers just found some people he
thinks did this." That officer took the victim to identify the
suspect. While sitting in the police car, the officer said
either, "We have the suspects in custody. Can you identify
them?" or "Are these the ones?" The police had handcuffed the
suspects and brought them to the cruiser one at a time. One
officer asked the victim, "Was this one of the people who took
your wallet?" He identified the defendant as the one "who
sprayed . . . that stuff in my eyes" and the codefendant as the
one who took his wallet. At trial, the victim identified the
defendant by name and the codefendant as the one who stole his
billfold. The defendant moved to strike the Commonwealth's evidence on
the ground that the identifications were flawed because neither
the victim nor Webster got a good look at the robbers and seeing
the defendant in police custody tainted their identifications.
The defendant argues that the victim's identification was weak
because his opportunity to view the perpetrators during the
robbery was fleeting, and he could not describe the defendants'
- 3 - clothing. The defendant noted that the victim was an aging man
with poor eyesight. The defendant claims that Webster's
identification had similar defects. Webster did not see the
crime, briefly saw the men from the back, and only observed two
men running and one trying to give the other a bag.
The defendant's arguments suggest how the trier of fact
should evaluate the evidence, but they suggest no reason the
evidence is unbelievable as a matter of law. The defendant has
shown no reversible error caused by the officers' comments to the
victim. See Hill v. Commonwealth, 2 Va. App. 683, 704, 347
S.E.2d 913, 925 (1986) (fact that officer wants witness to view a
suspect carries with it the "necessarily unavoidable" implication
that the officer believes he is guilty). Pretrial show-ups are
not per se violations of constitutional rights. See Yarborough
v. Commonwealth, 15 Va. App. 638, 643, 426 S.E.2d 131, 134
(1993), rev'd on other grounds, 247 Va. 215, 441 S.E.2d 342
(1994). This show-up was to decide whether the suspects were the
robbers. A show-up may be the quickest and easiest way to
confirm or dispel an officer's belief that suspects are the
perpetrators. Cf. United States v. Sharpe, 470 U.S. 675, 685-86
(1985) (appropriate to assess length of detention by whether the
police "diligently pursued" their investigation). Viewing a
suspect in handcuffs is not impermissibly suggestive. See Thomas
v. Commonwealth, 16 Va. App. 851, 859, 434 S.E.2d 319, 324
(1993), aff'd en banc, 18 Va. App. 454, 444 S.E.2d 275 (1994).
- 4 - We find that police conduct did not taint Webster's
identification. Webster identified the suspects to the police,
so no improper suggestion occurred. He testified that he got a
good look, he observed the defendants after hearing the cry for
help, and he identified the defendants within thirty to forty
minutes of when he first saw them fleeing from the scene.
"[U]nequivocal evidence of identification immediately following
the offense may provide sufficient corroboration to overcome
difficulties arising from in-court identifications . . . ."
Smallwood v. Commonwealth, 14 Va. App. 527, 532, 418 S.E.2d 567,
570 (1992) (citation omitted).
Joyce observed the defendants in police custody and said
they were dressed the same as the men he observed walking quickly
away from the victim after the incident. When eyewitness
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner Argued at Salem, Virginia
JOHN RANDOLPH HAIRSTON MEMORANDUM OPINION * BY v. Record No. 2896-97-3 JUDGE RUDOLPH BUMGARDNER, III JANUARY 12, 1999 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE Charles M. Stone, Judge Elwood Earl Sanders, Jr. (S. Jane Chittom; Public Defender Commission, on briefs), for appellant.
Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
John Randolph Hairston appeals his conviction of robbery.
He argues that the pretrial and in-court identifications of him
were insufficient to support his conviction. Finding no error,
we affirm the conviction.
The defendant neither challenged the admissibility of the
evidence nor claimed it violated his rights to due process
because it was not reliable. The issue is whether the evidence
was sufficient to identify the defendant as one of the two men
who robbed the victim. When reviewing the sufficiency of the
evidence, we view the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible from the evidence. See Martin v. Commonwealth, 4 Va. * Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. App. 438, 443, 358 S.E.2d 415, 418 (1987).
Viewed by that standard, two men robbed the
eighty-one-year-old victim while he was walking down an alley.
The robbers approached from behind, cornered the victim, sprayed
pepper in his eyes, and took his billfold. The victim yelled and
attempted to chase them though he had dropped his glasses and
cane. Walter Webster heard the yelling as he was driving down
the street. He got a good look at the man who was running away.
The victim told Webster that the man running away had robbed
him. Webster went down the street and saw the defendant, who was
the man he had seen run away, meet another man and then take off
together. Webster went to the police station and reported the robbery.
He described the robbers as two black males, one light skinned,
the other dark. The codefendant was wearing a dark green or
brown jacket, and the taller defendant wore orange. Officer
Gilbert drove Webster around for thirty to forty minutes when
Webster said, "Those are the two men I saw" and identified the
defendant and the codefendant. Officer Gilbert arrested the two
and found a canister of pepper spray in the defendant's front
pocket.
David Joyce, an attorney, heard a noise outside his office
and went outside to investigate. He noticed a grocery bag, hat,
and cane in the alley, saw two black males walking away, and then
saw the victim. Joyce recognized the victim, helped him retrieve
- 2 - his things, and accompanied him to the police station. When
leaving the station, Joyce observed two black males with Officer
Gilbert. He returned to the station and reported that the two
were wearing the same clothing as the men he had seen earlier.
While at the police station, the victim heard a radio
transmission that they had arrested two suspects. An officer
told him that "one of the officers just found some people he
thinks did this." That officer took the victim to identify the
suspect. While sitting in the police car, the officer said
either, "We have the suspects in custody. Can you identify
them?" or "Are these the ones?" The police had handcuffed the
suspects and brought them to the cruiser one at a time. One
officer asked the victim, "Was this one of the people who took
your wallet?" He identified the defendant as the one "who
sprayed . . . that stuff in my eyes" and the codefendant as the
one who took his wallet. At trial, the victim identified the
defendant by name and the codefendant as the one who stole his
billfold. The defendant moved to strike the Commonwealth's evidence on
the ground that the identifications were flawed because neither
the victim nor Webster got a good look at the robbers and seeing
the defendant in police custody tainted their identifications.
The defendant argues that the victim's identification was weak
because his opportunity to view the perpetrators during the
robbery was fleeting, and he could not describe the defendants'
- 3 - clothing. The defendant noted that the victim was an aging man
with poor eyesight. The defendant claims that Webster's
identification had similar defects. Webster did not see the
crime, briefly saw the men from the back, and only observed two
men running and one trying to give the other a bag.
The defendant's arguments suggest how the trier of fact
should evaluate the evidence, but they suggest no reason the
evidence is unbelievable as a matter of law. The defendant has
shown no reversible error caused by the officers' comments to the
victim. See Hill v. Commonwealth, 2 Va. App. 683, 704, 347
S.E.2d 913, 925 (1986) (fact that officer wants witness to view a
suspect carries with it the "necessarily unavoidable" implication
that the officer believes he is guilty). Pretrial show-ups are
not per se violations of constitutional rights. See Yarborough
v. Commonwealth, 15 Va. App. 638, 643, 426 S.E.2d 131, 134
(1993), rev'd on other grounds, 247 Va. 215, 441 S.E.2d 342
(1994). This show-up was to decide whether the suspects were the
robbers. A show-up may be the quickest and easiest way to
confirm or dispel an officer's belief that suspects are the
perpetrators. Cf. United States v. Sharpe, 470 U.S. 675, 685-86
(1985) (appropriate to assess length of detention by whether the
police "diligently pursued" their investigation). Viewing a
suspect in handcuffs is not impermissibly suggestive. See Thomas
v. Commonwealth, 16 Va. App. 851, 859, 434 S.E.2d 319, 324
(1993), aff'd en banc, 18 Va. App. 454, 444 S.E.2d 275 (1994).
- 4 - We find that police conduct did not taint Webster's
identification. Webster identified the suspects to the police,
so no improper suggestion occurred. He testified that he got a
good look, he observed the defendants after hearing the cry for
help, and he identified the defendants within thirty to forty
minutes of when he first saw them fleeing from the scene.
"[U]nequivocal evidence of identification immediately following
the offense may provide sufficient corroboration to overcome
difficulties arising from in-court identifications . . . ."
Smallwood v. Commonwealth, 14 Va. App. 527, 532, 418 S.E.2d 567,
570 (1992) (citation omitted).
Joyce observed the defendants in police custody and said
they were dressed the same as the men he observed walking quickly
away from the victim after the incident. When eyewitness
identification is an issue, the defendant's proximity to the
robbery scene is probative of guilt. See Manson v. Brathwaite,
432 U.S. 98, 116 (1977). The trial court did not accept the
explanation of defendant's possession of the pepper spray. That
is further evidence of guilt because a trier of fact is entitled
to infer from a false explanation that the defendant is lying to
conceal his guilt. See Speight v. Commonwealth, 4 Va. App. 83,
88, 354 S.E.2d 95, 98 (1987) (en banc).
The court noted that the victim "was pretty concrete about
[what happened] and [it] was pretty impressed by his testimony
. . . [which was] pretty well corroborated by the rest of the
- 5 - Commonwealth's case." Similarly, Webster got a "good look" at
the defendant running, promptly reported his identification to
Officer Gilbert, and was unequivocal when he identified the
assailants from the cruiser.
The fact finder considered and rejected the defendant's
arguments of how it should evaluate the evidence, what weight it
should give to the testimony, and what inferences it should draw
from it. See Cook v. Commonwealth, 226 Va. 427, 432, 309 S.E.2d
325, 329 (1983). Viewed in the light most favorable to the
Commonwealth and discarding the evidence of the accused in
conflict with the Commonwealth, see Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988), we find evidence
sufficient to support the defendant's conviction of robbery.
Affirmed.
- 6 -