Opinion
Record No. 0418-91-1
August 3, 1993
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK LYDIA CALVERT TAYLOR, JUDGE.
James B. Covington (Breeden, MacMillan Green, on briefs), for appellant.
Eugene Murphy, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Demetris Thomas (defendant) was convicted of rape and malicious wounding and sentenced to forty years imprisonment. On appeal, he contends that he was unlawfully seized by police, and that the trial court erred in declining to suppress both his statement to police and identification evidence. We disagree and affirm the convictions.
The parties are fully conversant with the record, and this memorandum opinion recites only those facts necessary to a disposition of the issues before the Court.
The record discloses that on January 22, 1990, at approximately 4:00 a.m., Sherry Dickinson (Dickinson), while calling her husband from a public telephone, noticed a man waiting to use the phone. When the stranger began "harassing" her, she dialed 911, and he "took off." However, as she walked home approximately fifteen minutes later, Dickinson "heard something behind [her]," "turned" and saw "the guy" "coming after [her] with a knife." He "put his arm around [her] neck," "held [the] knife to [her] throat" and "took [her] behind [a] building." There, the man forced Dickinson to commit oral sodomy, raped and stabbed her.
When Dickinson initially noticed the man, she "could see him clear" because "there was a light in the phone booth." She recalled that she "looked at him straight in the face" at that time and, again, during the assault, for a total of "20 minutes" "altogether." Dickinson first identified defendant as the assailant at defendant's preliminary hearing on March 14, 1990. Although Dickinson previously "heard" that defendant had confessed, she testified that she based her identification on "seeing him . . . the night of January 22," was "positive" about her testimony, and there was no "doubt in [her] mind."
When questioned by police following his arrest, defendant stated that he "hung around" "the girl in the phone booth," "left" after she called "911," but "walked back [while] she was still on the phone." He admitted that he "grabbed her," "walked her . . . behind some apartments" and "told her to take [his pants] off." Defendant claimed, however, that the oral sodomy and "sex" were consensual, and he "got up and left" after "she started screaming again, yelling help or something like that."
The circumstances relating to defendant's initial detention, arrest and confession were fully reviewed by this Court inThomas v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (1993), and need not be repeated here. Defendant's argument that the initial detention exceeded the scope of an investigatory stop and constituted an arrest was also considered in Thomas. There, we concluded that the police conduct in issue "was neither unreasonable nor conducted under circumstances that constituted an arrest" and that the trial court properly denied defendant's motion to suppress. Id. at ___, ___ S.E.2d at ___. We adhere to those findings and our holding in Thomas.
Defendant next contends that the trial court erred in refusing to suppress his statement to police as involuntary and in violation of his right to counsel. We conducted a thorough, "independent review" of "the totality of the circumstances" surrounding defendant's confession to police in Thomas and determined that it "was given freely and voluntarily." Id. at ___, ___ S.E.2d at ___. As the statements here were products of the same custodial interview, we similarly find that the trial court properly overruled the motion to suppress.
Lastly, defendant complains that Dickinson's identification was tainted by unduly suggestive procedures. We disagree.
To determine "whether a particular identification is reliable" and evaluate "'the likelihood of misidentification,'" we must consider
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.
Townes v. Commonwealth, 234 Va. 307, 331, 362 S.E.2d 650, 663 (1987) (quoting Neil v. Biggers, 409 U.S. 188, 199-200 (1972)), cert. denied, 485 U.S. 971 (1988); Delong v. Commonwealth, 234 Va. 357, 367, 362 S.E.2d 669, 674 (1987), cert. denied, 485 U.S. 929 (1988).
The evidence in the instant case clearly discloses that Dickinson had an ample opportunity to observe defendant at the time of the offense. She testified that it was "pretty light," and she was "able to look at" him for "20 minutes." Her degree of attention was high because she described defendant to her husband while speaking with him over the telephone. Any "differences between her description and [defendant's] actual appearance went to the weight, not the admissibility, of her identification evidence." Satcher v. Commonwealth, 244 Va. 220, 249, 421 S.E.2d 821, 838-39 (1992), cert. denied, 113 S.Ct. 1319 (1993). Furthermore, Dickinson's level of certainty at each confrontation was high. She expressed "no doubt in [her] mind that that's him" and was "positive" in her identification, based on observations at the time of the offense. Finally, only seven weeks separated the crime from the preliminary hearing. These circumstances buttress the reliability of Dickinson's identification.
Defendant's further argument that the identification should be suppressed because he was "the only person in the room dressed in jail garb" at that time was also examined in Thomas and is without merit. Thomas, ___ Va. App. at ___, ___ S.E.2d at ___;see also Townes, 234 Va. at 331, 362 S.E.2d at 663-64.
Lastly, contrary to defendant's argument, Dickinson's prior knowledge that he had confessed to the crimes did not irreparably taint her identification. In McCary v. Commonwealth, 228 Va. 219, 321 S.E.2d 637 (1984), McCary challenged the identification testimony of a victim who, before identifying McCary at the preliminary hearing, had "cut out a picture of [him] published in a local newspaper with an account of the crimes committed" and was "informed" by "a member of the Sheriff's Department" that McCary "was the robber." Id. at 232-33, 321 S.E.2d at 644. Following a Biggers analysis, the Court concluded that "the identification testimony was not tainted" by such circumstances.Id. at 233-34, 321 S.E.2d at 644-45. We reach a similar conclusion here.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
For the reasons stated in Part I of my concurring and dissenting opinion in Thomas v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (1993) (Benton, J., concurring and dissenting), I would hold that the trial judge erred in refusing to grant the motion to suppress. Accordingly, I would reverse and remand for a new trial.