Lewis v. Commonwealth , 8 Va. App. 574 ( 1989 )

Opinion

ON REHEARING EN BANC

DUFF, J.

Gary Anthony Lewis appeals his convictions of robbery and use of a firearm in the commission of the robbery. Upon the jury’s recommendation, Lewis was sentenced to twenty-five years in the penitentiary for the robbery charge and two years for the firearm charge.

Appellant contends that the trial court erred in admitting into evidence the testimony of the victim that appellant had robbed him in a similar manner approximately three weeks prior to the robbery for which Lewis was being tried. Appellant also argues that the evidence was insufficient to support his conviction of robbery and use of a firearm during the commission of the robbery. A panel of the Court disagreed with those contentions and affirmed the convictions. Lewis v. Commonwealth, 7 Va. App. 596, 376 S.E.2d 295 (1989). Upon petition, a rehearing en banc was granted. Upon consideration of the record, the briefs and the arguments presented, we affirm the appellant’s conviction.

I.

When viewed in the light most favorable to the Commonwealth, the evidence established the following: Andre Robinson, the manager of Domino’s Midlothian Pizza and two employees were robbed at approximately 10:30 p.m. on July 30, 1986, by Lewis and an accomplice who acted as a lookout. Lewis, at gunpoint, ordered the two employees to go with him into the office. Robinson was already in the office and Lewis, still carrying the gun, said to Robinson, “Give me all your money or I’ll blow your f_head off.” Robinson and the two employees remained in the office with Lewis for approximately three to five minutes. The room was well lit at all times during the robbery. All three victims identified Lewis as the person who committed the robbery at gunpoint. All three also testified that appellant was wearing a white shirt, blue pants and holding a blue washcloth over part of his face.

At trial Curtis Sheppardson, the accomplice, testified for the Commonwealth. He told the court he was paid $100 for his participation as a “lookout” during the robbery and that Lewis had entered the store and committed the crime.

Robinson’s trial identification of Lewis as the person who robbed him on July 30, 1986, could be attributed, in part at least, to the fact that he had been robbed by Lewis in the same store approximately three weeks earlier. At that time, Lewis was accompanied by Sheppardson and another individual. After the earlier robbery, Robinson was shown a photo spread by the police and asked if he recognized anyone. He identified Sheppardson as one of the robbers. Lewis’s picture was not in the photo spread. After the July 30 robbery, Robinson was again shown the same photo spread, and he again identified Sheppardson as one of the men who had robbed him three weeks earlier. Robinson did not see Sheppardson during the second robbery. The defendant’s picture was never included in the photo spread.

II.

The first issue on appeal is the admissibility of testimony of the victim, Andre Robinson, concerning his identification of the defendant as the person who had robbed him in a similar manner three weeks prior to the July 30, 1986, robbery conviction now before us.

Prior to Robinson’s trial testimony, the court heard a motion in limine by Lewis’ counsel, who expressed concern about Robinson’s anticipated testimony. He represented to the court that at the preliminary hearing, while identifying Lewis, Robinson had made reference to the fact that Lewis had been the man who robbed him at the same store on a previous occasion in a similar manner. Counsel also noted that Robinson had testified at the preliminary hearing that he had picked Lewis out of a photo spread, when he actually had picked Sheppardson. Counsel for Lewis expressed concern that Robinson was confused. At a hearing on the motion Robinson testified that he had not been confused about the identity of Lewis, but at the preliminary hearing he was confused as to the defendant’s name. He denied that he had picked the defendant, Gary Lewis, out of either of the two photo spreads he was shown. He testified that the defendant’s picture was not included in either spread. Robinson explained that he was given pictures and a name in the first photo spread, and he identified Sheppardson’s picture as the companion in the first robbery. After the second robbery, he was again shown the same photo spread. He again identified Sheppardson’s picture as one of the robbers only in the first robbery. Robinson testified that both Sheppardson and Lewis were present at the defendant’s preliminary hearing. He stated that the two did not look alike, because Sheppardson was taller and lighter than Lewis. Robinson also explained Lewis’ actions and clothing worn at the first robbery. Counsel then moved the court to prohibit any reference by Robinson to the fact that Lewis had robbed him three weeks prior to July 30, 1986.

Upon inquiry by the court, the Commonwealth indicated that it would only elicit the testimony relating to the prior robbery if the defendant questioned Robinson about his identification of Lewis. The court deferred any ruling concerning the admissibility of such evidence on rebuttal until it arose. The court then instructed Robinson that on direct examination, he should not, under any circumstances, mention the first robbery. The witness was also instructed that he should only speak of the prior robbery if defense counsel specifically asked him.

Robinson’s testimony before the jury, on direct examination by the Commonwealth, did not include any reference to the first robbery. His testimony was confined to the events of July 30, 1986, the date of the crime for which the defendant was being tried. On cross-examination, however, he was questioned about the photo spread shown to him and asked whether he had picked out the defendant. When Robinson responded in the negative, defense counsel asked if he recalled testifying at the preliminary hearing that he had identified the defendant from the photo spread. Robinson recalled making such a statement. He was further asked if the defendant’s appearance was any different now than on July 30. He was also asked about the length of “the person’s hair with the gun on July 30,” and about the description he had given to the police of the July 30 gunman.

On redirect examination, the Commonwealth elicited from Robinson that Lewis’ picture was not in the photo spread and that the person whose picture he had picked out had participated in a prior robbery at the store three weeks earlier. Counsel for the Commonwealth then inquired if Robinson had ever seen the defendant prior to July 30, 1986.

Upon objection, a bench conference ensued, at which time the defendant argued that Robinson had been instructed by the court not to refer to the prior robbery. The court ruled, however, that in his cross-examination, defense counsel had raised the issue of identification and, consequently, had opened the door for the Commonwealth to show that Robinson had seen Lewis before and to show the circumstances surrounding it. The court then instructed the jury as follows:

Ladies and gentlemen, you are concerned with the charge in this particular case; that is, the robbery of the witness Andre Robinson on July 30, 1986. This evidence is being admitted for the soul [sic] purpose of whether the witness has properly or improperly identified the person who robbed him on July 30. It is limited to that alone.

If no question had been raised regarding identification on cross-examination, the issue of the prior robbery would not have arisen. A fair reading of the cross-examination satisfies us that the questions could have been interpreted by the jury as conveying an impression of confusion on the part of the witness as to the identity of the person he had picked out of the photo spread. This cast doubt on Robinson’s identification of Lewis.

A witness identifying an accused may detail all the facts within his personal knowledge bearing on the identification; any fact which shows the acquaintance and familiarity of the witness testifying to the identity of the accused is admissible. See 22A C.J.S. Criminal Law § 616 (1961). As we view it, the narrow problem presented to the trial court was that the basis of Robinson’s familiarity with Lewis involved a separate crime.

Evidence of a separate crime committed by an accused is generally inadmissible if its only purpose is “to show the character of the accused or his disposition to commit an offense similar to that charged.” Day v. Commonwealth, 196 Va. 907, 914, 86 S.E.2d 23, 26-27 (1955). However, such evidence may be admissible if it “tends to prove any other relevant fact of the offense charged, and is otherwise admissible.” Id.

Therefore, once the defendant’s cross-examination of the eye witness caused the prior identification at the preliminary hearing to be relevant the court was required to balance the probative value of allowing the Commonwealth to explain Robinson’s ability to identify Lewis against the prejudice arising from disclosure of the prior robbery. Hawks v. Commonwealth, 228 Va. 244, 247, 321 S.E.2d 650, 652 (1984) (citing Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 893 (1983)); Evans v. Commonwealth,, 222 Va. 766, 773-74, 284 S.E.2d 816, 820 (1981), cert. denied, 455 U.S. 1028 (1982). The determination and weighing of the probative value of the proffered evidence rests largely with the trial court and will be reviewed only for an abuse of discretion. Collins v. Commonwealth, 231 Va. 223, 307 S.E.2d 884 (1983); Coe v. Commonwealth, 231 Va. 83, 340 S.E.2d 820 (1985); Curtis v. Commonwealth, 3 Va. App. 636, 352 S.E.2d 536, 537 (1987).

We find no abuse of discretion. The probative value was obvious in explaining and confirming the witness’ ability to identify Lewis. Robinson had seen Lewis three weeks earlier and under circumstances which would add to the credibility of the identification. If Robinson had been the only witness to identify Lewis, the prejudice would have been more substantial; however, two other eye witnesses also positively identified Lewis. We believe the trial court also exercised commendable caution in its receipt of the evidence. The court promptly instructed the jury that credibility of the identification was the only purpose for which the evidence was being received. Also, during Robinson’s testimony the court prohibited him from elaborating as to the events of the first robbery. Later, the jury was again cautioned as to limited use of the evidence. The trial court did not err in admitting the evidence after determining that its probative value outweighed its prejudicial effect.

Once a jury is instructed regarding the use or limitations placed upon specific evidence, they are presumed to follow such instructions. Albert v. Commonwealth, 2 Va. App. 734, 741, 347 S.E.2d 534, 538 (1986); Johnson v. Commonwealth, 2 Va. App. 598, 602, 347 S.E.2d 163, 166 (1986); Stotler v. Commonwealth, 2 Va. App. 481, 484-85, 346 S.E.2d 39, 41 (1986). Our review of the record shows nothing to indicate that the jury did not follow the court’s clear instructions and, consequently, it must be presumed that the use of the evidence was properly limited.

The context in which this evidentiary problem arose distinguishes it from Sutphin v. Commonwealth, 1 Va. App. 241, 337 S.E.2d 897 (1985). In Sutphin, the Commonwealth attempted to prove the criminal agency of the defendant by circumstantial evidence of a similar crime. There was no direct eye witness evidence of identification. We held that evidence of the other crime was inadmissible to prove the identity of the defendant as the perpetrator of the subsequent crime because the methods of committing the burglaries were not so distinctive as to indicate a modus operandi. Here there was direct evidence of identification by three eye witnesses and also the accomplice who testified for the Commonwealth. Lewis’ questioning of Robinson on cross-examination called the reliability of his identification into question and, thus, opened the door for the evidence to be received. Its purpose was not to prove identity on the basis of similar modus operandi as in Sutphin.

The trial court’s ruling finds support in C. Friend, The Law of Evidence in Virginia § 154 (2d ed. 1983), which observes that it has been suggested in some cases that evidence of other crimes is admissible if the accused has in any way elicited or opened the door to such evidence. See Whitley v. Commonwealth, 223 Va. 66, 75, 286 S.E.2d 162, 168 (1982); Patterson v. Commonwealth, 222 Va. 653, 663, 283 S.E.2d 212, 218 (1981).

The identity of the gunman was not only a relevant, but a crucial element of the offense on trial. Once the defense challenged the ability of Robinson to identify Lewis by raising the possibility of confusion arising from Robinson’s preliminary hearing testimony, the defense opened the door for the admission of evidence to support Robinson’s testimony.

III.

The final issue raised in the appeal is the sufficiency of the evidence to support the conviction. The Commonwealth urges us not to consider this issue as it was not properly preserved for appeal. It is true that no motion to strike was made; however, after the jury returned its verdicts, defendant moved the Court to set them aside as being contrary to the law and the evidence and “for reasons in my closing argument. . . .” The court considered the motion on its merits, including the closing argument, and denied it.

The Supreme Court has recognized that a motion to set aside a verdict still survives as a proper method of testing the sufficiency of the evidence. Gabbard v. Knight, 202 Va. 40, 43, 116 S.E.2d 73, 75 (1960). We have examined the record and note that the defense’s closing argument emphasized that the jury should not believe Sheppardson because he was a robber and a liar. This argument could be viewed as raising the question of the sufficiency of the evidence to sustain the convictions. As the trial judge considered the reasons stated in the closing argument in deciding the motion, we believe the requirements of Rule 5A:18 have been met.

We are required to view the evidence in the light most favorable to the Commonwealth. The judgment appealed from must be affirmed, unless it appears from the evidence that it is plainly wrong or is without evidence to support it. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

Lewis argues that, absent evidence of the prior robbery, all the Commonwealth proved was that Sheppardson and another person robbed Robinson of the store’s money. We disagree. This argument ignores the positive identification testimony of Robinson and the two other Domino employees who were in close proximity to Lewis during the robbery. All three employees testified that Lewis was the armed robber who entered the store alone, threatened them, and left with the money. The defendant also was identified by his accomplice as the person who entered the store and committed the crime.

The fact that there were conflicts in the evidence does not support the defendant’s motion as to sufficiency. It was the jury’s function to weigh the evidence and resolve any conflicts. We find ample credible evidence in the record to support their finding; accordingly, we affirm.

Affirmed.

Koontz, C.J., Barrow, J., Cole, J., Coleman, J., Hodges, J., Keenan, J., and Moon, J., concurred.