Kirk Chambers, a/k/a Kirk Lamont Chambers v. CW ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Cole
Argued at Richmond, Virginia
KIRK CHAMBERS, A/K/A
KIRK LAMONT CHAMBERS
MEMORANDUM OPINION * BY
v. Record No. 0943-98-2 JUDGE MARVIN F. COLE
OCTOBER 5, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BUCKINGHAM COUNTY
Richard S. Blanton, Judge
Phyllis L. Bean for appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General;
Ruth M. McKeaney, Assistant Attorney General,
on brief), for appellee.
Appellant, Kirk Chambers, was convicted in a bench trial of
robbery and use of a firearm in the commission of robbery. He
contends that the evidence is insufficient to prove him guilty of
either offense beyond a reasonable doubt. We disagree and affirm.
When the sufficiency of the evidence is challenged on appeal,
we view the evidence "in the light most favorable to the
Commonwealth and give it all reasonable inferences fairly
deducible therefrom." Higginbothan v. Commonwealth, 216 Va. 349,
352, 218 S.E.2d 534, 537 (1975). "A conviction will be affirmed
unless it appears from the evidence that it is plainly wrong or
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
without evidence to support it." Sutphin v. Commonwealth, 1 Va.
App. 241, 243, 337 S.E.2d 897, 898 (1985) (citation omitted); Code
§ 8.01-680. "The weight which should be given to evidence and
whether the testimony of a witness is credible are questions which
the fact finder must decide." Bridgeman v. Commonwealth, 3 Va.
App. 523, 528, 351 S.E.2d 598, 601-02 (1986).
So viewed, the evidence clearly established that on June 18,
1997, someone robbed Davis Service Center (Center), a convenience
store, by using and displaying a firearm in a threatening manner.
The crux of appellant's claim of insufficient evidence is that the
eyewitness identification of him as the robber was unreliable and
the corroborating testimony of Clarence Johnson was unworthy of
belief. Appellant claims that on the night in question he was at
home with his mother.
Johnson testified that on June 18, 1997, at the request of
appellant, he drove appellant to the Center. In a statement to
the police investigating the robbery, Johnson said that en route
to the Center appellant said that he was going there to rob it.
However, at trial Johnson testified he "wasn't 100 per cent sure"
what appellant had said. Upon arriving at the Center, Johnson
left the parking lot for a short period of time and returned to
pick up appellant. When he got back, he saw appellant through the
window. He had his arms on the cash register and was leaning on
the counter, but Johnson could not see the person to whom
appellant spoke.
- 2 -
When appellant came out of the store, he dropped what
appeared to Johnson to be a single bill of money. Appellant
picked it up, went back into the store, picked up something else
and came straight back to the car.
Johnson testified that appellant wore dark clothing, blue
jeans, some kind of dark shirt, and a hat. He testified that when
appellant returned to the car, he heard a paper sound in
appellant's pants. Johnson said, "I could hear a crunchy sound
like paper."
Cindy Davis, who was working at the Center, testified that
as she washed the front door, a man approached, displayed a gun,
and ordered her back into the store. The man told Davis and
Nancy Burris, who was also working, to get on the floor. The
women complied. Davis opened the cash register, and the man
took money from the drawer. The man left momentarily, then
returned. Davis looked "right in his face." Davis picked
appellant's photo from a display, and identified appellant in
court as the robber. Davis had "no doubt" of her
identification.
Burris testified that appellant was not the person who
robbed the store. However, Burris testified that she was trying
not to look at the robber and that she was paying more attention
to Davis, because she feared for Davis' safety.
The victims inaccurately described appellant's complexion,
height and age at the time of the robbery.
- 3 -
Although the admissibility of the identification is not
challenged, the factors enunciated in Neil v. Biggers, 409 U.S.
188 (1972), are significant circumstances that may be
considered, along with other evidence, in determining the
sufficiency of the evidence. The 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. The trial court is capable of "measuring
intelligently the weight of identification testimony that has
some questionable feature. . . . The defect, if there be one,
goes to weight and not to substance." Manson v. Brathwaite, 432
U.S. 98, 116-17 (1977).
Davis recounted her observation of the robber, which was
more extensive than that of Burris, who consciously tried not to
look at him. Davis was certain of her identification, and her
identification was supported by Johnson's testimony.
The testimony of the Commonwealth's witnesses was
competent, was not inherently incredible, and was sufficient to
prove beyond a reasonable doubt that appellant was guilty of
robbery and use of a firearm in its commission.
Affirmed.
- 4 -
Benton, J., dissenting.
"It is a canon of criminal law that it is not sufficient to
create a suspicion or possibility of guilt, but the evidence
must go further and exclude every reasonable hypothesis except
that the accused is guilty of the offense charged in the
indictment." Stone v. Commonwealth, 176 Va. 570, 578, 11 S.E.2d
728, 731 (1940).
[W]hether a criminal conviction is supported
by evidence sufficient to prove guilt beyond
a reasonable doubt is not a question of fact
but one of law. A conviction based upon a
mere suspicion or probability of guilt,
however strong, cannot stand.
It can be safely said that in Virginia
there is no principle more firmly
imbedded in the body of the law, or
one that has been more often stated,
than the principle that in every criminal
case the evidence of the Commonwealth
must show, beyond a reasonable doubt,
every material fact necessary to
establish the offense for which a defendant
is being tried.
A criminal defendant is entitled to the
benefit of a reasonable doubt arising from
the evidence of the Commonwealth as well as
from his own evidence.
Bridgeman v. Commonwealth, 3 Va. App. 523, 528-29, 351 S.E.2d
598, 601 (1986) (citations omitted).
These well established principles govern our review of Kirk
Chambers' appeal of these convictions for robbery and use of a
firearm in the commission of robbery. As in Smallwood v.
Commonwealth, 14 Va. App. 527, 418 S.E.2d 567 (1992), the
- 5 -
evidence in this case created only a suspicion or possibility of
Chambers' guilt. This Court held in Smallwood that similar
evidence of equivocal identification and inconsistencies was
insufficient to prove Smallwood's guilt beyond a reasonable
doubt. Specifically, we noted the following:
While unequivocal evidence of identification
immediately following the offense may
provide sufficient corroboration to overcome
difficulties arising from in-court
identifications, all of the pre-trial
identifications of Smallwood were uncertain.
Moreover, the length of time between the
crime and [the witness'] identification of
Smallwood was approximately five weeks.
[The witness'] testimony also proved that
her pre-trial identification of Smallwood's
photograph occurred after she was
suggestively asked to select from the
photographic array "the person that [she]
thought [she] had seen the night of the
robbery." In addition, there are
significant inconsistencies between [the
witness'] pre-trial description of Smallwood
and her acknowledgement of his actual
appearance at trial. . . . [T]he
discrepancies between her descriptions of
[Smallwood's] coloring and skin condition
have added significance.
14 Va. App. at 532, 418 S.E.2d at 569-70 (citation omitted).
As the majority correctly notes, immediately after the
robbery, both Nancy Burris and Cindy Davis gave the responding
police officer a physical description of the robber that was
inconsistent with the physical description of Chambers. On the
night of the robbery, both Burris and Davis identified the
robber as a light-skinned black male, age 30-32, who was 5 feet
7 inches tall, and wearing baggy pants. Both also recalled that
- 6 -
the robber had short hair on his head and no facial hair. The
evidence, however, established that Chambers is six feet tall
and twenty-four years of age. Further, Chambers had long hair
on the day of the robbery and has had a mustache all his adult
life.
During the incident, the robber "was right there in
[Burris'] face" and three times ordered Burris to the floor
before she responded. Burris testified that she clearly saw the
robber and that the description she gave the police the night of
the robbery was accurate. Indeed, Burris testified that
Chambers "does not look like the robber." She elaborated on her
testimony as follows:
[JUDGE:] To make sure I'm clear: How do
you see the defendant in the courtroom? Not
putting words in your mouth, but you feel
like you got a good, substantial look at the
robber?
[BURRIS:] Yes, sir, I did.
[JUDGE:] You are saying to the Court that
you are convinced that that is not the
person.
[BURRIS:] I'm pretty well convinced, yes,
sir, because I know what I saw that night
and reported that night. It is--
[JUDGE:] That is not the man?
[BURRIS:] In my opinion, yes, sir. In my
opinion.
Although the robber wore a "railroad" cap, no evidence
linked such a cap to Chambers. Moreover, the shoe print found
- 7 -
at the scene of the crime was never connected to Chambers. The
evidence also proved that the police found a fingerprint on the
cash register, which had been jerked open by the robber.
However, the fingerprints found on the cash register and the
exterior glass door did not match Chambers' fingerprints.
Four months after the robbery, Davis, the other store
clerk, identified Chambers' photograph under questionable
circumstances. Davis selected Chambers' photograph from an
array of photographs only after she was told that the suspect's
photograph was in the array. Moreover, Davis' trial testimony
concerning the robber was so inconsistent with her pretrial
statements as to create uncertainty about her identification of
Chambers as the robber. Although on the night of the robbery
Davis reported that the robber was wearing baggy pants, at trial
and at the preliminary hearing, Davis was adamant that the
robber's pants were "definitely not baggy." On the night of the
robbery, Davis also reported the robber as being light-skinned.
Yet, at the preliminary hearing, she stated that Chambers had
"medium" skin. Finally, at trial, Davis described Chambers as
"between light and dark," then stated his complexion was
"medium." When confronted about this discrepancy, she stated,
"Well, I was upset [on the night of the robbery.]"
When identification evidence is equivocal and unreliable,
we must look to the totality of the other evidence to determine
whether the trier of fact could have found Chambers guilty
- 8 -
beyond a reasonable doubt. See Burrows v. Commonwealth, 224 Va.
317, 319, 295 S.E.2d 893, 895 (1982) (holding that an equivocal
identification and other suspicious circumstances were
insufficient to sustain a robbery conviction). Through Clarence
Johnson, however, the Commonwealth only created additional
suspicion through conjecture. The police initially suspected
that Johnson, a four-time convicted felon who is thirty-four
years of age, was the robber. Although Johnson had been a paid
police informant since July 1997, a month following the robbery,
Johnson did not insinuate that Chambers was involved until
October 1997, nearly four months after the robbery. Johnson
made this disclosure only after the police focused their
investigation on Johnson and began to question him as a suspect
in the robbery.
At trial, Johnson testified that on the day of the robbery,
while Johnson was "getting high" on cocaine, Chambers asked him
for a ride to the store. He testified that he drove Chambers to
the store and then drove to a nearby "wayside" to "use the
bathroom" while Chambers was in the store. When he returned to
the store, he saw Chambers leaning on the counter. Johnson
could not recall whether Chambers was wearing a hat, and he
never saw Chambers with a gun. He only claimed to "hear a
crunchy sound like paper" coming from Chambers' pocket when
Chambers left the store and entered the vehicle. Significantly,
- 9 -
he did not testify that he saw Chambers rob the clerks or that
Chambers admitted robbing the clerks.
On an important issue, Johnson's testimony contradicts the
testimony of Davis. Davis testified that while the robber was
walking away, but was still behind the customer counter, the
robber dropped money and returned to retrieve it. She testified
that the robber never re-entered the store after he took the
money and left the store. Johnson testified that he saw
Chambers leave the store, re-enter the store to retrieve
something, and then leave the store again. That discrepancy is
significant because the record also reveals that the dispatcher
erroneously reported on the night of the robbery that the robber
left the store and then re-entered the store. Johnson's
testimony, which is consistent with the dispatcher's erroneous
report, raises significant doubt as to the veracity of his
testimony and basis of his personal knowledge.
The evidence in this case consists solely of the unreliable
identification of only one of the victims of the crime, the
questionable testimony of a convicted felon, who himself was a
suspect in the crime until he implicated Chambers, and the
testimony of Burris, that Chambers was not the perpetrator. In
its totality, the evidence was insufficient to move the
Commonwealth's proof beyond the realm of speculation, suspicion,
and innuendo. "[E]ven probability of guilt is not sufficient
- 10 -
[to support a conviction]." Gordon v. Commonwealth, 212 Va.
298, 300, 183 S.E.2d 735, 737 (1971).
For these reasons, I believe this evidence raises
reasonable doubt whether Chambers was the robber. I would
reverse the convictions and dismiss the indictments.
- 11 -