Daniel Javan Hairston v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Frank and Senior Judge Hodges
Argued at Salem, Virginia
DANIEL JAVAN HAIRSTON
MEMORANDUM OPINION * BY
v. Record No. 2814-98-3 JUDGE WILLIAM H. HODGES
DECEMBER 21, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Jonathan M. Apgar, Judge
Steven P. Mahar Milani, Senior Assistant
Public Defender, for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Daniel Javan Hairston, appellant, appeals his convictions for
robbery, use of a firearm in the commission of a robbery, and
possession of a firearm as a convicted felon. Appellant contends
(1) that the trial court erred by allowing Officer K. D. Garrett
to testify, over appellant's hearsay objection, regarding the
victim's description of the alleged robber, and (2) that the
circumstantial evidence was insufficient to support the
convictions. For the following reasons, we find no error and
affirm the convictions.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Facts
Regina Payne spent the evening of January 24, 1998 playing
cards at a friend's house. Payne left around 12:30 a.m. on
January 25, 1998 to find the person who was supposed to give her a
ride home. Not seeing this person, Payne walked around the corner
to call a cab from the pay phone. She noticed four men standing
near a car arguing over a large bag of marijuana.
As she walked by the car, appellant approached her and
pointed a "big gun" with a bright, shiny barrel directly in her
face. Holding the gun only a half-inch from Payne's face,
appellant demanded, "Bitch, what have you got?" Fearing that
appellant would shoot her unless she cooperated, Payne gave him
what was in her pockets -- $42 she won playing a game and her rent
money of "two hundred and something."
Appellant took Payne's money and got into the car with the
other three men. The car had four doors, looked green under the
streetlights, and "it had shiny, shiny wheels on it . . . [that]
looked like the gun." Payne called the police. Seeing the person
who was supposed to have given her a ride, Payne got a ride away
from the area, and then called the police again.
When the police officers arrived, Payne told them what had
happened. She described appellant as a light-skinned black male
with light facial hair, in his early twenties, wearing "a weird
shaped hat and coat, and . . . that the bill of the hat was shaped
different than most hats were shaped."
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Thereafter, the police determined that Payne was wanted on an
outstanding warrant. Payne got into the police car. Payne was
talking to the officers as they drove when she suddenly saw the
car in which appellant rode away from the robbery scene. Payne
said, "Excuse me, but this is the car back here that we are
looking for. . . . the guy in the back seat on the driver's side,
that is him, that is the one." The four men were seated in the
car the same way they were seated when they left the robbery
scene. When the officers pulled up behind the car, Payne
repeated, "The person that robbed me is sitting directly behind
the driver in the back seat."
Officer Garrett approached the vehicle and asked appellant to
get out of the car. Garrett found two bags of marijuana in
appellant's pockets. Garrett ordered the other three men out of
the car, and found a large amount of marijuana in the other back
seat passenger's possession. A silver-colored .38 caliber
five-shot revolver was in the seat where appellant had been
sitting, hidden under a towel and pushed down into the seat.
Appellant was dressed in "bulky clothing" and a hat with a
bill in front that was "pulled up . . . a kangaroo style hat," not
like a "normal looking ball cap." None of the other three men
wore an "oddly shaped hat."
I.
Appellant contends that the trial court erred by allowing
Officer Garrett to testify regarding Payne's description of the
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robber given just after the robbery occurred. The court did not
err in admitting Garrett's testimony concerning Payne's
identification of appellant.
Where the witness who identified the
accused out-of-court is available as a
witness, so as to afford the accused the
rights of confrontation and
cross-examination, the dangers sought to be
avoided by the hearsay rule are absent and
the testimony of a third person as to the
extrajudicial identification has been held
to be admissible. . . .
An identification made by a victim or
an eyewitness soon after a crime has been
committed may be more objective and accurate
and have greater probative value than one
made later in court when unduly suggestive
circumstances, if present, or the changed
appearance of the defendant, might adversely
affect the identifier's testimony.
Moreover, the memory of a witness may
fade . . . . It is also not beyond the
realm of possibility that an identifying
witness may be inhibited by threat or
intimidation from making a positive in-court
identification. Accordingly, we agree with
the reasoning of those courts which have
approved the broad admissibility of
identification evidence.
Niblett v. Commonwealth, 217 Va. 76, 81-82, 225 S.E.2d 391, 394
(1976) (citations omitted); see Ellis v. Commonwealth, 18 Va.
App. 340, 345-46, 444 S.E.2d 12, 15 (1994).
In Ellis, the witness positively identified Ellis the day
after the crime occurred. However, at the trial held nine
months later, the witness made an equivocal in-court
identification of Ellis, saying only that Ellis "looked like
him." See Ellis, 18 Va. App. at 346, 444 S.E.2d at 15. This
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Court held that the trial court did not err by allowing the
police officer to testify regarding the witness' out-of-court
identification of Ellis made the day after the crime. See id.
In this case, after viewing appellant during the robbery
and when he drove away from the scene, Payne made a positive
identification of appellant twenty-five to thirty minutes later.
While talking to the police officers, Payne identified the car
appellant drove away in and identified appellant as the man in
the back seat on the driver's side of the car. At the trial
held almost eight months later, Payne identified appellant as
the man who robbed her at gunpoint. However, during
cross-examination, Payne became equivocal in her in-court
identification. Obviously, Payne was available for
cross-examination. We hold that pursuant to the aforementioned
authorities, the trial court did not err by allowing Officer
Garrett to testify about Payne's out-of-court identification of
appellant made twenty-five to thirty minutes after the robbery.
II.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted).
So viewed, the evidence proved that appellant robbed Payne
at gunpoint. Appellant held the gun within a half-inch of
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Payne's face and demanded, "Bitch, what have you got?" Fearing
that she would be shot if she refused to cooperate, Payne gave
appellant the $242 she had in her pockets. Appellant left the
scene in the car with the three men.
Payne identified, for the police, the car in which
appellant fled from the robbery scene. Payne told the police
that the person who robbed her was sitting in the back seat
behind the driver. That person was appellant. The description
Payne gave Garrett matched appellant's appearance that night.
In addition, Garrett found marijuana in appellant's possession
and in another passenger's possession. This fact is consistent
with Payne's account that appellant and the three other men were
arguing over marijuana just prior to the robbery. Garrett also
found a gun in the seat where appellant had been sitting before
the car was stopped. At trial, Payne said that this gun
appeared to be the gun used in the robbery, and she identified
appellant as the robber.
At trial, appellant's cousin testified that Payne had
admitted to him that appellant had not robbed her. According to
appellant's cousin, Payne said "there is a guy in Roanoke that
looks just like him," and that she "was going to get it
straight" when she went to court.
The fact finder believed the Commonwealth's evidence and
rejected appellant's evidence. "The credibility of the
witnesses and the weight accorded the evidence are matters
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solely for the fact finder who has the opportunity to see and
hear that evidence as it is presented." Sandoval v.
Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).
The Commonwealth's evidence was competent, was not inherently
incredible, and was sufficient to prove that appellant was the
person who committed the robbery and other charged offenses.
Affirmed.
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