Kareem Jemar Bennett v. Commonwealth ( 2006 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Haley
Argued at Chesapeake, Virginia
KAREEM JEMAR BENNETT
MEMORANDUM OPINION* BY
v. Record No. 2811-05-1 JUDGE LARRY G. ELDER
OCTOBER 31, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
H. Vincent Conway, Jr., Judge
Charles E. Haden for appellant.
Donald E. Jeffrey, III, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on briefs), for appellee.
Kareem Jemar Bennett (appellant) appeals from his bench trial conviction for driving
after having been declared a habitual offender. On appeal, he contends the eyewitness
identification testimony of the police officer who instituted the charge was insufficient to prove
he was the person driving during the incident in question. We hold the evidence, viewed in the
light most favorable to the Commonwealth, was sufficient, and we affirm.
In reviewing the sufficiency of the evidence on appeal, we examine the record in the light
most favorable to the Commonwealth, granting to the evidence all reasonable inferences fairly
deducible therefrom. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987). The judgment of a trial court will be disturbed only if plainly wrong or without evidence
to support it. Id. The credibility of a witness, the weight accorded the testimony, and the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
inferences to be drawn from proven facts are matters to be determined by the fact finder. Long
v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
At trial, the Commonwealth bears the burden of proving the identity of the accused as the
perpetrator beyond a reasonable doubt. Brickhouse v. Commonwealth, 208 Va. 533, 536, 159
S.E.2d 611, 613-14 (1968). In determining the sufficiency of the evidence to support a
conviction where a witness’ identification is challenged, we look to the reliability factors
enunciated in Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), as
significant circumstances that may be considered along with other evidence. Charity v.
Commonwealth, 24 Va. App. 258, 262-63, 482 S.E.2d 59, 61 (1997). Those 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.”
Currie v. Commonwealth, 30 Va. App. 58, 73, 515 S.E.2d 335, 343 (1999) (quoting Biggers, 409
U.S. at 199-200, 93 S. Ct. at 382, 34 L. Ed. 2d at 411). Those circumstances also may include
the fact that the person making the identification was “a trained police officer on duty” rather
than “a casual or passing observer” and, as such, that “he could be expected to pay scrupulous
attention to detail, for he knew that subsequently he would have to find and arrest [the
perpetrator].” Manson v. Brathwaite, 432 U.S. 98, 115, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140,
154 (1977) (involving undercover narcotics officer who made controlled purchase of drugs).
Although “‘a single photograph display is one of the most
suggestive methods of identification and is always to be
viewed with suspicion,’” Wise v. Commonwealth, 6 Va. App. 178,
184, 367 S.E.2d 197, 200 (1988) (quoting Hudson v. Blackburn,
601 F.2d 785, 788 (5th Cir. 1979)), “[p]re-trial show-ups are not
per se violative of constitutional rights,” Ford v. Commonwealth,
28 Va. App. 249, 258, 503 S.E.2d 803, 807 (1998).
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Blevins v. Commonwealth, 40 Va. App. 412, 423, 579 S.E.2d 658, 663-64 (2003), aff’d on other
grounds, 267 Va. 291, 590 S.E.2d 365 (2004). Absent evidence of a process so suggestive as to
“giv[e] rise to a ‘very substantial likelihood of irreparable [mis]identification,’” the identification
evidence is admissible, and “the weight to be attributed to the evidence [is] for the [fact finder] to
decide.” Bryant v. Commonwealth, 10 Va. App. 421, 427, 393 S.E.2d 216, 220 (1990) (quoting
Brathwaite, 432 U.S. at 116, 97 S. Ct. at 2254, 53 L. Ed. 2d at 155 (quoting Simmons v. United
States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968))).
Here, the issue on appeal is not the admissibility of the eyewitness identification
testimony but rather the sufficiency of the evidence to prove appellant was the driver. Under the
principles set out above, we hold the evidence, viewed in the light most favorable to the
Commonwealth, was sufficient to prove this element of the offense. Officer C. Godbot, a trained
police officer acting within the scope of his duties, observed appellant when Godbot attempted to
stop appellant’s vehicle for an equipment violation and appellant fled the scene of the stop.
Although the stop occurred at 12:30 a.m., Officer Godbot testified that he “had [his] headlights
on, [his] overhead lights on and [his] spotlight on facing the [driver’s] vehicle.” In addition, the
area of the stop was illuminated by streetlights. Although Officer Godbot saw appellant for only
a few seconds before appellant fled, Godbot testified that appellant looked directly back at him
before fleeing and that he had a clear, unobstructed view of appellant’s face from a distance of
approximately twenty-five feet. Although Officer Godbot’s written description of the driver--a
“black male about 5-foot-9, 160 pounds”--was fairly general, Godbot said he remembered the
driver’s “facial features” and that he “didn’t forget [the driver’s] face.” Also, within a short time
after the stop, Officer Godbot viewed a photograph and identified the person depicted therein as
the person driving at the time of the traffic stop. He emphasized he did not need to include a
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detailed written description of the driver in his notes regarding the offense because he actually
had “[the driver’s] picture” “[t]he night he ran.”
Thus, the totality of the circumstances, including Officer Godbot’s training as a police
officer, his opportunity to view the driver clearly before he fled, the level of certainty of Officer
Godbot’s identification both on the night of the offense and at trial, and the short period of time
that passed between his viewing the driver and first viewing the photograph, support the trial
court’s finding that Officer Godbot’s identification of appellant was sufficient to prove appellant
drove on the night at issue. Although Officer Godbot saw the driver’s face clearly for only about
two seconds before he fled, the length of the opportunity for viewing is merely one factor in the
totality-of-the-circumstances analysis. There is no minimum time for which a witness must
observe a person before being able to make an identification of him sufficient to support a
conviction, and our Supreme Court has upheld a conviction involving a lay witness identification
made under similar circumstances. See Satcher v. Commonwealth, 244 Va. 220, 252-54, 421
S.E.2d 821, 840-42 (1992) (upholding conviction where bystander saw suspect’s face for no
more than two to five seconds as he ran past her and she identified him short time later while he
stood in group of people in which he was “[the] lone black man”).
For these reasons, we hold the challenged eyewitness identification testimony, found
credible by the trial court, was sufficient to support appellant’s conviction for driving after
having been declared a habitual offender. Thus, we affirm the conviction.
Affirmed.
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