Jose C. Blake, etc. v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Overton
Argued at Norfolk, Virginia
JOSE C. BLAKE, a/k/a
JOSEPH C. BLAKE
MEMORANDUM OPINION *
v. Record No. 1849-94-1 BY JUDGE JOSEPH E. BAKER
JULY 2, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Jerome B. Friedman, Judge
Alan E. Rosenblatt, Judge
Eric W. Schwartz (George H. Bowles; Mays & Valentine,
on briefs), for appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Jose C. Blake also known as Joseph C. Blake (appellant)
appeals from judgments of the Circuit Court of the City of
Virginia Beach (trial court) that approved jury verdicts
convicting him of two counts of robbery in violation of Code
§ 18.2-58 and two counts of use of a firearm in the commission of
a felony in violation of Code § 18.2-53.1. Appellant was
convicted of one count of each violation in two separate jury
trials (Emrick trial and Murray trial). On appeal from the
Emrick trial appellant argues (1) that the witness's in-court
identification of appellant was inadmissible as being
impermissibly suggestive and (2) that the trial court erred in
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
refusing to instruct the jury with respect to the lesser-included
offense of grand larceny from the person. On appeal from the
Murray trial, appellant argues that the trial court erred in
permitting him to be cross-examined beyond the scope of his
direct examination. Finding no error, we affirm the judgments of
the trial court.
Emrick Trial
On appeal we view the evidence "in the light most favorable
to the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom." Evans v. Commonwealth, 215 Va. 609,
612, 212 S.E.2d 268, 271 (1975). Timothy Emrick (Emrick) worked
part-time as a taxicab driver. On October 23, 1993, at 7:28
p.m., Emrick was dispatched to Tivoli Apartments, Tivoli
Crescent. Emrick pulled up in front of the apartment to which he
had been dispatched. After waiting several minutes and as he was
starting to leave, Emrick noticed two people coming from the back
side of the apartments. From where he first saw the two people,
it took them a "minute or less" to reach the cab. During this
time Emrick was looking directly at them. As Emrick observed the
two, he felt he should not "pick them up."
The two approached the passenger side of the cab and
appellant knocked on the cab's front passenger-side window,
stating, "Hey. You're here for us." Appellant directed Emrick
to a destination.
Appellant opened the front passenger door and sat in the
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front seat. The other man entered the backseat of the cab from
the right rear door and sat behind appellant. As appellant
entered the car, the dome light was on and Emrick had a "[c]lear
line of vision" to appellant. Appellant was seated about a foot
from Emrick. Emrick made an entry in his log and radioed his
dispatcher that he was proceeding to the destination.
Emrick backed out of a parking space and proceeded to a stop
sign. Emrick stopped at the sign and, as he was looking to the
left, heard a "loud noise -- a bang." Emrick, startled, looked
to his right and saw a smoking gun pointed at him. Emrick did
not know if he had been shot. Appellant stated, "Give me your
money." Emrick gave appellant $19 and then appellant and the
other man fled, running toward the passenger side front end. The
whole incident, from when appellant tapped on the window to when
they fled, lasted about three minutes.
Emrick left the immediate area and notified his dispatcher.
Police arrived within three to five minutes. Emrick gave the
police a description of the robbers. Emrick told one of the
police officers that he believed the gun used may have been a
"blank" gun. When asked whether he would have given appellant
money if he had not had a gun pointed at him, Emrick stated,
"Probably not. I would say no."
About a week after the incident, Emrick met with the
Virginia Beach Police. Emrick was shown a set of twelve
photographs, including one of appellant. Emrick did not identify
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appellant nor any of the other photos presented to him.
Following the presentation of the photo array Emrick never spoke
with the police or the Commonwealth's Attorney's office about
identifying suspects.
On January 4, 1994, Emrick testified at appellant's
preliminary hearing. While Emrick was testifying, appellant
walked in the room and sat down at a table with his lawyer.
There were no other black teenagers or people sitting with a
lawyer in the courtroom. At the preliminary hearing Emrick
identified appellant as one of his assailants.
Emrick testified that on the night of the incident,
appellant's hair was styled similar to the way it was at the
preliminary hearing and at the trial. Appellant's hair may have
been a little shorter on the night of the robbery, but it was
styled the same, in an Afro style. The picture of appellant that
was shown to Emrick in the photo lineup was a picture of
appellant with much shorter hair, almost no hair at all. At
trial, Emrick was asked if he was "positive" that appellant was
the person who robbed him at gunpoint; Emrick responded that
there was "[n]o question about it."
Witness's Identification
Due process is violated if the pretrial identification
procedure is "so impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable misidentification."
Simmons v. United States, 390 U.S. 377, 384 (1968). If an
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identification procedure is deemed impermissibly suggestive, it
must be determined "whether [the] identification[] . . . w[as]
nevertheless so reliable that no substantial likelihood of
misidentification existed." Wise v. Commonwealth, 6 Va. App.
178, 184, 367 S.E.2d 197, 201 (1988) (citing Neil v. Biggers, 409
U.S. 188, 198 (1972)). The factors to be considered in making
this determination are: (1) the opportunity of the witness to
view the criminal at the time of the crime; (2) the witness's
degree of attention; (3) the accuracy of the witness's prior
description of the criminal; (4) the level of certainty
demonstrated by the witness at the confrontation; and (5) the
length of time between the crime and the confrontation. Id. at
184-85, 367 S.E.2d at 201.
The application of these factors to this case demonstrates
that no substantial likelihood of a misidentification of
appellant by Emrick existed. Here, Emrick had the opportunity to
view appellant for approximately a minute as he approached the
cab. Additionally, Emrick had the opportunity to view appellant
at close range as he entered the cab and sat in the front seat
next to him and as appellant faced Emrick to demand money.
Emrick testified that he felt uneasy about picking up appellant
and his companion and that he was looking directly at them for
the entire time it took them to reach his cab, indicating that
Emrick was not a passive observer. Although not inordinately
specific, Emrick's first description of appellant accurately
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described appellant. Emrick stated that there was "[n]o
question" that appellant was the person who robbed him. Emrick
explained his inability to identify appellant from the photo
array, stating that, at all times that he had contact with
appellant, appellant's hair was longer and styled differently
from how appellant appeared in his picture presented as part of
the photo array. Finally, slightly more than two months passed
between the time of the robbery and the identification; this is
not an impermissibly long period of time. See Fogg v.
Commonwealth, 208 Va. 541, 159 S.E.2d 616 (1968) (victim
identified defendant at preliminary hearing more than two months
after the crime).
Jury Instruction
Appellant argues that the trial court erroneously refused to
offer a "grand larceny from the person" instruction because the
jury could have concluded that appellant effectuated the taking
from Emrick without violence or intimidation. This argument is
based on Emrick's statement to the police that he believed the
gun appellant used may have been a gun designed to shoot blanks.
Appellant's argument is without merit. Appellant pointed a
smoking gun at Emrick and demanded money. Emrick's testimony
discloses that he was frightened by appellant's actions and that
but for the presentation of the smoking gun, he would not have
given the money to appellant. The trial court did not err when
it refused to grant the instruction requested by appellant.
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Murray Trial
On October 30, 1993, James H. Murray (Murray), a delivery
driver for Chanello's Pizza, made a delivery to Regency
Apartments in Virginia Beach. Murray received the call to
deliver the pizza around 8:00 p.m. As Murray drove into the
parking lot, three young men approached his vehicle. As he
turned his vehicle around, they went back under the breezeway
from which they had come. Murray exited his car and was
approaching the building when the three men came toward him. As
they approached, one of the men pulled out a gun and said, "Come
over here. Give me the pizza and all your money." The man with
the gun directed appellant to take the pizza and the money.
Thereafter, the man with the gun ordered Murray to leave and then
shot him. At trial Murray stated that he was "pretty sure" that
appellant was the man who took the pizza and money from him.
At trial, appellant relied upon an alibi defense. Evidence
in support of appellant's alibi was introduced through the direct
examination of appellant's girlfriend, Victoria Pinaro (Pinaro),
his mother, Marcia Samuels, and appellant. They testified that
on the night of the robbery appellant was with Pinaro, and later
with his mother, and that he was not involved in the crime. On
cross-examination, Pinaro denied previously telling the police
that appellant and appellant's co-defendants, Curtis Brandon
(Brandon) and Terrence Paige (Paige), visited her at her aunt's
apartment on the night of the robbery. No mention of Brandon or
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Paige was made during appellant's direct examination.
On cross-examination of appellant, the Commonwealth asked
appellant if he knew Brandon. Over appellant's objection, he
responded in the affirmative and offered that he met Brandon at a
detention home. Appellant was also asked if he knew Paige and,
over objection, responded that he had met him in school "a couple
of months" after the start of the school year.
On redirect, the Commonwealth called Virginia Beach Police
Officer Paul C. Yoakam (Yoakam). Yoakam testified to a
conversation he had with Pinaro on December 12, 1993. He stated
that Pinaro told him that appellant, Brandon, and Paige visited
her at her aunt's apartment on the night of the robbery, and that
Paige told her that Brandon shot the pizza man. The aunt's
apartment was one "court" over from the site of the shooting.
Appellant argues that the trial court erred in permitting
the Commonwealth to cross-examine him on matters that exceeded
the scope of his direct examination. We disagree. "When
[appellant] took the witness stand and denied complicity in the
offenses then on trial, he opened the door for any questions on
cross-examination that the trial court, in the exercise of its
discretion, might find relevant to the issue of guilt or
innocence." Satcher v. Commonwealth, 244 Va. 220, 252, 421
S.E.2d 821, 840 (1992). Since appellant denied taking part in
the robbery and shooting at issue, and the Commonwealth's theory
of the case was that appellant and two others, namely Brandon and
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Paige, perpetrated the robbery and shooting of Murray, whether
appellant knew Brandon and Paige is a matter which certainly may
be considered relevant to a determination of appellant's guilt or
innocence. The trial court did not abuse its discretion in
presiding over appellant's cross-examination.
For the foregoing reasons, the judgments of the trial court
in both the Emrick and the Murray trials are affirmed.
Affirmed.
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