Abdul-Malik Ramadan Salaam v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia
ABDUL-MALIK RAMADAN SALAAM
MEMORANDUM OPINION * BY
v. Record No. 1694-99-2 JUDGE SAM W. COLEMAN III
AUGUST 22, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Patricia P. Nagel, Assistant Public Defender
(David Johnson, Public Defender, on brief),
for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Abdul-Malik Salaam was convicted in a bench trial of
attempted murder of a police officer, in violation of Code
§ 18.2-31(6), and grand larceny, in violation of Code § 18.2-95.
On appeal, Salaam argues that the evidence is insufficient to
support his convictions. We disagree and affirm the convictions.
BACKGROUND
On January 26, 1999, Robert Ramsey was at a gas station in
Richmond. At approximately 10:30 p.m., as Ramsey was about to
enter his green Honda Civic, two men approached him. Holding
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Ramsey at knifepoint, the two men demanded the keys to the
vehicle. Ramsey surrendered the keys, and the men took the
vehicle. Ramsey described the men simply as "two young
African-American gentlemen." Ramsey was unable to describe the
perpetrators' clothing or remember whether they had facial hair.
Ramsey admitted that he had consumed one alcoholic drink before
the incident.
Ramsey's vehicle was recovered ten days later. At that time,
Ramsey was asked to determine whether he could identify the men
who stole the vehicle from a photographic line-up. Although a
photo of Salaam was included in the photo spread, Ramsey was
unable to identify anyone from the photographic line-up as one of
the thieves. However, when Ramsey encountered Salaam in person at
the preliminary hearing, he identified Salaam as one of the two
men who stole his vehicle. Ramsey stated that although it was
dark, the gas station was well lit. He estimated that the
incident took less than one minute.
On February 5, 1999, Richmond Police Officers Arthur Rucker
and Gerald Brissette were in uniform and on bicycle patrol when
they observed two men, Muhammad Fox and Jihae Fox, run out of a
store and across the street, pushing people out of the way as they
ran down the sidewalk. The officers followed the men, and Rucker
apprehended Jihae Fox. Brissette followed Muhammad Fox into an
alley, ordering him to stop. There was only one entrance and exit
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in the alley. When Brissette and Muhammad Fox reached the end of
the alley, Brissette drew his weapon. Muhammad Fox got into the
passenger side of a green Honda Civic, Ramsey's stolen vehicle,
which was backed into the rear of the alley, approximately ten
feet away from Brissette. Brissette testified that, after
Muhammad Fox entered the vehicle, the vehicle's engine revved and
the vehicle proceeded toward him. Brissette, who stood between
the vehicle and the exit of the alley, moved to his right,
attempting to remove himself from the path of the vehicle. The
vehicle turned and proceeded toward Brissette. The vehicle
brushed Brissette's leg, and he fired three shots at the vehicle.
Just prior to hitting Brissette, the vehicle hit a retaining wall
in the alley. Brissette testified that, as the vehicle drove past
him, he observed only two individuals in the vehicle. His view
was unobstructed, and he identified Salaam as the driver.
The vehicle proceeded down the alley, and it was pursued by
Detective Allen Reid. Reid continued to pursue the vehicle until
it drove through a metal fence and came to a stop at the end of a
guardrail. Reid then observed two individuals run onto
Interstate 95. Reid testified that, from his vantage point, he
would have been able to see if a third person had fled the
vehicle. Salaam and Muhammad Fox were quickly apprehended. Both
Reid and Brissette testified that there were only two people in
the vehicle.
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Jihae Fox and Salaam both testified that Salaam was not
living in Virginia at the time Ramsey's vehicle was stolen.
Salaam testified that, on the day of the incident, he and his two
brothers, Jihae and Muhammad Fox, had just finished doing laundry
and were walking home when Salaam's friend, Odie, approached them
and asked them if they wanted a ride. Salaam testified that he
got into the back seat of the vehicle, behind Odie. The four men
drove downtown, and Jihae and Muhammad Fox exited the vehicle and
were gone for approximately ten or fifteen minutes. Salaam
testified that he was lying down in the back seat when Muhammad
Fox returned to the vehicle. Salaam them observed Brissette
following Muhammad Fox with his weapon drawn. Salaam stated that
the vehicle "pulled out slow" and "started making the turn" when
Brissette began shooting. Salaam stated that he "ducked" down in
the back seat. When the vehicle finally crashed to a stop, Salaam
got up from the back seat and realized that Odie had fled. Salaam
and Muhammad then tried to escape, running across the interstate.
ANALYSIS
"On review of a challenge to the sufficiency of the
evidence, we view the evidence in the light most favorable to
the Commonwealth, the prevailing party, and grant to it all
reasonable inferences fairly deducible therefrom." Robertson v.
Commonwealth, 31 Va. App. 814, 820, 525 S.E.2d 640, 643 (2000)
(citing Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d
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263, 265 (1998). "The judgment of a trial court sitting without
a jury is entitled to the same weight as a jury verdict, and
will not be disturbed on appeal unless plainly wrong or without
evidence to support it." Beck v. Commonwealth, 2 Va. App. 170,
172, 342 S.E.2d 642, 643 (1986) (citations omitted). "The
credibility of the witnesses and the weight accorded the
evidence are matters 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) (citations omitted).
A. Attempted Capital Murder
Salaam argues that the evidence is insufficient to support
his conviction for the attempted murder of Officer Brissette. He
argues that the Commonwealth failed to prove that he was the
driver of the vehicle. Salaam argues that Brissette's testimony,
which was the only evidence offered to show that he was the driver
of the vehicle, was inherently incredible. Even assuming he was
the driver, Salaam argues that the Commonwealth failed to prove
that he had the intent to kill Brissette. Rather, he asserts that
the driver's intent was merely to flee the scene and avoid
apprehension.
Although the incident occurred very quickly and occurred
while the vehicle sped past Brissette, brushing up against his
leg, and while Brissette was firing three rounds into the
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vehicle, Brissette's identification of Salaam was not inherently
incredible. See Robertson v. Commonwealth, 12 Va. App. 854,
858, 406 S.E.2d 417, 419 (1991) (stating that in order to
disregard a witness' testimony as a matter of law, the evidence
must be inherently incredible or the witness' account of the
events must be unworthy of belief). The trial court was
entitled to weigh the evidence concerning the circumstances
surrounding the offense in determining Brissette's credibility
and Salaam's guilt. Brissette had an unobstructed view of
Salaam as he drove past him in the vehicle. Brissette
positively identified Salaam as the driver and testified that
only two people were in the vehicle. Neither officer saw a
third person occupying the vehicle or flee from the vehicle
after it crashed, and Salaam was irrefutably an occupant of the
vehicle. The trial judge was entitled to disbelieve Salaam's
and Jihae Fox's testimony that Odie was driving and to conclude
that Salaam and his brother were lying to conceal Salaam's
guilt. See Marable v. Commonwealth, 27 Va. App. 505, 509-10,
500 S.E.2d 233, 235 (1998) (citation omitted).
Next, Salaam, relying on Haywood v. Commonwealth, 20 Va.
App. 562, 458 S.E.2d 606 (1995), argues that, even assuming he
was the driver, the Commonwealth failed to prove that he
intended to kill Brissette. He asserts that the evidence
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"clearly shows" that the driver intended only to flee the scene
and avoid apprehension. We disagree.
In Haywood, the defendant, who had been drinking heavily,
had a verbal altercation with another boater at a park. The
defendant became belligerent, took a baseball bat, and hit the
hood of the other person's vehicle with the bat. The defendant
then got into his truck and sped off toward the park exit. The
victim promptly called the police. Three officers in separate
vehicles tried to stop the defendant, who was traveling down the
middle of the road at a high rate of speed. Two officers,
individually, set up roadblocks by placing their vehicles in the
defendant's path. Each time the defendant approached a
roadblock, he failed to slow down. The officers had to take
evasive action to avoid a collision. The defendant was
convicted of two counts of attempted capital murder of a police
officer. We reversed the conviction, finding that the
Commonwealth's evidence failed to exclude the reasonable
hypothesis of innocence, that being the defendant was merely
attempting to avoid apprehension. We noted, however, that
"[t]here was no evidence that [the defendant] ever swerved or
aimed his truck to hit the police cars when they pulled out of
his path or that he turned his truck around in an attempt to hit
the police cars after passing by them." Id. at 567, 458 S.E.2d
at 608-09.
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Code § 18.2-31(6) provides that "[t]he willful, deliberate,
and premeditated killing of a law-enforcement officer . . . when
such killing is for the purpose of interfering with the
performance of his official duties" shall constitute capital
murder. "'"An attempt to commit a crime is composed of two
elements: (1) the intent to commit it; and (2) a direct,
ineffectual act done towards its commission."'" Haywood, 20 Va.
App. at 565, 458 S.E.2d at 607-08 (citations omitted). "A
person cannot be guilty of an attempt to commit murder unless he
has a specific intent to kill." Id., 458 S.E.2d at 607 (citing
Merritt v. Commonwealth, 164 Va. 653, 661, 180 S.E. 395, 398
(1935)). "Intent is the purpose formed in a person's mind and
may be, and frequently is, shown by circumstances. It is a
state of mind which may be proved by a person's conduct or by
his statements." Barrett v. Commonwealth, 210 Va. 153, 156, 169
S.E.2d 449, 451 (1969); see also Nobles v. Commonwealth, 218 Va.
548, 551, 238 S.E.2d 808, 810 (1977). "[A] person is presumed
to intend the immediate, direct, and necessary consequences of
his voluntary act." Id. at 551, 238 S.E.2d at 810. "[W]hether
the required intent exists is generally a question for the trier
of fact." Id. "A motor vehicle, wrongfully used, can be a
weapon as deadly as a gun or a knife." Essex v. Commonwealth,
228 Va. 273, 281, 322 S.E.2d 216, 220 (1984).
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We hold that the evidence proved that Salaam had the
requisite intent to kill Brissette. Here, Brissette testified
that after Muhammad Fox entered the vehicle that was waiting for
him in the back of the alley, Salaam revved the engine and drove
toward Brissette. Brissette saw the tires of the vehicle turn
completely in his direction, away from the alley exit. See
Moody v. Commonwealth, 28 Va. App. 702, 707, 508 S.E.2d 354,
356-57 (1998) (finding that, although defendant warned the
victim to move out of the way, the defendant formed the specific
intent to run over the victim had he not moved out of he way).
Moreover, the defendant's assertion that he only struck
Brissette with his vehicle while attempting to escape is belied
by the evidence that Salaam could have driven from the scene
without steering toward Brissette or without hitting the
retaining wall. The evidence proved that the vehicle was
only 63 inches wide while the mouth of the alley was more than
300 inches wide. From this evidence, the fact finder could
infer that Salaam intended to kill Brissette.
B. Grand Larceny
Salaam argues that the evidence is insufficient to support
his conviction for grand larceny because the victim's
identification of him was unreliable. He asserts that Ramsey was
able to identify him as the perpetrator only after seeing him in
the "suggestive setting" of the preliminary hearing.
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Although Salaam does not contest the admissibility of
Ramsey's identification, the factors set forth in Neil v. Biggers,
409 U.S. 188 (1972), are relevant in determining whether the
identification evidence is sufficient, standing alone or in
combination with other evidence, to prove beyond a reasonable
doubt that Salaam was one of the two people who stole Ramsey's
vehicle. See Smallwood v. Commonwealth, 14 Va. App. 527, 530, 418
S.E.2d 567, 568 (1992) (applying the Neil v. Biggers analysis even
though the accused did not appeal the trial court's denial of his
motion to suppress the identification); see also Currie v.
Commonwealth, 30 Va. App. 58, 73, 515 S.E.2d 335, 343 (1999)
(stating that the factors enunciated in Biggers are "significant
circumstances that may be considered along with other evidence").
These 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.
Here, the evidence established that the theft of Ramsey's
vehicle occurred in an area that was well lit and that Ramsey had
a good opportunity to view the two assailants. Although Ramsey
was unable to identify Salaam "for sure" from the photographic
line-up, Ramsey unequivocally identified Salaam after seeing the
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defendant in person for the first time. Ramsey's identification
of Salaam occurred only after seeing him at the preliminary
hearing; however, Ramsey attributed his ability to identify Salaam
to the "differences in seeing someone in person and seeing
photographs." See Thomas v. Commonwealth, 16 Va. App. 851, 859,
434 S.E.2d 319, 324-25 (1993) (holding that the fact that the
defendant was handcuffed during the showup and wearing "jail
garb" at the preliminary hearing did not invalidate the
identifications), aff'd en banc, 18 Va. App. 454, 444 S.E.2d 275(1994). Although Salaam intimates that Ramsey may have been
intoxicated because he conceded that he had a drink just prior to
the incident, there is no evidence to suggest that Ramsey was
intoxicated or that his judgment was impaired. Most importantly,
Salaam was observed driving Ramsey's vehicle ten days after the
theft. Unexplained or unsatisfactorily explained possession of
recently stolen property supports a reasonable inference that the
person in possession is the thief. See Bright v. Commonwealth, 4
Va. App. 248, 251, 356 S.E.2d 443, 444 (1987) (holding that "the
unexplained possession of recently stolen goods permits an
inference of larceny by the possessor"). Further, although Salaam
testified that he was living in New Jersey at the time of the
incident and that he did not return to Richmond until eight days
after the incident, the fact finder was entitled to reject
Salaam's self-serving testimony and conclude that he was lying to
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conceal his guilt. Accordingly, we find the evidence is
sufficient to prove beyond a reasonable doubt that Salaam was the
perpetrator of the crime.
Accordingly, we find the evidence sufficient to affirm the
convictions.
Affirmed.
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