Monte M. Perkins v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia
MONTE M. PERKINS
MEMORANDUM OPINION * BY
v. Record No. 1839-98-2 JUDGE MARVIN F. COLE
JANUARY 27, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Maureen L. White for appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General;
Daniel J. Munroe, Assistant Attorney General,
on brief), for appellee.
Appellant was convicted in a jury trial of first degree
murder and use of a firearm in the commission of murder. On
appeal, appellant contends that the trial court erred: (1) by
refusing to admit into evidence a videotape of Detective Simmons'
interview with Shamal Benjamin, a codefendant, and (2) by failing
to strike the evidence on the charge of first degree murder
because the evidence was insufficient as a matter of law to
sustain a finding of guilt. We disagree and affirm.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
FACTS
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth, 4
Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
In the fall of 1997, Shamal L. Benjamin was released from
boot camp. He testified on behalf of the Commonwealth that when
he returned home, he had problems at school with two youths, Wayne
Martin and Matthew Jones. In explaining the trouble, Benjamin
said, "[t]hey were going around saying that I had robbed them."
Generally, he said that they "harassed, beat up and banked" him.
Benjamin testified that he reported these incidents to his
probation officer and the school authorities. This trouble would
stop for a short time and then resume.
Prior to the October 25, 1997 shooting, Benjamin had
discussed his difficulties with two friends, Dominique Waller and
Rasheen Waller, who were appellant's cousins. The Wallers told
Benjamin that "[t]hey were going to handle it." On the morning of
October 25, 1997, Benjamin received a phone call from appellant
and Rasheen Waller. Appellant said he had a red Taurus car and
that he would be around later in the day to pick up Benjamin.
Later in the day, appellant, his stepbrother William Culpepper,
Dominique Waller and Rasheen Waller arrived at Benjamin's home.
Appellant said to Benjamin that "he had heard what was going on
with the problems I was having at school." Appellant also said,
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"we're going to handle that." Benjamin further testified that
they walked to the Dominique Waller and Rasheen Waller house,
located in the San Souci Apartments.
All five of them got in the red Taurus. At first, Rasheen
Waller was driving and Benjamin was in the passenger seat.
Appellant was in the back seat behind the driver; Culpepper was in
the rear middle seat; Dominique Waller was in the other rear seat.
According to Benjamin's testimony, they "rode around for a little
while, back and forth." Eventually, they came back to where they
had started and dropped off Dominique Waller. At this point,
Benjamin started driving the car. They went through Deering Manor
Apartments because Martin and Jones lived there. Benjamin told
appellant he wanted to drive through there "to see was . . .
Martin and . . . Jones out there." Benjamin testified that he saw
only Martin, but he also saw some "boys" he had never seen before.
Benjamin testified that appellant said "let's go back to San
Souci and get the gun." They drove back to the San Souci
Apartments and parked in the back of Dominique Waller's house.
Rasheen Waller and appellant got out of the car and went inside.
Benjamin and Culpepper stayed in the car. Benjamin and Culpepper
were called in the house and everybody went inside Dominique
Waller's house. Benjamin explained what occurred there as
follows:
So, everybody went in the house. The gun
was brought out. It had the clip and
everything in it. So, Dominique Waller was
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like y'all do it another time, don't even go
around there, wait later. So, Rasheen
Waller and [appellant] was like, no, we're
going to do this now and get it over with.
In response to a question, Benjamin testified that
Dominique Waller "went and got the gun." After this discussion,
they got back in the red Taurus. Appellant was the driver;
Rasheen Waller was in the front passenger seat; Benjamin was in
the back seat behind the driver; Culpepper was in the back seat
behind the front passenger seat. Benjamin had the gun, an
AK-47, in his hands. They left the San Souci Apartments and
returned to the Deering Manor Apartments. By this time it was
dark, Benjamin told the others that he would direct the driver
how to get to Deering Manor Apartments, how to get in, and how
to get out. Appellant followed Benjamin's instructions in and
out.
As the group approached the area in which they had seen
Martin earlier, appellant stopped the car and waited for a
nearby car to drive away. Once that car had left, appellant
pulled up and stopped the car. Benjamin then jumped out and
"started shooting." Benjamin jumped or was pulled back into the
car. Appellant drove from the scene according to instructions
from Benjamin and returned to Dominique Waller's house in the
San Souci Apartments. The gun was returned to Dominique Waller.
The police found ten cartridges at the crime scene. Daryl
Pettiford was shot in the chest and died later that night.
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At the conclusion of the Commonwealth's evidence, appellant
moved to strike the evidence because "the Commonwealth has
proven no more than mere presence here" and that the testimony
of Benjamin was incredible. The trial judge denied the motion
stating that, "it's a jury question." The same motion was
renewed at the conclusion of all the evidence and was likewise
denied.
The jury found appellant guilty of first degree murder and
guilty of use of a firearm in the commission of murder. The
Court convicted him accordingly.
I. ADMISSION OF THE VIDEOTAPE
At trial, the Commonwealth put on its evidence, which
included the testimony of Benjamin. It then rested its case.
The trial judge called upon appellant to present his
defense. After appellant made a motion to strike the evidence,
the following discussion took place between the judge and
defense counsel while the jury was out:
[DEFENSE COUNSEL]: Your Honor, the only
evidence we would like to present is the
tape of Shamal Benjamin in his interview
with the police.
THE COURT: I think that it would have to go
to impeachment. I don't know what's
impeachable and what's not impeachable [in
the tape].
* * * * * * *
THE COURT: Well, where is the detective?
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[COMMONWEALTH'S ATTORNEY]: The detective is
here. He has been sequestered.
THE COURT: Call him to ask a specific
question, did he tell you so and so on such
and such a date?
[COMMONWEALTH'S ATTORNEY]: Detective
Simmons is right back there.
THE COURT: I mean, if you want to call him.
* * * * * * *
THE COURT: What point do you intend to
impeach?
[DEFENSE COUNSEL]: Your Honor, I have got
it here. In the tape he testified, he told
the police -- first he told the police the
red Taurus had been there earlier and a
crowd of people had been there and he was in
there with four people. Then he said that
he was hanging out with these guys. Monte
Perkins and Rasheen left and during that
period of time a blue Cavalier with these
two guys he is beefing with came around. It
was only at that time that he had the idea
to get the gun. And, it was at that time --
THE COURT: Well, how did that impeach him?
Excuse me just a minute. You want to
impeach the Commonwealth's witness. You
have asked him did he interview with the
detective. You might have laid a proper
foundation. I am going to give you the
benefit of the doubt, but I don't think you
did. You must give time, place, and
circumstances. He is interviewed by the
police. Now, you can ask specific questions
did he tell you at that time this, did he
tell you that, did he tell you this, and
then the officer will answer whatever the
answer will be. But, you just can't take
the tape because there's probably a lot of
inadmissible evidence in the tape.
* * * * * * *
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[DEFENSE COUNSEL]: Well, I think, you
Honor, we're entitled to introduce prior
inconsistent statements.
THE COURT: I'm not arguing [on that point].
I'm just telling you how to do it . . . .
That's all I'm doing.
* * * * * * *
[COMMONWEALTH'S ATTORNEY]: The tape is
almost 45 minutes long, Judge.
THE COURT: That's not the point. The point
is some of it is admissible, some of it
isn't. The only thing that's admissible to
impeach your witness, that's prior
inconsistent statements. . . .
[DEFENSE COUNSEL]: Your Honor, I think the
whole tape is inconsistent with his
testimony today. That's the point.
[COMMONWEALTH'S ATTORNEY]: That's entirely
untrue, entirely.
[DEFENSE COUNSEL]: I don't think it is.
But, that is the point and that's why I'm
offering --
THE COURT: I am not going to let the whole
tape in. If you want to call the officer.
[DEFENSE COUNSEL]: Yes, sir. I call
Detective Simmons.
THE COURT: All right. Return the jury.
Appellant called Simmons as a witness and questioned him
about any prior inconsistent statements made by Benjamin.
Simmons testified that he interviewed Benjamin on November 15,
1997, regarding the events that occurred on October 25, 1997.
The trial court permitted defense counsel to extensively
question Simmons concerning the interview with Benjamin and any
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inconsistent statements made by Benjamin. After the testimony
of Simmons was concluded, appellant rested his case.
Appellant again renewed his request to admit into evidence
the entire videotape and have the jury see it. The motion was
overruled. Appellant moved that the videotape be made part of
the record. This motion was granted.
Appellant contends that the trial court erred in refusing
to allow him to introduce the videotape containing prior
inconsistent statements made by Benjamin. He argues that this
refusal violated his Sixth Amendment right to confront the
witnesses and to present evidence in his defense. He claims it
also violated the Due Process Clause of the Fifth and Fourteenth
Amendments to the United States Constitution. Additionally, he
argues that the admission of the tape would have enabled the
jury to compare the demeanor of Benjamin at trial and his
demeanor during the interview. Since we find the videotape
inadmissible, we do not address this issue.
"A witness may be impeached by showing that he has formerly
made statements inconsistent with his present testimony." 1
Charles E. Friend, The Law of Evidence in Virginia § 4-3(a) (4th
ed. 1993). "[P]rior inconsistent statements are admitted solely
to attack the credibility of the witness who has told different
stories at different times." Id. "If a witness gives testimony
that is inconsistent with a prior statement, or testifies that
he does not recall making the prior statement, a sufficient
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foundation for impeachment has been laid, and opposing counsel
may cross-examine the witness as to the inconsistency." Smith
v. Commonwealth, 15 Va. App. 507, 511, 425 S.E.2d 95, 98 (1992)
(citation omitted) (holding that there was no Sixth Amendment
violation when trial court failed to admit the transcript of a
witness' prior statement after the witness admitted that his
prior statement was inconsistent with his trial testimony).
Counsel must call the witness' attention to the circumstances of
the particular occasion on which the alleged prior statement was
made. See Waller v. Commonwealth, 22 Va. App. 53, 58, 467
S.E.2d 844, 847 (1996) (citation omitted); see Code § 8.01-403.
The witness must be asked whether he previously made a particular
statement, "[i]f the witness denies or is unable to recall having
made the statement, counsel must then prove the statement actually
was made." Patterson v. Commonwealth, 222 Va. 612, 616-17, 283
S.E.2d 190, 193 (1981).
"Although it is proper under Virginia law to use a witness'
prior inconsistent statement for impeachment purposes, the trial
court has some discretion in determining how such a statement
shall be used." Smith, 15 Va. App. at 510-11, 425 S.E.2d at 98.
"[T]he extent of testimonial impeachment . . . should be 'left
largely to the sound discretion of the trial court; and the rule
is well established that an appellate court will not interfere,
unless that discretion has been plainly abused.'" Spruill v.
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Commonwealth, 221 Va. 475, 485, 271 S.E.2d 419, 425 (1980)
(citation omitted).
The record reflects that Benjamin was called as a
Commonwealth's witness and on direct examination testified
extensively about the appellant's involvement in the shooting.
He admitted that he shot the victim. Appellant did not object
to any of his testimony.
Upon completion of the direct examination, appellant fully
cross-examined Benjamin about all of his actions that occurred
on October 25, 1997. The cross-examination takes up twenty-one
pages in the sixty-page transcript of the proceeding. Although
some mention was made about an interview with Simmons and two
other officers, there was no suggestion that a videotape was
made of the interview. During the cross-examination, appellant
did not call Benjamin's attention to any statements that were
inconsistent with the videotaped police interview.
Appellant, by proffering the entire videotaped statement at
the conclusion of the Commonwealth's case, and after he had
completed his cross-examination of the witness, did not proceed
properly in attempting to use the videotape to impeach Benjamin's
trial testimony. The trial court permitted appellant to
extensively question Simmons concerning his interview with
Benjamin and any inconsistent statements made by Benjamin.
Moreover, we have reviewed the transcription of the
videotape, which was made part of the record upon appellant's
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motion. Those present at the interview held on November 15, 1997,
were Detective J.A. Simmons and Detective King of the Richmond
Police Department and Detective Carroll of the Chesterfield County
Police Department. No explanation was given for the presence of
the Chesterfield officer. However, as the interview progressed,
it became obvious that Benjamin was in the custody of the
Chesterfield police. Simmons asked Benjamin, "Even after the
shooting, what are you doing out here in Chesterfield shooting up
people?" Benjamin responded, "This time we was – this is
self-defense. This is self-defense." In response to a question
from King, Benjamin stated, "I know we had an AK last night, but
that wasn't the weapon. That weapon that we got last night, that
was somebody else's weapon." The interview ended with Simmons
thanking Benjamin for his "honesty" and King expressing his
appreciation to Benjamin for "telling us the truth."
Much of the interview was concerned with problems that
existed between Benjamin and other persons in his school that had
little if any relevance to this case. The videotape contains much
duplication. Very few dates and times of day are included in the
interview, making it impossible to determine what occurred on
October 25, 1997, and what took place on other occasions. We find
that Benjamin's testimony at trial and his statements to the
police were substantially the same. Therefore, the trial judge
did not abuse his discretion in refusing to admit the videotape in
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evidence and did not violate appellant's right to confront the
witnesses and present evidence in his defense.
II. SUFFICIENCY OF EVIDENCE
Appellant contends that the Commonwealth elicited evidence
that appellant was at home with his mother at the time of the
shooting and that there was a reasonable hypothesis that he was
mistakenly identified. Appellant asserts that "Howard based her
identification of [appellant] on the information related to her by
the police and not on her recollection of his face."
The record provides no mention of any person named "Howard,"
and the record is devoid of any evidence that appellant was
anywhere but driving the car. Furthermore, appellant's statement
of facts provides that the "undisputed facts establish that on
October 25, 1998 [sic], Shamal Benjamin got out of a car driven by
[appellant] . . . ." The Commonwealth's evidence was competent,
was not inherently incredible, and was sufficient to prove beyond
a reasonable doubt that appellant was guilty of first degree
murder and use of a firearm in the commission of murder.
For the foregoing reasons, we affirm the convictions.
Affirmed.
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