Richard David Fishback v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Lemons
and Senior Judge Duff
Argued at Alexandria, Virginia
RICHARD DAVID FISHBACK
MEMORANDUM OPINION * BY
v. Record No. 1377-98-4 JUDGE CHARLES H. DUFF
JUNE 15, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
Carleton Penn, Judge Designate
S. Jane Chittom, Appellate Counsel (Elwood
Earl Sanders, Jr., Appellate Defender; Public
Defender Commission, on briefs), for
appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Richard David Fishback (appellant) was convicted in a jury
trial of one count of robbery, one count of use of a firearm
during the robbery, three counts of abduction, and three counts of
use of a firearm during the abductions. Appellant contends that
the trial court erred by (1) finding the evidence sufficient to
prove that appellant abducted three people, (2) finding the
evidence sufficient to prove that he used a firearm during those
abductions, (3) refusing appellant’s proffered instruction on
abduction, and (4) denying appellant’s motion to suppress all
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
in-court identifications of him by witnesses who had been shown a
photo array. For the following reasons, we find no error and
affirm the convictions.
Facts
At approximately 2:45 p.m. on January 7, 1997, Elaine
Armentrout (Elaine) was working as a cashier at the Corner Store.
Her husband, Johnnie Armentrout (Johnnie), and a customer, Robert
Fogle, were also present in the store. Elaine looked up from the
counter when she heard a man say, “I’m not kidding.” She saw a
man with a gun order Johnnie and Fogle to lie on the floor. The
man then walked to the counter, pointed his gun at Elaine and
demanded money. Elaine gave him the bills from the cash register
and the bank bag that was under the counter. Afterwards, the man
told Elaine to get on the floor and to stay there for five
minutes.
Elaine described the man as in his late thirties, about 5’6”
to 5’8”, weighing 160 to 170 pounds. He was wearing an “olivey”
green, dark jacket and had a nylon stocking over his face with
“great big round cut-outs” for his eyes. Elaine was able to see
the man’s eyes and eyebrows, and observed him at arm’s length for
a couple of minutes. In court, Elaine identified appellant as the
robber.
Raymond Heflin, who lives across the street from the Corner
Store, noticed a Toyota Corolla parked in a peculiar manner near
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the store, and made note of the license tag number, IXQ 344. A
few minutes later, Heflin saw appellant, with his face uncovered,
run from the front of the store, jump into the Toyota Corolla, and
speed away. When the police arrived later, Heflin reported what
he had observed. The next day, Heflin noticed the same Toyota
Corolla pass him and saw appellant driving the car. Heflin noted
the tag number, which was one letter off from the number he had
recalled from the previous day. In court, Heflin identified
appellant as the person he had seen on those two days.
Deborah Pullen, the owner of the Toyota Corolla, loaned her
car to appellant on January 7, 1997. Appellant picked her up from
work at about 3:30 p.m., gave her a handgun, and asked her to put
it in her house, where it was later found.
Investigator Gary Healy interviewed appellant the day after
the crime. Initially, appellant denied any involvement, but later
admitted that the police “had the right man in custody.” When
Healy talked to Elaine about the crime, she described the robber
as having blue eyes, and brown hair that was covered by some sort
of hat or cloth. Because appellant was a suspect in his mind,
Healy created a photo spread by looking for five other photographs
of white males, in the same age bracket and with similar
characteristics regarding head hair, facial hair, and facial
features as appellant. Healy relied on the photograph he had of
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appellant in creating the photo display, and not on the witnesses’
descriptions.
Heflin identified appellant from the photo spread.
Thereafter, he signed the “back of the lineup folder,” dated it,
and wrote the number of the photograph that he had identified.
Two other witnesses, regarding another case involving appellant,
identified appellant and signed the back of the form. Thereafter,
Healy contacted Elaine and took the photo spread to her. Elaine
identified appellant and said “the eyes stood out to her.” Healy
then turned the folder over, and Elaine signed the back of the
form, dated it, and recorded the number of the picture she had
identified. Elaine’s signature was the fourth signature on the
back of the photo spread.
In an opinion letter, the trial court noted that appellant
did not assert that the procedure used by Healy was unduly
suggestive, but that the photo array itself was unduly suggestive.
The court noted that two other persons shown in the array had blue
eyes. As to the hair color, Healy had instructed the victims to
consider only the features that could not be altered or changed.
Healy attempted to cover the head hair on each person in the photo
spread for each witness, except Heflin, who had seen appellant’s
face uncovered.
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Issues 1 and 2
“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).
So viewed, the evidence showed that appellant entered the
Corner Store, displayed his gun, and ordered Johnnie and Fogle
to “[g]et on the floor right now, I’m not kidding.” Appellant
then approached the cashier, Elaine, pointed his gun at her, and
demanded money. After some difficulty getting the cash register
open, Elaine gave appellant the money from the register and the
bank bag containing money. Thereafter, appellant told her to
“get on the floor and stay there for five minutes.” Elaine did
as instructed because “he was holding a gun on [her].” After
appellant left the store, Johnnie, Fogle, and Elaine got off the
floor, and Elaine called the police.
[O]ne accused of abduction by detention and
another crime involving restraint of the
victim, both growing out of a continuing
course of conduct, is subject upon
conviction to separate penalties for
separate offenses only when the detention
committed in the act of abduction is
separate and apart from, and not merely
incidental to, the restraint employed in the
commission of the other crime.
Brown v. Commonwealth, 230 Va. 310, 314, 337 S.E.2d 711, 713-14
(1985).
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The evidence established that the detention of the store’s
occupants, Johnnie and Fogle, who were not victims of the
robbery, while appellant robbed Elaine, was separate and apart
from the restraint inherent in the act of robbery. Forcing
Johnnie and Fogle onto the floor was greater than the kind of
restraint needed to rob Elaine. After the robbery was completed
and the money received from Elaine, appellant forced her onto
the floor and demanded that she stay on the floor for five
minutes, actions not inherent in or necessary for completion of
the crime of robbery. Cf. Cardwell v. Commonwealth, 248 Va.
501, 511, 450 S.E.2d 146, 152-53 (1994) (transporting victim
from robbery scene was detention separate and apart from
restraint needed to commit robbery and was committed to protect
fruits of robbery and to escape arrest). The evidence was
sufficient to prove beyond a reasonable doubt that appellant
committed three abductions and used a firearm in the commission
of those abductions.
Issue 3
The trial court is responsible “‘to see that the law has
been clearly stated and that the instructions cover all the
issues which the evidence fairly raises.’” Stewart v.
Commonwealth, 10 Va. App. 563, 570, 394 S.E.2d 509, 513 (1990)
(quoting Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856,
858 (1982)). However, “‘[i]t is error to give an instruction,
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though correct as an abstract statement of law, unless there is
sufficient evidence in the record to support it.’” Pannell v.
Commonwealth, 9 Va. App. 170, 172, 384 S.E.2d 344, 345 (1989)
(quoting Swift v. Commonwealth, 199 Va. 420, 424, 100 S.E.2d 9,
13 (1957)).
The trial court instructed the jury on the elements that
the Commonwealth must prove for abduction and robbery
convictions. The jury was instructed that abduction required
that “the defendant by force or intimidation did seize, take,
transport or detain” the victim and that he did so with the
intent to deprive the victim of his or her personal liberty.
However, the court refused appellant’s instruction that stated:
“The court instructs you that an abduction is a restraint that
is separate and apart from, and not merely incidental to, the
restraint employed in the commission of the other crime.”
The facts did not support the refused instruction. The
evidence showed that Johnnie and Fogle, who were forced to the
floor at gunpoint, were not victims of the robbery. After
appellant completed the robbery of Elaine, he ordered her to the
floor at gunpoint and told her not to move for five minutes.
The evidence showed that the restraint used on Johnnie and Fogle
and then, after the robbery, on Elaine, was separate and apart
from, and not incidental to, the restraint required to rob
Elaine. There was no dispute about what happened at the scene,
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and no reasonable juror could have found to the contrary. As
the facts did not support it, the trial court did not err in
refusing appellant’s instruction.
Issue 4
Appellant contends that his in-court identifications by the
witnesses should have been suppressed because they had been
shown a suggestive photo array. On appeal, it is appellant’s
burden to show that the trial court’s denial of his suppression
motion, when considering the evidence in the light most
favorable to the Commonwealth, constituted reversible error.
See Harmon v. Commonwealth, 15 Va. App. 440, 444, 425 S.E.2d 77,
79 (1992).
The evidence supports the trial court’s finding that the
photograph display, which included appellant’s photograph, was
not unduly suggestive. Investigator Gary Healy testified that
he assembled the photographic array by choosing five other
photographs of white males of approximately appellant’s age,
with similar facial features and similar head and facial hair.
The trial court noted that two persons in the array, other than
appellant, had blue eyes. Regarding the hair color, Healy
instructed the victims not to consider features that could be
altered or changed, like facial and head hair, when inspecting
the photographs. Moreover, Healy attempted to cover the head
hair on each person in the photo spread for each witness, except
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Heflin, who had seen appellant’s face uncovered. Because the
photo array was not unduly suggestive, the trial court’s ruling
was not erroneous.
After identifying appellant from the photo array, the
witnesses signed the back of the array, dated it, and recorded
the number of the picture he or she had identified. Elaine
Armentrout was the fourth witness to sign the back of the array.
Appellant claims that seeing the other signatures after her
identification of appellant constituted an impermissible
influence on Elaine’s in-court identification of appellant.
This claim is without merit. Elaine had already identified
appellant from the photo array before she saw the other
signatures on the back of the display.
In any event, the out-of-court identifications were so
reliable that no substantial likelihood of misidentification
existed. In making this determination, the following factors
are considered:
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.
Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
Regarding the first factor, Elaine observed appellant at
arm’s length for a couple of minutes. Heflin observed appellant
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leaving the store, get into a car that Heflin had already
noticed because of the way it was parked, and saw appellant
speed away from the scene. Appellant’s face was uncovered when
Heflin saw him. Clearly, Elaine and Heflin had the opportunity
to view appellant.
Second, both witnesses paid attention to appellant. Elaine
observed appellant while he ordered her husband and another
customer to lie on the floor. Elaine observed appellant for a
couple of minutes as he robbed her. Heflin, having already
noticed the peculiarly parked car, noticed appellant run from
the store, jump into that car and speed away.
In addition, the witnesses’ descriptions of appellant were
accurate. Elaine described appellant’s eyes as blue. She and
Heflin described appellant’s hair as brown. Moreover, neither
witness hesitated when identifying appellant. Thus, the
witnesses demonstrated a high level of certainty at the
confrontation. Lastly, Heflin identified appellant within one
day of the crime, and Elaine identified appellant shortly
thereafter. We find that no substantial likelihood of
misidentification existed.
The reliability of the identification was further supported
by appellant’s admission to Healy that the police “had the right
man in custody.” The evidence also showed that the car Heflin
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observed and its license plate number was the car loaned to
appellant on the afternoon of the crime.
Therefore, appellant’s claim that the out-of-court
identifications tainted the in-court identifications is without
merit. The trial court did not err in denying appellant’s
motion to suppress the in-court identifications of appellant by
the witnesses.
Accordingly, the trial court’s judgment is affirmed.
Affirmed.
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