FROM THE CIRCUIT COURT OF ROANOKE COUNTY. James R. Swanson, Judge.
Aaron B. Houchens (Erin B. Ashwell; Stanley, Houchens & Griffith; Woods Rogers PLC, on briefs), for appellant.
Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Amicus Curiae: Virginia Association of Criminal Defense Lawyers (Marvin D. Miller; John R. Maus; Law Offices of Marvin D. Miller; Law Office of John R. Maus, on briefs), for appellant.
Present: Judges Humphreys, Petty and AtLee. OPINION BY JUDGE RICHARD Y. ATLEE, JR.
[65 Va.App. 198] OPINION
RICHARD Y. ATLEE, JR., JUDGE
A jury convicted Deante Lamar Payne of robbery and use of a firearm in the commission of a robbery. Payne argues that the trial court erred by (1) refusing his jury instruction regarding eyewitness testimony, (2) refusing his jury instruction regarding the reliability of eyewitness testimony in the presence of a weapon, (3) refusing to admit certain evidence, and (4) refusing to provide him with funds to hire an expert witness. We find no error, and affirm the convictions.
On appeal of criminal convictions, we view the facts in the light most favorable to the Commonwealth, and draw all reasonable inferences from those facts. Derr v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668, 8 Va. Law Rep. 1350 (1991). However, " [w]hen considering whether a trial court abused its discretion by denying a defendant's proffered instruction, this Court 'view[s] the facts relevant to the determination of that issue in the light most favorable to [the defendant].'" Miller v. Commonwealth, 64 Va.App. 527, 547, 769 S.E.2d 706, 716 (2015) (second and third alterations in original) (quoting Commonwealth v. Cary, 271 Va. 87, 90-91, 623 S.E.2d 906, 907 (2006)).
Payne was the proponent of the two refused jury instructions, so we view the facts in the light most favorable to him when reviewing assignments of error (1) and (2). We view the facts in the light most favorable to the Commonwealth when reviewing assignments of error (3) and (4). To make this distinction clear, we present the facts in Part I.A. in the light [65 Va.App. 199] most favorable to the Commonwealth, and in Part I.B. in the light most favorable to Payne.
A. Facts in the Light Most Favorable to the Commonwealth
The facts viewed in the light most favorable to the Commonwealth are as follows. On November 25, 2011, Payne placed an advertisement (" the ad" ) on Craigslist, a free online classified advertisement service. The ad offered to sell a laptop computer at an attractive price. Philip Via (" the victim" ), a dealer in used electronics, exchanged a series of text messages with an unknown individual, using the phone number listed in the ad.
The victim agreed to meet the unknown party that same day, and arrived at the agreed-upon location (an apartment complex in Roanoke) between 8:00 p.m. and 8:30 p.m. It was dark outside. The victim " backed [his] car under a street light" and parked " close to the pool there, where it's well lit." The victim watched a man later identified as Payne exit a laundry room, walk across the parking lot, and approach the victim's car. The victim " could see his face once he got about half the distance out of the laundry room there." When asked at trial if he had any trouble seeing Payne's face when Payne came to the car, the victim answered " No, no, none whatsoever." Roanoke County Police Department Officer John Musser (" Officer Musser" ) described the parking lot as " fairly well lit," testifying that " [t]here were street lights out there as well." At the car, the victim and Payne were " three to five feet" apart. Payne told the victim that the laptop was charging, and asked the victim if he wanted to come inside to look at it. The victim agreed, and after Payne turned and started walking back toward the laundry room, the victim placed his wallet and money in the center console of his car, exited the car, and followed Payne.
The victim walked behind Payne into the laundry room, which was approximately ten feet long. After the victim stepped into the laundry room, a second man grabbed him. [65 Va.App. 200] The second man placed a knife to the victim's side. This man and Payne began shouting at the victim " Give it up, give it up. We know you've got it on you." The second man went through the victim's pockets, which contained only the victim's cell phone and car keys. Eventually, Payne " pulled out a gun and pointed it at" the victim. While pointing the gun at the victim, Payne said again " give it up," and " we know you've got it on you." Payne was " seven to eight feet away." Eventually, Payne and the other man left the laundry room, taking the victim's cell phone with them. As they exited the laundry room, Payne and the other man said " Don't come through this doorway, or we will shoot you," or similar words. The
victim was with Payne and the other man in the laundry room for " a couple minutes."
According to the victim, the laundry room was illuminated by " florescent [sic] lighting" which made it " bright enough to see what was going on" and was " just a little bit dimmer" than the lighting in the courtroom at trial. When asked if he had any trouble seeing Payne's face while in the laundry room, the victim testified " None whatsoever." Officer Musser described the laundry room as " very well lit inside," and testified " I did not have to use my flashlight to see normally." The victim saw the gun Payne was pointing, but also saw Payne's face, testifying " The gun is probably an inch, inch and a half wide. So there's plenty of room there to view the face [sic] that's holding the gun . . . . I didn't stare at a gun. I saw the gun, and then I could see the person who was holding it." After Payne and the other man left the laundry room, the victim called 911.
Detective Keshia Saul (" Detective Saul" ) of the Roanoke County Police Department ultimately identified Payne as the man who posted the ad on Craigslist. During an interview with Detective Saul, Payne admitted posting the ad, but said he did so on behalf of his cousin Dustin. Payne denied any part in or knowledge of the robbery. He suggested a man he knew only as " Boonie" might be involved. Detective Saul took [65 Va.App. 201] a photo of Payne, and placed it in a photo lineup along with photos of five men of similar appearance. On January 23, 2012, Detective Saul showed this photo lineup to the victim, and the victim identified Payne as the man with the gun who robbed him.
Initially, Payne's cousin Dustin was the only person charged in connection with the robbery. Dustin's preliminary hearing was held in the Roanoke County General District Court on February 27, 2012. The Commonwealth subpoenaed Payne as a witness in his cousin's preliminary hearing. The victim noticed Payne in the back of the courtroom and recognized him immediately as the other man involved in the robbery. Police arrested Payne that day. In a recorded telephone call from the jail, Payne said " They got me right in the courtroom, you know . . . . All of a sudden he recognized me." The day Payne was arrested, however, Detective Saul e-mailed a Roanoke County Assistant Commonwealth's Attorney and expressed reservations about obtaining warrants for Payne, because she was " still not sure he was involved" and " he appeared to be truthful."
On May 30, 2012, Detective Saul showed the victim a second photo lineup. This photo lineup also contained six photos. [65 Va.App. 202] Detective Saul included among the six photos the same photo of Payne used in the first photo lineup. She also included a photo of Boonie, the man whom Payne suggested may have been involved. The victim again selected Payne, and no one else. At trial, the Commonwealth asked the victim if he had any trouble recognizing Payne in either photo lineup. He replied: " None whatsoever. That--his face is--it's burnt in my brain, probably for life." Finally, at Payne's trial, the victim identified Payne as the man with the gun who robbed him.
B. Facts in the Light Most Favorable to Payne
The facts viewed in the light most favorable to Payne are as stated above, with the following distinctions. We assume that the extent of Payne's involvement in the crime was placing the ad, that he knew nothing about any planned robbery, and that he was
not present at the robbery. Notwithstanding the victim's testimony to the contrary, we assume that the victim was, in fact, focused to the point of distraction on the gun and the knife and that the reliability of his identification of his assailant was compromised as a result of this focus on the weapons. We assume several other things explicitly denied by the victim on cross-examination. We assume that, after his initial identification of Payne in a photo lineup, the victim was influenced in his subsequent identifications by the fact that he had already identified Payne once, and by the fact that the same photo of Payne was used in both photo lineups. We assume that the victim was remembering his prior identification of Payne, and not remembering the actual perpetrator of the crime. Finally, we assume that, after identifying Payne once, the victim was committed to the identification and did not want to express any uncertainty when given subsequent opportunities to identify (or not to identify) Payne.
A. Instructions on Eyewitness Testimony and Weapons Focus
Payne assigns error to the trial court's rejection of [65 Va.App. 203] two guilt-phase jury instructions. We review a trial court's decision to refuse a jury instruction for abuse of discretion. King v. Commonwealth, 64 Va.App. 580, 586, 770 S.E.2d 214, 217 (2015) (en banc). However, " 'whether a jury instruction accurately states the relevant law is a question of law that we review de novo.'" Lawlor v. Commonwealth, 285 Va. 187, 228, 738 S.E.2d 847, 870 (2013) (quoting Orthopedic & Sports Physical Therapy Assocs., Inc. v. Summit Grp. Props., LLC, 283 Va. 777, 782, 724 S.E.2d 718, 721 (2012) (internal quotation marks omitted)). In reviewing jury instructions, our " 'sole responsibility . . . is to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises.'" King, 64 Va.App. at 586-87, 770 S.E.2d at 217-18 (quoting Molina v. Commonwealth, 272 Va. 666, 671, 636 S.E.2d 470, 473 (2006)). " 'A defendant is entitled to have the jury instructed only on those theories of the case that are supported by [more than a scintilla of] evidence.'" Id. at 587, 770 S.E.2d at 218 (alteration in original) (quoting Eaton v. Commonwealth, 240 Va. 236, 255, 397 S.E.2d 385, 397 (1990)). " 'If a proffered instruction finds any support in credible evidence,' however, 'its refusal is reversible error.'" Id. (quoting McClung v. Commonwealth, 215 Va. 654, 657, 212 S.E.2d 290, 293 (1975)).
Payne first assigns error to the trial court's refusal " to adequately instruct the jury regarding eyewitness testimony where the victim made a cross-racial identification based on a brief encounter at night under extreme stress." He next assigns error to the trial court's refusal " to instruct the jury on the reliability of eyewitness testimony where the person making the identification was threatened with two weapons and in fear of his life." We hold that ...