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Payne v. Commonwealth

Supreme Court of Virginia

December 29, 2016



          PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Russell, S.J.



         In this appeal, we consider whether an email sent by the detective investigating a robbery was properly excluded at trial. We also consider whether a proffered jury instruction loosely modeled on one discussed in United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972), and endorsed by the United States Court of Appeals for the Fourth Circuit in United States v. Holley, 502 F.2d 273 (4th Cir. 1974), was properly refused.


         In November 2011, Phillip Via responded to an internet advertisement offering a used laptop computer for sale. Via and the purported seller exchanged mobile phone text messages to arrange a meeting one evening after dark. Via went to an apartment community to meet the purported seller. Via parked his car in the community's parking lot under a street light. He informed the purported seller by text message that he had arrived. Soon thereafter, a man emerged from an apartment building, told Via that the computer's battery was charging, and invited Via inside to inspect the computer. His suspicion roused, Via surreptitiously removed his wallet and watch and put them in the center console of his car. He then followed the man into the apartment building.

         The man led Via into a laundry room. There was a door at each end of the room. The room was lit by overhead fluorescent lights. After Via entered the room through one door, and as he followed the man toward the door at the opposite end, a second man emerged from behind a hot water heater near Via. The second man produced a knife, pressed it against Via's abdomen, and pulled him back against the wall. The first man, whom Via had followed from the parking lot, leaned against the opposite door to prevent anyone entering the room through it.

         The men demanded that Via "give it up, give it up, give it up." Via told them that he had only come to inspect the computer and had not brought any money. He told them that if he decided to buy the computer after inspecting it, he was going to go to the bank to get the money and complete the sale. The man with the knife searched Via's pockets but only found his keys and mobile phone. The men insisted that they knew Via had the money and demanded that he give it to them. The first man, whom Via had followed from the parking lot, produced a semi-automatic handgun and pointed it at him. Via again pleaded that he had not brought any money and noted that the man with the knife had just searched his pockets. The standoff continued for a few minutes before the two men exited through the door opposite Via, taking his mobile phone and warning that they would shoot him if he followed them.

         Via thereafter fled through the door he had entered. A passerby responded to his calls for help and lent him a mobile phone. Via called 911 and Officer John Musser promptly responded. Via told Officer Musser that the man he had followed from the parking lot was black, about 5'10" tall and 160 pounds, with very short hair. He also provided the phone number he had exchanged text messages with to arrange the meeting.

         Officer Musser searched and photographed the scene, including the parking lot and laundry room. He recovered a latent shoe print in the dust on the floor behind the hot water heater. He dusted the doorknobs, hot water heater, and a dryer for fingerprints but was unable to collect any of evidentiary value.

         In January 2012, Detective Keisha Saul interviewed Deante Lamar Payne. Payne lived at a residence associated with the IP address from which the internet advertisement had been posted. Payne's residence was less than a quarter of a mile from the apartment building where Via was robbed. Payne denied any involvement in the robbery. He said that his cousin, who did not have internet access, had come to him with a laptop computer and asked Payne to post the advertisement online. Payne suggested that his cousin may have perpetrated the robbery with a friend Payne knew only as Booney. Detective Saul later identified Booney as Mark Rosser.

         Detective Saul thereafter interviewed Via. She showed him a series of six photographs, one at a time, asking for each whether he recognized the person it depicted before continuing to the next. He identified Payne's photograph as depicting the man whom he had followed and who had pointed the handgun at him.

         In February 2012, Via was a witness at the preliminary hearing of a suspect believed to be the man who had held the knife. When he entered the courtroom, Via saw Payne sitting in the audience and immediately recognized him as the man who had held the handgun. When Via was asked during his testimony at the preliminary hearing if he recognized the man who had held the handgun, he identified Payne in the audience. Officer Musser subsequently arrested Payne at the hearing.[1] Payne was subsequently indicted on one count of robbery and one count of use of a firearm in the commission of a felony.

         On the evening of the preliminary hearing, Detective Saul received an email from an assistant Commonwealth's attorney recounting Via's identification of Payne. Detective Saul replied with an email in which she wrote that Via had identified Payne in the photo lineup the previous month. However, she expressed her reservations because she felt that Payne looked like Rosser, whom she also considered to be a possible suspect. She wrote that she had thought Payne was truthful in her interviews and was not certain that he was involved.

         In May 2012, Detective Saul again interviewed Via. She showed him a second series of six photographs, again one at a time, and again asking whether he recognized the person each depicted before continuing to the next. This series of photographs included one of Rosser, as well as the photograph of Payne that Via had earlier identified as depicting the man who had held the handgun. Rosser's photograph was the second in the series and Payne's was the fifth. Via rejected the photograph of Rosser before again identifying Payne.

         At trial, Officer Musser and Detective Saul testified that there was no forensic evidence connecting Payne to the laundry room where Via was robbed. The phone number used in the internet advertisement could not be connected to him. The shoe print taken from behind the hot water heater did not match his shoes. No fingerprints connected him to the scene. No handgun was ever recovered, although Detective Saul had searched Payne's residence for shoes. However, Via again testified that Payne was the man who had held the handgun during the robbery.

         During cross-examination, Payne extensively challenged Via's eyewitness identification. Via testified that he had never met Payne before. He testified that the meeting occurred after dark, although the parking lot was well lit. He testified that he had watched the man approach from halfway between the apartment building and his car but exchanged only a few words, at a distance of three to five feet, before the man turned to go back inside. He testified that when the man with the knife pulled him back against the wall, he looked away from the man he was following and down at the knife. He testified that part of the fluorescent light was out above him and the man with the knife, making that end of the laundry room somewhat dim. He testified that the man who produced the gun was at the other end of the room, about seven to eight feet away, but that he moved closer when he pointed the gun. Via testified that he was scared. He testified that he watched the man with the knife while that man searched his pockets. He testified that although he looked at the handgun when the man he had followed produced it, he could still see that man's face.

         Payne also cross-examined Detective Saul. She testified that she thanked Payne for his honesty after interviewing him. She testified that at times during her investigation, she had thought others, including Rosser, may have been the man who had held the handgun. She testified that she did not investigate one of those suspects and did not attempt to locate or interview Rosser. She testified that she responded to the email she received from the assistant Commonwealth's attorney on the evening of the knife-wielding suspect's preliminary hearing by sending photographs of Rosser, writing that she believed he and Payne resembled each other, and expressing her belief that Payne had been honest during her interviews.

         Payne then moved to admit Detective Saul's email into evidence.[2] He argued that the email was relevant because it "shows the timeline of the investigation" and "when she got the pictures [of] Mr. Rosser. It also shows her thoughts about" Rosser and Payne as suspects. "It has relevancy to the evidence collected, how it's presented . . . ." The circuit court denied the motion, ruling that he had elicited that evidence during his cross-examination. Payne then offered to redact the email and the court agreed to consider a redacted version.

         Payne originally proposed to redact only sentence 5, which the court rejected. It ruled that neither when Detective Saul returned to work nor the person to whom she passed the case when she left for training was relevant, so sentences 7 through 12 were inadmissible. It ruled that the substance of sentences 1, 2, and 3 had already been elicited through testimony but they could be admitted. It ruled that sentences 4 and 5 were not relevant. Even though their substance, too, had already been elicited through testimony because the Commonwealth had not objected to Payne's questions, they were inadmissible. It ruled that sentence 6 could be admitted. Payne then prepared a redacted version of the email including only sentences 1 through 3, preserving his objection to the exclusion of the rest of the email.

         At the conclusion of the evidence, Payne proffered a jury instruction loosely modeled on that given in Telfaire, 469 F.2d at 558-59, which he argued was necessary because "[t]he jury needs to be apprised of the factors that affect eyewitness testimony."[3] The circuit court noted that the Court of Appeals of Virginia had affirmed the refusal to give a Telfaire instruction in Johnson v. Commonwealth, 2 Va.App. 447, 457, 345 S.E.2d 303, 308-09 (1986), holding that it was argumentative and duplicative of other jury instructions informing the jury of "the presumption of innocence, the Commonwealth's burden of proof, and the jury's function in determining the credibility of the witnesses." Payne argued that the Telfaire instruction, or an instruction using similar words, had been adopted by most federal courts and incorporated into the federal model jury instructions and model jury instructions of several states. The Commonwealth responded that, as in Johnson, Payne's proffered instruction was duplicative of instructions taken from the Virginia model jury instructions that the court had already granted.

         The court refused Payne's proffered instruction, ruling that "all the legal principles applicable to this case, and, in particular, those pertaining to the issues relevant to eyewitness identification, are covered by" jury instructions already granted. Further, the proffered instruction "has the potential of, if not misleading the trier of fact, at least confusing them because, in deciding the issues of the case, the trier of fact is required to consider all the evidence." The proffered instruction "gives [the jury] a four-point checklist of factors or types of evidence they should consider on the issue of eyewitness testimony, and I think that is inaccurately []limiting insofar as what the jury is . . . required to do in this case." ...

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