COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Clements and Haley
Argued at Chesapeake, Virginia
RICHARD CALEB SHELTON
MEMORANDUM OPINION* BY
v. Record No. 3134-06-1 JUDGE JEAN HARRISON CLEMENTS
JANUARY 15, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Bruce H. Kushner, Judge
Moody E. Stallings, Jr. (Cara L. Griffith; Stallings & Bischoff, P.C.,
on brief), for appellant.
Alice T. Armstrong, Assistant Attorney General II (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Richard Caleb Shelton (appellant) was convicted in a bench trial of robbery, in violation
of Code § 18.2-58, and of using a firearm in the commission of a felony, in violation of Code
§ 18.2-53.1. On appeal, he contends (1) the evidence was insufficient to support his convictions;
(2) the trial court erred in refusing to grant his motion to reconsider and in failing to order a new
trial based on after-discovered evidence; and (3) the trial court abused its discretion by refusing
to grant his motion for a continuance. We disagree and affirm the trial court’s judgment and
appellant’s convictions.
As the parties are fully conversant with the record in this case, and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of
this appeal.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. BACKGROUND
“On appeal, we construe the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.” Zoretic v. Commonwealth,
13 Va. App. 241, 242, 409 S.E.2d 832, 833 (1991) (citing Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975)). We discard evidence favorable to the accused that
conflicts with the Commonwealth’s evidence. Wactor v. Commonwealth, 38 Va. App. 375, 380,
564 S.E.2d 160, 162 (2002). Viewed by that standard, the evidence demonstrates that on the
afternoon of July 19, 2003, two assailants robbed Mark Velez at a carwash. Velez immediately
called 911. Responding to Velez’s call within minutes, Chesapeake City Police Officers V.J.
Matney and J.J. Blount arrived and Velez described the robbery and the two assailants to the
officers. Later that day, Officer Matney recorded Velez’s account of the robbery in a police
report, describing the first assailant who pulled out a revolver as “a dark skinned black male with
medium length dreadlocks and a space between his front teeth” and the second assailant as “a
medium complected black male with a clean shaven head.” Four days later, Velez identified
appellant as one of the robbers out of a photo identification lineup containing six black males
with dreadlocks.
At trial, Velez identified appellant as the second assailant who approached him from
behind and pressed a blunt object into his back, searched his pants, demanded that he open his
vehicle trunk, and later returned to the scene to demand his cell phone. On cross-examination,
Velez stated that Officer Matney could have recorded his depictions of the robbers incorrectly,
switching the two assailants’s physical descriptions. During Officer Matney’s testimony on
cross-examination, she stated that five days before responding to the robbery, she had graduated
from the police academy and that “it [was] possible” she had inadvertently transposed the first
and second assailants as to who was holding the gun.
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The trial court found appellant guilty of robbery and of using a firearm in the commission
of a felony on August 5, 2005. On November 8, 2006, appellant filed an amended motion to
reconsider and requested a new trial based on after-discovered evidence. On November 20,
2006, during the course of the hearing on the motion to reconsider, appellant also argued a
motion for continuance. That same day, the trial court denied appellant’s motions and sentenced
him on the convictions.
This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
On appeal, appellant contends the evidence was insufficient to prove he was present at
the crime scene. To support that contention, appellant maintains that the victim’s identification
of appellant as one of robbers was unreliable because appellant did not match the description
provided to police as being a “dark skinned black male with dreadlocks and a space between his
teeth” and that at trial, multiple witnesses testified that on the day of the robbery, he was miles
away from the crime location. We disagree.
At trial, the Commonwealth bears the burden of proving the identity of the accused as the
perpetrator beyond a reasonable doubt. Brickhouse v. Commonwealth, 208 Va. 533, 536, 159
S.E.2d 611, 613-14 (1968). In determining the sufficiency of the evidence to support a
conviction where a witness’ identification is challenged, we look to the reliability factors set
forth in Neil v. Biggers, 409 U.S. 188 (1972), as significant circumstances that may be
considered along with other evidence. Charity v. Commonwealth, 24 Va. App. 258, 262-63, 482
S.E.2d 59, 61 (1997). Those 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.”
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Currie v. Commonwealth, 30 Va. App. 58, 73, 515 S.E.2d 335, 343 (1999) (quoting Biggers, 409
U.S. at 199-200); see also Bryant v. Commonwealth, 10 Va. App. 421, 424, 393 S.E.2d 216, 218
(1990) (“Under Biggers, the reliability of the identification is to be judged according to the
totality of the circumstances.”).
Here, considering the totality of the circumstances, including Velez’s observation of
appellant before the robbery for thirty minutes from twenty feet away, Velez’s later recognition
of appellant sitting in front of the laundromat, Velez’s observation of appellant during the
robbery for “five to eight minutes” and appellant’s return to the scene to demand Velez’s cell
phone, together with Velez’s description of appellant to the officers within minutes of the
robbery, and Velez’s identification of appellant four days later from the photo identification
lineup, the evidence was sufficient to prove appellant committed the robbery for which he was
convicted.
Appellant, however, argues Velez is an unreliable witness because Velez’s testimony
identifying appellant as the second assailant of the robbery conflicted with Officer Matney’s
police report indicating appellant was the first assailant. Appellant also contends that he has no
gap between his teeth. Furthermore, appellant argues that he provided alibi witnesses suggesting
he was miles away from the location of the robbery. We disagree with appellant.
“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). “The
conclusions of the fact finder on issues of witness credibility ‘may only be disturbed on appeal if
this Court finds that [the witness’] . . . testimony was inherently incredible, or so contrary to
human experience as to render it unworthy of belief.’” Moyer v. Commonwealth, 33 Va. App. 8,
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28, 531 S.E.2d 580, 590 (2000) (en banc) (quoting Robertson v. Commonwealth, 12 Va. App.
854, 858, 406 S.E.2d 417, 419 (1991)).
Here, the trial court credited Velez’s testimony identifying appellant as one of the
assailants. During Velez’s testimony, he also explained that Officer Matney confused and
switched the physical descriptions of the assailants in the police report. Officer Matney, a
relatively inexperienced police officer, testified that “it [was] possible” she had inadvertently
transposed the first and second assailants as to who was holding the gun. Additionally, the trial
court rejected the testimony of appellant’s alibi witnesses. Thus, the trial court “resolv[ed] the
conflicts and inconsistencies [therein] against [appellant] and [found] ultimately that the
evidence constituted proof of guilt beyond a reasonable doubt.” Lockhart v. Commonwealth, 34
Va. App. 329, 343, 542 S.E.2d 1, 7 (2001). Finding nothing in Velez’s testimony so contrary to
human experience as to render it inherently incredible as a matter of law, we uphold the trial
court’s determination that the conflicts in the evidence did not render Velez’s testimony
unworthy of belief. See id. at 343, 542 S.E.2d at 7-8.
III. MOTION FOR RECONSIDERATION
Appellant claims the trial court erred in refusing to grant his motion for reconsideration
and in failing to order a new trial based on after-discovered evidence. We disagree with
appellant.
A motion for a new trial based on after-discovered evidence is a “matter submitted to the
sound discretion of a [trial] court and will be granted only under unusual circumstances after
particular care and caution has been given to the evidence presented.” Orndorff v.
Commonwealth, 271 Va. 486, 501, 628 S.E.2d 344, 352 (2006) (citing Commonwealth v.
Tweed, 264 Va. 524, 528, 570 S.E.2d 797, 800 (2002); Stockton v. Commonwealth, 227 Va.
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124, 149, 314 S.E.2d 371, 387 (1984); Fulcher v. Whitlow, 208 Va. 34, 37, 155 S.E.2d 362, 365
(1967)).
A moving party’s burden of proof before the [trial] court on
a motion for a new trial based on after-discovered evidence is well
established. The moving party must establish that such evidence
“(1) appears to have been discovered subsequent to the trial;
(2) could not have been secured for use at the trial in the exercise
of reasonable diligence by the movant; (3) is not merely
cumulative, corroborative or collateral; and (4) is material, and
such as should produce opposite results on the merits at another
trial.”
Id. (quoting Odum v. Commonwealth, 225 Va. 123, 130, 301 S.E.2d 145, 149 (1983)).
Here, the Commonwealth concedes that appellant discovered the evidence subsequent to
the trial, satisfying the first prong of the mandatory criteria under Orndorff. Appellant, however,
falls short of proving the remaining three prongs of the Orndorff test.
Appellant claims that after his conviction, another inmate with whom he was incarcerated
told him he knew that Wesley Day had committed the robbery for which appellant was
convicted. Appellant maintains that the evidence could not have been discovered with
reasonable diligence because “its discovery was the result of a lucky conversation with another
inmate after [appellant’s] conviction.” We disagree.
[W]hat is reasonable diligence depends upon the facts and
circumstances of each particular case; the burden is on the mover
to show to the court that he has exercised due or reasonable
diligence to ascertain relevant facts before trial, and that such
diligence did not reveal the existence of, nor show the probability
of the existence of, the evidence now relied upon.
Id. at 502, 628 S.E.2d at 353.
Here, to satisfy the reasonable diligence burden, appellant could have investigated the
trial court’s public records for robberies committed in a similar manner, in the same area, and
during the same time frame. Appellant could have investigated the additional names of possible
accomplices provided by the Commonwealth. Appellant may have discovered Day’s similarly
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conducted robberies and could have presented the possibility of mistaken identity to the trial
court during his trial. Accordingly, appellant failed to act with the reasonable diligence required
under Orndorff.
Moreover, as the Commonwealth points out, appellant does not satisfy the third or fourth
mandatory criteria set forth by Orndorff, namely that the evidence was “‘not merely cumulative,
corroborative or collateral’” and that the evidence was material, such that it “‘should produce
opposite results on the merits at another trial.’” Id. at 501, 628 S.E.2d at 352 (quoting Odum,
225 Va. at 130, 301 S.E.2d at 149 ). Presenting the evidence regarding Day would have
accounted for only one of the perpetrators, and therefore, would not have discounted that Velez
explicitly identified appellant as one of the assailants. Thus, appellant’s evidence indicating Day
participated in the robbery was collateral. For the same reasons, appellant’s claim that the
evidence was material such that it should have produced an opposite result on the merits at
another trial is unfounded.
Accordingly, because appellant fails to satisfy his burden under Orndorff, we hold the
trial court did not abuse its discretion in refusing to grant appellant’s motion for reconsideration
and in denying his request for a new trial based on after-discovered evidence.
IV. MOTION FOR CONTINUANCE
Appellant maintains that the trial court abused its discretion by refusing to grant his
request for a continuance. Appellant claims that, had the trial court granted the continuance, he
could have reviewed “the file in the Norfolk case which contained more recent photographs of
Day,” he could have investigated Day’s accomplice, and he could have discovered whether Day
was related to the owner of the apartment where the two perpetrators fled after robbing Velez.
We disagree.
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“Whether to grant or deny a continuance of a trial is a matter that lies within the sound
discretion of a trial court, and its ruling will not be reversed on appeal unless it is plainly wrong.”
Cardwell v. Commonwealth, 248 Va. 501, 508, 450 S.E.2d 146, 151 (1994) (citing Lomax v.
Commonwealth, 228 Va. 168, 172, 319 S.E.2d 763, 765 (1984); Parish v. Commonwealth, 206
Va. 627, 631-32, 145 S.E.2d 192, 195 (1965)).
A defendant’s right to call for evidence in his favor
guarantees him sufficient time to investigate and evaluate the
evidence in preparation for trial. However, the need to investigate
and evaluate the evidence and the prejudice allegedly resulting
from the denial of a continuance cannot be based upon mere
speculation. Thus, absent a showing of prejudice to a defendant by
the denial of a continuance, an appellate court will not find that a
trial court abused its discretion.
Id. at 509, 450 S.E.2d at 151 (citations omitted).
In this case, appellant presented nothing more than mere conjecture that Day may have
perpetrated the robbery. The information appellant claims he might have discovered with the
continuance is evidence appellant could have and should have investigated anytime before,
during, or immediately after his conviction. As the trial court noted at the hearing on the
motions, appellant was given “an extraordinary amount of time . . . to present any evidence with
regard to a mistaken identification,” that appellant had “been through a number of attorneys,”
and had failed to present to the trial court “anything that would lead [the trial court] to believe
that Mr. Velez’[s] identification was not correct.” Because we find no showing of prejudice to
appellant by the denial of the continuance, we also find the trial court did not abuse its discretion.
V. CONCLUSION
For these reasons, we affirm the judgment of the trial court and appellant’s convictions.
Affirmed.
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