COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Lemons
Argued at Salem, Virginia
HENRY BOWMAN
OPINION BY
v. Record No. 1734-98-3 JUDGE DONALD W. LEMONS
JULY 27, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
J. Samuel Johnston, Jr., Judge
Thomas S. Leebrick (Thomas S. Leebrick, P.C.,
on brief), for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Henry Bowman was convicted in a bench trial of three counts
of statutory burglary, three counts of grand larceny and three
counts of property damage. On appeal, Bowman argues that the
court erred by allowing a witness to identify him as the man
depicted in video surveillance tapes. We disagree and affirm
the convictions.
I. BACKGROUND
In the summer of 1997, three convenience stores in Campbell
County were burglarized. On June 7, 1997, Lester’s Market was
burglarized, and a safe containing approximately $2,600 was
stolen from the store. On July 26, 1997, Miles Market was
burglarized, and approximately $6,400 in cash, twenty-five
cartons of cigarettes, and several cases of beer were taken from
the store. On July 26, 1997, Moore’s Country Store was
burglarized, and a safe containing $3,000 in cash and checks was
stolen.
The evidence revealed that a breaking occurred in the back
of Miles Market, approximately nine feet off the ground. The
perpetrator of the burglaries at Lester’s Market and Moore’s
Country Store was captured on tape by video surveillance
equipment. At trial, Carl Smith testified that Henry Bowman was
the person seen on both video surveillance tapes. Smith stated
that he was the grandfather of Bowman’s children. Smith stated
that although he was not present during the commission of any of
the charged burglaries, he could positively identify Bowman as
the person on the tapes. On cross-examination, Smith testified
that he did not like Bowman because Bowman was unemployed.
Smith also identified Bowman as the person in
Commonwealth’s Exhibits 6 and 7, still photographs taken from
the videotapes. Bowman’s counsel objected to Smith’s testimony,
arguing that his statements constituted “non-verbal hearsay,”
improper lay testimony, and opinion testimony offered to prove
an ultimate issue of fact.
Bowman moved to strike at the close of the Commonwealth’s
case-in-chief and at the close of all evidence. The court
denied both motions. The court stated that although the
videotapes themselves were insufficient to allow an
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identification of Bowman, when looking at one of the still
photos from the videotape the court itself could identify Bowman
as “the burglar.”
On appeal, Bowman argues that the court erred in overruling
his objection to the admission of Smith’s testimony regarding
his identity as the perpetrator of the burglaries that were
depicted on the two videotapes.
II. IDENTIFICATION OF BOWMAN
Bowman argues that the court erred in allowing Smith to
testify about the identity of the perpetrator shown on the
videotapes and the still photographs made from the tapes.
Bowman contends the Commonwealth “failed to establish Mr.
Smith’s familiarity with [Bowman] in order to qualify Smith to
express an opinion regarding [Bowman’s] identity.” Bowman
argues that Smith’s lack of familiarity with Bowman’s
appearance, coupled with his bad feelings toward Bowman,
undermine the credibility of his testimony.
A. Ability of Witness to Identify Appellant
Bowman did not raise at trial the issue of Smith’s ability
to identify him on the videotape. “In order to be considered on
appeal, an objection must be timely made and the grounds stated
with specificity. To be timely, an objection must be made when
the occasion arises -– at the time the evidence is offered or
the statement made.” Marlowe v. Commonwealth, 2 Va. App. 619,
621, 347 S.E.2d 167, 168 (1986); see Rule 5A:18. Because Bowman
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did not raise this objection at trial, we will not consider it
for the first time on appeal.
B. Lay Testimony
Bowman also argues that Smith was prohibited from making an
identification of the person on the videotape because he was a
lay witness testifying about matters that require the testimony
of an expert. We disagree. “The admissibility of evidence is
within the broad discretion of the trial court, and a ruling
will not be disturbed on appeal in the absence of an abuse of
discretion.” Brown v. Commonwealth, 21 Va. App. 552, 555, 466
S.E.2d 116, 117 (1996). “Evidence which tends to cast any light
upon the subject of the inquiry is relevant.” Cash v.
Commonwealth, 5 Va. App. 506, 510, 364 S.E.2d 769, 771 (1988).
“Relevant evidence which has the tendency to add force and
effect to a party’s defense is admissible, unless excluded by a
specific rule or policy consideration.” Evans v. Commonwealth,
14 Va. App. 118, 122, 415 S.E.2d 851, 853-54 (1992).
In Jordan v. Commonwealth, 66 Va. (25 Gratt.) 625 (1874),
the Supreme Court of Virginia considered whether a witness who
had been given a description of two men alleged to have recently
committed a robbery could testify at their trial. At trial, the
witness testified that the men matched the description he had
been given. On appeal, the Court held that “upon questions of
identity a witness is competent to give his opinion.” Id. at
626.
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“A lay witness may offer an opinion as to the identity of a
person.” 2 Charles E. Friend, The Law of Evidence in Virginia
§ 17.10, at 21 (4th ed. 1993). Here, Smith was Bowman’s
father-in-law and the grandfather of Bowman’s children. Smith
testified that he had known Bowman for two years and that he
recognized Bowman not only in the videotapes but also in the
Commonwealth’s still photographs of the perpetrator made from
the videotape. “The scarcity of case law on the point [of
whether a witness may identify a person] is probably due to a
general failure to regard identification as an opinion problem,
it being considered a matter of ‘fact.’” Friend, supra, at 21.
C. “Ultimate Issue of Fact”
Bowman also argues that the court erred in allowing Smith’s
testimony because “[o]pinion testimony on ultimate issues of
fact is not admissible in criminal proceedings.” Bowman
contends that Smith’s testimony “goes directly to the ultimate
issue: the identity of the culprit.” We disagree.
Smith’s identification of Bowman did not implicate an
“ultimate issue of fact.” “Ultimate issues of fact” for
purposes of the conviction of a crime are the statutory elements
of that offense. See Llamera v. Commonwealth, 243 Va. 262, 414
S.E.2d 597 (1992) (in prosecution for possession of cocaine with
intent to distribute, the Commonwealth is required to prove the
element of possession and the intent to distribute which are
both ultimate issues of fact); Bond v. Commonwealth, 226 Va.
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534, 539, 311 S.E.2d 769, 772 (1984) (where “the crucial issue
was whether death was brought about by criminal agency . . .
[t]he ultimate question was whether the decedent jumped
intentionally, fell accidentally, or was thrown to her death”).
The court did not err in allowing Smith to identify Bowman as
the person shown on the videotape and the still photos.
III. DENIAL OF WRIT “ON THE MERITS”
In an earlier unpublished decision, we considered the exact
issue now before us: whether a witness may identify a person
from a videotape and whether that identification may be
considered by the fact finder. See Rogers v. Commonwealth, 97
Vap. UNP 2269961, Record No. 2269-96-1 (October 7, 1997). In
Rogers, appellant appealed his conviction of murder, rape,
robbery, credit card theft, and credit card fraud. At trial,
the court allowed a witness who knew both the victim and the
appellant to identify the appellant in a videotape taken at a
bank machine where the victim’s stolen credit card was used. On
appeal, Rogers argued that a lay witness should not have been
permitted to identify the person on the videotape. See id. In
addition, Rogers argued that by allowing the witness to identify
him, the witness was usurping the role of the fact finder in
making a determination of an “ultimate fact in issue.” Id. at
2.
In an unpublished opinion, we disagreed with Rogers’
contentions and affirmed his convictions. See id. We held that
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“a witness may identify a person from a description, or, as in
the instant case, a videotape, and that identification may be
considered by the finder of fact.” Id. In addition, because
the witness’ identification of Rogers as the man in the
videotape did not prove an element of any of the charges against
him, “[the witness’] testimony did not implicate an ultimate
issue of fact and the trial court did not err by allowing his
testimony.” Id.
After his convictions were affirmed, Rogers did not
petition this Court for a rehearing en banc. Rogers did,
however, file a petition for appeal with the Supreme Court of
Virginia. On February 18, 1998, the Supreme Court denied
Rogers’ petition for appeal. See Record No. 972336 (Va.
February 18, 1998). The refusal of a petition for appeal
constitutes a final decision on the merits. See Saunders v.
Reynolds, 214 Va. 697, 700-01, 204 S.E.2d 421, 424 (1974) (“[w]e
state unequivocally that a decision to grant or refuse a
petition for writ of error is based upon one equally-applied
criterion - the merits of the case”); see also Wright v. West,
505 U.S. 277, 283 (1992) (“the Supreme Court of Virginia refused
the petition – a disposition indicating that the [C]ourt found
the petition without merit”); Jackson v. Virginia, 443 U.S. 307,
311 n.4 (1979) ("[e]ach petition for writ of error under Va.
Code § 19.2-317 (1975) is reviewed on the merits . . . and the
effect of a denial is to affirm the judgment of conviction on
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the merits); Dodson v. Director, 223 Va. 303, 307 n.5, 355
S.E.2d 573, 576 n.5 (1987) (“[i]n Virginia, aside from appeals
from a capital murder conviction, criminal appeals to both the
Court of Appeals and to this Court are discretionary, and ‘a
decision to grant or refuse a petition [for appeal] is based
upon one equally-applied criterion--the merits of the case’”).
Additionally, the Supreme Court of Virginia has stated that
a denial of a writ is on the merits and the issue that is
decided is binding in other cases. As we stated in Harward v.
Commonwealth, 5 Va. App. 468, 476, 364 S.E.2d 511, 515 (1988);
[t]he Supreme Court held “unequivocally that
a decision to grant or refuse a petition for
writ of error is based upon equally-applied
criteria - the merits of the case.” When
there is “substantial possibility that error
has been committed in the conviction of the
defendant,” then a writ is granted. “[A]
convicted felon whose claims lack substance
is refused a writ.” The Court has held the
doctrine to apply even when “the precise
issue involved” resulted in denial of a
petition for a writ of error in a separate
case.
(Citations omitted). See also Overhead Door Co. v. Lewis, 29
Va. App. 52, 509 S.E.2d 535 (1999).
The Attorney General argues that the denial of a petition
for writ of error by the Supreme Court of Virginia results in
binding precedent upon the Court of Appeals for the precise
issue raised in the appeal and resolved “on the merits.” Given
the holdings cited above, the Attorney General’s position is not
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without merit; however, the difficulty comes in application of
the rule.
In Rogers, the Supreme Court of Virginia stated only:
Upon review of the record in this case and
consideration of the argument submitted in
support of the granting of an appeal, the
Court refuses the petition for appeal.
Accepting that the petition was refused “on the merits,” in
order to discern any precedential effect of the denial, the
“precise issue” that formed the basis for the denial must be
determined. The Supreme Court of Virginia is silent on this
issue. The Court could have found error but found it to be
harmless, which would, nonetheless, be a decision “on the
merits.” We cannot speculate concerning the “precise issue”
that served as the basis for the denial of the writ of error in
Rogers.
We hold that, to the extent it can be determined by the
plain language of an order of the Supreme Court of Virginia
denying a petition for writ of error that a “precise issue” has
been decided “on the merits,” the holding is binding on the
Court of Appeals in future cases raising the same issue. Here,
we are unable to determine the “precise issue” addressed by the
Supreme Court in Rogers; consequently, we reject the Attorney
General’s contention that the denial of a writ of error by the
Supreme Court creates binding precedent in the case before us
today.
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VI. CONCLUSION
We hold that the court did not err in allowing a witness to
identify Bowman as the man depicted in video surveillance tapes,
and we affirm his convictions.
Affirmed.
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