Currie v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Lemons and
Senior Judge Duff
Argued at Alexandria, Virginia

REZNICK DEVOLE CURRIE
OPINION BY
v. Record No. 0477-98-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
JUNE 15, 1999
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Alfred D. Swersky, Judge

Jeffrey T. Barbour (J. Amy Dillard, Deputy
Public Defender; Office of the Public
Defender, on brief), for appellant.

Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.

Reznick Currie (appellant) was convicted in a jury trial of

burglary, attempted rape, and assault and battery. On appeal,

he contends the trial court erred in: (1) excluding five

proffered categories of testimony by an eyewitness

identification expert; (2) denying him access to exculpatory

evidence; (3) excluding proffered pages of the complaining

witness' sworn preliminary hearing transcript; and (4) denying

his motion to strike the evidence because the Commonwealth

failed to establish that he was the perpetrator of the alleged

crimes. For the following reasons, we affirm.
 I. BACKGROUND

Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party below, granting to it all reasonable

inferences fairly deducible therefrom. See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

So viewed, the evidence established that on August 4, 1997, the

victim was in the bathroom of her ground-floor apartment when

she heard a noise in the living room. As she exited the

bathroom, she saw a stranger standing in her living room with

his pants down and his penis exposed. The man, whom the victim

later identified as appellant, grabbed her breast and she kicked

him. The man produced a knife, grabbed the front of the

victim's pants and began to pull them down. The victim pushed

the man, ran to her bedroom and telephoned for help.

The victim testified that her assailant was close enough to

grab her and that he was face-to-face with her. When the police

arrived, she described the man's physical appearance, including

his having a missing upper tooth and various marks on his arms

and a rash on his neck. He wore a long-sleeve shirt and gloves. 1

1
Detective Irv Ellman testified that on the evening of the
offense, the victim described her assailant through an
interpreter as a thirty to thirty-five-year-old black male;
five-feet, ten-inches to five-feet, eleven-inches tall; 170 to
190 pounds, with an athletic or muscular build. She described
him as having a noticeable defect in his chin and that he was
missing a tooth in his upper mouth. He had thick lips, a wide
nose and smelled of alcohol. His hair was short and he had dark

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Based upon her description, Detective Robert Hickman produced a

composite sketch of the attacker.

A few days after the offense, the victim reviewed a

photographic lineup and identified a photograph of appellant as

her assailant. She stated, "I knew that it was him, that one."

The victim also identified shoes and pants that appeared similar

to those worn by her attacker. At trial, the victim again

identified appellant as being her assailant.

Appellant argued at trial that the victim was wrong in her

identification and that he was not the perpetrator of the crime.

The jury found appellant guilty of the offenses charged.

II. EYEWITNESS IDENTIFICATION EXPERT

In his defense, appellant called Dr. Solomon Fulero, an

expert on eyewitness identification, who testified generally on

the theory of memory and on the issue of cross-racial

identification. Pursuant to a pretrial ruling, Dr. Fulero was

not allowed to testify on the following five topics relating to

eyewitness identification: (1) the correlation between

eyewitness certainty and accuracy; (2) the effect of viewing

time and stress on eyewitness accuracy; (3) the perpetrator's

display of a weapon and its effect on eyewitness accuracy; (4)

the effect that participating in preparing a composite sketch of

a subject has on the accuracy of subsequent identifications; and

marks, bumps or scars on his skin. She described his face as
thin.

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(5) the concept of transference. Concluding that these topics

were within the lay knowledge of the average juror and could be

adequately argued to the jury in closing arguments, the trial

court ruled as follows:

The proffered testimony of Defendant's
expert regarding the theory of memory in the
field of psychology (acquisition, retention
and retrieval) as set forth in paragraph 2
of Defendant's memorandum, and the problems
in cross-racial identifications as set forth
in paragraph 5 of Defendant's memorandum,
will be admitted subject to the reliability
hearing, if any. These are matters the
Court finds are not within the common
knowledge and experience of the average
juror and, hence, could be the subject of
expert testimony.

* * * * * * *

The remaining areas of expert testimony the
Court finds are within the common experience
and knowledge of the average juror and the
proffered testimony will not be allowed.
Further, Defendant's expert will not be
allowed to testify as to the specific
identification in this case as to its
reliability nor as to its validity. Such
testimony would usurp the function of the
jury to determine the credibility of
witnesses.

(Emphasis added).

On appeal, appellant contends that Dr. Fulero's proffered

testimony in the five excluded categories was "vital to [the]

jury's understanding of whether the identification made [was]

correct." He argues that his expert should have been allowed to

explain to the jury the psychological and scientific principles

underlying the identification process. We disagree.

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 Where the admissibility of expert testimony is challenged

on appeal, the standard of review is whether the trial court

abused its discretion. See Archie v. Commonwealth, 14 Va. App.

684, 694, 420 S.E.2d 718, 723 (1992). "Expert testimony is

appropriate to assist triers of fact in those areas where a

person of normal intelligence and experience cannot make a

competent decision." Utz v. Commonwealth, 28 Va. App. 411, 423,

505 S.E.2d 380, 386 (1998). "The expert testimony must be

relevant, and the trial judge must determine whether the subject

matter of the testimony is beyond a lay person's common

knowledge and whether it will assist the trier of fact in

understanding the evidence or in determining a fact in issue."

Id.

In Rodriquez v. Commonwealth, 20 Va. App. 122, 455 S.E.2d

724 (1995), we addressed the issue of the admissibility of

expert testimony on the subject of eyewitness identification.

We noted as a preliminary matter that "[t]he refusal to admit

expert testimony on the subject of eyewitness testimony is a

matter within the [sound] discretion of the trial court." Id.

at 127, 455 S.E.2d at 727.

In excluding expert commentary on
eyewitness identifications, courts have
consistently found that this type of
testimony interferes with the jury's role as
fact finder and its duty to weigh the
credibility of witnesses. [T]he
trustworthiness of eyewitness observations
is not generally beyond the common knowledge
and experience of the average juror and is,

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 therefore, not a proper subject for expert
testimony. In addition, [t]he weaknesses of
identifications can be explored on
cross-examination and during counsel's final
arguments to the jury. Another concern is
that this type of testimony frequently has
the potential of turning trials into battles
between experts over the value of eyewitness
identifications.

Id. (citations and internal quotations omitted). However, we

recognized that in some "narrow" circumstances, expert testimony

may be useful to the jury, including in the following areas:

"such problems as cross-racial identification, identification

after a long delay, identification after observation under

stress, and psychological phenomena as the feedback factor and

unconscious transference." Id. (citations omitted).

Nevertheless, we held that the decision whether to allow

expert testimony concerning an eyewitness identification is a

decision left to the sound discretion of the trial court. See

id. at 128, 455 S.E.2d at 727. "By asking an expert to render

an opinion about the propriety of lineup procedures and the

reliability of eyewitness identifications, a defendant in effect

asks the expert to comment upon the credibility of the

identifying witness, an issue clearly within the jury's

province." Id.

In the instant case, the trial judge permitted Dr. Fulero

to testify about the mechanical processes of memory and

cross-racial identification because these subjects were not

within the common knowledge and experience of the jurors.

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However, the trial judge specifically found that the additional

five categories of testimony proffered by appellant were within

the common knowledge and experience of the jurors.

We find no error in the trial court's limiting testimony

concerning the correlation between eyewitness certainty and

accuracy. As we noted in Rodriguez, "the uncertain relationship

between eyewitness confidence and accuracy" was not the type of

"narrow" circumstances requiring expert testimony. Id. at 129,

455 S.E.2d at 728. Similarly, the trial court properly excluded

the proffered expert testimony about the unreliability of

subsequent identifications and the effect of short viewing time,

stress, and the display of a weapon. See id. (holding that "the

unreliability of a subsequent identification" and "the

prevalence of misidentification in situations involving stress,

poor lighting, or delay" are topics "within the lay knowledge of

the jurors").

Additionally, appellant's counsel addressed in argument to

the jury the issues limited by the trial court, such as the

reliability of the victim's identification given the short

period of time of the assault, the fear and stress involved in

the situation and the effect of the attacker's display of a

weapon. Counsel also challenged the reliability of the victim's

identification based upon the theory of transference. 2 Counsel

2
According to Dr. Fulero's proffered testimony, the doctrine
of transference occurs "when a witness picks a person from a

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stated, "Did she pick out a familiar face that she had seen in

McCrory's that weekend? You heard testimony that she was in

McCrory's as was [appellant]. Or was she just plain wrong?"

The jury was capable of evaluating whether the victim's

identifications of appellant were reliable or whether the

identifications were incorrect based on the suggested problems

associated with memory. For these reasons, we hold that the

trial court did not abuse its discretion in excluding the

proffered expert testimony.

III. EXCULPATORY EVIDENCE

At the commencement of trial, appellant sought disclosure

of a composite drawing of a purported suspect in a series of

sexual assaults in Northern Virginia and Maryland. These

assaults occurred when appellant was in prison for an unrelated

conviction, and he asserted that this person might be

responsible for the instant crimes. The Commonwealth denied

that similarities existed between those cases and the instant

case. The composite drawing was placed in an envelope under

seal and submitted to the trial judge for an in camera review.

The trial court later refused to disclose the drawing to

line-up or photo spread based on the fact that they have seen
the person previously, not because the person is the suspect at
the scene of the crime." We recognized in Rodriguez that the
theory of transference might be a topic appropriate for expert
testimony. See Rodriguez, 20 Va. App. at 128, 455 S.E.2d at
727. In the instant case, the trial judge allowed appellant's
counsel to argue this issue to the jury.

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appellant, stating: "I have personally examined the composite

photo submitted by the Commonwealth this morning and likewise

rule that it is not exculpatory in this case." 3

Appellant also sought undisclosed pages from the police

reports of Detectives Quinones and Ellman. The Commonwealth's

Attorney indicated that he had given to appellant those portions

of the reports that contained any exculpatory information. The

trial court reviewed the undisclosed pages in camera and

declined to provide the reports to appellant.

On appeal, appellant contends the composite drawing in the

unrelated case and the undisclosed reports of the police

officers could be exculpatory in nature and, therefore, the

trial court erred in failing to require their disclosure.

As a general rule, the accused is not entitled to obtain

statements made by prospective Commonwealth witnesses to police

officers in connection with the investigation or prosecution of

a criminal case. See Rule 3A:11(b)(2); see also Currie v.

Commonwealth, 10 Va. App. 204, 209, 391 S.E.2d 79, 82 (1990);

Taitano v. Commonwealth, 4 Va. App. 342, 349, 358 S.E.2d 590,

593 (1987). In Brady v. Maryland, 373 U.S. 83 (1963), the

United States Supreme Court held that "suppression by the

prosecution of evidence favorable to an accused upon request

3
The composite drawing was appropriately kept under seal in
the record for our appellate review.

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violates due process where the evidence is material either to

guilt or to punishment." Id. at 87.

Under Brady, the Commonwealth is required to
deliver that evidence which is favorable to
the accused and which, if suppressed, would
deprive the accused of a fair trial. The
nondisclosed evidence is considered
"material only if there is a reasonable
probability that, had the evidence been
disclosed to the defense, the result of the
proceeding would have been different." The
Court is required to assess the reasonable
probability of a different result in light
of the totality of circumstances.

Currie, 10 Va. App. at 209, 391 S.E.2d at 82 (citations

omitted).

In making a Brady challenge, "[a] defendant cannot

simply allege the presence of favorable material and win

reversal of his conviction. Rather, [he] must prove the

favorable character of evidence he claims has been

improperly suppressed. Speculative allegations are not

adequate." Hughes v. Commonwealth, 18 Va. App. 510, 526,

446 S.E.2d 451, 461 (1994) (citations omitted). Where the

Commonwealth and the defendant dispute the exculpatory

nature of the evidentiary materials, the trial court may

conduct an in camera review of the material to resolve the

dispute. See Bowman v. Commonwealth, 248 Va. 130, 135, 445

S.E.2d 110, 113 (1994).

In the instant case, the trial court properly conducted

an in camera review of the contested materials. See id.

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("The trial court's determination of the question whether it

should undertake the review of the disputed material is a

discretionary matter."). Regarding the composite drawing,

which was produced in an investigation of unrelated crimes,

the trial judge reviewed the composite drawing and held that

it was not exculpatory in nature. The sealed evidence

provides no favorable information to the accused, and its

exclusion did not deprive him of a fair trial. See Currie,

10 Va. App. at 209, 391 S.E.2d at 82.

We also agree with the trial court that the requested

police reports were not exculpatory in nature. The

Commonwealth disclosed all but two pages of Detective

Quinones' report and an excised copy of Detective Ellman's

report. The trial court conducted an in camera review of

the undisclosed reports. We have reviewed the sealed

materials and conclude, as did the trial court, that they

are not exculpatory in nature. Under the totality of the

circumstances, there is not a "reasonable probability of a

different result" had the materials been disclosed. Currie,

10 Va. App. at 209, 391 S.E.2d at 82 (citations omitted).

Moreover, appellant concedes that he cannot identify

specifically the ways in which the police reports are

exculpatory. Rather, appellant alleges that the police

reports "may contain inconsistent statements from the

complaining witness. They may contain information from

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other witnesses contrary to their testimony at trial or

contrary to other witness' testimony at trial. They may

contain leads that counsel could have used to find other

witnesses." (Emphasis added). Appellant has not alleged

what exculpatory evidence existed in Quinones' or Ellman's

reports and, as indicated in his arguments, he only hoped to

find some exculpatory evidence. These types of speculative

allegations are inadequate to invoke the Brady mandate. See

Hughes, 18 Va. App. at 526, 446 S.E.2d at 461. Accordingly,

we conclude the trial court did not err in declining to

provide the requested materials to appellant.

IV. USE OF PRELIMINARY HEARING TRANSCRIPT

Appellant next contends the trial court erred in

refusing to admit two portions of the preliminary hearing

transcript of the victim's testimony. In the first

instance, defense counsel cross-examined the victim about

the length of the encounter with her assailant. She

testified, "It was so fast, everything happened so quick, I

couldn't tell if it was 30 seconds or 30 minutes. I wasn't

looking at my watch." Defense counsel attempted to impeach

the victim with her prior testimony.

Q. [D]o you recall me asking you [at the
preliminary hearing] whether from the time
you saw your attacker to the time you ran
into your bedroom that 30 seconds or less
had gone by and you answering yes?

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 A. When I ran into my bedroom, well, I
don't understand the question. It could be
that it was 30 seconds. It could be that I
did answer yes, but everything was so fast
that I don't remember.

Q. But you could have answered me a couple
of months ago that it was 30 seconds or
less, you admit that?

A. No, no. I couldn't tell you absolutely.

(Emphasis added). The preliminary hearing transcript, which

appellant sought to introduce as impeachment evidence, contained

the following colloquy:

Q. Okay. Is it fair to say that from the
time you saw him until the time you ran into
the bedroom that 30 seconds or less had gone
by?

A. Yes.

Q. So it happened very quickly?

A. Yes.

In the second instance, appellant attempted to

introduce the preliminary hearing transcript regarding the

victim's testimony about her description of the assailant.

At trial, the victim testified as follows:

Q. The stuff on [appellant's] face you said
was like a rash?

A. Something like a rash.

Q. In fact, earlier you described them to
me like chicken pox?

A. Something like that, something like
that.

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Q. Those marks on his face were similar to
the marks that he had on his neck and arms,
is that right?

A. No. It is just that when I pushed him
you could see like a mark in here that he
had.

Q. But the marks on his face were similar
to the marks you had seen on his arm?

A. No, the ones on the arm are different
because they were like lines.

Q. Again, do you remember testifying back
in September at this preliminary hearing in
this case?

A. Yes.

Q. And at that time throughout that hearing
you tried to be as truthful and honest as
possible?

A. Yes.

Q. And at that time do you recall me asking
you whether the thing you saw on his arms
was like dots, like spots and you said they
were spots just like you made?

A. I told you then that he had some lines
and . . . that they looked like some kind of
a rash and I didn't tell you that they
looked like spots.

* * * * * * *

Q. And do you remember me drawing circles
on a paper for you and asking you if those
were the marks he had on his arms?

A. Yes.

Q. And you said yes, those look like the
marks?

A. Yes.

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(Emphasis added). At the preliminary hearing, the victim

testified as follows:

Q. Did you tell the police that [appellant
had] marks on his neck or arms?

A. Yes, you could see something there, but
it was the same thing as the chin and the
arms.

Q. The thing that you saw on the arms, was
it dots like this, spots?

A. They were like spots like you just made.

Q. Like circular.

A. Yes.

Q. Almost like chicken pox or something
like that.

A. Yes.

In both instances, appellant was allowed to question

the victim about her preliminary hearing testimony.

However, the trial court refused to admit into evidence the

actual preliminary hearing transcript.

Appellant argues that the victim was evasive in her trial

testimony and failed to acknowledge that she made the above

statements at the preliminary hearing. He contends that since

the victim's trial testimony was inconsistent with her

preliminary hearing testimony, the transcript of the preliminary

hearing should have been admitted into evidence for impeachment

purposes or, in the alternative, under the past recollection

recorded exception to the hearsay rule. We disagree.

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 "'If a witness gives testimony that is inconsistent with a

prior statement, . . . opposing counsel may cross-examine the

witness as to the inconsistency. In addition, all inconsistent

portions of that prior . . . statement are admissible for

impeachment purposes.'" Waller v. Commonwealth, 22 Va. App. 53,

56, 467 S.E.2d 844, 846 (1996) (quoting Smith v. Commonwealth,

15 Va. App. 507, 511, 425 S.E.2d 95, 98 (1992)); see also Code

§ 19.2-268.1. 4

"If a witness gives testimony that is inconsistent with a

prior statement, or testifies that he does not recall making the

prior statement, a sufficient foundation for impeachment has

been laid and opposing counsel may cross-examine the witness as

to the inconsistency." Smith, 15 Va. App. at 511, 425 S.E.2d at

98. However, if the witness admits making the statement, the

prior inconsistent statement may not be proved by extrinsic

4
Code § 19.2-268.1 provides in part:

A witness in a criminal case may be
cross-examined as to previous statements
made by him in writing or reduced into
writing, . . . but if it is intended to
contradict such witness by the writing, his
attention must, before such contradictory
proof can be given, be called to the
particular occasion on which the writing is
supposed to have been made, and he may be
asked if he did not make a writing of the
purport of the one to be offered to
contradict him, and if he denies making it,
. . . it shall then be shown to him, and if
he admits its genuineness, he shall be
allowed to make his own explanation of it
. . . .

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evidence. See Brown v. Peters, 202 Va. 382, 389, 117 S.E.2d

695, 699 (1961); Edwards v. Commonwealth, 19 Va. App. 568, 572,

454 S.E.2d 1, 3 (1995) ("If [the witnesses] admitted making the

prior inconsistent statements, appellant would have succeeded in

his impeachment. If they denied the statements, their testimony

would have been subject to impeachment by other competent

evidence.").

In the instant case, the victim acknowledged her

preliminary hearing testimony. In the first instance, she

admitted that "[i]t could be that it was 30 seconds. It could

be that I did answer yes . . . ." In the second instance, the

victim also admitted that she had previously described the marks

on her assailant's arms as being circular. Having acknowledged

her prior testimony on both issues, even if the preliminary

hearing statements were inconsistent with her trial testimony,

the trial court correctly held that appellant was precluded from

introducing extrinsic evidence to impeach the victim. See

Brown, 202 Va. at 389, 117 S.E.2d at 699. Appellant was still

able to impeach the victim by questioning her about the prior

testimony, and the trial court did not err in refusing to admit

the preliminary hearing transcript. 5

5
Appellant's argument that the preliminary hearing
transcript should have been admitted under the "past
recollection recorded" exception to the hearsay rule is without
merit. Under that rule, the "witness must lack a present
recollection of the event" and "must vouch for the accuracy of
the written memorandum." Bailey v. Commonwealth, 20 Va. App.

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 V. SUFFICIENCY OF EVIDENCE

Finally, appellant contends the evidence was insufficient

to prove beyond a reasonable doubt that he was the perpetrator

of the crimes. He argues that the victim's identification was

inconsistent with her identification at the preliminary hearing,

was "tainted" and "unreliable" because of fear induced by the

incident, and that comments by the police affected the validity

of the photo spread. Additionally, he argues that the victim

did not get a proper view of the assailant's face and she

"probably" associated appellant with the true perpetrator

because appellant had been in the victim's neighborhood earlier

that week.

In determining the reliability of a witness'

identification, we look to the factors enunciated in Neil v.

Biggers, 409 U.S. 188 (1972), as significant circumstances that

may be considered along with other evidence. See Charity v.

Commonwealth, 24 Va. App. 258, 262-63, 482 S.E.2d 59, 61 (1997).

These factors include the following:

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.

236, 240-41, 456 S.E.2d 144, 146 (1995). Here, neither of these
prongs was met, and the trial court properly excluded the
transcript.

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Biggers, 409 U.S. at 199-200. "The fact finder, who has the

opportunity to see and hear the witnesses, has the sole

responsibility to determine the weight of the evidence, the

credibility of witnesses, and the inferences to be drawn from

proven facts." Commonwealth v. Taylor, 256 Va. 514, 518, 506

S.E.2d 312, 314 (1998).

In the instant case, the evidence established that on the

morning of August 7, 1997, the victim identified appellant as

her assailant from a six-photograph lineup shown to her by

Detective Ellman. Viewed in the light most favorable to the

Commonwealth, the evidence also established that Ellman did not

tell the victim that her assailant would be one of the six

individuals in the lineup. The authorities later showed the

victim an enlarged photograph of appellant's left arm, without

indicating that it was a photograph of appellant, and she

identified it as a picture of her assailant's arm. She

unequivocally identified appellant at the preliminary hearing

and at trial as the perpetrator of the crimes. Here, the

Commonwealth's evidence was competent, was not inherently

incredible and was sufficient to prove beyond a reasonable doubt

that appellant was, in fact, the perpetrator of the crimes.

For the foregoing reasons, we affirm appellant's

convictions.

Affirmed.

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