COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Senior Judge Hodges
Argued at Alexandria, Virginia
ELLIOTT McCRAE WILSON
OPINION BY
v. Record No. 0186-98-4 JUDGE RUDOLPH BUMGARDNER, III
MARCH 2, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Alfred D. Swersky, Judge
J. Amy Dillard, Deputy Public Defender, for
appellant.
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Elliott McCrae Wilson appeals his conviction of robbery and
asserts the trial court erred by admitting a videotape taken
during the robbery. He argues the Commonwealth failed to present
evidence to prove that the video taping process was accurate.
Concluding that the evidence properly authenticated the
videotape, we affirm.
The victim, who does not speak English, went to a 7-11 store
with his grandson. As he stood in the checkout line, the person
standing behind him suddenly came around in front and struck him
in the face. The victim fell to the floor as his attacker
continued to hit him. The attacker searched the victim's pockets
with one hand while hitting him with the other. Though the
victim tried to fend off his attacker, ultimately the attacker
took twenty, one-dollar bills from his shirt pocket.
The victim said he got a good look at his attacker's face,
and described him as a strong, black man whose face was a little
thicker than usual. The victim could not describe the attacker's
clothing and was not able to identify his attacker from police
photographs. The 7-11 store had a surveillance camera which
photographed the area running along the checkout counter to the
front of the store. A camera recorded the attack, and the
videotape was retained and offered as evidence at trial.
Approximately one month after the robbery, an Alexandria
police officer recognized the defendant in still pictures made
from the store's videotape. He interviewed the defendant, and
the defendant admitted being in the 7-11 on the day of the
incident and fighting with a Hispanic man. The defendant
admitted that he threw punches, but he denied taking anything
from the person he fought. When shown the still pictures from
the videotape, the defendant said, "that looks like me," and
"that looks like the Hispanic guy."
The Commonwealth offered the store's videotape as evidence.
After viewing the videotape, the victim stated that it fairly and
accurately illustrated what had happened to him at the store.
The defendant objected that the foundation did not sufficiently
authenticate the tape. He argued the Commonwealth had to prove
the accuracy of the process that the store used in producing the
tape. The trial court admitted the tape finding that the victim
properly authenticated it by testifying it fairly and accurately
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portrayed what had happened to him. The court also admitted
several individual frames printed from the videotape.
The admissibility of videotapes is governed by the rules
applicable to photographs. See Stamper v. Commonwealth, 220 Va.
260, 270-71, 257 S.E.2d 808, 816 (1979), cert. denied, 445 U.S.
972 (1980). Their admission is within the sound discretion of
the trial court, reviewable only for an abuse of discretion. See
Spencer v. Commonwealth, 238 Va. 295, 384 S.E.2d 785 (1989).
Photographs are generally admitted into evidence for two
purposes: to illustrate a witness' testimony, and as an
"independent silent witness" of matters revealed by the
photograph. See Ferguson v. Commonwealth, 212 Va. 745, 746, 187
S.E.2d 189, 190 (1972). "[A] photograph which is verified by the
testimony of a witness as fairly representing what that witness
has observed is admissible in evidence and . . . it need not be
proved by the photographer who made it." Id. See Goins v.
Commonwealth, 251 Va. 442, 470 S.E.2d 114 (1996); Chesapeake &
Ohio Ry. v. Kinzer, 206 Va. 175, 142 S.E.2d 514 (1965).
The trial court's admission of the videotape and still
pictures was not error. A proper foundation for the videotape
was laid by the victim. The victim had personal, direct
knowledge of the facts occurring and the scene captured on the
tape. He testified that the tape accurately showed the assault
on him as it was occurring. The videotape corroborated and
portrayed graphically the victim's testimony. Because a witness
with knowledge testified that the videotape was what it claimed
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to be, the Commonwealth did not need to prove the accuracy of the
process that produced it. The individual pictures taken from the
videotape were simply individual segments printed from the full
exhibit. When the whole videotape was authenticated and
admitted, any individual segment of the whole was also
authenticated and admitted.
The defendant moved to strike the evidence because the
Commonwealth had not proven identity. He argued that the
videotape and individual pictures had been admitted only as an
illustration of what happened to the victim during the
altercation. He argued the pictures could not be used to
identify the defendant because the victim could not identify the
defendant in the picture. The trial court disagreed and admitted
the tape for all purposes.
The pictures were probative of the identity of the robber
even though the victim could not identify him. The fact finder
may take into consideration and regard as evidence details of the
photograph about which no testimony has been offered. See
Mullins v. Clifton, 204 Va. 515, 132 S.E.2d 422 (1963). Finally,
if there was any serious question that the videotape accurately
recorded the events, it was eliminated by the evidence that the
defendant acknowledged the pictures looked like him and the
person with whom he fought.
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The trial court did not abuse its discretion by admitting
the videotape and pictures printed from it. Accordingly, we
affirm the judgment.
Affirmed.
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