Medad El Muhammad v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Felton and Kelsey
Argued at Richmond, Virginia
MEDAD EL MUHAMMAD
MEMORANDUM OPINION * BY
v. Record No. 1300-01-2 JUDGE WALTER S. FELTON, JR.
DECEMBER 10, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
Craig S. Cooley for appellant.
Steven A. Witmer, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Medad El Muhammad was convicted in a bench trial of robbery,
in violation of Code § 18.2-58, and unlawful wounding, in
violation of Code § 18.2-51. On appeal, he contends (1) the
evidence was insufficient to support the convictions of robbery
and unlawful wounding, and (2) the trial court erred in finding
that the indictment for malicious wounding, filed after a
continuance was granted to Muhammad, did not constitute
prosecutorial vindictiveness. We affirm.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. BACKGROUND
A. THE OFFENSES
On March 11, 2000, Henry Taylor set out to cash his payroll
check. He went to a bank on Jefferson Davis Highway, on the
southside of Richmond, but found it to be closed. Returning
from the bank, he saw a friend, Jerry Barbour, who was sitting
as a passenger in Muhammad's vehicle. Taylor asked Barbour if
he would take him to a bank in Mechanicsville to get his check
cashed. Barbour asked Muhammad, who responded that he did not
know because he had to drop some people off. Muhammad told
Taylor that he would be back in five minutes. Taylor indicated
that he only knew Muhammad as "Mike," "Big Mike," or "Iron Mike"
and that they had been acquaintances since 1995 or 1996.
Muhammad returned and told Taylor that he would take him
and Douglas Ellsworth to the bank for ten dollars each. Taylor
agreed. He and Ellsworth got into the vehicle with Muhammad,
Barbour, and an unidentified male. Before arriving at the bank,
Barbour was dropped off. Thereafter, Taylor and Ellsworth were
brought to the bank where they cashed their checks. Each
provided Muhammad ten dollars for driving, but Muhammad
requested an additional ten dollars from each of them. Taylor
paid Muhammad, but Ellsworth refused.
Muhammad began driving back toward the southside at which
time Taylor asked if they could stop to pick up some beer.
Muhammad agreed, but instead drove to an area known as Century
- 2 -
Garden. When asked what was going on, Muhammad responded that
he was going to "check out some friends, somebody, a relative or
somebody." They drove down a dirt road and stopped. Muhammad,
Ellsworth, and the unidentified man got out of the vehicle and
urinated. Upon returning to the vehicle, Muhammad began
fumbling around with his clothing, pulled out a knife, and
advanced on Taylor.
Muhammad told Taylor, "You know what this is, man, now, I'm
going to kill you." He then told Taylor to "give it up."
Taylor kicked Muhammad and leaned back as Muhammad tried to stab
him in the face. Taylor yelled for Ellsworth to get out of the
car. Taylor could not get out of the car and struggled with
Muhammad until Ellsworth opened the door from the outside.
Taylor fell to the ground and as he stood up, the unidentified
man grabbed him by the arm. Muhammad then stabbed Taylor in the
back, telling him to "give it up." Taylor surrendered $280 in
cash.
Muhammad tried to get Taylor back into the vehicle, but he
resisted and ran away, falling in a ditch as he began to black
out. Taylor managed to get out of the ditch and saw Edith
Seibert driving down the road. He began "hollering and
screaming for somebody to stop [and] to help [him]." Taylor ran
to the side of Seibert's car and begged for her to help him. He
told her he had been robbed and stabbed. Initially, Seibert
thought Taylor was drunk because she observed him fall into the
- 3 -
ditch. However, when he approached her car, Seibert saw blood
on Taylor's face. Using her cell phone, she called the police
then exited her car to help. She saw blood coming from the back
of Taylor's shirt.
B. INVESTIGATION AND TRIAL
Muhammad was initially charged with robbery, in violation
of Code § 18.2-58. On December 7, 2000, trial was set to begin.
However, Muhammad requested a continuance on the grounds that a
material witness, Jerry Barbour, was not present. The trial
court granted the continuance, with the Commonwealth's objection
noted, and set trial to begin on February 6, 2001. On January
8, 2001, the Commonwealth obtained a direct indictment against
Muhammad on the charge of malicious wounding, in violation of
Code § 18.2-51.
Prior to trial on February 6, 2001, Muhammad made a motion
to dismiss the indictment charging malicious wounding. Muhammad
claimed that the charging was a retaliatory action taken by the
Commonwealth because he obtained a continuance on December 7,
2000. The charging, he argues, violated his right to due
process. After hearing arguments from both parties, the trial
court denied Muhammad's motion and continued to trial.
At trial, Investigator Terry Mason testified as to the
robbery investigation. On direct examination, he identified
photos taken of Taylor's back and facial wounds. He stated that
the photos were taken at the scene prior to his arrival, but he
- 4 -
observed the wounds at the hospital. On cross-examination he
admitted that in obtaining an identification of Muhammad, he
used a single photo. No photo array was used. Investigator
Mason also admitted that he never took steps to determine if
Taylor cashed his check and never spoke to Ellsworth.
Muhammad also testified in his own behalf. He stated that
he did not know Taylor and he never had nicknames of "Mike,"
"Big Mike," or "Iron Mike." Further, he denied any knowledge or
participation in the robbery and stabbing. Muhammad was found
guilty of robbery, in violation of Code § 18.2-58, and unlawful
wounding, in violation of Code § 18.2-51, a lesser-included
charge of malicious wounding.
II. SUFFICIENCY OF THE EVIDENCE
We first consider whether the evidence was sufficient to
convict Muhammad of robbery and unlawful wounding.
When the sufficiency of the evidence is
challenged on appeal, it is well established
that we must view the evidence in the light
most favorable to the Commonwealth, granting
to it all reasonable inferences fairly
deducible therefrom. The conviction will be
disturbed only if plainly wrong or without
evidence to support it.
Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196
(1992). Muhammad claims that the evidence was insufficient to
convict him of robbery and unlawful wounding because of a
- 5 -
tainted identification and uncorroborated allegations. 1 We
disagree.
Mr. Taylor testified at trial that he had known Muhammad
for approximately six or seven years. During that period he had
a few altercations with Muhammad. Mr. Taylor stated that on
March 11, 2000, after cashing his check, Muhammad threatened him
and Mr. Ellsworth with a knife and demanded money. Mr. Taylor
struggled with Muhammad and subsequently was stabbed in the
back. Mr. Taylor identified Muhammad as his assailant. At the
conclusion of the trial, the trial judge found the case to turn
on the issue of credibility, stating, "It's a credibility issue,
and I, I think Mr. Taylor's testimony is credible."
The credibility of witnesses is a question
exclusively for the [judge or] jury, and
where a number of witnesses testify directly
opposite to each other, the [judge or] jury
is not bound to regard the weight of the
evidence as equally balanced, they have the
right to determine from the appearance of
the witnesses on the stand, their manner of
testifying, and their apparent candor and
fairness, their apparent intelligence, or
lack of intelligence, and from all the other
surrounding circumstances appearing on the
trial, which witnesses are more worthy of
credit, and to give credit accordingly.
Zirkle v. Commonwealth, 189 Va. 862, 870, 55 S.E.2d 24, 29
(1949). Mr. Taylor's testimony, believed by the trial judge,
1
Because Muhammad failed to object to the admissibility of
his identification by Taylor, our consideration is limited to
the weight given by the trial court to Taylor's testimony
identifying Muhammad as his assailant.
- 6 -
was sufficient to establish that Muhammad robbed and unlawfully
wounded him.
III. PROSECUTORIAL VINDICTIVENESS
We next consider whether the Commonwealth engaged in
prosecutorial vindictiveness when it obtained an indictment for
malicious wounding after a continuance was granted to Muhammad.
Muhammad argues that the trial court erred in denying his motion
to dismiss the malicious wounding indictment. He contends that
he was denied due process when the Commonwealth vindictively
sought an indictment against him for a serious charge, after he
successfully obtained a continuance. We disagree.
In United States v. Goodwin, 457 U.S. 368 (1982), the
Supreme Court declined to apply a presumption of prosecutorial
vindictiveness in a pretrial setting. In Goodwin, the defendant
moved to set aside the verdict, arguing that his indictment and
conviction on a felony charge, after he refused to plead guilty
and requested a jury trial on the pending misdemeanor charges,
constituted prosecutorial vindictiveness. Id. at 370.
The Supreme Court held that "a mere opportunity for
vindictiveness is insufficient to justify the imposition of a
prophylactic rule. . . . '[T]he Due Process Clause is not
offended by all possibilities of increased punishment . . . but
only by those that pose a realistic likelihood of
vindictiveness.'" Id. at 384 (quoting Blackledge v. Perry, 417
U.S. 21, 27 (1974)). The Court recognized that:
- 7 -
a defendant before trial is expected to
invoke procedural rights that inevitably
impose some "burden" on the prosecutor.
Defense counsel routinely file pretrial
motions to suppress evidence; to challenge
the sufficiency and form of an indictment;
to plead an affirmative defense; to request
psychiatric services; to obtain access to
government files; to be tried by a jury. It
is unrealistic to assume that a prosecutor's
probable response to such motions is to seek
to penalize and to deter. The invocation of
procedural rights is an integral part of the
adversary process in which our criminal
justice system operates.
. . . A prosecutor should remain free
before trial to exercise the broad
discretion entrusted to him to determine the
extent of the societal interest in
prosecution. An initial decision should not
freeze future conduct . . . . [T]he initial
charges filed by a prosecutor may not
reflect the extent to which an individual is
legitimately subject to prosecution.
Id. at 381-82. "To presume that every case is complete at the
time an initial charge is filed, however, is to presume that
every prosecutor is infallible--an assumption that would ignore
the practical restraints imposed by often limited prosecutorial
resources." Id. at 382 n.14.
In refusing to apply a presumption of vindictiveness in a
pretrial setting, the Supreme Court did not foreclose the
possibility that a defendant may, in appropriate circumstances,
"prove objectively that the prosecutor's charging decision was
motivated by a desire to punish him for doing something the law
plainly allowed him to do." Id. at 384. In the case before us,
Muhammad must objectively show that the Commonwealth's action of
- 8 -
charging him with malicious wounding was motivated by a desire
to punish him for obtaining a continuance of his trial date.
There is no evidence in the record to support such a finding.
To the contrary, the record reflects a reasonable and
non-vindictive explanation for the subsequent indictment. The
Commonwealth noted that its failure to indict Muhammad for
malicious wounding in November 2000 was an oversight. Once the
November grand jury date had passed, the January 2001 grand jury
was the next available opportunity. The Commonwealth merely
took advantage of Muhammad's request for a continuance to obtain
the malicious wounding indictment. The evidence in the record
is insufficient to prove actual vindictiveness. Accordingly,
the trial court did not err in denying Muhammad's motion to
dismiss.
The judgment of the trial court is affirmed.
Affirmed.
- 9 -