Hopkins v. Commonwealth , 19 Va. App. 1 ( 1994 )

Opinion

BENTON, J.

Troy D. Hopkins appeals from his convictions for first degree murder, attempted robbery, use of a firearm in the commission of murder, and use of a firearm in the commission of attempted robbery. He challenges the trial judge’s refusal to grant a new trial based on after-discovered evidence and to exclude from evidence a witness’s identification that Hopkins contends was unduly suggestive. We reverse the convictions and remand for a new trial.

I.

The evidence at trial proved that at 4:00 a.m. on July 21, 1990, Janice Talley drove Curtis Kearney in her automobile to Afton Avenue, a place where drugs are sold, which she described as “a terrible place to go.” She and Kearney had been drinking a lot of beer; she had consumed five or six beers. She testified that after Kearney got out of the automobile she followed him to see what he was going to do. When she was about six feet behind Kearney, she saw a person with a red mask on his face approach Kearney with a gun and demand money. She testified that the person shot and killed Kearney with a gun she recognized to be a “.32.” She testified that the mask fell off the assailant’s face, and she heard the assailant say, “Curtis — I just shot Curtis.” She testified that the assailant then asked her if she knew Kearney. She said no and ran to her automobile.

She further testified that when the police arrived, she told an officer, “I heard — I heard the name, Squeeky, before ... the thing came off his face. I heard, ‘Squeeky, why did you shoot that man?’ ” She testified that she had not seen the assailant before that night. When asked if she looked at him, she responded:

Well, I was shocked, you know, at what was happening, what went down. Yes, I looked at him. ... I was scared. I looked, you know, to see who did it, you know.

She testified that she told the police that the assailant was “about 5'5" or 5'6", . . . weighed about 130 pounds, . . . had short hair, and ... he happened to have gold teeth in his mouth, up in his right side.” She also testified that the person who shot Kearney was wearing blue jeans and a blue striped shirt.

A month after the incident, she was shown an array of six photographs and selected a photograph of Hopkins. One month after she selected his photograph, she was shown another array of six photographs. Again she picked a photograph of Hopkins. His photograph was the fourth photograph in both arrays. In court, she pointed to Hopkins when she was asked if the assailant was in the courtroom.

Officer Bohannon testified that when he arrived at Afton Avenue, he spoke to Talley. She told him that a person named “Squeeky” shot Kearney. Detective Quick interviewed Talley later that morning. He testified that she described the assailant as follows:

Black, male, dark skinned, young looking, 15 to 16, 5'6", 130 pounds, possibly a gold tooth on the upper side. ... He had a red scarf over the lower part of his face, which he removed at one point, and then a white shirt with blue stripes, and blue jeans.

The detective also testified that Talley said “someone there call[ed] him by the name, which was Squeeky.” He also testified that Talley picked Hopkins’s photograph from two photograph arrays.

In Hopkins’s defense, James Branch, a long time friend of Hopkins who lived on Afton Avenue, testified that thirty people were out on the street that morning. He said that Kearney asked him for drugs moments before being shot. After Kearney walked away from him, three boys approached Kearney. One of the three boys, a fifteen year old who was five feet, two inches tall, light skinned, and known as “Scooby,” actually shot Kearney. He denied seeing Talley present at the time of the shooting. He also testified that Hopkins was not present and did not shoot Kearney. He stated that he did not tell anyone that “Scooby” shot Kearney until he learned that Hopkins had been wrongly accused.

Hopkins did not testify. The jury convicted Hopkins of all charges.

II.

After trial, Hopkins made a motion for a new trial based on after-discovered evidence. Affidavits attached to the motion from relatives of Adrian Epps asserted that Epps was known as “Scooby” and was the murderer. Following an evidentiary hearing, the trial judge denied the motion. The transcript of the evidentiary hearing was not timely filed. See Rule 5A:8. The trial judge found that Hopkins had failed to show that the evidence was not discoverable before trial and that the after-discovered evidence was insufficiently credible to be likely to produce an opposite result on the merits upon retrial.

Alleging as error the trial judge’s refusal to suppress Talley’s identification and award a new trial, Hopkins petitioned this Court for an appeal. This Court granted Hopkins’s petition for appeal only on the issue of the unduly suggestive identification. After briefs were filed, Hopkins moved this Court to remand the case to the circuit court because of additional after-discovered evidence. The Commonwealth’s Attorney for the City of Richmond, whose office prosecuted the case at trial, joined in the motion. The Attorney General also agreed to a remand for the purpose of allowing Hopkins to pursue a motion for a new trial. This Court remanded the case to the trial court pursuant to Rule 5A:36.

Hopkins’s second motion for a new trial contained several affidavits, including Epps’s affidavit that he shot Kearney and Kearney’s niece’s affidavit that she saw Epps shoot Kearney. At the evidentiary hearing, William Wilson testified that he was on Afton Avenue the night Kearney was shot and that he was thirty-five to forty feet from the shooting site. He testified that he did not know Hopkins. He testified that although he did not see the gun, he saw the shooting. He also said that he could not see the person who fired the gun. However, he testified that he did not see Hopkins on Afton Avenue that morning and would have seen him if he had been there. He also testified that when he saw the shooting he called the police telephone emergency number. He said he did not come forward with information that Hopkins was not on Afton Avenue that morning until he read in the newspaper that Hopkins had been convicted. He then contacted Hopkins’s lawyer.

Marvin Robinson, who was twenty-three years old, testified that at the time of the murder, he resided with his mother and his brothers, Melvin Hawkins and Roy Hunt. His cousins George Epps and Adrian “Scooby” Epps were “staying” there in July 1990. He testified that at approximately 5:00 a.m. on the morning of the murder, his brother Melvin and cousins Adrian and George awakened him and spoke to him. He then ran to his mother and told her of the conversation. After he later read in the newspaper that Hopkins had been convicted of Kearney’s murder, he contacted Hopkins, Adrian Epps’s mother, and Hopkins’s lawyer and told them that he knew Hopkins was innocent of the murder. Robinson testified that he came forward when he did because he learned that the wrong man had been convicted.

Melvin Hawkins, who was nineteen years old, testified that he was “getting drunk” with his cousin Adrian Epps on Afton Avenue on the night of the murder. He stated that Kearney approached him and asked him for “works,” i.e., needles for the intravenous ingestion of drugs. Hawkins testified that Kearney wanted the “works” so that he could use the cocaine that Hawkins had sold him approximately three and one-half hours earlier. Hawkins told Kearney that he did not have any needles he could give him. Hawkins testified that Kearney then became agitated. As Kearney was about to hit Hawkins, Adrian Epps then emerged from behind a building and shot Kearney. Epps was wearing burgundy pants, black Reebok sneakers, a Los Angeles Raiders hat and had a towel wrapped around his face.

Hawkins further testified that he had given the gun to Epps earlier that day and that he was four or five feet from Epps when Epps fired the gun. Hawkins testified that he ducked when he heard the shot because the shot surprised him. He then asked Epps why he shot the man. Hawkins said that Epps threw the gun to him and fled. Hawkins testified that he then threw the gun on a nearby rooftop and stayed at the scene. Approximately one-half hour later, Epps returned and was wearing different clothes. Hawkins testified that he did not see Hopkins on Afton Avenue the night Kearney was shot. Hawkins also testified inconsistently from his earlier testimony that he had bought cocaine from Kearney earlier that night.

On cross-examination, Hawkins described Kearney as wearing a grey work uniform with a name tag and wearing a grey hat. When shown a picture of Kearney’s body as it was found at the scene of the crime, Hawkins agreed that Kearney was wearing blue pants and a white shirt and that there was a black hat near Kearney’s body. Hawkins testified, however, that the photograph depicted the person from whom he had purchased drugs and who was shot by Epps.

Charmane Kearney, who was age eighteen, testified that Curtis Kearney was her uncle. She testified that she too was on Afton Avenue the night of the murder and that she witnessed the shooting. She testified that she saw Hawkins and Adrian Epps standing together and talking with Kearney. She stated that Epps threatened to kill her uncle, that her uncle denied having any money, and that Epps then shot her uncle. She testified that she heard Hawkins say, “Scooby, man, why [did] you shoot that man.” She further testified that her grandmother told her not to reveal what she knew about the murder unless the wrong man was convicted. She testified that Hopkins did not shoot her uncle and that when she learned that Hopkins had been convicted she told the Commonwealth’s Attorney what she knew about the murder. She testified that she had known Epps since the fifth grade.

Adrian Epps testified that he was sixteen, that he was known as “Scooby,” and that he was on Afton Avenue on the night of the murder. He resided in Maryland but was “staying” with his cousin in July 1990. He admitted that he shot Kearney. He testified that Hawkins began talking with Kearney and that he approached the pair and asked for a cigarette. He then began arguing with Kearney and when it appeared that Kearney was reaching for a gun, Epps shot him. Epps also admitted fleeing after the shooting,, changing his clothes, and then returning to the scene. He testified that after the shooting he threw the gun away in a creek. Epps also admitted that at an earlier hearing he denied shooting Kearney. He said that he lied then because he was scared.

On cross-examination, Epps testified that he was fourteen years old at the time of the murder and that someone had told him that if he were prosecuted for murder he would only be held until he was eighteen years old. He testified that no one had pressured him into testifying. He said that he came forward because he “started dreaming about it” and that he had been thinking about coming forward for about a year and a half. He further testified that he recalled sitting in the prosecutor’s office with Talley and stating that he did not kill Kearney. Epps also denied having a scarf over his face when he shot Kearney. When shown a picture of Kearney’s dead body, Epps testified that it did not look like the person he shot. He also admitted that he had denied six or seven times to a detective that he shot the man in the picture.

The trial judge denied Hopkins’s motion for a new trial on the ground that the evidence was merely cumulative of evidence adduced at trial and that, in any event, the witnesses were not credible. Hopkins later renewed his motion for a new trial and alleged that the Commonwealth’s Attorney had written a letter stating that Hopkins should get a new trial. The trial judge again denied the motion. Hopkins then noted his appeal to this Court.

III.

A motion for a new trial based on the allegation of after-discovered evidence is not looked upon with favor and is to be granted with great reluctance. Lewis v. Commonwealth, 209 Va. 602, 608, 166 S.E.2d 248, 253 (1969). To prevail on the motion, the defendant bears the burden of establishing the following elements:

that the 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 collat-. eral; and (4) is material, and such as should produce opposite results on the merits at another trial.

Odum v. Commonwealth, 225 Va. 123, 130, 301 S.E.2d 145, 149 (1983).

There is no dispute that the evidence offered in support of the motion for a new trial was not discovered until after trial. In addition, Hopkins’s counsel represented to the trial judge that both he and Hopkins had conducted an extensive investigation of the facts, including traveling to the scene of the crime on several occasions late at night in an effort to attempt to find witnesses who might testify in Hopkins’s behalf. We conclude that even with the exercise of reasonable diligence, counsel’s investigation could not have been expected to uncover Epps’s confession to a murder or the cooperation of Epps’s relatives. All of the witnesses expressed their reluctance to disclose information before learning of the conviction. Nothing in the record suggests that efforts by counsel or Hopkins could have brought that information to light earlier. See Whittington v. Commonwealth, 5 Va. App. 212, 215, 361 S.E.2d 449, 451-52 (1987) (diligent search would not have found witness absent “unusual good fortune” or interviews with an entire army base).

The trial judge found that Hopkins failed to establish that the evidence was not merely cumulative, corroborative, or collateral. We hold that it was not. “If the witness sought to be impeached is ‘the key prosecution witness,’ then a new trial should be ordered, assuming all of the other requirements for a new trial are met.” Id. at 216, 361 S.E.2d at 452 (quoting State v. Stewart, 239 S.E.2d 111, 784 (W. Va. 1977)). We cannot agree that the actual confession of Epps, coupled with the corroborative testimony of four other witnesses (two of whom were blood relatives of Epps and another of whom was a blood relative of the deceased victim) can be fairly characterized as “merely cumulative” of Branch’s trial testimony.

Although Branch testified at the trial that someone called “Scooby” shot Kearney, he testified that he did not know that person’s actual name. Branch provided no information concerning the shooter other than a nickname. Indeed, the evidence at the evidentiary hearing on the motion for a new trial established that Epps was then a resident of Maryland who was visiting his relatives.

Although Epps’s confession corroborated Branch’s testimony and impeached Talley’s, his confession was. by its nature highly probative and of a wholly different quality than testimony of a third person implicating Epps. Moreover, that the corroborative witnesses are Epps’s friends and relatives is also a factor that weighs heavily in our conclusion.

The trial judge found that the witnesses were not credible. Although the witnesses’ failure to report promptly what they knew of the murder to the authorities does not weigh in their favor, we cannot say that their explanations for delay (fear, uncertainty, confusion) or explanations for ultimately coming forward (pangs of conscience) are incredible as a matter of law. See Riley v. Harris, 211 Va. 359, 363, 177 S.E.2d 630, 633 (1970) (a conflicting explanation “is a matter for the jury, unless the explanation is unreasonable as a matter of law, or inherently incredible or such that reasonable men could not differ as to its effect”). The record does not establish that those explanations were such that a reasonable juror would necessarily disbelieve them. See Hammer v. Commonwealth, 207 Va. 159, 162, 148 S.E.2d 892, 894 (1966) (prosecutrix’s delay in reporting attempted rape did not make her testimony incredible as a matter of law); Corvin v. Commonwealth, 13 Va. App. 296, 299, 411 S.E.2d 235, 237 (1991) (victim’s “youth, fright, and embarrassment” were acceptable explanation for delay in reporting crime).

The trial judge also found that the accounts of the witnesses in this case suffered from occasional internal inconsistencies and even differed, sometimes materially, from each other. Those conflicts were, however, under the circumstances of this case, for a jury to resolve. In Hines v. Commonwealth, 136 Va. 728, 117 S.E. 843 (1923), the accused made a motion for a new trial based on after-discovered evidence that someone else had confessed to the murder for which the accused had been convicted. Id. at 735-36, 117 S.E. at 845. The trial judge denied the motion, and the Supreme Court reversed. Id. at 751, 117 S.E. at 849-50. In that case, notwithstanding the confessor’s death, the Supreme Court stated:

The jury found upon the original evidence that [Hines] was guilty beyond a reasonable doubt, and as they were the sole judges of the weight and credibility of the testimony, their verdict thereon could not be disturbed. But the vital facts upon which that verdict was based were disputed, and this new evidence, if they had heard and believed it, would necessarily have produced a different result. We do not undertake to say what weight a jury would give to the new evidence, but it certainly ought to change the result if it is worthy of belief, and whether it is worthy of belief is a question which ought to be settled, not by the court, but by a jury.

Id. at 750-51, 117 S.E. at 849-50 (emphasis added). The trial judge in this case concluded that he did not find the witnesses credible but failed to consider whether a jury could have.

The Commonwealth argues that the trial judge correctly made a credibility analysis and relies upon Odum v. Commonwealth, 225 Va. 123, 301 S.E.2d 145 (1983). The Court in Odum held that the evidence was not discovered after trial, that the evidence could have been obtained at trial in the exercise of due diligence, and that the same result would occur upon retrial. 225 Va. at 131, 301 S.E.2d at 149. Significantly, the two victims not only identified Odum as the perpetrator at trial but also testified that Odum’s brother, the subsequent confessor, who was present at trial, was not the perpetrator. Id. at 127, 301 S.E.2d at 147. Because of that testimony, the Court necessarily concluded that the trial judge “properly could find that [the evidence] was not such as should produce opposite results ... at another trial.” Id. at 131, 301 S.E.2d at 149. The jury in Odum’s first trial had assessed the victim’s certainty regarding the identification of Odum in direct contrast to his brother, who was present at trial.

In Hopkins’s case, however, the jury had only the opportunity to weigh Talley’s identification of Hopkins against the unsupported testimony of a witness that an unknown person named “Scooby” may have been the perpetrator. The jury did not have the opportunity to weigh Talley’s testimony that she heard “Squeeky” and saw Hopkins shoot against the witnesses who testified that they heard “Scooby” and saw the confessor Epps shoot. Moreover, the evidence proved Talley had consumed several beers. Because of these factors, Odum does not control our decision in this case. We hold that the trial judge abused his discretion in taking from a jury the resolution of the conflicts in the evidence.

If a jury did believe the after-discovered evidence, i.e., that Epps and not Hopkins 'murdered Kearney, then the outcome necessarily would be different. Hines at 750-51, 117 S.E. at 849. See also Fisher v. Commonwealth, 11 Va. App. 302, 304-05, 397 S.E.2d 901, 902 (1990) (holding that accused’s son’s post-conviction testimony contradicted the victim’s testimony as to a material fact and merited retrial). Thus, Hopkins met the fourth requirement that the evidence be such that it would likely affect the outcome of a new trial. We hold that Hopkins is entitled to a new trial.

IV.

Because the issue is likely to arise again on remand, we also decide the question of whether Talley’s identification of Hopkins was the product of unduly suggestive identification procedures.

In Simmons v. United States, 390 U.S. 377, 384 (1968), the Supreme Court held that unduly suggestive photographic identification procedures denied a defendant due process of law if the procedures were likely to result in misidentification. See also Stovall v. Denno, 388 U.S. 293, 301-02 (1967). The Supreme Court has identified several factors reviewing courts ought to examine in determining the reliability of a witness’s identification, notwithstanding a suggestive identification procedure. These factors are:

[T]he 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.

Neil v. Biggers, 409 U.S. 188, 199-200 (1972).

Consistent with these cases, this Court has held:

[T]wo rules of law [regarding the admissibility of in-court and out-of-court identifications] can be discerned [from the guidelines espoused by the U.S. Supreme Court.] The first involves the admissibility of evidence of out-of-court identifications. Such evidence will be admitted if either (a) the identification was not unduly suggestive, or (b) the procedure was unduly suggestive, but the identification is nevertheless so reliable, in accordance with the factors noted in Biggers and Brathwaite that there is no substantial likelihood of misidentification. Second, even if evidence of the out-of-court identification cannot be admitted, an in-court identification may still be made if the origin of that identification is independent of the inadmissible out-of-court identification procedure.

Hill v. Commonwealth, 2 Va. App. 683, 693, 347 S.E.2d 913, 918 (1986).

Hopkins argues that the combination of three factors made the identification procedures in this case unduly suggestive: (1) that police spoke with Talley about Hopkins prior to Talley’s out-of-court identification, (2) that Hopkins’s picture was the only picture to appear in both photo arrays, and (3) that in both photo arrays Hopkins’s picture was the fourth picture of six. We examine each contention in turn.

Talley’s testimony regarding whether the police talked to her before the first photo array was inconsistent. Although she said once that a police officer had talked to her before showing her the array, she later testified that the police officer had not talked to her before she made her identification from the photo array. However, viewed in the light most favorable to the Commonwealth, the evidence did not prove that the police spoke with Talley using the name “Hopkins” or mentioned Hopkins’s name before her first identification of him from the photo array. The examination of the witness on this point was imprecise. However, she stated that the officer asked her about “Squeeky,” the name she had given them. She also said, “I don’t know him by Troy Hopkins.” On this record, we cannot conclude that Hopkins established that the police questioning was suggestive.

We also conclude that the fact that Hopkins was the only person to be depicted in both pretrial photo arrays did not necessarily make the identification procedure unduly suggestive. Talley viewed the two photo arrays a month apart. Nothing in the record suggests that Talley would have remembered each of the five other photographs from the first array and noted their absence in the second array. See United States v. Davenport, 753 F.2d 1460, 1462-63 (9th Cir. 1985) (holding similarly on similar facts). Although an array without Hopkins’s photo might have bolstered Talley’s credibility if she reported that the person she had seen was not in the array, on this record we cannot say that the decision to include his photograph in the second array was suggestive.

We apply similar reasoning to the placement of the photograph within the array. The fact that Hopkins’s photo was on both occasions the fourth photo does not ipse dixit prove that it was likely to be suggestive to a witness. We also note that although Hopkins appeared in both arrays at the same position, he was posed and dressed significantly differently in the two photographs. Thus, we cannot conclude that the evidence proved suggestiveness of the identification procedure.

V.

For the foregoing reasons, we reverse the judgment of the trial court, and remand for a new trial if the Commonwealth be so advised, and for proceedings consistent with this opinion.

Reversed and remanded.

Barrow, J., concurred.