Deborah Elkins//January 11, 2013
Deborah Elkins//January 11, 2013//
Although the targets of defendant’s shooting spree gave testimony with minor inconsistencies when they identified defendant as the person who shot at them, these inconsistencies went to the weight of the evidence, not its admissibility, and the Court of Appeals says admission of the identification testimony met the test of Neil v. Biggers for reliability.
Beverly Smith observed a man she later identified as defendant arguing with her father in the vicinity of his home, for about 10 minutes, and later observed the same man return and fire four or five shots in their direction.
Under the factors in Neil v. Biggers, 409 U.S. 188 (1972), we hold that Joe’s and Beverly’s identification of defendant together was sufficient to prove his identity as the shooter and therefore to support his convictions.
Joe reliably identified defendant as the man with whom he argued on the night of the shooting. Joe had ample opportunity to observe defendant, having spent 10 minutes standing near to him and arguing with him that night. Joe also paid close enough attention to defendant’s appearance that he could identify the “structure” of defendant’s face and compare it to that of his niece. Joe expressed a high level of certainty in identifying defendant as, according to the detective, Joe told the detective he was “positive” defendant was the suspect. Also, Joe noted that both the man with whom he argued and the shooter wore a white shirt, suggesting that they were one and the same. Any hesitancy Joe had in identifying defendant was reasonably explained by Joe’s intense concentration to ensure he selected the right individual and the age of the picture of defendant used in the photo array.
Similarly, Beverly’s identification of the shooter was reliable. She testified that she was not 100 percent certain defendant was the shooter. However, she testified unequivocally that the same man who argued with Joe was the shooter. Beverly’s description of the shooter’s statements before he began shooting corroborated her testimony that the shooter was the same man who argued with Joe, since the shooter’s statements reference the argument. Beverly observed defendant face-to-face when he spoke to her as she walked down the street and as he argued with Joe. Beverly also observed defendant during the shooting from across the street, approximately 20 yards away. Beverly described the assailant as having “dreads” and being “brown-skinned,” both of which comport with defendant’s appearance. Together with Joe’s identification of defendant as the man with whom he argued, Beverly’s testimony that the shooter was the same man who argued with Joe was sufficient to identify defendant as the shooter.
Although both witnesses testified they thought their assailant (who was shooting at them at the time they saw him) was taller, and they could not identify his clothing beyond their description of his white t-shirt, these inconsistencies go toward the trial court’s weighing of the credibility of the witnesses, a matter within its sound discretion.
We hold the trial court did not err in finding the evidence of defendant’s identify as the shooter sufficient to support defendant’s convictions.
The court also rejects defendant’s claim that the trial court erred in finding the evidence sufficient to sustain his conviction for discharging a firearm on public property, within 1,000 feet of a school, because the evidence was insufficient to show that he discharged the firearm on “government owned property.” The evidence supported the trial court conclusion that defendant shot from the street, which was public property.
Finally, the evidence also supported the conviction for attempted malicious shooting of Beverly, who was present at the scene of the shooting and in close proximity to Joe. There was ample evidence that Beverly was involved in the altercation with defendant and therefore a subject of his ire. Defendant fired four or five shots at Beverly and Joe as they hid behind a tree, and Beverly testified the shots came so close to her she could feel them pass by her.
Firearm and attempted malicious wounding convictions affirmed.
Cuffee v. Commonwealth (Alston) No. 1971-11-1, Jan. 8, 2013; Chesapeake Cir.Ct. (Arrington) Kimberly E. Karle, APD, for appellant; Benjamin H. Katz, AAG, for appellee. VLW 013-7-001, 16 pp.