No appeal of jury instruction issue

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The Court of Appeals correctly ruled that appellant did not preserve a jury instruction issue concerning eyewitness identification for appeal, and that the ends of justice exception to the contemporaneous objection rule should not be applied.

Further, appellant is not entitled to the ends of justice exception when he failed to object to the impeachment of his alibi witness.

Overview

A jury convicted appellant Banks of shooting Kyteirra Pretlow and her boyfriend Damian Mackenzie. Pretlow testified at trial that she got a good look at the shooter’s face and was certain that Banks was the shooter.

Banks called one of Pretlow’s neighbors to the stand. She testified that the night Pretlow was shot, she saw an unidentified man and Banks in the neighborhood. “She testified that she thought the unidentified male was the shooter because she saw him walk towards Pretlow about two seconds before she heard gunshots.”

But on cross-examination, she stated that she did not see the unidentified man shoot anyone. “She also stated that the man who looked like Banks walked towards the back side of the apartment, and she heard the gunshots a few seconds after she could no longer see him.”

Banks also called his girlfriend, Alexis McCants, as a witness. She provided alibi testimony for Banks’ whereabouts on Aug. 6, 2018. “On cross-examination, the Commonwealth clarified that Pretlow was shot on the morning of August 5, 2018, and asked McCants if she understood that she was testifying to events that happened approximately twenty-four hours after Pretlow was shot. McCants answered yes.

“The Commonwealth asked McCants if she had ever been convicted of a felony. McCants replied that she did not remember, prompting the Commonwealth to refresh her recollection with a document.

“McCants confirmed that the document showed she had been convicted of a felony; the document was not offered or admitted into evidence. Banks did not object to this impeachment.

“After the close of Banks’ case-in-chief, the circuit court gave jury instructions, which included an instruction that the jury ‘may consider proof of a witness’s prior conviction of a felony’ as affecting that witness’ credibility. Banks did not object to this jury instruction regarding the credibility of the witness.

“The circuit court also gave a jury instruction regarding eyewitness identification (Instruction 10), the last sentence of which stated: ‘The testimony of one witness, if believed, is sufficient to prove identity beyond a reasonable doubt and to sustain a guilty verdict.’

“Banks objected to ‘the language at the end’ of Instruction 10, which was taken from an unpublished Court of Appeals opinion, on the basis that the language was vague and ‘not a model instruction.’ He also voiced the objection that the last sentence of Instruction 10 was just ‘dicta from a case.’

“The circuit court overruled Banks’ objections[.]” Banks appealed his conviction. The Court of Appeals upheld the trial court’s ruling.

Instruction 10

“[T]he Court of Appeals did not err when it refused to consider the circuit court’s ruling to allow the second paragraph of Instruction 10 as a basis for reversal, because Banks’ argument asserted on appeal – that Instruction 10 erroneously singled out one piece of evidence for special emphasis – was not stated with reasonable certainty at the time of the ruling. …

“At trial, Banks did not state an objection that Instruction 10 specifically emphasizes one piece of evidence. The contemporaneous-objection requirement prevents a party from making an argument for the first time on appeal.

“As a result, the Court of Appeals did not err in ruling that the jury instruction issue asserted on appeal was not properly preserved in the circuit court. …

“We conclude that the Court of Appeals did not err in declining to apply the ends of justice exception because the failure to apply the ends of justice exception, in this instance, did not result in a grave injustice. …

“The last sentence of Instruction 10 did not single out a piece of evidence for special emphasis, as alleged by Banks; it instead simply explains that if the jury believes one witness, it can return a guilty verdict based on that evidence alone.

“This is an accurate statement of the law because it is consistent with the jury’s authority to accept the evidence of one witness and reject that of other witnesses.

“Thus, because the circuit court did not err in granting Instruction 10, there is no evidence of any grave injustice which would result from the Court of Appeals’ failure to apply the ends of justice exception, regarding the waiver of Banks’ objection to Instruction 10.”

Impeachment

“Banks argues that the Court of Appeals erred in ruling that the ends of justice exception does not apply to his alleged error concerning the purportedly improper impeachment of his alibi witness.

“He contends that it was improper for the Commonwealth to tell the jury that McCants’ credibility could be questioned based on a felony conviction because McCants was not, in fact, a convicted felon at the time of Banks’ trial.

“Consequently, Banks avers that the ends of justice exception requires the reversal of his convictions. Banks’ arguments are without merit. We disagree that the ends of justice exception applies in this instance. …

“Banks has failed to demonstrate that a clear miscarriage of justice has occurred. … Banks does not question the sufficiency of the evidence to support his convictions; he merely challenges the weight that the jury afforded McCants’ testimony vis-à-vis Pretlow’s eyewitness account. …

“[I]n addition to impeaching McCants’ testimony with her alleged felony conviction, the Commonwealth also impeached McCants’ testimony on the basis of her romantic relationship with Banks and, perhaps more significantly, on her provision of an alibi that was for the wrong day. …

“Even if McCants’ testimony was not impeached at all, the elements of the crimes were sufficiently supported by persuasive evidence that did not pertain to McCants’ testimony.”

Affirmed.

Banks v. Commonwealth, Record No. 201435; COA Record 1844-19-2), Feb. 24, 2022 (Unpublished order). Upon an appeal from a judgment rendered by the Court of Appeals of Virginia. VLW 022-6-013, 9 pp.