Opinion
Record No. 2189-91-3
December 8, 1992
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG MOSBY G. PERROW, III, JUDGE.
Sidney H. Kirstein (McRorie Kirstein, on brief), for appellant.
John H. McLees, Jr., Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Chief Judge Koontz, Judges Moon and Bray.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Darryl Lee Wright (defendant) was convicted of three counts of distribution of cocaine and sentenced to forty-five years imprisonment, fifteen years of which were suspended. He complains on appeal that the trial court abused its discretion in refusing to permit an "in-court lineup." We disagree and affirm the convictions.
The parties are fully conversant with the record and this memorandum opinion recites only those facts necessary to a disposition of the issue before the Court.
The evidence disclosed that Officer Francis Barnwell (Barnwell) was working as an "undercover agent," "attempting to purchase crack cocaine" from "anybody that would sell." Barnwell met defendant, nicknamed "Moochie," and his "twin brother," Derrick, known as "Fats," during "late November or early December," 1990. During the following weeks, Barnwell saw defendant "7 to 10 times" and was in the company of both brothers for "a number of hours," regularly addressing each by his "nickname."
Barnwell made the initial purchase of "crack cocaine" from defendant on January 5, 1991, after "call[ing] his name" to confirm defendant's identity. Barnwell saw defendant "anywhere from 20 to 30 times" thereafter before again purchasing cocaine from him on March 13, 1991. Barnwell's final purchase of cocaine from defendant occurred on April 19, 1991, when he "went to a house" and "asked" for "Moochie." At trial, Barnwell identified defendant, without any "question whatsoever in his mind," as the individual from whom he purchased the cocaine on each of the three occasions.
Although Barnwell testified that he could "tell the difference between" the brothers through "distinguishing features," he noted that defendant appeared "narrower in the face than his brother" after previously contrasting him as "heavier in the face." Additionally, Barnwell had once "misidentified" an individual depicted in a photograph as the defendant.
As a result of these "inconsistencies in . . . Barnwell's testimony," defendant requested an in-court lineup, comprised of defendant, Derrick and a third individual, "to test [Barnwell's] ability to identify one identical twin from the other." The trial court, however, overruled this motion, noting that, instead, defense counsel could "cross-examine" Barnwell.
Defendant's contention that the trial court erred in refusing to permit this identification procedure is without merit. It is well established that a defendant is not constitutionally entitled to a pre-trial lineup in Virginia. United States v. Bennett, 675 F.2d 596, 598 (4th Cir.), cert. denied, 456 U.S. 1011 (1982);Fogg v. Commonwealth, 208 Va. 541, 547, 159 S.E.2d 616, 620 (1968), vacated in part, 408 U.S. 937 (1972); see also Nance v. Paderick, 368 F. Supp. 547, 549 (W.D. Va. 1973);Hargrove v. Slayton, 349 F. Supp. 75, 76-77 (W.D. Va. 1972);Reyes v. Slayton, 341 F. Supp. 926, 927 (W.D. Va. 1972). It is a procedure that rests with the sound discretion of the trial court. United States v. Ravich, 421 F.2d 1196, 1203 (2nd Cir.),cert. denied, 400 U.S. 834 (1970).
Nevertheless, defendant insists that the ruling of the trial court constituted an abuse of discretion because the proposed relief was simply an incidence of cross-examination appropriate to these circumstances. The "permissible scope of examination . . . by the opposing party is `a matter for the exercise of discretion by the trial court.'" Savino v. Commonwealth, 239 Va. 534, 545, 391 S.E.2d 276, 282 (quoting Bunch v. Commonwealth, 225 Va. 423, 438, 304 S.E.2d 271, 279-80, cert. denied, 464 U.S. 977 (1983)), cert. denied, 111 S. Ct. 229 (1990). The record clearly indicates that the trial court permitted a thorough and vigorous conventional cross-examination of Barnwell and suggests no improper limitation of defendant's right in this respect.
It is well established that the credibility of a witness and the weight accorded the testimony are matters solely within the province of the trial court, and its findings will not be reversed on appeal unless plainly wrong or without evidence to support them. Yates v. Commonwealth, 4 Va. App. 140, 143, 355 S.E.2d 14, 15-16 (1987); Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987). We find ample evidence in the record to support the trial court's conclusion that Barnwell's identification of defendant, and related testimony, were both credible and reliable.
Accordingly, the decision of the trial court is affirmed.
Affirmed.