Alton Kasine Powers v. Commonwealth

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ALTON KASINE POWERS v. COMMONWEALTH OF VIRGINIA

No. 0082-23-1

Court of Appeals of Virginia

April 30, 2024

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Christopher R Papile, Judge

Charles E. Haden for appellant.

Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges AtLee, Malveaux and Causey Argued at Norfolk, Virginia

MEMORANDUM OPINION ^[*]

MARY BENNETT MALVEAUX, JUDGE

Alton Kasine Powers ("appellant") was convicted by a jury for first-degree murder, in violation of Code § 18.2-32, conspiracy to commit murder, in violation of Code §§ 18.2-22 and -32, and use of a firearm in the commission of murder, in violation of Code § 18.2-53.1. Appellant contends that the trial court erred in denying his motion to strike, because the evidence was insufficient to prove that he committed the three offenses and there was no evidence of a conspiracy to kill the victim. For the following reasons, we disagree and affirm the ruling of the trial court.

I. BACKGROUND

"In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial." Stewart v. Commonwealth, 79 Va.App. 79, 81 (2023) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)).

"In doing so, we discard any of [appellant's] conflicting evidence, and regard as true all credible evidence favorable to the Commonwealth and all inferences that may reasonably be drawn from that evidence." King v. Commonwealth, 77 Va.App. 748, 755 (2023).

Stephen White was shot to death in the parking lot of a Newport News apartment complex on the night of April 17, 2020. Police found White's body lying face down, exhibiting multiple injuries; an autopsy revealed that White had been shot at least 14 times, including in the neck, chest, torso, and abdomen.

A police forensic specialist recovered 41 cartridge cases in 3 different calibers from the parking lot where White was killed.^[1] She also attended White's autopsy and recovered 13 bullets and numerous bullet fragments from his body, which, together with the cartridge cases, were subsequently analyzed by the Virginia Department of Forensic Science. The certificate of analysis produced by the department, which was admitted into evidence at trial, indicated that the rounds recovered from White's body had been fired by guns of three different calibers that corresponded to the calibers of the cartridge cases. The certificate further indicated that each cartridge case recovered from the parking lot where White was killed had been fired by one of three guns.

Police also obtained video surveillance footage from multiple security cameras located throughout the grounds of the apartment complex.^[2] Both the raw surveillance footage and a compilation of suspicious events appearing in the footage were entered into evidence at trial. The videos indicated that at 11:24 p.m. on April 17, 2020, a white car drove into the apartment complex and parked. Over the next two minutes, four men left the car individually, at staggered intervals, and began walking deeper into the complex. The first man wore a light-grey hoodie and track pants with a white stripe; the second man, appellant, wore a dark-grey hoodie and dark pants; the third man wore a black hoodie, a medical mask, and light-colored pants; and the fourth man wore a grey hoodie, dark track pants with a white stripe, and red shoes. About three minutes after the four men walked off, the white car left the parking lot.

The first three men, walking together or loosely trailing each other, walked throughout the apartment complex for the next ten minutes. The fourth man, walking separately, encountered White next to one of the complex's parking lots. During a brief conversation, White pulled out and activated a cell phone before handing it to the fourth man; after holding the phone for a moment, the man returned the phone to White. White and the fourth man parted company shortly thereafter, and the fourth man then left the apartment complex.

Shortly after White and the fourth man parted company, the other three men from the white car passed directly in front of one of the security cameras, which captured close images of their faces. At trial, the Commonwealth introduced into evidence photographic enlargements of appellant's face that were produced from this surveillance footage. It also introduced two photographs of appellant wearing a grey hoodie; the photographs had been taken in April 2020 by a person appellant was dating at that time, and thus they were contemporaneous with the shooting.

Less than two minutes after the men passed in front of the surveillance camera, they encountered White in the parking lot where White's body was later found. They engaged White in conversation for a few seconds before the three men simultaneously raised their arms in White's direction; the surveillance footage then captured a series of muzzle flashes from multiple guns before White fell to the ground. The Commonwealth introduced into evidence at trial a photographic enlargement of the shooting that was taken from the surveillance footage.

Immediately after the shooting, two of the three men, including appellant, fled the scene, followed closely by the third man after he first stood over White and fired several more shots at him.

Police subsequently obtained a search warrant for a white car parked at 704 Macon Road in Hampton; at trial, one of the detectives involved in the investigation of White's death described the car as bearing a "striking resemblance" to the white car seen in the surveillance video. In the car, a Lexus registered to Sh'Kise Cappe, police found Cappe's license and other identification, along with a cartridge case. Forensic analysis subsequently determined that the cartridge case had been fired by the same gun that fired 17 of the cartridge cases found at the scene of the shooting.

Police also obtained search warrants for a number of cell phone accounts. Ultimately, they developed and analyzed data related to four cell phone numbers, the downloaded contents of two cell phones, belonging to White and Dajour Pemberton, and the phone records of a business, "Pop-a-Lock" locksmith. At trial, a detective from the police technical investigations unit testified as an expert in call detail and geolocation records and cell phone download analysis. He opined that based upon the data he analyzed, at 9:30 p.m. on the night of White's death, the cell phone associated with Sh'Kise Cappe was in the area of 704 Macon Road in Hampton; also, over the next hour and 20 minutes, the cell phones associated with appellant, Dajour Pemberton, and Unique Perry also were present in that area at various times.

At approximately 10:50 p.m., the cell phones associated with Cappe and Perry traveled into Newport News. Shortly thereafter, the cell phone associated with Cappe ceased connecting to the cell phone network, but by approximately 11:20 p.m., the cell phones associated with Perry and Pemberton were in the area of the apartment complex where White was shot. Eleven minutes later, White's phone placed an outgoing call to the phone associated with Perry; this was at the moment when a surveillance camera captured images of White producing and activating a cell phone before handing it to the man in the red shoes. Six minutes later, White was shot by the other three men from the white car.

By approximately 11:45 p.m., less than ten minutes after the shooting, the cell phone associated with Perry had left the vicinity of the apartment complex. At 12:21 a.m. the next morning, the phone associated with appellant called Pop-A-Lock Locksmith from the vicinity of 704 Macon Road. Pop-A-Lock later provided police with an invoice indicating that on the morning of April 18, 2020, a Toyota Camry at 704 Macon Road was unlocked for a customer named "Kas Powers" who provided appellant's driver's license number. The police cell phone records expert also testified that at approximately 2:30 a.m. on April 18, 2020, the phones associated with both appellant and Perry were in the vicinity of 704 Macon Road and that at 9:51 a.m. that morning, when Pop-A-Lock called the cell phone associated with appellant, that cell phone was in that vicinity.

At trial, after the Commonwealth presented its case-in-chief, appellant moved to strike the evidence on all three charges. The trial court denied the motion, holding that with respect to the issue of identity, the video and "other visual evidence," including still photographs, were "sufficient evidence to go to the jury." Appellant presented no evidence and renewed his motion to strike. The trial court denied that motion as well, "[f]or the same reasons."

The jury convicted appellant of all three charges. This appeal followed.

II. ANALYSIS

Appellant argues that the trial court erred in denying his motion to strike because the evidence was insufficient for the jury to convict him of first-degree murder, use of a firearm in the commission of murder, and conspiracy to commit murder.

"In the context of a jury trial, a trial court does 'not err in denying [a] motion to strike the evidence [when] the Commonwealth present[s] a prima facie case for consideration by the fact finder.'" Vay v. Commonwealth, 67 Va.App. 236, 249 (2017) (alterations in original) (quoting Hawkins v. Commonwealth, 64 Va.App. 650, 657 (2015)). Thus, a motion to strike "challenges whether the evidence is sufficient to submit the case to the jury." Lawlor v. Commonwealth, 285 Va. 187, 223 (2013). "In this Court's review of the sufficiency of the evidence, we will not disturb the judgment of a jury unless it is 'plainly wrong or without...