Cappe v. Commonwealth

79 Va. App. 387

896 S.E.2d 351

Sh’Kise Fazion CAPPE

V.

COMMONWEALTH of Virginia

Record No. 1161-22-1

Court of Appeals of Virginia, Norfolk.

January 16, 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 Fulton, Friedman and Chaney

OPINION BY JUDGE FRANK K. FRIEDMAN

Sh’Kise Cappe was convicted by a Newport News jury of first-degree murder, conspiracy to commit first-degree murder, and use of a firearm in the commission of a felony. On appeal, Cappe alleges that the trial court erred in denying his motion to strike the evidence and in excluding lay witness opinion testimony that the person depicted in a surveillance video was not Cappe, i.e., “non-identification” testimony.

We find that lay opinion testimony that a certain person is not depicted in a video or photograph is admissible where the evidence is relevant and (1) is based on the witness’ personal knowledge and familiarity with the subject, and (2) will aid the trier of fact in understanding the witness’ perceptions. However, we further find that the trial court’s exclusion of such testimony in this case was harmless error and that the record was sufficient to sustain Cappe’s convictions.

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 [below].” Poole v. Commonwealth, 73 Va. App. 357, 360, 860 S.E.2d 391 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472, 813 S.E.2d 722 (2018)). Around 11:35 p.m. on April 17, 2020, surveillance cameras recorded three armed men exit a sedan in the parking lot of an apartment complex. The men approached the victim, Stephen White, and shot him to death before fleeing.¹ White was shot “at least” 14 times. Police later found three types of cartridge casings in the parking lot, including 17 7.62x39 caliber cartridge casings.

After reviewing surveillance video footage from the apartment complex, the police released a photo of the three suspects to local news outlets, including local Channel 10. The photo was released on April 21, 2020. The same day—shortly after Channel 10 ran the photo—Cappe’s phone revealed the following text exchange:

CAPPE: [Redacted] get low²

RESPONSE: Why you say that

CAPPE: Check 10

RESPONSE: I seen it wtf mane fuck get rid of everything ASAP CAPPE: Shits gone³

After the photo was released, police received a tip that led them to a home in Hampton, where they found a vehicle matching the vehicle driven by the suspects. That vehicle was registered to Cappe. Police eventually searched that vehicle and found identifying information belonging to Cappe, as well as a 7.62x39 cartridge case and a copper bullet jacket fragment. At trial, an expert witness testified that the 7.62x39 cartridge case found in Cappe’s vehicle was fired by the same gun that left the 7.62x39 cartridge cases at the murder scene. That gun was never recovered.

Cell tower records from the night of the shooting revealed that Cappe’s phone traveled toward the crime scene, along with another phone (“Cell Phone B”). Eventually Cappe’s phone died or was turned off and its movements could not be tracked, but Cell Phone B arrived at the crime scene around 11:20 p.m. that night. Two minutes later, at 11:22 p.m., Cell Phone B called Cappe’s phone, which was still off. At 11:31 p.m., Cell Phone B interacted with the victim’s phone. The victim was shot at approximately 11:37 p.m.

Police arrested Cappe and charged him with first-degree murder, conspiring to commit first-degree murder, and using a firearm in the commission of a felony.

At trial, Cappe moved to exclude a detective’s opinion that Cappe was one of the shooters depicted in the surveillance videos. At a hearing on the motion, Newport News Police Detective Michael Scrimgeour testified that he reviewed the surveillance videos of the incident and compared them to images of Cappe from a social media account. Additionally, although he did not interact with Cappe before the incident, the detective recognized him because he interviewed Cappe after arresting him in May 2020 and watched him in court. Based on the above circumstances, Detective Scrimgeour opined that Cappe was one of the perpetrators depicted in the surveillance videos.

Cappe argued that Detective Scrimgeour was not qualified to offer an expert opinion identifying him in the surveillance videos because the detective did not have specialized training in “facial recognition.’’ Additionally, acknowledging that under Bowman v. Commonwealth, 30 Va. App. 298, 516 S.E.2d 705 (1999), a witness may offer a lay opinion regarding the accused’s identity as an individual depicted in a video, Cappe maintained that the detective was not sufficiently familiar with him to do so. The Commonwealth conceded that Detective Scrimgeour was not qualified to offer an expert opinion regarding Cappe’s identity as one of the individuals depicted in the videos but maintained that the detective could offer a lay opinion on the subject. Following argument, the trial court ruled that the detective’s opinion was inadmissible.

Later during trial, the Commonwealth moved to prevent a defense witness from opining that the surveillance videos did not depict Cappe. During a hearing on the motion, Lakesha Kirkendall testified that she had known Cappe “[s]ince he was bom,” was friends with his mother, and regularly visited them “every other week” until about January 15, 2020, when she last saw Cappe before his arrest. Kirkendall testified that she had reviewed the surveillance videos and opined that they did not depict Cappe. She explained that the man shown in the surveillance images did not share Cappe’s “facial features,” including his “very strong lips” and “round head,” nor did the man appear to have braided hair, as Cappe did when she last saw him in January. In addition, the man depicted seemed “a lot smaller” than Cappe.

The Commonwealth argued that Kirkendall’s opinion was inadmissible because she was not familiar with Cappe’s appearance on the date of the shooting. Additionally, the Commonwealth contended that Bowman’s holding did not apply to “non-identification[s],” and, therefore, Kirkendall’s opinion that Cappe was not depicted in the videos was irrelevant. Cappe countered that Bowman applies broadly to all lay opinion identification testimony, whether inculpatory or exculpatory, and that Kirkendall was sufficiently familiar with Cappe to opine that he was not depicted in the videos. The trial court held that Bowman only applied to lay opinion testimony “identify[ing] a defendant,” but not the “converse,” which involves a “different analysis.” Further, the trial court found that “non-identification” testimony was not “reliable.” Accordingly, the trial court ruled that Kirkendall’s opinion was inadmissible.

At the close of the Commonwealth’s evidence and, again, at the conclusion of all the evidence, Cappe moved to strike each of his charges. The trial court denied the motion. The jury subsequently convicted Cappe of first-degree murder, conspiring to commit first-degree murder, and using a firearm in the commission of a felony. This appeal followed.

ANALYSIS

I. Sufficiency of the Evidence

[1–3] Cappe’s first assignment of error alleges that the trial court erred in denying his motion to strike each of his charges. “When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support it.’” McGowan v. Commonwealth, 72 Va. App. 513, 521, 850 S.E.2d 376 (2020) (alteration in original) (quoting Smith v. Commonwealth, 296 Va. 450, 460, 821 S.E.2d 543 (2018)). “In such cases, ‘[t]he Court does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’” Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204, 228, 819 S.E.2d 234 (2018)). “Rather, the relevant question is whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Vasquez v. Commonwealth, 291 Va. 232, 248, 781 S.E.2d 920 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280 (2009)). “If there is evidentiary support for the conviction, ‘the reviewing court is not permitted to substitute its own judg- ment, even if its opinion might differ from the conclusions reached by the finder of fact at the trial.’” McGowan, 72 Va. App. at 521, 850 S.E.2d 376 (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161, 817 S.E.2d 330 (2018)).

A. Murder and Use of a Firearm

[4–6] First-degree murder includes “any willful, deliberate, and premeditated killing.” Code § 18.2-32. “To premeditate means to adopt a specific intent to kill, and that is what distinguishes first and second degree murder.” Betancourt v. Commonwealth, 26 Va. App. 363, 372, 494 S.E.2d 873 (1998) (quoting Rhodes v. Commonwealth, 238 Va. 480, 485, 384 S.E.2d 95 (1989)). “To prove premeditated murder, the Commonwealth must establish: (1) a killing; (2) a reasoning process antecedent to the act of killing, resulting in the formation of a specific intent to kill; and (3) the performance of that act with malicious intent.” Id. at 372-73, 494 S.E.2d 873 (quoting Archie v. Commonwealth, 14 Va. App. 684, 689, 420 S.E.2d 718 (1992)). “Premeditation and formation of an intent to kill seldom can be proved by direct evidence. A combination of circumstantial factors may be sufficient.” Id. at 373, 494 S.E.2d 873 (quoting Rhodes, 238 Va. at 486, 384 S.E.2d 95).

[7–10] In order to show a willful, deliberate, premeditated killing, “[t]he intention to kill need not exist for any specified length of time prior to the actual killing.” Clozza v. Commonwealth, 228 Va. 124, 134, 321 S.E.2d...