COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Lemons and 

 Senior Judge Duff 

Argued at Alexandria, Virginia 

REZNICK DEVOLE CURRIE 

 OPINION BY 

v. Record No. 0477-98-4 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 JUNE 15, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA 

Alfred D. Swersky, Judge 

Jeffrey T. Barbour (J. Amy Dillard, Deputy 

Public Defender; Office of the Public 

Defender, on brief), for appellant. 

 Leah A. Darron, Assistant Attorney General 

(Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Reznick Currie (appellant) was convicted in a jury trial of 

burglary, attempted rape, and assault and battery. On appeal, 

he contends the trial court erred in: (1) excluding five 

proffered categories of testimony by an eyewitness 

identification expert; (2) denying him access to exculpatory 

evidence; (3) excluding proffered pages of the complaining 

witness' sworn preliminary hearing transcript; and (4) denying 

his motion to strike the evidence because the Commonwealth 

failed to establish that he was the perpetrator of the alleged 

crimes. For the following reasons, we affirm. 
I. BACKGROUND 

 Under familiar principles of appellate review, we examine 

the evidence in the light most favorable to the Commonwealth, 

the prevailing party below, granting to it all reasonable 

inferences fairly deducible therefrom. See Juares v. 

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997). 

So viewed, the evidence established that on August 4, 1997, the 

victim was in the bathroom of her ground-floor apartment when 

she heard a noise in the living room. As she exited the 

bathroom, she saw a stranger standing in her living room with 

his pants down and his penis exposed. The man, whom the victim 

later identified as appellant, grabbed her breast and she kicked 

him. The man produced a knife, grabbed the front of the 

victim's pants and began to pull them down. The victim pushed 

the man, ran to her bedroom and telephoned for help. 

 The victim testified that her assailant was close enough to 

grab her and that he was face-to-face with her. When the police 

arrived, she described the man's physical appearance, including 

his having a missing upper tooth and various marks on his arms 

and a rash on his neck. He wore a long-sleeve shirt and gloves.1

 

 1

 Detective Irv Ellman testified that on the evening of the 

offense, the victim described her assailant through an 

interpreter as a thirty to thirty-five-year-old black male; 

five-feet, ten-inches to five-feet, eleven-inches tall; 170 to 

190 pounds, with an athletic or muscular build. She described 

him as having a noticeable defect in his chin and that he was 

missing a tooth in his upper mouth. He had thick lips, a wide 

nose and smelled of alcohol. His hair was short and he had dark 

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Based upon her description, Detective Robert Hickman produced a 

composite sketch of the attacker. 

 A few days after the offense, the victim reviewed a 

photographic lineup and identified a photograph of appellant as 

her assailant. She stated, "I knew that it was him, that one." 

The victim also identified shoes and pants that appeared similar 

to those worn by her attacker. At trial, the victim again 

identified appellant as being her assailant. 

 Appellant argued at trial that the victim was wrong in her 

identification and that he was not the perpetrator of the crime. 

The jury found appellant guilty of the offenses charged. 

II. EYEWITNESS IDENTIFICATION EXPERT 

 In his defense, appellant called Dr. Solomon Fulero, an 

expert on eyewitness identification, who testified generally on 

the theory of memory and on the issue of cross-racial 

identification. Pursuant to a pretrial ruling, Dr. Fulero was 

not allowed to testify on the following five topics relating to 

eyewitness identification: (1) the correlation between 

eyewitness certainty and accuracy; (2) the effect of viewing 

time and stress on eyewitness accuracy; (3) the perpetrator's 

display of a weapon and its effect on eyewitness accuracy; (4) 

the effect that participating in preparing a composite sketch of 

a subject has on the accuracy of subsequent identifications; and 

 

marks, bumps or scars on his skin. She described his face as 

thin. 

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(5) the concept of transference. Concluding that these topics 

were within the lay knowledge of the average juror and could be 

adequately argued to the jury in closing arguments, the trial 

court ruled as follows: 

The proffered testimony of Defendant's 

expert regarding the theory of memory in the 

field of psychology (acquisition, retention 

and retrieval) as set forth in paragraph 2 

of Defendant's memorandum, and the problems 

in cross-racial identifications as set forth 

in paragraph 5 of Defendant's memorandum, 

will be admitted subject to the reliability 

hearing, if any. These are matters the 

Court finds are not within the common 

knowledge and experience of the average 

juror and, hence, could be the subject of 

expert testimony. 

* * * * * * * 

The remaining areas of expert testimony the 

Court finds are within the common experience 

and knowledge of the average juror and the 

proffered testimony will not be allowed. 

Further, Defendant's expert will not be 

allowed to testify as to the specific 

identification in this case as to its 

reliability nor as to its validity. Such 

testimony would usurp the function of the 

jury to determine the credibility of 

witnesses. 

(Emphasis added). 

 On appeal, appellant contends that Dr. Fulero's proffered 

testimony in the five excluded categories was "vital to [the] 

jury's understanding of whether the identification made [was] 

correct." He argues that his expert should have been allowed to 

explain to the jury the psychological and scientific principles 

underlying the identification process. We disagree. 

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 Where the admissibility of expert testimony is challenged 

on appeal, the standard of review is whether the trial court 

abused its discretion. See Archie v. Commonwealth, 14 Va. App. 

684, 694, 420 S.E.2d 718, 723 (1992). "Expert testimony is 

appropriate to assist triers of fact in those areas where a 

person of normal intelligence and experience cannot make a 

competent decision." Utz v. Commonwealth, 28 Va. App. 411, 423, 

505 S.E.2d 380, 386 (1998). "The expert testimony must be 

relevant, and the trial judge must determine whether the subject 

matter of the testimony is beyond a lay person's common 

knowledge and whether it will assist the trier of fact in 

understanding the evidence or in determining a fact in issue." 

Id.

 In Rodriquez v. Commonwealth, 20 Va. App. 122, 455 S.E.2d 

724 (1995), we addressed the issue of the admissibility of 

expert testimony on the subject of eyewitness identification. 

We noted as a preliminary matter that "[t]he refusal to admit 

expert testimony on the subject of eyewitness testimony is a 

matter within the [sound] discretion of the trial court." Id.

at 127, 455 S.E.2d at 727. 

 In excluding expert commentary on 

eyewitness identifications, courts have 

consistently found that this type of 

testimony interferes with the jury's role as 

fact finder and its duty to weigh the 

credibility of witnesses. [T]he 

trustworthiness of eyewitness observations 

is not generally beyond the common knowledge 

and experience of the average juror and is, 

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therefore, not a proper subject for expert 

testimony. In addition, [t]he weaknesses of 

identifications can be explored on 

cross-examination and during counsel's final 

arguments to the jury. Another concern is 

that this type of testimony frequently has 

the potential of turning trials into battles 

between experts over the value of eyewitness 

identifications. 

Id. (citations and internal quotations omitted). However, we 

recognized that in some "narrow" circumstances, expert testimony 

may be useful to the jury, including in the following areas: 

"such problems as cross-racial identification, identification 

after a long delay, identification after observation under 

stress, and psychological phenomena as the feedback factor and 

unconscious transference." Id. (citations omitted). 

 Nevertheless, we held that the decision whether to allow 

expert testimony concerning an eyewitness identification is a 

decision left to the sound discretion of the trial court. See

id. at 128, 455 S.E.2d at 727. "By asking an expert to render 

an opinion about the propriety of lineup procedures and the 

reliability of eyewitness identifications, a defendant in effect 

asks the expert to comment upon the credibility of the 

identifying witness, an issue clearly within the jury's 

province." Id.

 In the instant case, the trial judge permitted Dr. Fulero 

to testify about the mechanical processes of memory and 

cross-racial identification because these subjects were not 

within the common knowledge and experience of the jurors. 

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However, the trial judge specifically found that the additional 

five categories of testimony proffered by appellant were within 

the common knowledge and experience of the jurors. 

 We find no error in the trial court's limiting testimony 

concerning the correlation between eyewitness certainty and 

accuracy. As we noted in Rodriguez, "the uncertain relationship 

between eyewitness confidence and accuracy" was not the type of 

"narrow" circumstances requiring expert testimony. Id. at 129, 

455 S.E.2d at 728. Similarly, the trial court properly excluded 

the proffered expert testimony about the unreliability of 

subsequent identifications and the effect of short viewing time, 

stress, and the display of a weapon. See id. (holding that "the 

unreliability of a subsequent identification" and "the 

prevalence of misidentification in situations involving stress, 

poor lighting, or delay" are topics "within the lay knowledge of 

the jurors"). 

 Additionally, appellant's counsel addressed in argument to 

the jury the issues limited by the trial court, such as the 

reliability of the victim's identification given the short 

period of time of the assault, the fear and stress involved in 

the situation and the effect of the attacker's display of a 

weapon. Counsel also challenged the reliability of the victim's 

identification based upon the theory of transference.2 Counsel 

 

 2 According to Dr. Fulero's proffered testimony, the doctrine 

of transference occurs "when a witness picks a person from a 

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stated, "Did she pick out a familiar face that she had seen in 

McCrory's that weekend? You heard testimony that she was in 

McCrory's as was [appellant]. Or was she just plain wrong?" 

 The jury was capable of evaluating whether the victim's 

identifications of appellant were reliable or whether the 

identifications were incorrect based on the suggested problems 

associated with memory. For these reasons, we hold that the 

trial court did not abuse its discretion in excluding the 

proffered expert testimony. 

III. EXCULPATORY EVIDENCE 

 At the commencement of trial, appellant sought disclosure 

of a composite drawing of a purported suspect in a series of 

sexual assaults in Northern Virginia and Maryland. These 

assaults occurred when appellant was in prison for an unrelated 

conviction, and he asserted that this person might be 

responsible for the instant crimes. The Commonwealth denied 

that similarities existed between those cases and the instant 

case. The composite drawing was placed in an envelope under 

seal and submitted to the trial judge for an in camera review. 

The trial court later refused to disclose the drawing to 

 

line-up or photo spread based on the fact that they have seen 

the person previously, not because the person is the suspect at 

the scene of the crime." We recognized in Rodriguez that the 

theory of transference might be a topic appropriate for expert 

testimony. See Rodriguez, 20 Va. App. at 128, 455 S.E.2d at 

727. In the instant case, the trial judge allowed appellant's 

counsel to argue this issue to the jury. 

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appellant, stating: "I have personally examined the composite 

photo submitted by the Commonwealth this morning and likewise 

rule that it is not exculpatory in this case."3

 Appellant also sought undisclosed pages from the police 

reports of Detectives Quinones and Ellman. The Commonwealth's 

Attorney indicated that he had given to appellant those portions 

of the reports that contained any exculpatory information. The 

trial court reviewed the undisclosed pages in camera and 

declined to provide the reports to appellant. 

 On appeal, appellant contends the composite drawing in the 

unrelated case and the undisclosed reports of the police 

officers could be exculpatory in nature and, therefore, the 

trial court erred in failing to require their disclosure. 

 As a general rule, the accused is not entitled to obtain 

statements made by prospective Commonwealth witnesses to police 

officers in connection with the investigation or prosecution of 

a criminal case. See Rule 3A:11(b)(2); see also Currie v. 

Commonwealth, 10 Va. App. 204, 209, 391 S.E.2d 79, 82 (1990); 

Taitano v. Commonwealth, 4 Va. App. 342, 349, 358 S.E.2d 590, 

593 (1987). In Brady v. Maryland, 373 U.S. 83 (1963), the 

United States Supreme Court held that "suppression by the 

prosecution of evidence favorable to an accused upon request 

 

 3 The composite drawing was appropriately kept under seal in 

the record for our appellate review. 

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violates due process where the evidence is material either to 

guilt or to punishment." Id. at 87. 

Under Brady, the Commonwealth is required to 

deliver that evidence which is favorable to 

the accused and which, if suppressed, would 

deprive the accused of a fair trial. The 

nondisclosed evidence is considered 

"material only if there is a reasonable 

probability that, had the evidence been 

disclosed to the defense, the result of the 

proceeding would have been different." The 

Court is required to assess the reasonable 

probability of a different result in light 

of the totality of circumstances. 

Currie, 10 Va. App. at 209, 391 S.E.2d at 82 (citations 

omitted). 

 In making a Brady challenge, "[a] defendant cannot 

simply allege the presence of favorable material and win 

reversal of his conviction. Rather, [he] must prove the 

favorable character of evidence he claims has been 

improperly suppressed. Speculative allegations are not 

adequate." Hughes v. Commonwealth, 18 Va. App. 510, 526, 

446 S.E.2d 451, 461 (1994) (citations omitted). Where the 

Commonwealth and the defendant dispute the exculpatory 

nature of the evidentiary materials, the trial court may 

conduct an in camera review of the material to resolve the 

dispute. See Bowman v. Commonwealth, 248 Va. 130, 135, 445 

S.E.2d 110, 113 (1994). 

 In the instant case, the trial court properly conducted 

an in camera review of the contested materials. See id.

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("The trial court's determination of the question whether it 

should undertake the review of the disputed material is a 

discretionary matter."). Regarding the composite drawing, 

which was produced in an investigation of unrelated crimes, 

the trial judge reviewed the composite drawing and held that 

it was not exculpatory in nature. The sealed evidence 

provides no favorable information to the accused, and its 

exclusion did not deprive him of a fair trial. See Currie, 

10 Va. App. at 209, 391 S.E.2d at 82. 

 We also agree with the trial court that the requested 

police reports were not exculpatory in nature. The 

Commonwealth disclosed all but two pages of Detective 

Quinones' report and an excised copy of Detective Ellman's 

report. The trial court conducted an in camera review of 

the undisclosed reports. We have reviewed the sealed 

materials and conclude, as did the trial court, that they 

are not exculpatory in nature. Under the totality of the 

circumstances, there is not a "reasonable probability of a 

different result" had the materials been disclosed. Currie, 

10 Va. App. at 209, 391 S.E.2d at 82 (citations omitted). 

 Moreover, appellant concedes that he cannot identify 

specifically the ways in which the police reports are 

exculpatory. Rather, appellant alleges that the police 

reports "may contain inconsistent statements from the 

complaining witness. They may contain information from 

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other witnesses contrary to their testimony at trial or 

contrary to other witness' testimony at trial. They may

contain leads that counsel could have used to find other 

witnesses." (Emphasis added). Appellant has not alleged 

what exculpatory evidence existed in Quinones' or Ellman's 

reports and, as indicated in his arguments, he only hoped to 

find some exculpatory evidence. These types of speculative 

allegations are inadequate to invoke the Brady mandate. See

Hughes, 18 Va. App. at 526, 446 S.E.2d at 461. Accordingly, 

we conclude the trial court did not err in declining to 

provide the requested materials to appellant. 

IV. USE OF PRELIMINARY HEARING TRANSCRIPT 

 Appellant next contends the trial court erred in 

refusing to admit two portions of the preliminary hearing 

transcript of the victim's testimony. In the first 

instance, defense counsel cross-examined the victim about 

the length of the encounter with her assailant. She 

testified, "It was so fast, everything happened so quick, I 

couldn't tell if it was 30 seconds or 30 minutes. I wasn't 

looking at my watch." Defense counsel attempted to impeach 

the victim with her prior testimony. 

Q. [D]o you recall me asking you [at the 

preliminary hearing] whether from the time 

you saw your attacker to the time you ran 

into your bedroom that 30 seconds or less 

had gone by and you answering yes? 

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A. When I ran into my bedroom, well, I 

don't understand the question. It could be 

that it was 30 seconds. It could be that I 

did answer yes, but everything was so fast 

that I don't remember. 

Q. But you could have answered me a couple 

of months ago that it was 30 seconds or 

less, you admit that? 

A. No, no. I couldn't tell you absolutely. 

(Emphasis added). The preliminary hearing transcript, which 

appellant sought to introduce as impeachment evidence, contained 

the following colloquy: 

Q. Okay. Is it fair to say that from the 

time you saw him until the time you ran into 

the bedroom that 30 seconds or less had gone 

by? 

 A. Yes. 

 Q. So it happened very quickly? 

 A. Yes. 

 In the second instance, appellant attempted to 

introduce the preliminary hearing transcript regarding the 

victim's testimony about her description of the assailant. 

At trial, the victim testified as follows: 

Q. The stuff on [appellant's] face you said 

was like a rash? 

 A. Something like a rash. 

Q. In fact, earlier you described them to 

me like chicken pox? 

A. Something like that, something like 

that. 

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Q. Those marks on his face were similar to 

the marks that he had on his neck and arms, 

is that right? 

A. No. It is just that when I pushed him 

you could see like a mark in here that he 

had. 

Q. But the marks on his face were similar 

to the marks you had seen on his arm? 

A. No, the ones on the arm are different 

because they were like lines. 

Q. Again, do you remember testifying back 

in September at this preliminary hearing in 

this case? 

 A. Yes. 

Q. And at that time throughout that hearing 

you tried to be as truthful and honest as 

possible? 

 A. Yes. 

Q. And at that time do you recall me asking 

you whether the thing you saw on his arms 

was like dots, like spots and you said they 

were spots just like you made? 

A. I told you then that he had some lines 

and . . . that they looked like some kind of 

a rash and I didn't tell you that they 

looked like spots. 

* * * * * * * 

Q. And do you remember me drawing circles 

on a paper for you and asking you if those 

were the marks he had on his arms? 

 A. Yes. 

Q. And you said yes, those look like the 

marks? 

 A. Yes. 

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(Emphasis added). At the preliminary hearing, the victim 

testified as follows: 

Q. Did you tell the police that [appellant 

had] marks on his neck or arms? 

A. Yes, you could see something there, but 

it was the same thing as the chin and the 

arms. 

Q. The thing that you saw on the arms, was 

it dots like this, spots? 

A. They were like spots like you just made. 

 Q. Like circular. 

 A. Yes. 

Q. Almost like chicken pox or something 

like that. 

 A. Yes. 

 In both instances, appellant was allowed to question 

the victim about her preliminary hearing testimony. 

However, the trial court refused to admit into evidence the 

actual preliminary hearing transcript. 

 Appellant argues that the victim was evasive in her trial 

testimony and failed to acknowledge that she made the above 

statements at the preliminary hearing. He contends that since 

the victim's trial testimony was inconsistent with her 

preliminary hearing testimony, the transcript of the preliminary 

hearing should have been admitted into evidence for impeachment 

purposes or, in the alternative, under the past recollection 

recorded exception to the hearsay rule. We disagree. 

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 "'If a witness gives testimony that is inconsistent with a 

prior statement, . . . opposing counsel may cross-examine the 

witness as to the inconsistency. In addition, all inconsistent 

portions of that prior . . . statement are admissible for 

impeachment purposes.'" Waller v. Commonwealth, 22 Va. App. 53, 

56, 467 S.E.2d 844, 846 (1996) (quoting Smith v. Commonwealth, 

15 Va. App. 507, 511, 425 S.E.2d 95, 98 (1992)); see also Code 

§ 19.2-268.1.4

 "If a witness gives testimony that is inconsistent with a 

prior statement, or testifies that he does not recall making the 

prior statement, a sufficient foundation for impeachment has 

been laid and opposing counsel may cross-examine the witness as 

to the inconsistency." Smith, 15 Va. App. at 511, 425 S.E.2d at 

98. However, if the witness admits making the statement, the 

prior inconsistent statement may not be proved by extrinsic 

 

 4 Code § 19.2-268.1 provides in part: 

A witness in a criminal case may be 

cross-examined as to previous statements 

made by him in writing or reduced into 

writing, . . . but if it is intended to 

contradict such witness by the writing, his 

attention must, before such contradictory 

proof can be given, be called to the 

particular occasion on which the writing is 

supposed to have been made, and he may be 

asked if he did not make a writing of the 

purport of the one to be offered to 

contradict him, and if he denies making it, 

. . . it shall then be shown to him, and if 

he admits its genuineness, he shall be 

allowed to make his own explanation of it 

. . . . 

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evidence. See Brown v. Peters, 202 Va. 382, 389, 117 S.E.2d 

695, 699 (1961); Edwards v. Commonwealth, 19 Va. App. 568, 572, 

454 S.E.2d 1, 3 (1995) ("If [the witnesses] admitted making the 

prior inconsistent statements, appellant would have succeeded in 

his impeachment. If they denied the statements, their testimony 

would have been subject to impeachment by other competent 

evidence."). 

 In the instant case, the victim acknowledged her 

preliminary hearing testimony. In the first instance, she 

admitted that "[i]t could be that it was 30 seconds. It could 

be that I did answer yes . . . ." In the second instance, the 

victim also admitted that she had previously described the marks 

on her assailant's arms as being circular. Having acknowledged 

her prior testimony on both issues, even if the preliminary 

hearing statements were inconsistent with her trial testimony, 

the trial court correctly held that appellant was precluded from 

introducing extrinsic evidence to impeach the victim. See

Brown, 202 Va. at 389, 117 S.E.2d at 699. Appellant was still 

able to impeach the victim by questioning her about the prior 

testimony, and the trial court did not err in refusing to admit 

the preliminary hearing transcript.5

 

 5

 Appellant's argument that the preliminary hearing 

transcript should have been admitted under the "past 

recollection recorded" exception to the hearsay rule is without 

merit. Under that rule, the "witness must lack a present 

recollection of the event" and "must vouch for the accuracy of 

the written memorandum." Bailey v. Commonwealth, 20 Va. App. 

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V. SUFFICIENCY OF EVIDENCE 

 Finally, appellant contends the evidence was insufficient 

to prove beyond a reasonable doubt that he was the perpetrator 

of the crimes. He argues that the victim's identification was 

inconsistent with her identification at the preliminary hearing, 

was "tainted" and "unreliable" because of fear induced by the 

incident, and that comments by the police affected the validity 

of the photo spread. Additionally, he argues that the victim 

did not get a proper view of the assailant's face and she 

"probably" associated appellant with the true perpetrator 

because appellant had been in the victim's neighborhood earlier 

that week. 

 In determining the reliability of a witness' 

identification, we look to the factors enunciated in Neil v. 

Biggers, 409 U.S. 188 (1972), as significant circumstances that 

may be considered along with other evidence. See Charity v. 

Commonwealth, 24 Va. App. 258, 262-63, 482 S.E.2d 59, 61 (1997). 

These factors include the following: 

the opportunity of the witness to view the 

criminal at the time of the crime, the 

witness' degree of attention, the accuracy 

of the witness' prior description of the 

criminal, the level of certainty 

demonstrated by the witness at the 

confrontation, and the length of time 

between the crime and the confrontation. 

 

236, 240-41, 456 S.E.2d 144, 146 (1995). Here, neither of these 

prongs was met, and the trial court properly excluded the 

transcript. 

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Biggers, 409 U.S. at 199-200. "The fact finder, who has the 

opportunity to see and hear the witnesses, has the sole 

responsibility to determine the weight of the evidence, the 

credibility of witnesses, and the inferences to be drawn from 

proven facts." Commonwealth v. Taylor, 256 Va. 514, 518, 506 

S.E.2d 312, 314 (1998). 

 In the instant case, the evidence established that on the 

morning of August 7, 1997, the victim identified appellant as 

her assailant from a six-photograph lineup shown to her by 

Detective Ellman. Viewed in the light most favorable to the 

Commonwealth, the evidence also established that Ellman did not 

tell the victim that her assailant would be one of the six 

individuals in the lineup. The authorities later showed the 

victim an enlarged photograph of appellant's left arm, without 

indicating that it was a photograph of appellant, and she 

identified it as a picture of her assailant's arm. She 

unequivocally identified appellant at the preliminary hearing 

and at trial as the perpetrator of the crimes. Here, the 

Commonwealth's evidence was competent, was not inherently 

incredible and was sufficient to prove beyond a reasonable doubt 

that appellant was, in fact, the perpetrator of the crimes. 

 For the foregoing reasons, we affirm appellant's 

convictions. 

 Affirmed.

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