Criminal – Witness’s identification wasn’t ‘unnecessarily suggestive’

Where there was no record evidence showing a detective made comments or engaged in conduct meant to make a witness’s identification of the defendant as the person who robbed him “virtually inevitable,” the out-of-court identification was admissible.

Background

Mitchell Ira Young appeals his convictions for robbery and use of a firearm in the commission of the robbery.

Identification

Young argues that the in- and out-of-court identifications were tainted by unnecessarily suggestive procedures. This court disagrees.

An identification procedure violates due process only when the method is “both suggestive and unnecessary.” Officers may render out-of-court identification procedures unduly suggestive by insinuating they have “other evidence that one of the persons pictured committed the crime” or by having only the defendant reappear in successive lineups. But in-court identifications following a pretrial identification may nonetheless be admissible “if the origin of that [in-court] identification is independent of the inadmissible out-of-court identification procedure.”

Here, the record is devoid of evidence that Detective Hatchett made comments or engaged in conduct meant to make Woody’s identification of Young “virtually inevitable.” Yet Young dismisses Detective Hatchett’s testimony, insisting that his “unintentional, subtle, non-verbal cues” during the lineup told Woody that Young was the robber.

But Young’s insistence amounts to no more than conjecture of a risk of suggestive behavior. Conjecture, alone, is fatally insufficient to justify suppressing the out-of-court identification. If it were otherwise, then every criminal defendant identified in a single-blind photographic lineup could “cry wolf” and thus manipulate the evidence against him

Instead, Young bore the burden of establishing that the lineup rose “to a level of suggestiveness that undermine[d] the identification’s reliability.” His mere suspicion about the procedure’s efficacy fails to meet this burden since “[i]t is not enough that the procedure ‘may have in some respects fallen short of the ideal.’”

To the contrary, barring evidence of suggestiveness, Young was entitled to “persuade the [jurors] that the evidence should be discounted as unworthy of credit” based on his theory that non-double-blind identifications are inherently suggestive. And, clearly, he failed to so persuade them. Finally, because this court holds the out-of-court identification was admissible, his in-court identification challenge also fails.

Jury instruction

Young contends the trial court abused its discretion by denying his proffered eyewitness-identification jury instruction. This court again disagrees.

The given instructions explained to the jury that the presumption of innocence applies and that the Commonwealth bears the burden to prove the defendant’s identity beyond a reasonable doubt. The trial court also instructed the jurors on their role as “the judges of the facts, the credibility of the witnesses, and the weight of the evidence.”

The court further instructed them to consider an eyewitness’s “opportunity for knowing the truth and for having observed the things about which they testified.” Therefore the given instructions adequately covered Young’s theory of defense regarding identity and eyewitness identification.

Although Young argues the instructions had no “mention of a cross-racial identification,” he offered no evidence at trial implicating the issue. The same conclusion applies to his complaints that the given instructions did not address “memory in eyewitness identification.” Again, Young presented no evidence at trial on the issue.

Young is entitled to instructions on his theories of the case only if there is “some appreciable evidence” supporting those theories. Not even a scintilla of evidence supports these theories, so the trial court appropriately refused instructions relating to them.

Sufficiency

Young argues that the evidence failed to establish his identity as the robber. This court again disagrees.

Woody unequivocally identified Young as the man who robbed him. Though Woody acknowledged he misremembered certain details about the robber, the jury was entitled to “resolve conflicts in the testimony” and to “weigh the evidence.” The jury also considered surveillance videos showing Young “walk out of the store when he initially left, and then return[] in this vehicle wearing the same clothes that he had on, and proceed[] to rob the victim seconds after he turn[ed] the corner into the store.”

Cameras captured the Equinox rented by Young’s mother “arriving at the business seconds before the robbery” and evidence eliminated Young’s other family members as the driver. These facts, taken together, are sufficient to sustain the jury’s verdict. The circuit court’s judgment is affirmed and remanded solely to correct a clerical error in the sentencing order.

Affirmed and remanded.

Young v. Commonwealth, Case No. 1489-24-2, June 9, 2026. CAV (Callins). From the Circuit Court of the City of Richmond (Campbell). Catherine French Zagurskie, Chief Appellate Counsel (Virginia Indigent Defense Commission, on briefs), for appellant. Jennifer L. Guiliano, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee. VLW 026-7-232. 11 pp.

Full-Text Opinion
VLW 026-7-232