Witness’s identification of suspect not tainted

A photo lineup identification of a Richmond robbery suspect was not tainted by unnecessarily suggestive procedures, the Court of Appeals of Virginia held in a published opinion.

The suspect, Mitchell Young, was convicted of robbery and using a firearm in commission of a robbery following a witness’s identification of Young in an out-of-court photograph lineup.

Young argued that the identification was “tainted by unnecessarily suggestive procedures,” claiming that the detective’s “unintentional, subtle, non-verbal cues” during the lineup told the witness that Young was the robber.

“But Young’s insistence amounts to no more than conjecture of a risk of suggestive behavior,” Judge Dominique A. Callins wrote in the court’s June 9 opinion in Young v. Commonwealth (026-7-232).

“Conjecture, alone, is fatally insufficient to justify suppressing the out-of-court identification,” Callins wrote. “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.”

Callins’ 11-page opinion was joined by Chief Judge Marla Graff Decker and Judge Daniel E. Ortiz.

Virginia Indigent Defense Commission Chief Appellate Counsel Catherine French Zagurskie, who represented Young, did not respond to a request for comment by deadline.

Assistant Attorney General Jennifer L. Guiliano led the case for the Commonwealth. The Office of the Attorney General did not respond to a request for comment.

Background

The case stems from an incident between Young and James Woody, a machine service technician who went to work on a “skill game” machine that Young was playing at a convenience store.

According to the court’s opinion, Young reentered the store 10 minutes after Woody asked to work on the machine and asked Woody to give him the money from the machine. Woody tossed Young a bag containing “between $30,000 and $40,000,” and Young walked out.

Richmond Police Detective Mark
Hatchett got a physical description of the suspect from Woody and reviewed surveillance footage showing a rental Chevy
Equinox arriving and departing from the scene along Woody’s account of the robbery.

A Flock camera system eventually aided in narrowing down the vehicle, finding Young to be the only driver of the vehicle to match Woody’s description.

Hatchett assembled a photo lineup of seven men with similar facial features, including Young, and presented it to Woody. Woody identified Young as the robber from the photo lineup.

At trial, Young moved to suppress the identification, claiming the photo lineup “was impermissibly suggestive.” Following testimony from Hatchett that stated he did not “make any noises, breathe any differently, make any hand gestures or facial expressions or make any indication about who the true suspect was,” the Richmond Circuit Court denied Young’s motion, as well as a lengthy jury instruction proffered for the jury’s consideration of the eyewitness identification.

The jury ultimately convicted Young of robbery and using a firearm in commission of a robbery. Young subsequently appealed.

Appellate review

Young argued on appeal that both the photo lineup and in-court identifications by Woody were tainted by unnecessarily suggestive procedures.

Callins disagreed.

“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,’” Callins wrote, referencing the 1969 Foster v. California decision.

Callins added that Young bore the burden of establishing that the photo lineup rose to a level of suggestiveness that undermined the reliability of Woody’s identification, and that his “mere suspicion about the procedure’s efficacy fails to meet this burden.”

“[B]arring 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,” Callins wrote. “And, clearly, he failed to so persuade them.”

Young further appealed the denial of his proffered jury instruction.

Young proffered the same jury instruction as the defendant in the 2019 Watson v. Commonwealth case, which in sum emphasizes that a jury should consider a witness’s memory, outside influences and opportunity to observe the suspect, as well as the police’s procedure in obtaining identification, in determining how to weigh the identification.

In Watson, the Supreme Court of Virginia
ruled that although “more than a scintilla of evidence supported granting it[,] … the trial court did not abuse its discretion by refusing the instruction.”

Callins wrote that the same conclusion applied to the present case, noting that other instructions given to the jury explained their role adequately.

“Therefore, just as in Watson, the given instructions adequately covered Young’s theory of defense regarding identity and eyewitness identification,” Callins wrote.

Young’s final argument on appeal was that the evidence in totality failed to establish that he was the robber. Callins disagreed, finding that the Commonwealth met its burden of proof beyond a reasonable doubt.

“The jury’s finding that Young was the robber was not plainly wrong or without evidentiary support,” Callins wrote.

The judge noted that Woody “unequivocally” identified Young as the robber despite misremembering some details about the robber’s appearance — details that
Callins wrote “the jury was entitled to ‘resolve conflicts in the testimony’ and to ‘weigh the evidence.’”

Beyond the identification, Callins noted that the jury also considered surveillance videos at the convenience store that showed Young entering and departing the store and the Flock camera evidence capturing the rental vehicle, as well as evidence about who had driven the rental vehicle.

“These facts, taken together, are sufficient to sustain the jury’s verdict,”
Callins wrote.

Callins affirmed the circuit court’s judgment but remanded the case “solely to correct … [a] clerical error in the sentencing order.”

In a footnote, Callins wrote that the
trial court’s sentencing order does not show any suspended time on the sentence, but the sentencing summary reflects
10 years suspended.

“Though the trial court’s oral statements align with its order, the sentencing summary contradicts the court’s judgment,”
Callins wrote. “Because the trial court’s sentencing order is ‘demonstrably contradicted’ by the order’s sentencing summary, we remand the case for the limited purpose of correcting this apparent clerical error.”

Young v. Commonwealth

Issue           Was a photo lineup identification of a robbery suspect tainted by unnecessarily suggestive procedures?

Answer      No (Court of Appeals of Virginia)

Attorneys  Catherine French Zagurskie, Virginia Indigent Defense Commission (appellant); Assistant Attorney General Jennifer L. Guiliano (appellee)

• Young v. Commonwealth
• Watson v. Commonwealth
• Foster v. California