Opinion
Docket No.: CR17-1251-00/01
09-18-2017
Re: Commonwealth of Virginia v. Datril Javon Wilson, Jr.
Shukita Massey, Esquire Office of the Commonwealth's Attorney City of Norfolk 800 East City Hall Avenue, Suite 600 Norfolk, Virginia 23510 Asha S. Pandya, Esquire Asha S. Pandya, P.C. 426 East Freemason Street, Suite 250 Norfolk, Virginia 23510
Shukita Massey, Esquire
Office of the Commonwealth's Attorney
City of Norfolk
800 East City Hall Avenue, Suite 600
Norfolk, Virginia 23510 Asha S. Pandya, Esquire
Asha S. Pandya, P.C.
426 East Freemason Street, Suite 250
Norfolk, Virginia 23510 Dear Counsel:
Today the Court rules on the motion filed by Defendant Datril Javon Wilson, Jr. seeking to suppress the out-of-court identification of Wilson by Alijah Johnson to the Norfolk Police Department (the "Motion to Suppress"). The issues before the Court are as follows: (1) whether Detective Been had sufficient information to include a photograph of Wilson in a photographic lineup shown to Johnson; (2) whether the photographic lineup was unduly suggestive; and (3) if the lineup were unduly suggestive, whether the identification nevertheless was so reliable that there was no substantial likelihood of misidentification. The Court finds as follows: (1) it was not improper for Been to include a photograph of Wilson in the photographic lineup; (2) Wilson failed to prove that the photographic lineup was unduly suggestive; and (3) even if the photographic lineup were unduly suggestive, the identification of Wilson was so reliable that there was no substantial likelihood of misidentification.
Based on the totality of the circumstances, the Court DENIES Wilson's Motion to Suppress.
Background
Wilson was indicted on one count of Conspiracy and one count of Robbery stemming from a February 17, 2017, incident during which Johnson, the victim, was robbed of his cell phone (the "Incident"). Johnson testified that he spoke with a patrol officer at the scene only minutes after the Incident. (Hearing Tr. ("Tr.") 35-36.) He described the perpetrators as "just a bunch of guys dressed in black and gray" who were "in my age group, like 16 to 18." (Tr. 36.) He identified one of the robbers as someone he knew by the name "Trail" (Tr. 28) or "Datrell" (Tr. 109-10), who is a black male, is six feet tall, and weighs approximately one hundred seventy pounds (Tr. 109-10, 132). He made no mention that Wilson had any facial scarring. Johnson testified that during the incident he spoke with Wilson for thirty seconds under streetlights, which enabled him to see Wilson's face. (Tr. 21, 23.) Johnson further testified that he recognized Wilson from school, had seen him on three to five prior occasions, and spoke with him during one of those instances. (Tr. 21-23, 30.) Johnson apparently also saw Wilson two or three times at school after the Incident and before administration of the photographic lineup. (Tr. 42-43.)
Johnson testified at the Hearing that he told the police the robber's name was spelled "Trail" (Tr. 28); however, Been testified that the officer wrote "Datrell," spelled out phonetically in quotes, on the incident report (Tr. 109-10).
Based on the description of Wilson in the patrol officer's report and his previous interactions with Wilson, Been—a detective with the Robbery Squad of the Norfolk Police Department Detective Division—decided to include Wilson's photograph in a photographic lineup to be shown to Johnson. (Tr. 104, 109.) Been constructed the lineup by looking in the police department's criminal database for non-suspects who were black males, age fourteen to twenty-one, and who looked like Wilson. (Tr. 132-37.)
Been knew that Wilson was seventeen years old at the time of the Incident. (Tr. 133.)
On March 29, 2017, Detectives Been and Lowery met with Johnson at Johnson's home; Lowery, with no knowledge of the facts of the case or the construction of the lineup, administered a "double blind lineup" to Johnson. (Tr. 72, 78-80, 93.) Been, Lowery, Johnson, Johnson's mother, and Johnson's stepfather were all present in the home when the lineup was shown to Johnson, although only Lowery and Johnson were in the room where Lowery administered the lineup. (Tr. 39, 99.) Prior to administering the lineup, Lowery read to Johnson the police department's "Photo Admonishment," which included, inter alia, statements that the "group of photographs may or may not contain a picture of the person(s) who committed the crime, and you are certainly under no pressure to identify one or more of the photos" and that "it is O.K. if you cannot make an identification." (Tr. 71; Commonwealth Ex. 2.) The lineup included three sets of photographs, with each set containing six photographs and four blank sheets that were presented to Johnson sequentially. (Tr. 24, 72-73, 75-76.) The photographs contain minor differences in their background colors, cropping, the amount of clothing shown, and the skin tones of the individuals depicted. (Tr. 138-42.) Additionally, although Wilson has some facial scarring on his forehead, which can be seen in his lineup photo, only one of the other individuals in Wilson's six-photograph group had any facial scarring, and that scarring is "dissimilar" to Wilson's scarring. (Tr. 142-43.) Johnson identified his robber as the individual pictured in the third photograph within the first set of photographs, which was Wilson. (Tr. 74-75, 129; Commonwealth Ex. 3.) Johnson testified that he was "100 percent" certain that the individual in the photograph was who he knew as DaTril. (Tr. 25.) On the "Eyewitness Statement of Confidence in Lineup Identification" form, Johnson wrote, inter alia, "I've seen [Wilson] multiple times in and out of school and we had talked before." (Commonwealth Ex. 1.)
A double blind lineup is a lineup during which the officer who administers the lineup is not involved in either the criminal investigation or the creation of the lineup, and as such, is "blind" as to which photograph is of the suspect. Of note, there was inconsistent testimony regarding whether Been was at the table with Johnson and Lowery when the lineup was administered or in an adjacent room (compare Tr. 46 with Tr. 72, 99; see also Tr. 93-95); nevertheless, whether the lineup was blind or double blind does not affect the Court's ruling on the reliability of the photographic lineup identification.
The purpose of incorporating blank sheets, which were shown to Johnson after all of the photographs in a given set, and of using multiple sets of photographs was to discourage Johnson from feeling pressured to select the last photograph simply because it was the final one in the lineup. (Tr. 91-92.) In certain situations, blank sheets are mixed throughout the photographic lineup; however, Lowery testified that mixing the blank sheets in—rather than placing them at the end of the lineup—is only necessary when the detective administering the lineup is familiar with the associated case. (Tr. 92-93.)
Although there were various skin tones, all of the photographs were of African Americans. (Commonwealth Ex. 3.)
Wilson has "a lateral scar on either side of his forehead above the bridge of his nose." (Tr. 142.)
The other photograph that depicted facial scarring showed an individual with "light scarring on . . . the eyebrow ridge." (Tr. 142-143.)
Wilson subsequently moved to suppress Johnson's identification of Wilson during the photographic lineup and bar the Commonwealth from eliciting an in-court identification from Johnson. The Court held a hearing on the Motion to Suppress on August 9, 2017 (the "Hearing"). At the conclusion of the Hearing, the Court took the matter under advisement and granted the parties leave to file post-hearing briefs. In his post-hearing Brief, Wilson withdrew his motion to bar the Commonwealth from eliciting an in-court identification from Johnson, leaving suppression of the lineup identification as the only remaining issue.
Position of the Parties
Wilson's Position
Wilson argues that the photographic lineup created by Been was both unduly suggestive and unreliable under the analysis established by the U.S. Supreme Court in Simmons v. Commonwealth, 390 U.S. 377, 384 (1968). (Def.'s Br. in Supp. of Mot. to Suppress 1-2.) Having conceded that Lowery's administration of the lineup was proper (Tr. 187-88), Wilson contends that the lineup was impermissibly suggestive because it was administered based solely on Been's "hunch" that "Datrell"—who was listed as a criminal suspect—was an individual named "DaTril," with whom Been had prior dealings. (Def.'s Br. in Supp. of Mot. to Suppress 2.) Wilson also asserts that the lineup was unreliable due to numerous differences between the individual photographs used in the lineup, including the background colors and cropping of the photos as well as the individuals' complexion, ages, clothing, and facial scarring. (Id. at 2-3.) Wilson further argues that because of these dissimilarities, and because the defendant was the only person the victim saw after the incident, there is a substantial likelihood of misidentification. (Id. at 3.)
Finally, Wilson argues that it is a fallacy to believe that if a witness knows an individual or has seen that individual previously, the witness's identification of that individual as a criminal perpetrator is more reliable. (Tr. 165-66.) To support this argument, Wilson offered a document that discusses the fallability of photographic lineup identifications. See Brian L. Cutler, Sources of Contamination in Lineup Identifications, Champion, May 2017, at 16, https://www.nacdl.org/champion.aspx?id=46885. Based on this article, Wilson contends that Johnson's prior involvement with him actually increases the likelihood of misidentification because Johnson may not remember whether he recognizes him from prior interactions or from seeing him during the Incident. (Tr. 166.)
The Commonwealth's Position
The Commonwealth asserts that a "reasonable suspicion" standard is not required to include a suspect in a photographic lineup because such a lineup is neither a search nor a seizure, but rather serves as a mere investigative tool available to law enforcement to discover or confirm criminal suspects. (Mem. in Resp. to Def.'s Mot. to Suppress 2.) The Commonwealth therefore claims that a general description of the suspect, including his name—albeit misspelled—constituted more than sufficient information to include Wilson in a photographic lineup. (Id. at 3.)
Regarding the characteristics of the photographs and the individuals depicted, the Commonwealth contends that the lineup was not unduly suggestive and that, even if it were unduly suggestive, the identification of Wilson was sufficiently reliable considering the totality of the circumstances. (Id. at 1.) The Commonwealth contends that the photographs in the lineup "were more similar than dissimilar in regards to race, age, background color, hairstyle/textures, and skin complexions." (Id. at 3.) It also notes that at least one other person in the lineup had facial scarring and, although the scarring was in a different location on that individual's face, it would be difficult for an officer to locate a person with scarring identical to Wilson's. (Id.)
Analysis
Legal Standard
"When a witness identifies the defendant in a police-organized photo lineup, . . . the identification should be suppressed only where 'the photographic identification procedure was so [unnecessarily] suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" Perry v. New Hampshire, 565 U.S. 228, 238 (2012) (quoting Simmons v. United States, 390 U.S. 377, 384-85 (1968)). In other words, "[a]n out-of-court identification is admissible if either (1) the identification was not unduly suggestive; or (2) the procedure was unduly suggestive, but the identification was so reliable that there is no substantial likelihood of misidentification." Charity v. Commonwealth, 24 Va. App. 258, 261, 482 S.E.2d 59, 60 (1997).
The defendant has the burden of proving the suggestiveness and lack of reliability in order to suppress a photographic lineup identification as violative of due process. Smith v. Commonwealth, 61 Va. App. 112, 119, 733 S.E.2d 683, 686-87 (2012) (citing Winston v. Commonwealth, 268 Va. 564, 593-94, 604 S.E.2d 21, 37-38 (2004)). This is a "weighty burden" because it "stems from the 'recognition that the jury, not the judge, traditionally determines the reliability of evidence,' particularly given the many procedural safeguards at trial 'built into our adversary system that caution juries against placing undue weight on eyewitness testimony of questionable reliability.'" Id. at 119, 733 S.E.2d at 687 (quoting Perry v. New Hampshire, 565 U.S. 228, 245 (2012)).
An identification is not unduly suggestive merely because the participants differ in appearance or description, "as long as there is nothing to single out the accused from the rest." Charity, 24 Va. App. at 261-62, 482 S.E.2d at 60 (quoting Williamson v. Commonwealth, 211 Va. 57, 59, 175 S.E.2d 285, 287 (1970)).
Even if a lineup is deemed suggestive, the lineup will not violate due process if "under the 'totality of circumstances' the identification was reliable even though the confrontation procedure was suggestive." Neil v. Biggers, 409 U.S. 188, 199 (1972). Courts should analyze five factors in determining whether the lineup was reliable so as not to create a substantial likelihood of misidentification:
(1) the witness's opportunity to view the criminal at the time of the crime,
(2) the witness's degree of attention,
(3) the accuracy of the witness's prior description of the criminal,
(4) the level of certainty demonstrated by the witness at the confrontation, and
(5) the length of time between the crime and the confrontation. Id. at 199-200; accord Charity, 24 Va. App. at 262, 482 S.E.2d at 61. "Absent evidence of a process so suggestive as to 'giv[e] rise to a "very substantial likelihood of [mis]identification,'" the identification evidence is admissible, and 'the weight to be attributed to the evidence [is] for the [fact finder] to decide.'" Taylor v. Commonwealth, 52 Va. App. 388, 393, 663 S.E.2d 536, 538 (2008) (quoting Bryant v. Commonwealth, 10 Va. App. 421, 427, 393 S.E.2d 216, 220 (1990)).
Discussion
The Court has considered the pleadings, the evidence offered and oral argument at the Hearing, and applicable authorities. The Court now rules on the issues before it. A. It Was Not Improper for Been to Include Wilson in the Photographic Lineup.
Wilson argues that his inclusion in the photographic lineup was based on only a "hunch," which he alleges is insufficient justification as a matter of law. The Court is unaware of any authority—and Wilson has not identified any—that establishes a required threshold of suspicion before an officer is permitted to include a suspect in a photographic lineup. If there were such a standard, Been would have been precluded from including in the lineup the other seventeen individuals—who were chosen merely because they resembled the suspect and not because there was any evidence that they were perpetrators of the crime at issue—making the conduct of a lineup impossible.
Hence, if law enforcement lacked even a "hunch"—but rather simply decided to "round up the usual suspects"—such action would not implicate any due process concerns. Casablanca (1942). In fact, including lineup photographs of individuals who are known to be non-suspects reduces the probability of a false conviction, as police can exonerate a falsely identified non-suspect.
Simply stated, a photographic lineup does not implicate the Fourth Amendment. Such a lineup does not constitute a search or seizure because the suspect has no privacy interest in a photograph in a criminal database belonging to the police department, and the administration of a photographic lineup does not require the police to exercise any control over the suspect's person or property. See Horton v. California, 496 U.S. 128, 133 (1990) ("A search compromises the individual interest in privacy; a seizure deprives the individual of dominion over his or her person or property."). Rather, a photographic lineup—assuming it is not unduly suggestive—is a powerful investigatory tool available to law enforcement that does not infringe upon a suspect's constitutional rights.
Here, however, there was more than the proverbial "hunch." Although not required, there were elements revealed during the investigation that made Wilson a reasonable suspect, including that the robber was a black male, was approximately one hundred seventy pounds, was six feet tall, and was named Datrell—a name strikingly similar to the name DaTril.
Because there was no threshold level of suspicion required for Been to include Wilson's photograph in the lineup, it was not improper for him to do so. B. The Photographic Lineup Was Not Unduly Suggestive.
The U.S. Supreme Court has opined that it is preferable that an officer present a witness "with a photographic array including 'so far as practicable . . . a reasonable number of persons similar to any person then suspected whose likeness is included in the array.'" Manson v. Brathwaite, 432 U.S. 98, 117 (1977) (quoting ALI Model Code of Pre-Arraignment Procedure § 160.2(2) (1975)).
Wilson concedes that there was nothing about Lowery's administration of the lineup that was improper. Wilson instead argues that the lineup was unduly suggestive because the photographs in the lineup had varying background colors, different amounts of clothing shown, inconsistent cropping, and because his skin tone and facial scarring are unlike the other individuals in the lineup. He also contends that the photographs improperly depict both adults and juveniles.
"The unduly-suggestive test presupposes that the power of suggestion links a photo to a victim's recollection of the individual [he] accuses of the crime or in some other way implies that the police are singling out a photo as the man who they believe committed the crime." Smith v. Commonwealth, 61 Va. App. 112, 119-120, 733 S.E.2d 683, 687 (2012). "The suggestive effect, in other words, must be something akin to the police saying 'to the witness, "This is the man."'" Id. at 120, 733 S.E.2d at 687 (quoting Foster v. California, 394 U.S. 440, 443 (1969) (emphasis in original)). Virginia appellate courts therefore have opined that if a lineup contains photographs of individuals with different appearances but the differences do not "single out the accused," then the lineup will not be considered unduly suggestive. Charity v. Commonwealth, 24 Va. App. 258, 261-62, 482 S.E.2d 59, 60 (1997) (quoting Williamson v. Commonwealth, 211 Va. 57, 59, 175 S.E.2d 285, 287 (1970)). Furthermore, "[a]bsent evidence of a process so suggestive as to give rise to a very substantial likelihood of irreparable [mis]identification, the identification evidence is admissible, and the weight to be attributed to the evidence [is] for the [fact finder] to decide." Taylor v. Commonwealth, 52 Va. App. 388, 393, 663 S.E.2d 536, 538 (2008) (internal quotations omitted) (quoting Bryant v. Commonwealth, 10 Va. App. 421, 427, 393 S.E.2d 216, 220 (1990)).
Even with differences in photographs, "it matters very little 'that all of the photographs in the array be uniform with respect to a given characteristic' in a case where . . . 'the differences . . . of those pictured have nothing to do with the description' the witness gave to the authorities." Smith, 61 Va. App. at 120-21, 733 S.E.2d at 687 (quoting United States v. Smith, 546 F.2d 1275, 1280 (5th Cir. 1977)).
The only aspects of Wilson's photograph that were distinct from the others in the lineup were Wilson's physical features, and specifically his facial scarring. Despite the unique nature of the scarring, however, Johnson did not mention any facial scarring in his description of the robber to the police, and he did not indicate that he relied on scarring for his identification. See id. at 120, 733 S.E.2d at 687 (opining that "a photo can be impermissibly emphasized so as to attract the victim's selection, as where it alone includes characteristics unique to the victim's reported observations" (emphasis added)). In short, there was no evidence presented that Wilson's facial scarring singled him out or played any role in Johnson's identification. Id. ("[A] purely innocuous distinction in a photo, by itself, may suggest nothing of relevance."); see also United States v. Hargrove, 508 F.3d 445, 450 (7th Cir. 2007) (finding that an individual in a lineup photograph shown with "glasses and beard" was "not suggestive of anything" because no witness suggested the perpetrators "were bearded or wore glasses"), and United States v. Gibson, 135 F.3d 257, 260 (2d Cir. 1998) (finding that because no witness "told police the perpetrator wore a goatee, portraying [the defendant] with a goatee would not be suggestive"), cited in Smith, 61 Va. App. at 121 n.3, 733 S.E.2d at 687 n.3. The Court finds that Wilson's facial scarring did not make the photographic lineup unduly suggestive.
Here, even if the Court were to find that the individuals pictured in the lineup had a variety of skin tones and scarring, and that the background colors, clothing, and cropping of the photographs varied, none of these inconsistencies serves to single out Wilson. Wilson does not allege—and the facts do not support—that all of the photographs were consistent except Wilson's, thereby making Wilson somehow stand out in the lineup. See United States v. Bautista, 23 F.3d 726, 731 (2d Cir. 1994) (finding that a photograph was not "impermissibly suggestive" despite being "brighter and somewhat more close-up than" the other photographs), and United States v. Mickens, 926 F.2d 1323, 1329 (2d Cir. 1991) ("[T]he fact that [the defendant's] picture was the only photocopy in the array is insignificant."), cited in Smith, 61 Va. App. at 121 n.3, 733 S.E.2d at 687 n.3. Furthermore, the differences in the photographs had nothing to do with Johnson's description of the robber to the police. Although the lineup contained both adults and juveniles, all photographs were of black males between the ages of fourteen and twenty-one, an age range consistent with Wilson's age (i.e., age seventeen), making the adult versus juvenile distinction irrelevant. The Court finds that any differences in the physical characteristics of the lineup photographs, or the various skin tones and ages of those pictured, did not make the photographic lineup unduly suggestive.
Based on the totality of the circumstances, the Court finds that the photographic lineup was not unduly suggestive. C. The Photographic Lineup Was Reliable.
Even if the photographic lineup were unduly suggestive, arguendo, the Court finds that the identification nevertheless was so reliable that there is no substantial likelihood of misidentification. In analyzing the five Biggers factors and considering the totality of the circumstances, the Court finds that the factors support a reliable lineup.
1. Johnson Had Sufficient Opportunity to View Wilson at the Time of the Crime.
The length of time and conditions under which a victim has the opportunity to view his perpetrator is highly relevant to accurate identification. In Commonwealth v. Wood, this Court found that a victim had sufficient opportunity to view the defendant—who was not wearing a mask—under streetlights for at least forty-five seconds. 56 Va. Cir. 128, 132 (Norfolk 2001); see also United States v. Melvin, 39 Fed. Appx. 43, 47 (4th Cir. 2002) (holding that a victim who saw the defendant while well-lit by a porch light and streetlights with nothing obstructing the victim's view had sufficient opportunity to view the defendant ); Clarke v. Commonwealth, 2009 Va. App. LEXIS 243, *21-22 (May 26, 2009) (finding that a witness who spoke with the defendant from a few feet away under streetlights had sufficient opportunity to view the defendant); Charity v. Commonwealth, 24 Va. App. 258, 263, 482 S.E.2d 59, 61 (1997) (finding that a victim had sufficient opportunity to view an intruder she saw for seventeen seconds in a stairway that was lit by porch light at the bottom of the steps and a bathroom light at the top).
As is appropriate, the Court does not consider unpublished Court of Appeals Opinions to hold precedential value. The Court instead considers the rationale offered by the Court of Appeals to the extent the Court finds it persuasive, which is permissible. See Fairfax Cty. Sch. Bd. v. Rose, 29 Va. App. 32, 39 n.3, 509 S.E.2d 525, 528 n.3 (1999).
Similar to the conditions in the above referenced cases, Johnson testified that he was able to view and speak with Wilson for thirty seconds under streetlights during the Incident. No evidence was presented indicating that Wilson's face was covered or that Johnson's view of Wilson otherwise was obstructed. The Court finds that Johnson's observation of Wilson under these conditions—especially in light of having previously seen Wilson multiple times and spoken with him—provided Johnson sufficient opportunity to view Wilson at the time of the Incident.
2. Johnson Was Attentive at the Time of the Crime.
The attentiveness of the witness obviously affects a witness's accurate identification of his perpetrator. When the individual who identifies a suspect was also "the victim of a serious crime, rather than a mere casual observer of such crime," it is deemed that the witness paid close attention during the crime. United States v. Melvin, 39 Fed. Appx. 43, 47 (4th Cir. 2002) (emphasis added); see also Neil v. Biggers, 409 U.S. 188, 200 (1972) (considering the fact that a witness "was no casual observer, but rather the victim" in determining that there was no substantial likelihood of misidentification). Johnson stated that during the Incident he looked at and spoke with Wilson for thirty seconds and that he had prior dealings with Wilson. Johnson further testified that streetlights allowed him to see Wilson's face while they were conversing. There also was no evidence presented that there was anything that diminished Johnson's ability to be attentive during the incident. As such, the Court finds that, under the circumstances, Johnson was attentive at the time of the crime.
3. Johnson's Prior Description of Wilson Was Accurate.
Johnson's testimony is that his description to the police was a general description of all of the people involved in the crime. He told the officer that the perpetrators were "just a bunch of guys dressed in black and gray" and that they were close to his age, i.e., approximately seventeen years old. More specifically, Johnson told the patrol officer that he recognized a member of the group whom he knew by the name "Trail." Considering these facts, including the specific identification of the robber as someone Johnson knew from previous interactions, the Court finds that Johnson's prior description of Wilson was accurate.
4. Johnson Demonstrated a High Level of Certainty When He Identified Wilson in the Lineup.
Johnson stated that when he selected Wilson's photograph in the lineup, he was 100 percent certain that the individual in the photograph was Wilson. Additionally, while talking to the patrol officer shortly after the Incident, Johnson was able to identify Wilson by a nickname. There is no evidence that Johnson expressed any doubt that Wilson was one of the individuals who robbed him. As such, the Court finds that Johnson demonstrated a high level of certainty when he identified Wilson in the photographic lineup.
5. The Moderate Length of Time Between the Incident and the Lineup Does Not Render the Identification Unreliable.
Although the length of time between the crime and the lineup should be considered, see Neil v. Biggers, 409 U.S. 188, 199-200 (1972), "the lapse of time alone is not sufficient to render an identification unreliable as a matter of law," Satcher v. Commonwealth, 244 Va. 220, 250, 421 S.E.2d 821, 839 (1992). In Satcher, the Virginia Supreme Court held that despite a fifteen-month window between the crime and the witness identification, the identification was reliable in light of the totality of the circumstances. Id.
In the case at bar, the length of time between the February 17, 2017, incident and the March 29, 2017, lineup was approximately five weeks. Although five weeks is not an insignificant period of time, and the passage of time can negatively affect memory, it is significantly less time than the fifteen-month delay in Satcher. The length of time also is presumably less significant when a witness's lineup identification is of someone he knows, as the witness likely is not relying on his memory of the individual's unfamiliar features but rather his memory of the known person's identity. The Court therefore finds that, in conjunction with the reliability demonstrated by the other four factors, the five-week delay "is not sufficient to render [the] identification unreliable as a matter of law." Id. D. Further Argument Regarding the Reliability of Johnson's Identification of Wilson Is an Issue for Trial.
The Court finds that Wilson's argument regarding his reliability concerns, as expressed in Sources of Contamination in Lineup Identifications, is inappropriate for a motion to suppress. The author's contention—with respect to a lineup identification where the witness previously saw the suspect—is that a positive lineup identification does nothing to improve identification reliability because the lineup merely affirms that the lineup photo matches the individual known to the witness. Brian L. Cutler, Sources of Contamination in Lineup Identifications, Champion, May 2017, at 16, https://www.nacdl.org/champion.aspx?id=46885. Although this assertion appears sound, it does not create an unduly suggestive lineup, the legally cognizable standard under Virginia law.
The author also acknowledges that "[c]learly, familiarity is an important factor in eyewitness identification, and clearly, people are more accurate at identifying familiar individuals than strangers." Brian L. Cutler, Sources of Contamination in Lineup Identifications, Champion, May 2017, at 16, https://www.nacdl.org/champion.aspx?id=46885. --------
The lineup reliability concerns raised by Wilson go to the weight to be given to the lineup identification, which can be argued at trial, because the fact finder—often the jury—is tasked with determining the reliability of evidence. Smith v. Commonwealth, 61 Va. App. 112, 119, 733 S.E.2d 683, 687 (2012). As such, there are a number of procedural safeguards "built into our adversary system that caution juries against placing undue weight on eyewitness testimony of questionable reliability." Id. (quoting Perry v. New Hampshire, 565 U.S. 228, 245 (2012)). It is also noteworthy that all of the author's recommendations to increase the reliability of lineup identifications—the use of cautionary instructions by the lineup administrator, sequential presentation of lineup photographs, incorporating non-suspects into the lineup, and the use of blind lineups—were used by Been when administering the lineup to Johnson. See Cutler, supra.
For these reasons, the Court finds that the proper time for Wilson to argue any alleged impact of Johnson's prior knowledge of Wilson on Johnson's photographic lineup identification is during trial and not pretrial via a motion to suppress.
Conclusion
Based on the foregoing, the Court DENIES Defendant's motion to suppress Johnson's out-of-court identification of Wilson. Based on the totality of the circumstances, Wilson did not prove that the photographic lineup was unduly suggestive and, even if it were, the identification nevertheless was so reliable that there is no substantial likelihood of misidentification. The Clerk's Office is directed to prepare an Order consistent with this ruling and forward it to counsel of record. Any objections shall be filed with the Court within fourteen days.
Sincerely.
/s/
David W. Lannetti
Circuit Court Judge DWL/kml