Victim Identification Evidence: Sample v. Commonwealth of Virginia
Nov 29, 2023
Ben Glass
Have you ever wondered how a criminal case unravels, particularly when it comes to identification evidence? Step into the corridors of justice as we dissect the fascinating case of Sample v. Commonwealth of Virginia, where the spotlight is on the process of victim identification. We prod the underbelly of the judicial system, scrutinizing the identification procedure in question and how certainty, influence, and courage all play pivotal roles in the ultimate verdict.
The conversation doesn't stop there. We dive deeper into the murky waters of criminal investigations and how law enforcement procedures can potentially sway a victim’s identification. Unraveling a case where a seemingly innocuous comment by an officer could have tilted the scales of justice. We pull back the curtain on the role race can play in the identification process and the magnitude of its impact on the eventual verdict. Arm yourself with insights into the delicate intricacies of law enforcement, race, and identification.
As we reach the climax of our discourse, we turn our gaze to the larger components of a criminal case. We explore the court of appeals' dissection of the five-factors from the Bigger decision, the sufficiency of evidence, and the potential for overturning precedent cases imposing an unjust burden of analysis. The debate on the integration of trial evidence into a pre-trial motion to suppress will keep you on your toes as we cite from past cases. Engage with us in this stimulating journey through the labyrinth that is the justice system, as we dissect, discuss, and evaluate. Don’t miss this riveting exploration of the role of identification evidence in criminal cases.
This podcast is brought to you by Virginia Injury and Disability law firm, Ben Glass Law.
Real legal help for real people
Your life has been disrupted. You have good doctors and they support you. Your personal injury or long-term disability claim seems like a slam dunk. But there’s a problem: The insurance company doesn’t believe you. “You can’t be hurt that bad! Our medical experts say you’re fine.”
You need a trusted advocate who can uncover all the facts, tell your story to the skeptical insurance company, and get you the money you deserve. You don’t have to do this alone. Contact our Virginia personal injury and long-term disability lawyers today for a free consultation or denial letter review.
Have you ever wondered how a criminal case unravels, particularly when it comes to identification evidence? Step into the corridors of justice as we dissect the fascinating case of Sample v. Commonwealth of Virginia, where the spotlight is on the process of victim identification. We prod the underbelly of the judicial system, scrutinizing the identification procedure in question and how certainty, influence, and courage all play pivotal roles in the ultimate verdict.
The conversation doesn't stop there. We dive deeper into the murky waters of criminal investigations and how law enforcement procedures can potentially sway a victim’s identification. Unraveling a case where a seemingly innocuous comment by an officer could have tilted the scales of justice. We pull back the curtain on the role race can play in the identification process and the magnitude of its impact on the eventual verdict. Arm yourself with insights into the delicate intricacies of law enforcement, race, and identification.
As we reach the climax of our discourse, we turn our gaze to the larger components of a criminal case. We explore the court of appeals' dissection of the five-factors from the Bigger decision, the sufficiency of evidence, and the potential for overturning precedent cases imposing an unjust burden of analysis. The debate on the integration of trial evidence into a pre-trial motion to suppress will keep you on your toes as we cite from past cases. Engage with us in this stimulating journey through the labyrinth that is the justice system, as we dissect, discuss, and evaluate. Don’t miss this riveting exploration of the role of identification evidence in criminal cases.
This podcast is brought to you by Virginia Injury and Disability law firm, Ben Glass Law.
Real legal help for real people
Your life has been disrupted. You have good doctors and they support you. Your personal injury or long-term disability claim seems like a slam dunk. But there’s a problem: The insurance company doesn’t believe you. “You can’t be hurt that bad! Our medical experts say you’re fine.”
You need a trusted advocate who can uncover all the facts, tell your story to the skeptical insurance company, and get you the money you deserve. You don’t have to do this alone. Contact our Virginia personal injury and long-term disability lawyers today for a free consultation or denial letter review.
That was his interpretation of what he heard and that's not exactly what he heard.
Speaker 2:
But the whole point of the bigger peri-line of cases is, even if the officer said I know who did it, this has got to be the guy. That doesn't mean that the identification is forever barred.
Speaker 1:
It does not. It does not. So when we move to those factors to determine whether or not it should be barred and we had that statement before the photo and I also want to point out to the court, there was a statement after the photo Even after the victim says yep, I think that's it or that is him the officer then states oh yeah, he's done some other stuff All right.
Speaker 3:
Welcome to the Supreme Court of Virginia podcast. This podcast is brought to you by Ben Glass Law, a personal injury and long-term disability law firm with headquarters in Fairfax, virginia. Listening to oral arguments is one of the best ways to both learn and stay abreast of the substantive and procedural aspects of practicing law in Virginia. By putting these public domain recordings into the form of a podcast, ben Glass Law has made it easy for the public to access these recordings. All commentary that is not part of the actual court proceedings is that of the show's sponsor Sample versus Commonwealth of Virginia. Tucker L Watson Appellants Council. Ken J Baldasari, assistant Attorney General, appellants Council.
Speaker 1:
Good morning your Honors. Good morning, may I please the court. My name is Tucker Watson and I have the honor of representing Dwayne Lamont Sample Jr in the matter currently before the court. Mr Sample was convicted of one count of attempted robbery in the Northampton Circuit Court. This matter was appealed to the Virginia Court of Appeals on two assignments of error. I intend to focus the majority, if not all, of my time today on the first assignment of error in this matter, and that assignment of error had to do specifically with the denial of Sample's motion to suppress in this case and in that motion Sample sought to suppress Mark and Julie, one of the victims, out of court identification, as well as not to forbid and Julie's later in court identification of Sample during the trial.
Speaker 4:
Even if the out of court, even, arguably, if the out of court identification was suggestive, the victim has no right to take the stand and say actually, that is the guy that put a gun in my face.
Speaker 1:
No, your Honor. No, the answer is no, your Honor. That is based on the biggers. And if the court determines that the out of court identification, the procedure used to elicit that out of court identification, was unduly suggestive and we submit that it was in this case then the court has to look at the five factors laid out in the bigger decision to determine.
Speaker 2:
From the Court of Appeals opinion. The majority opinion states that in the Court of Appeals you can see that the last two of the five factors level of certainty and length of time auger in favor of the admission of the identification. Is that accurate?
Speaker 1:
I would agree with that, but I think the court needs to also look at the totality of all five factors.
Speaker 2:
Don't dispute that. I'm just trying to figure out what you are arguing about. Yes, your Honor, thank you.
Speaker 5:
It's our going back to the whole beginning of the case. It really starts when the police officer arrives. The goal at that point is to find who did this, to identify who did this, to get that person out of the community. The investigation is ongoing. What should the police officer have done in that case? He has a sense of who it is. He has a history with that person. Should he have gotten that person's photo and then seven other photos and then show it to the two gentlemen?
Speaker 1:
Well, in this case, I think there's a number of things that could have been done to limit the suggestive nature of the manner in which she showed the photo to the victim in this case. One of the primary issues in this case were a number of statements that the law enforcement officer made to the victim. I think I have an idea of who this could be. I think it's a guy who is Hispanic. I think it's a guy who you know and the victim pushes back. I know, don't think so. It didn't look Hispanic to me.
Speaker 2:
The description he gave matched in age, height, weight and eyes. Correct. It did. Color revised yes, correct, but age, height and weight within a year, five pounds and inch.
Speaker 1:
Pretty close your honor. Yes, this was a standard adult size male. I don't think there was anything unique.
Speaker 2:
I think there's some standard adult size male up here, but we weigh and have very different heights and ages.
Speaker 1:
Yes, but we have no other characteristics. This was an individual in miscellant with a hoodie, a hat mask. We've got no other identifying factors. This is at night time.
Speaker 5:
You said something very interesting just a moment ago, sir. You said that the victim in this case pushed back this. If we take a look at the transcript, if you look at the video, it's clear that this is a man who knows what he's about. He's not going to say something that he believes is not factually correct. What does that do to the whole suggestiveness aspect of the argument on suppression?
Speaker 1:
I agree with the fact that the victim expressed a degree of certainty. However, I think the court needs to look specifically at the role that the law enforcement officer played in potentially allowing that degree of certainty.
Speaker 4:
The point is that it didn't look at all like the victim was being heavily influenced by anybody. The guy put a gun right to the guy's face and the dad's almost like a hero. He smacks the gun down on the ground and runs the perpetrator off. We're not dealing with someone who's vulnerable to suggestion.
Speaker 1:
I don't think that, first of all, I make the same statement I made to the court of appeals. That act of heroism is unique and pretty incredible in my experience as a criminal attorney, not only in disarming the individual, but he actually made the determination I believe it was in a five to ten second period that the firearm which looked, I think, to most observers like a real firearm was a BB gun. And he knows what firearms are. He knew firearms but he was looking specifically at the diameter of the barrel of the gun, but doesn't that suggest he's really paying attention to everything that?
Speaker 1:
not only does he determine it's BB gun, he's willing to risk his life that he's right on that I think it speaks to the fact that for that five seconds or ten seconds or somewhere in between those two periods, he was paying attention to the gun primarily.
Speaker 6:
But that's not the only evidence. There was evidence. Of course he's got on a hoodie, but he's paying attention to his eyes and his eyebrows, which he specifically mentions several times. So it's not just the gun, it's not just the height, weight, build, but what most witnesses who are looking at someone with the mask on are focusing on.
Speaker 1:
He did identify the eye color and a distinctive nature of the eyes. There was some controversy about the eyebrows. He never mentioned the eyebrows in the initial encounter. Later mentioned them I believe in the evidence, the motion to suppress but admitted that he had never mentioned anything about the eyebrows in the initial encounter.
Speaker 4:
The gun's laying on the ground right. The perpetrator sample apparently runs off Samples. Dna is on the trigger and also the handle of the gun. Correct.
Speaker 1:
Correct, john, but that doesn't negate the fact that this in-court identification was overly suggestive.
Speaker 4:
It may suggest we shouldn't even be arguing about any of this, because even if it were suggestive, it's all harmless.
Speaker 1:
I disagree, your Honor. There are explanations about how DNA could have arrived on that gun and I don't think we can second guess the fact finder in this case to assume they would have found guilt solely on that one piece of evidence.
Speaker 4:
Were there multiple DNA discoveries on the handle and the trigger of the gun.
Speaker 1:
No, your Honor, Just his. He could not be, it could not be.
Speaker 4:
Okay, we talk about DNA.
Speaker 1:
Could not be. Yes, but what I asked the court to focus on is specifically this one issue, which is that both this out-of-court identification and the in-court identification should not have been allowed. And, specifically, I want the court to think about the statements that the officer made to the victim in this case regarding the photo.
Speaker 3:
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Speaker 1:
Again. We've got a one single photo here which is not per se visible. But in showing him this photo, prior to even showing the photo, he says hey, I think I've got an idea of who it might be. He lives in the area, Let me go, I'll come back. Comes back with the photo. He shows him this single photo.
Speaker 5:
This might be. Is that significant as opposed to? I think I know who it is.
Speaker 1:
I think either statement is suggestive and I think when we look at one of the statements by the victim in this case and the way that he interpreted the memory of the officer statement, I have a pretty good idea of who it was. That was the victim's memory, so then he's adding on at the back end of it, but he's already said it's him. He's already said it's him there.
Speaker 2:
It doesn't influence him to say it's him, it's him.
Speaker 1:
Correct, but I believe it further taints any subsequent identifications of the defendant by adding on hey, yeah, he's done some other stuff. Good job, you did right. It's got to be him.
Speaker 4:
Tell me if I'm right or wrong about this, but in Perry and Justice Ginsburg's opinion I think it was an 8-1 opinion she said that it's got to be. The threshold question was suggestive. Let me see if I can get the exact site. Yeah, here it is the first due process. Concerns arise dot when use identification procedure. That is both suggestive and unnecessary. Suggestive and unnecessary, but the way the briefs are. We all just talking about the suggested nature.
Speaker 4:
I think this goes back to Justice Mann's question. Perhaps Unnecessary? It's got to be unnecessary. You didn't have to do the line up with the clown picture or something like that. You didn't have to do that. You didn't have to do the in person show up later. But when an officer arrives at a crime scene it's necessary to try to figure out quickly what's going on, the kind of stuff we probably would not do three weeks later, when we're still working around trying to figure out who the guy is and we're doing lineups for the victim. Doesn't that factor in that it was reasonable for the cop to say, yeah, I think this is the guy down the road with. This Is it fits, everything I know about him. Why wouldn't we want cops to be able to do that?
Speaker 1:
It was not necessary to make those comments. The officer could have shown the photo in a very neutral fashion without making the statements. Yeah, I think I have an idea of who it might be. He lives right over the way. He could have been him, didn't have to make those statements and I don't believe any of those statements, both before or after showing the photo, were necessary. If he had shown the photo in a more neutral fashion or had shown a couple of different photos, then the test here is both suggestive, correct and unnecessary.
Speaker 4:
So we got a back to say I suggested, I'm still asking arguably, but this particular context where you're in a tight moment, where you're at the very beginning of the investigation and the perpetrator is that large, maybe it is necessary Again your honor.
Speaker 1:
The showing, the photo, may not have been suggested if done in the proper manner. What makes it suggestive in this case is the unnecessary commentary that the officer provided, essentially giving the victim a sense to believe hey, I already have an idea who this is. And giving him a sense of hey, I'm a police officer. I know this guy, I know the community, I know more than you about this stuff, I know where he lives. This is the guy. That was the part that was unnecessary in this case.
Speaker 5:
Do I recall correctly that some of the other officers remonstrated with the officer at the scene for how it was done?
Speaker 1:
There were some questions about that. Your honor. That may go to what was the?
Speaker 1:
optimal police procedure. Yes, I believe there were some questions after the fact about was that the proper procedure? And just briefly, your honor, just to touch on the other five factors and figures which of course the court has duly noted just because it was suggested doesn't mean it's barred. We have to look at the other five factors and I believe when we look at all five factors, even though a few of them may tip in favor of the Commonwealth, the totality tips in the favor of the defendant.
Speaker 1:
This was first the opportunity to view the criminal. This was an extremely brief encounter. We've already talked about that five to 10 seconds. He's focused on the gun barrel. It's at night. We have a face obscured, a very difficult identification. Yes, the witness had a degree of attention but again, the attention is on a gun barrel for five to 10 seconds. Yes, there's no doubt he saw the victim in this tussle as they fell to the ground, saw him running away, could identify his clothing and his build. That doesn't mean he can identify his facial features. The accuracy of the witness description Again, yes, clothing is accurate, height is accurate, build approximately accurate, but we have many other factors that are not accurate. Describes him as the skinny white guy as a Caucasian, and even when the officer suggests to him hey, I think it's a Hispanic guy, no, didn't look like it to me.
Speaker 4:
That sounds like you wouldn't be suggested the cop saying he's an Hispanic All you have to do. If he was being easily misled and said, yeah, you're probably right.
Speaker 1:
I agree with that, your Honor. But at this stage of the analysis we're only looking at the accuracy of the description. The suggestive nature again is the first step and at this point we're just looking at the accuracy. I agree, they all blend together in the analysis.
Speaker 2:
Doesn't that go to your point? Getting all the other factors right, but missing on that one, given that he's wearing the hoodie, he's wearing the hat and wearing the mask, so we're doing racial features from just this Right In some circumstances. Missing on race would be a huge thing here because of what you argue for the rest of it, he's looking at almost a slit. All you can see are the eyes and eyebrows.
Speaker 1:
Yes, your Honor, and again we've got a build which is not unique, clothing which is not unique in today's society. A hoodie, dark clothing, that's all we're working off of here. So that alone, I would argue, was not enough to make a good identification. Thank you, honors.
Speaker 6:
Thank you.
Speaker 7:
Good morning ornament, please. The court, ken Baldessary, on behalf of the Commonwealth. Before I begin my argument today, I do have to fall on my sword. In reviewing my materials last night and reviewing my brief and reviewing some of the case law, I believe I aired in my description of Simmons versus United States and talking about that as a single photo line up. That is not the case in Simmons and I deeply regret the air but I wanted to make the court aware of that. Going to focusing on the first assignment of air with regard to the motion to suppress, and I would begin by pointing out, obviously there is this unduly suggestive aspect and, as Justice Kelsey indicated, perry talks about also the being unnecessary. Turning to, I would focus more on the bigger factors given. Start off with the bigger factors here and I believe the court of appeals was correct in its analysis of the five factors. As my opposing counsel has already conceded, factors four and five are in favor of the Commonwealth. We have an individual here who expresses zero doubt when shown photo. We have basically less than an hour between the actual crime and when the photo was shown to him. So both of those factors I think weigh heavily in the Commonwealth's favor With regard to the remaining three factors the opportunity to witness, to view the criminal at the time of the crime I understand opposing counsels obviously focusing on this five to 10 second aspect of it, but I think it's Justice Russell was talking about we have an individual who's able to determine that the alleged firearm is in fact not a firearm, it's likely a BB gun. He's able to identify the distinctive features of his big brown eyes, as I believe the phrase he used repeatedly. In addition, he's able to get his height, his weight, his build, his age, basically almost he would clean up as a carnival barker. All of those show, I think, again weigh in favor of the Commonwealth. His degree of attention Again, the fact that he is able to see these things, get his accurately described as clothing, things of that nature, also show that he had a high degree of attention. And then the accuracy. Obviously the only thing that is off is that he described him as basically a skinny white male. It turns out that he is someone of a biracial.
Speaker 7:
I think it's a situation here where the findings of facts by the trial court that we have to defer to still weigh in favor of the Commonwealth. Here we have a situation where it was at night, but we have this, basically LED lights coming from the warehouse or the garage that are illuminating the surrounding area. He made clear we had this body cam footage where the victims are facing away, basically from the garage, but we still have a clear indication of what their faces look like on the body cam footage. So the fact that this light is here and where this individual, the perpetrator, is facing that direction just shows that he has the ability to see him. And also the fact that I apologize, lost my train of thought For no good fact that the, the trial court did make a finding, a fact quote, that he was light skinned, I think does show that his complexion and things of that nature With regard and, if there's no questions, with regard to the suppression issue, with regard to the sufficiency aspect of it, again, the identification and the, the DNA and mixture profile, as well as the true allele casework, I think all support the findings of the trial court and finding Mr Sample guilty.
Speaker 7:
One thing I did want to talk about was obviously there is a long series of cases out of the court of appeals, beginning, I believe, smallwood versus Commonwealth and brown and cuffy, that have all been decided over the last 30 years which kind of incorporate the bigger factors into the sufficiency analysis, and I think it was touched upon a little bit in the Walker opinion that came out recently from this court that we look at. We had the trials where we decide things and the basically imposing this higher burden of analysis instead of the standard of review that is typical for sufficiency I think is incorrect and that this court should have reached that issue, should overturn those series of cases as wrongly decided. If there are no further questions, I would rest on my brief and ask this court to affirm the court of appeals rolling.
Speaker 4:
On that last point, to clarify the, the sufficiency standard we use for all fact finding generally should apply to suppression hearings as any other kind of hearing, including a trial, if it involves the resolution, a contested fact. Correct so far? I believe so your area. And then the second point is when a motion to suppress is denied free trial. Our cases say from our court that the evidence at trial is now open to the analysis and the factual findings made by whoever is making the findings, or juries, or the judges, play a role in addressing whether or not the motion should have been granted pre-trial anyway, but not vice versa.
Speaker 7:
You mean not taking the facts from motions.
Speaker 4:
If the motion motion suppress is denied, the defendant can't say something came up at trial unless there's a motion to reconsider the motion to suppress, but not in the opposite direction. If something came up at trial that reaffirms what the trial court did factually at a pre-trial motion to suppress, then that is perfectly available.
Speaker 7:
We have three published opinions saying yes you agree with that, that we can incorporate the evidence that comes out of the trial and in analyzing the evidence that the motion is suppressed?
Speaker 4:
yes, in the situation where the motion to suppress was denied pre-trial, but not when it was granted.
Speaker 7:
So, basically, if the motion of suppress was granted and the would be a comm else appeal and obviously it would be still in the light most favorable to the prevailing party, which would, in this case, be the defendant.
Speaker 4:
So it's always going to be that in both directions. In other words, let me make clear so that I'm understanding what you're saying and we're speaking the same sufficiency test, no matter who wins the fact-finding. That is the overall test. But if it's a pre-trial motion, suppress and it's denied pre-trial and there's evidence later at trial that could have been used pre-trial but it's not, wasn't used because no one knew it. The defendant can renew the motion at trial and get that evidence used. But if they don't renew the motion, it's not available on appeal later to second against a pre-trial motion which that evidence was never presented. Pre-trial, yes, but the opposite doesn't work, when you're affirming a pre-trial denial, because the evidence at trial then under our precedent can be used because it ratifies what was done earlier.
Speaker 7:
If I'm correctly following your train, I believe that's case runner.
Speaker 4:
Thank you, thank you, councillor, have any time left, all right, council your time's up.
Speaker 3:
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