Curtis v. Commonwealth

Benton, J.,

dissenting.

Because of the suggestive photograph identification, the Commonwealth’s attorney and defense counsel reached an agreement that the victim would not identify Aaron Lamont Curtis as the person who shot him. The Commonwealth was prepared to try Curtis without the identification. However, as the victim was testifying on direct examination at trial the following discussion occurred:

A: Well, after that I fell into the pool. It was like maybe from where I am to the jury. And, I saw Adriane Roane and Curtis come from behind.

[DEFENSE COUNSEL]: Objection, your Honor. May we take it up out of the presence of the jury?

THE COURT: What is the problem.

[COMMONWEALTH’S ATTORNEY]: It is something I stipulated to prior to the hearing. If we can just take it up outside of the presence of the jury.

* * *

JURY OUT

THE COURT: All right.

[COMMONWEALTH’S ATTORNEY]: I would like to.instruct the witness not to say Mr. Curtis was the man that shot him. The reason being we have a possibly tainted identification from a photo spread. So, I had agreed with [defense counsel] this man would not testify as to who shot him, just someone shot him.

The trial judge refused to instruct the witness as requested by the Commonwealth’s attorney. Instead, the trial judge conducted a suppression hearing while the jury was out and ruled that the victim’s testimony would not be restricted. I believe that the trial judge erred and that Curtis is entitled to a new trial.

I agree with the majority that the photographic identification of Curtis by the victim was unduly suggestive. Under the circumstances of this case, the use of a single photograph and the use of the subject’s name when presenting that photograph were impermissibly suggestive, unnecessary, and inexcusable. The “central question” thus becomes, “whether under the ‘totality of the circumstances’ the identification was reliable even though the [identification] procedure was suggestive.” Neil v. Biggers, 409 U.S. 188, 199 (1972). Contrary to the majority, I believe that the evidence in this record does not support the conclusion that the out-of-court identification was “nevertheless so reliable that no substantial likelihood of misidentification existed.” Wise v. Commonwealth, 6 Va. App. 178, 184, 367 S.E.2d 197, 201 (1988).

[Reliability is the linchpin in determining the admissibility of identification testimony. . . . The factors to be considered . . . include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

Manson v. Brathwaite, 432 U.S. 98, 114 (1977) (citing Biggers, 409 U.S. at 199-200). An analysis of these factors based on the facts of this case weighs against the admissibility of the victim’s in-court identification of Curtis.

The record establishes that, prior to the shooting, the victim was attending a party in the clubhouse of an apartment complex. The victim left the party, went to his automobile, and returned to the party to offer a ride to a young woman. Soon, the victim was engaged in an angry confrontation with the woman’s boyfriend and “a whole bunch of guys.” As the victim and one of his male friends were being hit and pushed out of the building, many of the other guests in the large crowd began to run. During the commotion the victim was pushed into the pool. As he was getting out of the pool, he was shot.

The victim’s opportunity to view his assailant was limited by both the lighting conditions and by the speed of events. The shooting occurred at 11 p.m. outside the building where the party was held. The area by the pool was illuminated only by street lights and lights along the walkway. The victim testified that the person who shot him was across the pool and “came from behind someone.” The victim’s opportunity to view his assailant was “maybe four seconds, maybe three seconds” and occurred at a time when the victim was attempting to defend himself from the persons who had beaten him and pushed him into the pool. He did not know Curtis and had not seen Curtis earlier that evening at the party. Curtis was not among the people arguing with him, Curtis had not hit him or his friend, and Curtis had not been among the people who pushed him into the pool.

There is no evidence to support the majority’s statement that the victim “displayed a seemingly normal degree of attention for someone in his circumstance.” The victim and his friend had been pummelled by a large group of persons. The victim had been shoved into the swimming pool during the melee and was getting out of the pool in the presence of the combatants. All of the witnesses testified that the party was crowded and that people were running about. One witness testified that ten or eleven people displayed guns after the shooting began. Whatever may be considered a “normal degree of attention” under those conditions, the record contains no evidence to suggest that the persons across the pool from the victim were more likely to garner his attention than those who were in the immediate area where he had been pushed in the pool. Under the circumstances that prevailed, even if the victim saw his assailant for three or four seconds in the crowd of people across the pool from him, it is not probable that he was viewing the individual people, who were not engaged in the combat, for purposes of later identification.

Furthermore, the victim’s description of his assailant was vague and inconclusive. Four days after the incident, when a police officer visited the victim in the hospital, the victim stated that the person who shot him was a black male about nineteen or twenty years of age, as were most of the males at the party. He further described the assailant as five feet, nine inches tall, slim, and wearing his hair short. The record does not reflect whether those descriptions fit Curtis. The only other characteristic of the assailant that the victim described was that the assailant was wearing “some type of jacket.” No further description was made of the jacket to distinguish it from the jackets that others presumably were wearing at 11 p.m. on a February night. Moreover, it is clear that the victim’s generic description of his assailant was not a factor enabling the police to identify and locate Curtis. At the same time that the victim gave the description, he viewed Curtis’ picture and denied that Curtis was the assailant.

The victim was certain that Curtis was not his assailant when the police officer interviewed him in the hospital, showed him a photograph of Curtis, and gave him Curtis’ name. The victim posits two reasons why he did not identify the Curtis photograph. First, he contends that he was under the influence of pain medication. Significantly, the officer who interviewed the victim said he was not sleepy and noticed nothing unusual about him during the interview. Assuming that the victim’s perceptions were distorted by the pain medication, there is every reason to believe that his description of the assailant as “black male, nineteen or twenty years old, five foot nine inches tall, slim build, short hair” was equally distorted. Moreover, if his perception was distorted by pain medication during the interview, the Commonwealth offers no explanation for the victim’s revelation five hours later when he telephoned the police officer who interviewed him to say that the person whose picture he viewed five hours earlier “resembled the guy that [he] saw.”

The victim gave another dubious reason for his failure to identify Curtis’ picture during the hospital interview. He testified that he did not wish to upset his mother, who was present. Thus, despite the victim’s claim that the medication interfered with his perception, he contends that he had enough presence of mind to be concerned about upsetting his mother by making an identification. This interview with the police officer occurred four days after the shooting. While his mother was present, the victim recounted for the police officer all the details of the incident, gave a verbal description of the assailant, and responded negatively when asked if he knew the name “Aaron Curtis.” It is difficult to discern how the victim’s identification of the photograph of the person whom he says shot him could have increased his mother’s anxiety. Moreover, the victim’s professed solicitousness for his mother’s feelings is belied by his other reason for not identifying the photograph — that his perceptions were so distorted by the pain medication that he was unable to react rationally.

The victim’s assertion that Curtis was not his assailant coupled with the lack of descriptive features given to the police significantly detract from the Commonwealth’s claim that the later in-court identification was reliable and independent of the suggestive imprinting of Curtis into the victim’s consciousness through the use of a single photograph and the name of the subject. The analysis demonstrates that all the Biggers factors unerringly lead to the conclusion that the in-court identification was tainted by the suggestive out-of-court identification. After viewing the photograph, the victim next saw Curtis several months later when Curtis was in court at his preliminary hearing. The victim testified that when he saw Curtis at the preliminary hearing, “that is when I knew it was him.” Thus, the victim’s identification evolved from a complete failure initially to identify Curtis, to a statement that the photograph of Curtis “resembled the guy,” and then to a pro-ported realization several months later that Curtis was the assailant. The victim’s in-court identification was inextricably linked to the suggestive single photograph identification and has no “origin independent of the inadmissible out-of-court identification.” Wise,

6 Va. App. at 186, 367 S.E.2d at 202.

For these reasons, I would hold that the trial judge erred in refusing to grant the Commonwealth’s motion to instruct the victim, in accordance with the parties’ stipulation, not to testify that he saw Curtis shoot him. Accordingly, I would reverse and remand for a new trial.