733 S.E.2d 683
Va. Ct. App.2012Background
- Smith pled guilty to forcible sodomy and abduction with intent to defile, conditioning the plea on appellate preservation of pretrial suppression ruling on photo-array identification.
- Trial court denied Smith’s suppression motion; the defense preserved right to appeal.
- Photo array consisted of four pages with six photos each; Smith’s photo was added on one page after resizing, causing slight elongation.
- Detective conducted the array without naming suspects, random placement of photos, and instructed the victim to review carefully, but did not indicate any suspect’s identity.
- Victim identified Smith with a hundred percent certainty; the four-page array displayed twenty-four photos from which the identification was made.
- Virginia Court of Appeals reviewed under Perry/Biggers standards, affirmed trial court’s denial of suppression, allowing the identification to go to the jury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the elongated photo violated due process | Smith argues the elongation made him stand out | Commonwealth contends elongation was minor and non-suggestive | No due process violation; elongation deemed minor and not indicia of police suggestion. |
| Whether the detective’s statements implied the suspect was in the array | Smith claims officer implied there was a suspect among the photos | Commonwealth argues no impermissible suggestion; officer merely stated investigation involvement | Not impermissibly suggestive; implied statement insufficient to taint identification. |
| Whether the identification was reliable despite any suggestiveness | Due process requires exclusion if reliability is undermined | Victim’s certainty and full exposure to suspects support reliability | Identification reliability outweighed any minimal suggestiveness; admissible as weight for the jury. |
Key Cases Cited
- Perry v. New Hampshire, 132 S. Ct. 716 (2012) (due process check requires substantial likelihood of misidentification before exclusion)
- Simmons v. United States, 390 U.S. 377 (1968) (very substantial likelihood standard for admissibility of identification)
- Neil v. Biggers, 409 U.S. 188 (1972) (reliability factors for eyewitness identifications)
- Dreway v. Commonwealth, 213 Va. 186 (1972) (police implication alone not enough to taint identification)
- Watson v. Commonwealth, 915 N.E.2d 1052 (Mass. 2009) (context on implying suspects in array)