“I will never forget that face,” asserts the robbery victim. Hogwash!

Violent crime victims repeatedly misidentify the perpetrator, as I illustrate in Underdog’s “Club Ah v. Club Blah” posting on my assault acquittal where the victim unlikely looked at my client’s face long and carefully enough to have been sure that my client was his assailant. Cross-racial identification exacerbates misidentification risks.

Sadly, despite the case detective’s belief that the defendant had been truthful in denying any role in a Roanoke County, Virginia robbery, Deante Lamar Payne is serving a nine-year combined sentence for robbery (six years) and handgun use (mandatory consecutive three years). Payne v. Virginia, ___ Va. ___ (Dec. 29, 2016).

Virginia’s Supreme Court this week affirmed Payne’s conviction despite the trial court’s refusal to provide the jury with more than a plain vanilla jury instruction about identifying the suspect.

In November 2011, a prospective second-hand laptop computer buyer showed up to meet the purported seller, after dark at an apartment complex. The buyer already recognized that this might be a scam, when he left his wallet in the car before following the purported seller to the complex’s laundry room, where the seller blocked the victim’s exit, an accomplice threatened the buyer with a knife for his money, and the purported seller pointed a gun at him. The commotion and fear was palpable in the face of the knife and handgun, as the buyer pleaded that he had no money, having already been searched by the man with the knife. Clearly, the buyer was focusing on his safety above all else, versus assuring a solid identification of the perpetrator if he ever got out of this ordeal alive.

Police tracked down the residence connected to the Internet Provider (“IP”) address used to post the ad for the laptop sale, with the residence being under one quarter mile from the robbery site. Deante Payne lived there. He let the police question him. (Suspect talk with police — outside the presence of the suspect’s lawyer — at their own peril.) “Payne denied any involvement in the robbery. He said that his cousin, who did not have internet access, had come to him with a laptop computer and asked Payne to post the advertisement online. Payne suggested that his cousin may have perpetrated the robbery with a friend Payne knew only as Booney.”

Although the case detective thought Payne’s answers were honest, and although she thought said cousin resembled Payne, the detective never “attempt[ed] to locate or interview” the cousin. Payne was at risk of being prosecuted for a crime that could land him in prison for up to life, yet the case detective did not take that simple extra further step to investigate even the suspect she thought may well have perpetrated the crime. Although the robbery victim picked out Payne’s picture from a photo lineup and rejected the cousin’s photo, what does one expect from a victim who sees two photos of similarly-looking people, here with the risk of cross-racial misidentification involved. In addition, the victim’s pride may have been involved to make sure he identified a suspect, having fallen for such a scam that he knew might be a scam by the time he emptied his wallet into his car before following the “seller”.

Unfortunately, Payne made a serious mistake showing up at the alleged knife-wielder’s preliminary hearing. Payne apparently went out of curiosity, whether or not he was the actual gun wielder. Unfortunately, at said preliminary hearing, while on the witness stand the robbery victim pointed Payne out as the gun wielder.

Had Payne simply told police at every turn that he was not going to answer any questions (thus preventing the jury from concluding that he had cooked up an Internet-less cousin scenario in this day and age where we can post online ads even from our cellphones) and had he stayed away from the alleged co-defendant’s preliminary hearing, he may never have gotten prosecuted and convicted.

Instead, Payne got convicted by a jury with no evidence to corroborate the victim-eyewitness identification other than his residing at the residence with the IP address used to post the laptop ad, as well as Payne’s failure to keep his mouth shut with the police.

Before Virginia’s Supreme Court, Payne raised two issues on appeal: (1) the trial court’s exclusion of the case detective’s unredacted email expressing reservations that Payne was the right suspect, and (2) the trial court’s rejection of Payne’s proferred witness identification jury instruction.

The case detective’s email was sent to the prosecutor the day before Payne’s purported co-defendant’s preliminary hearing. In that email, the case detective confirmed that the victim had picked Payne’s picture from the photo lineup, but “expressed her reservations because she felt that Payne looked like [Payne’s cousin], whom she also considered to be a possible suspect. [The detective] wrote that she had thought Payne was truthful in her interviews and was not certain that [Payne] was involved.”

The trial court only allowed the detective’s email into evidence after the redaction of several sentences. The Supreme Court found the trial court had thusly exercised its sound discretion:

“Moreover, even if these [trial court-redacted] sentences were admissible, Payne elicited Detective Saul’s skepticism of his guilt multiple times on cross-examination because the Commonwealth failed to object to them then, a fact that Payne himself observed through counsel when the circuit court ruled against him. A trial court may exercise its discretion to exclude evidence that is repetitious and cumulative. Boone v. Commonwealth, 285 Va. 597, 602, 740 S.E.2d 11, 13 (2013).”

Payne’s rejected witness identification instruction reads:

“The Court instructs the jury that one of the disputed issues in this case is the identification of the defendant as the person who committed the offense(s) charged in the indictment. The Commonwealth has the burden of proving this issue beyond a reasonable doubt. In considering whether the Commonwealth has proven beyond a reasonable doubt that the defendant was the person who committed the offense(s) charged in the indictment, you may consider the following with regard to an identification witness’s testimony: (1) the witness’s opportunity to observe the person(s) committing the crime, which includes the amount of time of the observation and the physical conditions such as lighting, distance, or obstructions present at the time of the observation; (2) the witness’s degree of attention at the time of the observation, whether the witness was under stress, fear or similar situations, and whether the witness had occasion to see or know the person in the past; (3) whether the witness gave a description of the person after the crime and if so, the accuracy of such description and the length of time after the offense that the description was given; and (4) whether the witness made any subsequent identification of the person after the offense, the circumstances surrounding such subsequent identification, the witness’s level of certainty at such subsequent identification, and the time between the offense and the subsequent identification.”

Payne at n.2.

As the state Supreme Court confirms, Payne’s proferred instruction was loosely based on an instruction that Payne argued “had been adopted by most federal courts and incorporated into the federal model jury instructions and model jury instructions of several states.”

The Supreme Court agreed with the trial court’s rejecting Payne’s proposed eyewitness jury instruction, saying that Payne’s “proffered instruction would have focused the jury’s attention on four enumerated factors, thereby suggesting that those four factors were exclusive or at least entitled to special consideration or undue weight.”

The Supreme Court was not swayed that cross-racial identification supported giving Payne’s proferred eyewitness jury instruction: “Further, while Payne did point out a racial difference between [the victim] a and Payne to the jury during his opening statement, he did not argue that cross-racial identification is less reliable during his argument on the instruction. Accordingly, Payne failed to preserve the issue of cross-racial identification for appeal.”

The bottom line is that criminal defendants fingered primarily or exclusively on eyewitness testimony should fight tooth and nail to get the most beneficial jury instructions, should preserve any cross-racial identification issues for argument and appeal, and should consider whether an eyewitness identification expert should be hired.