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Scott v. Commonwealth

Court of Appeals of Virginia

January 30, 2018



          W. McMillan Powers, Assistant Public Defender, for appellant.

          John I. Jones, IV, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Judges Humphreys, Malveaux and Senior Judge Frank Argued at Newport News, Virginia



         On September 21, 2016, in the Circuit Court for the City of Portsmouth (the "circuit court"), Daquan Lamar Scott ("Scott") was convicted of two counts of robbery, in violation of Code § 18.2-58. On appeal, Scott argues that the circuit court erred in denying his motion to suppress all evidence of his identification by the victims based on an impermissibly suggestive show-up identification, which was a violation of his right to due process.

         I. BACKGROUND

         Taken in the light most favorable to the Commonwealth, the evidence is that on March 13, 2016, between 10:00 p.m. and 10:30 p.m., Stephen "Chance" Carr ("Carr") drove with his girlfriend, Jamie Carroll ("Carroll"), to a CVS pharmacy ("CVS") in Portsmouth. There, Carr exited his vehicle to look for a movie at a Redbox machine while Carroll remained inside the vehicle. Subsequently, an individual later identified as Scott opened Carroll's door and put a gun to Carroll's head. Scott was wearing a ski mask that covered his face, with only his eyes visible. Scott snatched Carroll's debit card and iPhone from Carroll's hand, and demanded more.

          Scott eventually noticed Carr and ordered Carr into the vehicle at gunpoint. Scott then threatened to kill both Carr and Carroll if they did not look at the ground. Scott "snatched [Carroll's] bag from in between [her] feet[, ]" asked for more, and demanded Carr's iPhone. Scott fled the scene after Carr complied. The robbery lasted between five and ten minutes. At least one other person joined Scott as he fled the scene toward a vacant field, located behind the CVS.

         Following the robbery, Carr and Carroll drove across the street to a 7-Eleven store to call the police. When the dispatcher asked for a description of the robber, Carr replied that the robber was an African-American male, approximately six feet tall, and wearing a dark hooded jacket, dark pants, and a ski mask. Portsmouth police arrived at the scene within three to five minutes of Carr's phone call.

         Portsmouth Police Officer Gillett ("Officer Gillett") observed three individuals matching the description of the robbery suspect less than half a mile from the CVS. Officer Gillett stopped and made a U-turn to go back and speak with the three individuals. When Officer Gillett attempted to make contact, the three individuals responded by fleeing, eventually splitting up. Officer Gillett's canine partner, Roscoe, apprehended one of the individuals, who was later identified as Scott, against a wall at a nearby Red Barn gas station. Scott, however, escaped Roscoe and continued running until he was detained in a nearby field by Portsmouth Police Officer Moore ("Officer Moore").

         Upon searching Scott, officers discovered Carr and Carroll's iPhones in Scott's pocket. Officers also discovered a black, .22 caliber revolver on the ground at the Red Barn near where Roscoe made the initial apprehension of Scott. Searching a field directly adjacent from the Red Barn where officers initially saw Scott and the two other individuals who fled, officers located a leather backpack. The backpack contained a black ski mask, two black leather hooded jackets, and a white tank top.

         After detaining Scott, Portsmouth Police Officers O'Neil and Rios ("Officer O'Neil" and "Officer Rios") separated Carr and Carroll at the 7-Eleven. Subsequently, Officer O'Neil notified Carr that a potential suspect had been detained and that Carr was going to be brought to view the potential suspect for identification purposes-the show-up. Officer O'Neil indicated that, if Carr did not believe that the individual being detained was the robber, the individual would be "kicked loose." Thereafter, Officer O'Neil placed Carr in the backseat of her police cruiser and drove to the Red Barn where Scott was being detained.

         When Officer O'Neil arrived with Carr at the Red Barn, Scott was seated inside a police cruiser. Scott was then brought out of the police cruiser, in handcuffs, so that Carr could get a clear view. Carr immediately identified Scott as the robber. When Officer O'Neil asked Carr how he could identify Scott as the person who robbed him, Carr answered that "the ski mask did not cover his entire face and that he could tell based on his facial features." Officer Rios separately transported Carroll to identify Scott in the same manner. Upon viewing Scott, Carroll immediately identified Scott as the robber. Scott was subsequently arrested and charged with two counts of robbery and two counts of the use of a firearm in the commission of a felony. After transporting Scott to jail, officers searched Scott a second time. With Officer Moore watching the ...

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