THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH James C. Hawks,
McMillan Powers, Assistant Public Defender, for appellant.
I. Jones, IV, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Humphreys, Malveaux and Senior Judge Frank Argued at Newport
J. HUMPHREYS, JUDGE
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
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.
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 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.
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").
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.
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.
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 ...