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Watson v. Commonwealth

Supreme Court of Virginia

December 12, 2019



         PRESENT: All the Justices



         In this appeal, we consider whether the trial court abused its discretion in a criminal case by excluding expert testimony regarding eyewitness confidence and denying a proffered jury instruction regarding eyewitness identification.


         Joseph Jackson and Paul Abbey went to the Cheetah Lounge, a so-called "gentleman's club" in Virginia Beach, to celebrate Jackson's birthday. As they arrived, another car pulled in after them and parked directly across from them. Raiquan Turner exited and approached the passenger side of Jackson's car, where he briefly spoke with Abbey. Timothy Watson also exited and approached Abbey for a cigarette. Jackson did not interact with Turner or Watson while they were at his car. Only after Jackson exited his car and approached the club did he see Watson's face.

         Jackson and Abbey entered the club first and sat at the bar. Turner and Watson entered the club shortly thereafter with Keith Mitchell, a friend, and Ericka Phillips, Watson's girlfriend. The group walked in front of Jackson and Abbey before they sat at a table to the left of the bar. They did not interact with Jackson and Abbey, who stayed at the bar, except for when Abbey left to talk with friends in the stage area. Approximately forty-five minutes later, Watson and Phillips left. Mitchell went back and forth to the bathroom several times before eventually leaving alone. Turner made eye contact with Jackson and gave him a thumbs up before he too left.

         Once outside the club, Watson said that he needed some money and wanted to rob somebody. He gave Turner a handgun and instructed Mitchell to move his car to another area of the parking lot. Mitchell did so, leaving Watson and Turner alone together.

         After last call, which occurred about twenty minutes after Turner left, Jackson and Abbey also exited the club and walked toward Jackson's vehicle. The parking lot was "not well lit," but lights attached to the surrounding buildings provided some illumination. The club itself had flood lighting installed on the side of its building.

         Turner then emerged from behind Jackson's car holding the gun. He pointed it at Jackson's head and demanded that he empty his pockets. As Jackson did so, a shot rang out and something struck his head. He fell to the ground, unable to tell whether he had been grazed by a bullet or pistol whipped. He remained on the ground, ears ringing, as Turner climbed on his back and removed his wallet.

         While on the ground, Jackson heard a second gunshot and saw Abbey lying prone, dying from a gunshot wound to the head. Jackson testified at the preliminary hearing that he saw Watson standing over Abbey rifling through his pockets, but at trial he testified that both Watson and Turner were standing over Abbey. Mitchell later testified that he heard two gunshots and then saw Turner and Watson running toward the car. Once they were inside, they told Mitchell to drive. As Mitchell left the scene, Turner-still holding the handgun-said, "I think I shot him."

         Immediately after the incident, Jackson met with two detectives at the scene. He gave a statement and reviewed video from the Cheetah Lounge's surveillance camera. Using the video, Jackson identified Turner, Watson, Mitchell, and Phillips entering the club on the video and named Watson as the shooter. He made these identifications based on their stature and clothing as their faces were not apparent.

         Ten days later, Jackson met with another detective and went through photo line-ups. Jackson identified both Turner and Mitchell with "one-hundred percent" confidence. He also identified Watson in the photo line-ups, but said he was only "eighty-five percent to ninety" percent confident in that identification. Nevertheless, he insisted that none of the other men pictured could have been Watson.

         Based on the investigation, Watson was detained and ultimately charged with first-degree murder, two counts of robbery, two counts of use of a firearm in the commission of a robbery, and conspiracy to commit robbery. At the preliminary hearing, Jackson identified Watson a third time. Watson was wearing an inmate uniform with handcuffs and was sitting next to Turner and Mitchell. Jackson stated that he was "positive" and one-hundred percent confident in his identification of Watson.

         At trial, Watson sought to introduce expert testimony from Dr. Brian Cutler, a recognized expert in matters concerning eyewitness identifications. Watson sought to use Cutler's testimony to introduce factors that he believed negatively affected Jackson's eyewitness identification and thus reduced his reliability. The trial court recognized Cutler's qualifications, then ...

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