THE COURT OF APPEALS OF VIRGINIA
All the Justices
WILLIAM C. MIMS JUSTICE
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.
BACKGROUND AND MATERIAL PROCEEDINGS BELOW
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.
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
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
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.
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.
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."
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.
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.
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
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 ...