Present: Hassell, C.J., Keenan, Koontz, Kinser, Agee, and
Goodwyn, JJ., and Lacy, S.J.
ROBERT KAREEM BASHIR DANIELS
v. Record No. 071065 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
February 29, 2008
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this case we consider whether the trial court abused
its discretion in denying a proposed jury instruction on
eyewitness identification.
FACTS
The following events occurred in Norfolk, Virginia. On
the evening of December 29, 2004, Kay Goldsmith opened her car
door, entered the driver’s seat, and, when she reached to
close the door, a tall, slender male approached her. He
ordered Goldsmith to unlock the doors to the backseat, got
into the backseat, and demanded that Goldsmith drive to a
bank’s automated teller machine (ATM), threatening that he
would hurt her if she did not follow his orders. While
driving to the ATM, Goldsmith looked in the rearview mirror.
The man became angry and pushed her rearview mirror to a
position where she could not see him in the backseat. When
they reached the ATM, the man lay down in the backseat;
Goldsmith withdrew $100 and gave it to the man, who then gave
her directions to take him to the Huntersville neighborhood.
The man got out of the car, grabbed Goldsmith’s purse and
removed her driver’s license, taking it with him and saying
that he now knew where she lived. The police later found
Goldsmith’s driver’s license on Hunter Street. Goldsmith was
unable to positively identify the perpetrator.
Around midnight the same evening, Jessica Laz was
removing bags from the backseat of her parked car when a man
jumped out of the bushes a few feet from her. Within a few
seconds he was close to her and ordered her not to look at
him. The man told Laz to get in the car and if she followed
his orders he would not hurt her. The man got into the
backseat and leaned forward to move the rearview mirror to a
position where Laz could not see him. Laz followed the man’s
instructions to drive to an ATM. There she withdrew $100 and
gave it to the man who then directed Laz through a short
drive, and he got out of the car on Hunter Street. The man
left the car with Laz’s purse, which contained her personal
checks showing her parents’ telephone number. Laz drove away
and reported the crime. With the police, she drove the route
she took with the man. Prior to trial, Laz was shown a photo
array, and she identified an individual other than the
defendant, Robert Kareem Bashir Daniels, as the person who
robbed her. At a later date, Laz viewed a physical lineup,
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and she identified Daniels as the perpetrator. Laz again
identified Daniels as her attacker at trial.
During the early hours of December 30, 2004, two men
entered the bedroom of Brian Thiede, where he and his
girlfriend, Emily C. Bean, were asleep. Holding a knife to
Thiede, the men directed Bean to retrieve money from Thiede’s
wallet. The men took the money and took Bean’s cellular
telephone before they left the premises.
Later in the morning on December 30, 2004, Marcia Laz,
Jessica Laz’s mother, answered the phone at her home, and a
man demanded her “pin” number, threatening that he knew where
she lived. The evidence at trial showed this call was made
from Emily Bean’s cellular telephone two hours after the
Thiede/Bean robbery.
On the evening of February 24, 2005, Kathryn Gresham was
exiting her vehicle when a man approached her and ordered her
to get back inside the car and to drive him to an ATM.
Gresham gave him her keys and her purse, but he forced her
into the car and got in the backseat. He again told her to
drive to an ATM, and Gresham responded that she had given him
the keys. While he was “fumbling” for the keys, Gresham
escaped and ran away. Daniels appeared in a police lineup
viewed by Gresham, but she identified another man in the
lineup as her attacker.
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On February 25, 2005, at approximately midnight, Michelle
Pereira was leaving her vehicle when a man approached her and
ordered her back inside the car. The man got in the backseat,
adjusted her rearview mirror so she could not see him, and
ordered her to drive to an ATM. After Pereira withdrew $200
from the ATM and gave it to the man, he gave her directions to
drop him off on a street that Pereira described as a street
with a name starting with “H.” Pereira identified Daniels
from a photo array and stated she was 70% certain of his
identity. At a physical lineup, Pereira identified Daniels as
the perpetrator.
Daniels was charged with the abduction and robbery of Kay
Goldsmith, Kathryn Gresham, Brian Thiede, Emily Bean, Jessica
Laz, and Michelle Pereira, and the burglary of the dwelling of
Brian Thiede. Following the presentation of the
Commonwealth’s evidence, the trial court granted Daniels’
motion to strike the abduction charges related to Brian Thiede
and Emily Bean, and the trial court dismissed those charges.
Daniels asked the trial court to give a jury instruction on
eyewitness identification. The Commonwealth argued that the
jury instructions addressing reasonable doubt, presumption of
innocence, and credibility of witnesses sufficiently covered
the same principles presented in the proffered jury
instruction. The trial court ruled that the proffered
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instruction was “duplicative” and “somewhat confusing” and
ultimately rejected the instruction.
The jury found the defendant not guilty of the abduction
and robbery of Kay Goldsmith and Kathryn Gresham. The jury
convicted the defendant of the burglary of the dwelling of
Brian Thiede, the robbery of Brian Thiede and Emily Bean, and
the abduction and robbery of Jessica Laz and Michelle Pereira.
Daniels’ appeal to the Court of Appeals was denied by a per
curiam opinion. Daniels v. Commonwealth, Record No. 1911-06-1
(April 23, 2007).
DISCUSSION
In this appeal, Daniels argues, as he did in the Court of
Appeals, that the trial court erred in refusing the proffered
jury instruction on eyewitness identification. Daniels claims
that eyewitness identification was crucial to his convictions,
and thus, the general instructions were not adequate.
Courts have long recognized dangers inherent in
eyewitness identification testimony. In 1967, the United
States Supreme Court observed that
[t]he vagaries of eyewitness identification are well-
known; the annals of criminal law are rife with
instances of mistaken identification. Mr. Justice
Frankfurter once said: “What is the worth of
identification testimony even when uncontradicted?
The identification of strangers is proverbially
untrustworthy.”
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United States v. Wade, 388 U.S. 218, 228 (1967) (footnotes
omitted). Of particular concern has been the circumstances
surrounding prosecution presentation of suspects for pre-trial
identification. Id. at 229-230. Because of the possibility
of improper influence at police lineups, whether intentional
or unintentional, and the subsequent use of an identification
made under such circumstances, the Supreme Court has concluded
that a defendant is entitled to counsel for post-indictment
prosecution identification procedures, id. at 236-37, and that
the trial court should consider certain criteria when
determining whether the eyewitness testimony is sufficiently
reliable to be admitted in evidence, Neil v. Biggers, 409 U.S.
188, 199-200 (1972).
More recently some state and federal courts, citing
continued research on eyewitness identification, have opined
that courts should guard against a jury assuming that admitted
eyewitness identification testimony is unquestionably reliable
and credible simply because it was admitted in evidence.
Accordingly, these jurisdictions have allowed a specific jury
instruction alerting the jury to the dangers of eyewitness
identification testimony both with regard to the circumstances
of the identification and the possibility of a sincere mistake
in identification. In some jurisdictions, such instructions
are required in cases in which the defendant requests the
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instruction and identification of the defendant is a central
part of the prosecution’s case. See State v. Dyle, 899 S.W.2d
607, 612 (Tenn. 1995), State v. Long, 721 P.2d 483, 492 (Utah
1986). In others, such cautionary instructions are
permissible, but not required, if the circumstances warrant.
See State v. Guster, 421 N.E.2d 157, 161-62 (Ohio 1981), State
v. Kasper, 404 A.2d 85, 100 (Vt. 1979).
We have not adopted a rule like that imposed by Tennessee
and Utah which requires a cautionary instruction on eyewitness
identification in every case in which it is requested and the
identification of the defendant is central to the
prosecution’s case. Neither have we opined that such an
instruction would never be appropriate, nor that a court would
abuse its discretion by granting such an instruction. See
Lincoln v. Commonwealth, 217 Va. 370, 375, 228 S.E.2d 688, 692
(1976) (if an instruction could have been given, the trial
court’s refusal to give such an instruction is not necessarily
an abuse of discretion). We have affirmed judgments in which
the trial court refused to give a cautionary instruction on
eyewitness identification because the matters contained in the
proposed instructions were covered by other instructions. See
Graham v. Commonwealth, 250 Va. 79, 87, 459 S.E.2d 97, 101
(1995), Satcher v. Commonwealth, 244 Va. 220, 256, 421 S.E.2d
821, 843 (1992), Poole v. Commonwealth, 211 Va. 258, 261, 176
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S.E.2d 821, 824 (1970), Ives v. Commonwealth, 184 Va. 877,
879, 36 S.E.2d 904, 904-05 (1946); but see Noblett v.
Commonwealth, 194 Va. 241, 247, 72 S.E.2d 241, 244-45 (1952),
overruled by Poole, 211 Va. at 261, 176 S.E.2d at 824.
In this case, Daniels does not ask us to adopt a rule
requiring a cautionary instruction on eyewitness
identification. Rather, Daniels contends that such an
instruction should have been given in this case because, in
addition to the lack of forensic evidence tying him to the
crimes charged, the witnesses were unsure of their
identifications, were inconsistent in their identifications,
and because the instructions given did not inform the jury of
the inherent dangers of eyewitness identification testimony or
the possibility of the witness making a sincere mistake.
The instruction proffered by Daniels stated:
You have heard testimony of an identification of a
person. Identification testimony is an expression
of belief or impression by the witness. You should
consider whether, or to what extent, the witness
had the ability and the opportunity to observe the
person at the time of the offense and to make a
reliable identification later. You should also
consider the circumstances under which the witness
later made the identification.
The government has the burden of proving beyond a
reasonable doubt that the defendant was the person
who committed the crime charged.
Nothing in this instruction addresses the concept of sincere
mistake or the inherent dangers of eyewitness identification
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testimony. Accordingly, we do not consider those arguments
when considering whether the trial court abused its discretion
in refusing this proposed instruction. Daniel’s proposed
instruction was refused because, in the trial court’s words,
it was “duplicative” and “somewhat confusing.” Our review
then is limited to whether the trial court abused its
discretion in denying the proposed instruction for those
reasons.
“When granted instructions fully and fairly cover a
principle of law, a trial court does not abuse its discretion
in refusing another instruction relating to the same legal
principle.” Stockton v. Commonwealth, 227 Va. 124, 145, 314
S.E.2d 371, 384 (1984). In this case, the jury received
instructions on the burden of proof, inconsistent statements,
and the witnesses’ credibility. The burden of proof contained
in the proposed instruction was fully covered in the
instruction given on burden of proof. The instruction on
credibility of witnesses, like the proposed instruction, told
the jury to consider the circumstances of the witnesses’
observation of the defendant and their ability to identify
him.
The proposed instruction also referred to the
circumstances surrounding the later identification of Daniels;
however, in this case, there was no suggestion of improper
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procedures by the police in conducting the lineups or photo
arrays. The issues raised by Daniels relating to the
circumstances of the identifications at the police station
involved inconsistent descriptions and identifications by the
witnesses. Consideration of this testimony by the jury was
addressed in the instruction on inconsistent statements.
A final element in the proposed instruction was that the
“[i]dentification testimony is an expression of belief or
impression by the witness.” The meaning of this statement is
not at all clear and was not explained further by Daniels
either at trial or in this Court, nor did the instruction go
on to clarify this statement as pertaining to an eyewitness’
possible sincere mistake. See, e.g., Long, 721 P.2d at 494-95
n.8.
Accordingly, we conclude that the instructions given
"fully and fairly" covered the legal principles addressed in
the proposed instruction and therefore the trial court did not
abuse its discretion in refusing the proposed instruction. We
will therefore affirm the judgment of the Court of Appeals.
Affirmed.
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