ANALYSIS OF FEBRUARY 8, 2024 SUPREME COURT OPINION

(Posted February 8, 2024) We have our first full published opinion of the year. (Last week’s published order merely adopted a Court of Appeals decision.) In Sample v. Commonwealth, the justices take up a challenge to a victim’s photo identification of a robbery suspect. Here’s how today’s opinion succinctly describes the events:

At approximately 10:00 p.m. on September 17, 2019, a man wearing a bandana attempted to rob Mark Angiulli at gunpoint outside of a warehouse garage. Angiulli and his son were loading granite onto a trailer when the man approached Angiulli from the left side. While standing 15 to 20 feet away from Angiulli, the man pointed a gun back and forth between Angiulli and his son and said, “Give me your wallet. Give me your f***ing wallet.” He then “came right up” within two to three feet of Angiulli while pointing the gun directly in his face the entire time. Angiulli noticed the gun’s small barrel and quickly realized the gun was likely a BB gun. Angiulli yelled out to his son that it was a BB gun, and as he grabbed the gun away from the assailant, both men hit the ground. The gun dropped and the man fled the scene.

I note with admiration that it takes guts to wrestle a gun away from a robber, even if you suspect that it’s just a BB gun. When police arrived minutes later, the victim gave a description of the assailant. That produces this concise description of the investigation:

The officer left the scene to search for someone matching Angiulli’s description. He suspected Sample, with whom he had prior encounters, because of Sample’s “very distinctive eyes,” his build, and the direction of the man’s escape. The officer asked dispatch to send Sample’s photograph to the officer’s cell phone, and he returned to the scene 15 minutes later. The officer showed Angiulli a booking photo of Sample on his phone and said, “I have a picture of somebody that I was thinking about, but I don’t know if—you said you just saw their eyes.” After seeing the photo, Angiulli immediately said, “Yep.” The officer clarified, “That’s him?” and Angiulli repeated, “Yep.” The officer then asked again, “But you think that’s definitely him?” Angiulli replied, “Yeah—those big brown eyes, yep . . . he’s light-complected like that.” “Yeah, kind of like pale-ish?” the officer asked, and Angiulli replied, “Yeah. Yep.”

Sample, who lived in the direction the suspect had fled, was indicted and tried on charges of attempted robbery. He moved to suppress the photo identification, claiming that it was unduly suggestive. In a bench trial, the circuit court considered that and denied the motion; the court eventually convicted the defendant and a divided panel of the Court of Appeals affirmed the conviction.

Today, the Supreme Court votes to affirm. Evaluating caselaw on suggestiveness in photo lineups, the court finds that the officer’s tentative description – not a statement that he believed Sample to be the assailant, but merely someone that he was “thinking about” – doesn’t rise to a level of unconstitutional suggestiveness. The court holds that the officer’s comments didn’t induce the victim to “inevitably identify” the defendant.

Having held this, the opinion could probably have ended there. But the court adds a belt to the suspenders by analyzing a five-factor test laid down by SCOTUS in 1972 to determine the reliability of the identification. The Supreme Court today rules that the prosecution met each factor: (1) the victim had a sufficient opportunity to observe the suspect; (2) the victim was highly attentive, testifying that at the time he repeated to himself, Remember him. Remember the gun; (3) at the scene, the victim gave an accurate description of the suspect; (4) the victim felt certain of his identification; and (5) less than an hour elapsed between the attempted robbery and the identification.

Justice Mann pens today’s opinion for a unanimous court. This decision is from the appeals argued in the November session, leaving just one undecided appeal from those argued in 2023.