Today’s lone published opinion from the Court of Appeals, Dwayne Allen Ray, Jr. v. Commonwealth of Virginia, has a certain dramatic “Law and Order” feel to it. It also calls to mind a tune by Queen that starts with an iconic bass line. Mostly, however, it evokes the aged old debate of whether there is honor among thieves, or in this case, drug dealers.
We’ve all seen an episode of a police procedural drama where the police “flip” one suspect to get incriminating evidence on a “bigger fish.” This is actually a common practice when police have a low-level drug offender and want to move up the chain of distribution. In today’s opinion, the “little fish” was Jeremy Cumbee, and the slightly larger fish was his “best friend” (hence the Queen reference) who he knew as “Squirmy.”
Squirmy, whose real name he thought was “Dwayne Wood,”, was Cumbee’s supplier for cocaine. Cumbee in turn apparently sold cocaine that he acquired from Ray to an unnamed even smaller fish, who turned out to be working as a confidential informant (“CI” in cop show speak). Cumbee was arrested after a controlled buy and in turn agreed to work as a CI.
After Cumbee gave police information on Squirmy, they identified Ray as the likely suspect based on the approximate address given to them and a search of his social media accounts that confirmed he used the alias “Squirmy.” Police then showed Cumbee Ray’s DMV photo and Cumbee confirmed that this was the person he knew as Squirmy.
At the direction of the police, Cumbee set up a buy from Ray. Before going to make the drug buy, police again showed Cumbee the photo and he confirmed that this was the person he expected to meet. Cumbee then went inside the residence that police had identified as Ray’s and emerged a short time later with cocaine. Police showed Cumbee the photograph a third time and he identified the person in the photograph as the person from whom he had just purchased cocaine.
Prior to his trial for distribution of a controlled substance, Ray sought to suppress the evidence derived from the controlled buy, asserting that Cumbee’s identification was tainted because the police had only shown Cumbee one photograph. If you are a fan of Law and Order or similar shows, you’ve seen a “photo array” or “picture lineup” where typically six different photos are placed in a manila folder with rectangles cut out of one side, or perhaps they are just lined up on the table, and you are thinking, “Yeah, just being shown one photo seems pretty suggestive.”
Here’s the thing, it’s not per se improper to use a single photo to identify a suspect. As with most issues in the law, context is everything. Typically, a single photo identification is going to be considered highly suggestive where the witness does not know the suspect but has only seen him once. That was not the case here, where the police were not asking Cumbee to identify a stranger but asking him to confirm that this was the “best friend” he had already identified to them.
There is another important difference between this case and the “typical” photographic identification – the first two times Cumbee was shown the photograph no crime had yet been committed. Cumbee wasn’t identifying someone who had sold him drugs (or at least not the drugs that Ray would later be charged with selling), but someone he expected to be able to buy drugs from.
This may seem like a slight distinction, but it is one of sufficient note that it likely explains why the Court decided to publish this opinion. Although the Court does not expressly say so, it appears that this may be an issue of first impression in the Commonwealth. Indeed, the Court cited to a Maryland case to support its decision upholding the trial court’s overruling of the motion to suppress, something that the Court rarely does if there is good Virginia case law on a subject.
At trial Ray also challenged Cumbee’s in-court identification, again contending that it had been tainted by the single photo identification. Of course, there was one other opportunity for Cumbee to identify Ray – when he bought the cocaine from him. As Cumbee was subject to cross-examination, the credibility and accuracy of his identification both during the controlled buy and in court was clearly a matter for the jury to determine.
Ray also raised a perfunctory challenge to the sufficiency of the evidence, primarily attacking Cumbee’s credibility given that he was a convicted felon and a snitch. He also argued that his own evidence, which was that he had ceased living in the residence sometime before the controlled buy, rebutted the Commonwealth’s evidence that Ray mas present in the home on the day of the buy. The Court notes that even if the jury believed Ray’s evidence that he was no longer residing in the home, this did not exclude the possibility that he was using it as a place to transact his elicit trade. In fact, the evidence showed that he continued to pay the utilities for some months after he alleged he had ceased living there.