                                         COURT OF APPEALS OF VIRGINIA


            Present: Judges Humphreys, Petty and AtLee
PUBLISHED


            Argued at Lexington, Virginia


            DEANTE LAMAR PAYNE
                                                                                OPINION BY
            v.     Record No. 1044-13-3                                 JUDGE RICHARD Y. ATLEE, JR.
                                                                            SEPTEMBER 8, 2015
            COMMONWEALTH OF VIRGINIA


                                   FROM THE CIRCUIT COURT OF ROANOKE COUNTY
                                            James R. Swanson, Judge

                           Aaron B. Houchens (Erin B. Ashwell; Stanley, Houchens & Griffith;
                           Woods Rogers PLC, on briefs), for appellant.

                           Virginia B. Theisen, Senior Assistant Attorney General (Mark R.
                           Herring, Attorney General, on brief), for appellee.

                           Amicus Curiae: Virginia Association of Criminal Defense
                           Lawyers (Marvin D. Miller; John R. Maus; Law Offices of Marvin
                           D. Miller; Law Office of John R. Maus, on briefs), for appellant.


                   A jury convicted Deante Lamar Payne of robbery and use of a firearm in the commission

            of a robbery. Payne argues that the trial court erred by (1) refusing his jury instruction regarding

            eyewitness testimony, (2) refusing his jury instruction regarding the reliability of eyewitness

            testimony in the presence of a weapon, (3) refusing to admit certain evidence, and (4) refusing to

            provide him with funds to hire an expert witness. We find no error, and affirm the convictions.

                                                   I. BACKGROUND

                   On appeal of criminal convictions, we view the facts in the light most favorable to the

            Commonwealth, and draw all reasonable inferences from those facts. Derr v. Commonwealth,

            242 Va. 413, 424, 410 S.E.2d 662, 668 (1991). However, “[w]hen considering whether a trial

            court abused its discretion by denying a defendant’s proffered instruction, this Court ‘view[s] the
facts relevant to the determination of that issue in the light most favorable to [the defendant].’”

Miller v. Commonwealth, 64 Va. App. 527, 547, 769 S.E.2d 706, 716 (2015) (second and third

alterations in original) (quoting Commonwealth v. Cary, 271 Va. 87, 90-91, 623 S.E.2d 906, 907

(2006)).

        Payne was the proponent of the two refused jury instructions, so we view the facts in the

light most favorable to him when reviewing assignments of error (1) and (2). We view the facts

in the light most favorable to the Commonwealth when reviewing assignments of error (3) and

(4). To make this distinction clear, we present the facts in Part I.A. in the light most favorable to

the Commonwealth, and in Part I.B. in the light most favorable to Payne.

                   A. Facts in the Light Most Favorable to the Commonwealth

        The facts viewed in the light most favorable to the Commonwealth are as follows. On

November 25, 2011, Payne placed an advertisement (“the ad”) on Craigslist, a free online

classified advertisement service. The ad offered to sell a laptop computer at an attractive price.

Philip Via (“the victim”), a dealer in used electronics, exchanged a series of text messages with

an unknown individual, using the phone number listed in the ad.

        The victim agreed to meet the unknown party that same day, and arrived at the

agreed-upon location (an apartment complex in Roanoke) between 8:00 p.m. and 8:30 p.m. It

was dark outside. The victim “backed [his] car under a street light” and parked “close to the

pool there, where it’s well lit.” The victim watched a man later identified as Payne exit a laundry

room, walk across the parking lot, and approach the victim’s car. The victim “could see his face

once he got about half the distance out of the laundry room there.” When asked at trial if he had

any trouble seeing Payne’s face when Payne came to the car, the victim answered “No, no, none

whatsoever.” Roanoke County Police Department Officer John Musser (“Officer Musser”)

described the parking lot as “fairly well lit,” testifying that “[t]here were street lights out there as

                                                  -2-
well.” At the car, the victim and Payne were “three to five feet” apart. Payne told the victim that

the laptop was charging, and asked the victim if he wanted to come inside to look at it. The

victim agreed, and after Payne turned and started walking back toward the laundry room, the

victim placed his wallet and money in the center console of his car, exited the car, and followed

Payne.

         The victim walked behind Payne into the laundry room, which was approximately ten

feet long. After the victim stepped into the laundry room, a second man grabbed him. The

second man placed a knife to the victim’s side. This man and Payne began shouting at the victim

“Give it up, give it up. We know you’ve got it on you.” The second man went through the

victim’s pockets, which contained only the victim’s cell phone and car keys. Eventually, Payne

“pulled out a gun and pointed it at” the victim. While pointing the gun at the victim, Payne said

again “give it up,” and “we know you’ve got it on you.” Payne was “seven to eight feet away.”

Eventually, Payne and the other man left the laundry room, taking the victim’s cell phone with

them. As they exited the laundry room, Payne and the other man said “Don’t come through this

doorway, or we will shoot you,” or similar words. The victim was with Payne and the other man

in the laundry room for “a couple minutes.”

         According to the victim, the laundry room was illuminated by “florescent [sic] lighting”

which made it “bright enough to see what was going on” and was “just a little bit dimmer” than

the lighting in the courtroom at trial. When asked if he had any trouble seeing Payne’s face

while in the laundry room, the victim testified “None whatsoever.” Officer Musser described the

laundry room as “very well lit inside,” and testified “I did not have to use my flashlight to see

normally.” The victim saw the gun Payne was pointing, but also saw Payne’s face, testifying

“The gun is probably an inch, inch and a half wide. So there’s plenty of room there to view the

face [sic] that’s holding the gun . . . . I didn’t stare at a gun. I saw the gun, and then I could see

                                                 -3-
the person who was holding it.” After Payne and the other man left the laundry room, the victim

called 911.

       Detective Keshia Saul (“Detective Saul”) of the Roanoke County Police Department

ultimately identified Payne as the man who posted the ad on Craigslist. During an interview

with Detective Saul, Payne admitted posting the ad, but said he did so on behalf of his cousin

Dustin. Payne denied any part in or knowledge of the robbery. He suggested a man he knew

only as “Boonie” might be involved. Detective Saul took a photo of Payne, and placed it in a

photo lineup1 along with photos of five men of similar appearance. On January 23, 2012,

Detective Saul showed this photo lineup to the victim, and the victim identified Payne as the man

with the gun who robbed him.

       Initially, Payne’s cousin Dustin was the only person charged in connection with the

robbery. Dustin’s preliminary hearing was held in the Roanoke County General District Court

on February 27, 2012. The Commonwealth subpoenaed Payne as a witness in his cousin’s

preliminary hearing. The victim noticed Payne in the back of the courtroom and recognized him


       1
         A photo lineup is an investigative process during which the witness to a crime is shown
photos of a suspect or suspects. (The term photo lineup distinguishes this process from a
traditional lineup, in which individuals are assembled for live viewing by the witness.) Before
each photo lineup, Detective Saul read the following instructions to the victim:

               1. Prior to showing the lineup, caution the witness that the
                  offender may or may not be in the lineup.
               2. Instruct the witness if the offender is seen in the lineup, he/she
                  may not appear exactly the same as on the date of the incident
                  because features such as clothing, head or facial hair can
                  change.
               3. Tell the witness—“IF YOU SEE THE PERSON WHO DID
                  THIS CRIME, POINT HIM/HER OUT.”
               4. Show only one photograph at a time in the same sequence as
                  you have listed below.
               5. All photographs must be shown even if the witness identifies a
                  suspect tentatively.
               6. Include a copy of this worksheet with your Case File and
                  forward the original to Records[.]
                                                -4-
immediately as the other man involved in the robbery. Police arrested Payne that day. In a

recorded telephone call from the jail, Payne said “They got me right in the courtroom, you

know . . . . All of a sudden he recognized me.” The day Payne was arrested, however, Detective

Saul e-mailed a Roanoke County Assistant Commonwealth’s Attorney and expressed

reservations about obtaining warrants for Payne, because she was “still not sure he was

involved” and “he appeared to be truthful.”

       On May 30, 2012, Detective Saul showed the victim a second photo lineup. This photo

lineup also contained six photos. Detective Saul included among the six photos the same photo

of Payne used in the first photo lineup. She also included a photo of Boonie, the man whom

Payne suggested may have been involved. The victim again selected Payne, and no one else. At

trial, the Commonwealth asked the victim if he had any trouble recognizing Payne in either

photo lineup. He replied: “None whatsoever. That—his face is—it’s burnt in my brain,

probably for life.” Finally, at Payne’s trial, the victim identified Payne as the man with the gun

who robbed him.

                          B. Facts in the Light Most Favorable to Payne

       The facts viewed in the light most favorable to Payne are as stated above, with the

following distinctions. We assume that the extent of Payne’s involvement in the crime was

placing the ad, that he knew nothing about any planned robbery, and that he was not present at

the robbery. Notwithstanding the victim’s testimony to the contrary, we assume that the victim

was, in fact, focused to the point of distraction on the gun and the knife and that the reliability of

his identification of his assailant was compromised as a result of this focus on the weapons. We

assume several other things explicitly denied by the victim on cross-examination. We assume

that, after his initial identification of Payne in a photo lineup, the victim was influenced in his

subsequent identifications by the fact that he had already identified Payne once, and by the fact

                                                 -5-
that the same photo of Payne was used in both photo lineups. We assume that the victim was

remembering his prior identification of Payne, and not remembering the actual perpetrator of the

crime. Finally, we assume that, after identifying Payne once, the victim was committed to the

identification and did not want to express any uncertainty when given subsequent opportunities

to identify (or not to identify) Payne.

                                            II. ANALYSIS

                  A. Instructions on Eyewitness Testimony and Weapons Focus

        Payne assigns error to the trial court’s rejection of two guilt-phase jury instructions.2 We

review a trial court’s decision to refuse a jury instruction for abuse of discretion. King v.

Commonwealth, 64 Va. App. 580, 586, 770 S.E.2d 214, 217 (2015) (en banc). However,

“‘whether a jury instruction accurately states the relevant law is a question of law that we review

de novo.’” Lawlor v. Commonwealth, 285 Va. 187, 228, 738 S.E.2d 847, 870 (2013) (quoting

Orthopedic & Sports Physical Therapy Assocs., Inc. v. Summit Grp. Props., LLC, 283 Va. 777,

782, 724 S.E.2d 718, 721 (2012) (internal quotation marks omitted)). In reviewing jury

instructions, our “‘sole responsibility . . . is to see that the law has been clearly stated and that the

instructions cover all issues which the evidence fairly raises.’” King, 64 Va. App. at 586-87, 770

S.E.2d at 217-18 (quoting Molina v. Commonwealth, 272 Va. 666, 671, 636 S.E.2d 470, 473

(2006)). “‘A defendant is entitled to have the jury instructed only on those theories of the case

that are supported by [more than a scintilla of] evidence.’” Id. at 587, 770 S.E.2d at 218

(alteration in original) (quoting Eaton v. Commonwealth, 240 Va. 236, 255, 397 S.E.2d 385, 397

(1990)). “‘If a proffered instruction finds any support in credible evidence,’ however, ‘its refusal




        2
         The Virginia Association of Criminal Defense Lawyers, as amicus curiae, adopts
Payne’s first and second assignments of error, but not his third or fourth assignments of error
(which we discuss below in Part II.B and II.C).
                                               -6-
is reversible error.’” Id. (quoting McClung v. Commonwealth, 215 Va. 654, 657, 212 S.E.2d

290, 293 (1975)).

       Payne first assigns error to the trial court’s refusal “to adequately instruct the jury

regarding eyewitness testimony where the victim made a cross-racial identification based on a

brief encounter at night under extreme stress.” He next assigns error to the trial court’s refusal

“to instruct the jury on the reliability of eyewitness testimony where the person making the

identification was threatened with two weapons and in fear of his life.” We hold that the trial

court did not abuse its discretion by rejecting either of Payne’s proffered instructions.

                                     1. Proffered Instruction 1

       Payne proffered the following jury instruction (“Proffered Instruction 1”):

                        The Court instructs the jury that one of the disputed issues
               in this case is the identification of the defendant as the person who
               committed the offense(s) charged in the indictment. The
               Commonwealth has the burden of proving this issue beyond a
               reasonable doubt.

                      In considering whether the Commonwealth has proven
               beyond a reasonable doubt that the defendant was the person who
               committed the offense(s) charged in the indictment, you may
               consider the following with regard to an identification witness’s
               testimony:

                       (1) the witness’s opportunity to observe the person(s)
               committing the crime, which includes the amount of time of the
               observation and the physical conditions such as lighting, distance,
               or obstructions present at the time of the observation;

                       (2) the witness’s degree of attention at the time of the
               observation, whether the witness was under stress, fear or similar
               situations, and whether the witness had occasion to see or know the
               person in the past;

                       (3) whether the witness gave a description of the person
               after the crime and if so, the accuracy of such description and the
               length of time after the offense that the description was given; and

                       (4) whether the witness made any subsequent identification
               of the person after the offense, the circumstances surrounding such
                                                -7-
               subsequent identification, the witness’s level of certainty at such
               subsequent identification, and the time between the offense and the
               subsequent identification.

The trial court rejected Proffered Instruction 13 on the basis that the “legal principles applicable

to this case” were fully and fairly covered by Instructions 1 through 18, and because the

proffered instruction might confuse the jury. We agree.

       First we address the portion of Payne’s assignment of error alleging that the trial court

failed “to adequately instruct the jury regarding eyewitness testimony where the victim made a

cross-racial identification . . . .” A cross-racial identification occurs when a person of one race

identifies a person of a different race. Legal scholars have been writing about the phenomenon

of cross-racial identification errors for decades. See, e.g., Sheri Lynn Johnson, Cross-Racial

Identification Errors in Criminal Cases, 69 Cornell L. Rev. 934 (1984) (describing numerous

studies and experiments from the field of psychology showing the statistical unreliability of

cross-racial identifications, particularly when majority-race individuals identify minority-race

individuals, and proposing various mechanisms to address such unreliability in criminal trials);

John P. Rutledge, They All Look Alike: The Inaccuracy of Cross-Racial Identifications, 28

Am. J. Crim. L. 207 (2001) (discussing the problem of cross-racial identification errors, and

reviewing the attempts of various jurisdictions to address the problem).

       While we acknowledge that other courts have confronted the issue of cross-racial

identification,4 we decline to address the issue as it relates to this assignment of error for two


       3
          Although the trial court refused to give the entire proffered instruction, it did give the
first two sentences alone as Instruction No. 4.
       4
          See, e.g., United States v. Jernigan, 492 F.3d 1050, 1054 (9th Cir. 2007) (“Cross-racial
identifications, such as the eyewitness accounts offered against [the defendant], are particularly
suspect.”); United States v. Harris, 995 F.2d 532, 535 (4th Cir. 1993) (excluding the expert
testimony at issue but noting “[t]he narrow circumstances held sufficient to support the
introduction of expert testimony have varied but have included such problems as cross-racial
identification”); State v. Henderson, 27 A.3d 872, 907 (N.J. 2011) (“Cross-racial recognition
                                                 -8-
reasons. First, the trial record is factually silent as to the race of the victim. At trial, Payne’s

attorney raised the issue of cross-racial identification only twice: in voire dire5 and in his

opening statement.6 Neither assertion holds any evidentiary weight. Viewing the evidence in the

light most favorable to Payne does not require that we create evidence that he never presented in

the trial court. The jury was free to observe the victim and to guess at his race, but this Court has

no such freedom. We may presume no more than the record contains, and the record here

contains no photograph of the victim, no questioning of the victim as to his race, and no judicial

notice of the victim’s race. For this reason, we cannot reach the issue of cross-racial

identification as it pertains to Proffered Instruction 1.

          The second reason we decline to address the issue of cross-racial identification as it

relates to this assignment of error is that Proffered Instruction 1 makes no reference to

cross-racial identification. Though Payne mentions the alleged cross-racial nature of the

identification as a reason supporting his claim that the trial court inadequately instructed the jury,

Proffered Instruction 1 itself is silent on the issue of cross-racial identification.




continues to be a factor that can affect the reliability of an identification.”); Commonwealth v.
Gomes, 22 N.E.3d 897, 921-22 (Mass. 2015) (proposing a model jury instruction stating in part
that “research has shown that people of all races may have greater difficulty in accurately
identifying members of a different race than they do in identifying members of their own race”),
modified in part, Commonwealth v. Bastaldo, 32 N.E.3d 873, 876-77 (Mass. 2015). This Court
has addressed the issue of cross-racial identification in passing, as it relates to expert testimony.
See Rodriguez v. Commonwealth, 20 Va. App. 122, 127, 455 S.E.2d 724, 727 (1995) (describing
“‘such problems as cross-racial identification’” as among the “‘narrow’” circumstances where
expert testimony might be appropriate (quoting Harris, 995 F.2d at 535)). And several states
(California, Maryland, Massachusetts, Missouri, New Jersey, and New York) that have model
jury instructions addressing eyewitness testimony have specific provisions within those
instructions addressing cross-racial identifications. See sources cited infra note 8.
          5
        “Has anyone—when I say the words ‘cross-racial identification,’ does anybody have an
understanding of what that means?”
          6
              “Mr. Via’s identification is also cross-racial, meaning Mr. Via is white. My client is
black.”
                                                    -9-
          Eyewitness identification is powerful evidence. “‘[T]here is almost nothing more

convincing than a live human being who takes the stand, points a finger at the defendant, and

says “That’s the one!”’” Watkins v. Sowders, 449 U.S. 341, 352 (1981) (Brennan, J., dissenting)

(quoting E. Loftus, Eyewitness Testimony 19 (1979)). Short of a confession, or the capture of a

crime on video, eyewitness identification is often the strongest, and sometimes the only, means

of proving a case. Like any form of evidence, however, it is imperfect. An eyewitness may lie.

An eyewitness may identify the wrong person because it is dark outside, or he is without his

eyeglasses, or he is under excessive stress, or he is impaired. The police may guide an

eyewitness to select a favored suspect. In this opinion, we address not the unremarkable

assertion that eyewitnesses may be mistaken, but the question of how to address this truism with

a jury.

          The Commonwealth asserts that the standard instructions addressed any weaknesses with

the eyewitness’ identification. Payne asserts not merely that courts may instruct juries about

specific reliability issues surrounding eyewitness identifications, but that courts must do so, at

least in every case where eyewitness identification is essential to the Commonwealth’s case.

          a. Other Jurisdictions

          In 1972, the United States Court of Appeals for the District of Columbia decided United

States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972). In upholding the robbery conviction at issue,

the D.C. Circuit, in order “[t]o further the administration of justice in the District of Columbia,”

drafted and attached as an appendix a non-mandatory model jury instruction on eyewitness

identification. Id. at 557. Many federal and state courts now cite Telfaire as the model for their




                                                - 10 -
own instructions. The United States Supreme Court has never held that an instruction like the

one proffered by Payne is constitutionally required, though it has cited Telfaire with approval.7

       Most federal circuits have model jury instructions specifically addressing eyewitness

identification testimony.8 In most of the circuits with such model instructions, comments

following the instructions advise that courts may or should give the instruction. But see Pattern

Crim. Jury Instr. No. 3.12, cmt. (7th Cir. 2012) (emphasis added) (“A specific instruction on

witness identification must be given when identification is at issue.”); Model Crim. Jury Instr.

No. 4.11, cmt. (9th Cir. 2010) (emphasis added) (“Since 1989, the [Ninth Circuit Jury

Instructions] Committee has recommended against the giving of an eyewitness identification

instruction because it believes that the general witness credibility instruction is sufficient.”).




       7
          Perry v. New Hampshire, 132 S. Ct. 716 (2012), mentions “[e]yewitness-specific jury
instructions” like those from Telfaire as one example, among many, of ways to “warn the jury to
take care in appraising identification evidence.” Id. at 728-29. The Court recognized “other
safeguards” built into the adversarial system that prevent juries from placing undue weight on
eyewitness testimony of questionable reliability, including: (1) a defendant’s Sixth Amendment
right to confront the eyewitness; (2) a defendant’s right to effective assistance of counsel, which
in turn functions to identify flaws in the eyewitness’ account through cross-examination and
closing argument; and (3) the “requirement that the government prove the defendant’s guilt
beyond a reasonable doubt . . . [which] impedes convictions based on dubious identification
evidence.” Id. While Perry positively cites Telfaire-like jury instructions, also implicit in the
Court’s reasoning is the principle that cautionary jury instructions are not the exclusive means of
attacking the reliability of eyewitness identifications.
       8
         Model Crim. Jury Instr. No. 4.15 (3d Cir. 2009); Pattern Crim. Jury Instr. No. 1.29 (5th
Cir. 2001); Pattern Crim. Jury Instr. No. 7.11 (6th Cir. 2014); Pattern Crim. Jury Instr.
No. 3.12 (7th Cir. 2012); Model Crim. Jury Instr. for the Dist. Cts. No. 4.08 (8th Cir. 2014);
Model Crim. Jury Instr. No. 4.11 (9th Cir. 2010); Crim. Pattern Jury Instr. No. 1.29 (10th Cir.
2011); Pattern Jury Instr. (Crim. Cases) Spec. Instr. No. 3 (11th Cir. 2010). In United States v.
Holley, 502 F. 2d 273, 277-78 (4th Cir. 1974), the Fourth Circuit stated “As an Appendix to this
opinion, we reprint the Telfaire model instruction. Prospectively, we shall view with grave
concern the failure to give the substantial equivalent of such an instruction, but it is not our
purpose to require that it be given verbatim.”
                                                - 11 -
       Many of our sister states also have model jury instructions specifically addressing

eyewitness identification.9 Of those states with such model instructions, ten (Connecticut,

Hawaii, Kansas, Maryland, Massachusetts, Missouri, New Jersey, Pennsylvania, Tennessee, and

Utah) require the instruction when eyewitness testimony is central to the government’s case.

       b. Virginia’s Approach

       Virginia has no model jury instruction specifically addressing eyewitness identification,

and neither this Court nor our Supreme Court has ever held that such an instruction is required.10

The Supreme Court confronted the issue of specific identification instructions most recently in

Daniels v. Commonwealth, 275 Va. 460, 465, 657 S.E.2d 84, 86 (2008). Daniels held that the


       9
          Rev. Ariz. Jury Instr., Crim., No. 39 (3d ed. 2014); Jud. Council of Cal., Crim. Jury
Instr., Instr. No. 315 (2015 ed.); Conn. Crim. Jury Instr. 2.6-4 (2015); 1 Barbara E. Bergman,
Crim. Jury Instr. for D.C., § 9.210 (rev. ed. 2014); Fla. Standard Jury Instr. in Crim. Cases, Instr.
No. 3.9(c) (2013 amends.); 2 Ga. Suggested Pattern Jury Instr. (Crim. Cases) No. 1.35.10 (4th
ed. 2011); Haw. Standard Crim. Jury Instr. Nos. 3.17, 3.19, and 3.19(A) (2014); Ill. Pattern Jury
Instr., Crim., No. 3.15 (2014); Iowa Jury Instr. Crim. § 200.45 (2013); Pattern Instr., Kan. 4th,
Crim., No. 52.20 (2013); Md. Crim. Jury Instr. & Cmt. §§ 2.56, 2.57(A) (3d ed. 2009 and supp.
2010); Mass. Crim. Model Jury Instr. No. 9.160 (2009); Mich. Model Crim. Jury Instr. 7.8 (as of
June 2015); 10 Minn. Jury Instr. Guides, Crim., No. 3.19 (supp. 2006); Mo. Approved
Instr.-Crim. 310.02 (as of Sept. 1, 2014); N.H. Crim. Jury Instr. No. 3.06 (1985); N.J. Crim.
Model Charges, Non-2C Charges (“Identification”) (2015); N.Y. Crim. Jury Instr., 2d ed.
(“General Applicability—Identification”) (rev. Jan., 2011); Ohio Jury Instr. Crim. 409.05 (rev.
Aug. 15, 2012); Okla. Uniform Jury Instr. Crim. § 9-19 (2000 supp.); Penn. Suggested Standard
Crim. Jury Instr. Nos. 4.07A, 4.07B, and 4.07C (2d ed. 2010, supp. 2015); S.C. Requests to
Charge—Crim. (“Identification”) (as of June 29, 2015); S.D. Pattern Jury Instr.: Crim., Instr.
1-15-15 (rev. 1996); Tenn. Pattern Jury Instr., Crim., No. 42.05 (18th ed. 2014); Utah Model
Jury Instr., CR404 (2d ed., last modified Aug. 15, 2014); Model Instr. from the Vt. Crim. Jury
Instr. Comm., §§ 1-5-601 and 1-5-605 (as of Aug. 2012); Wash. Pattern Jury Instr. 6.52 (3d ed.
2014); W. Va. Crim. Jury Instr. No. 5.05 (6th ed. 2003); Wisc. Jury Instr. Crim. 141 (2012).
       10
           While there is no Virginia Model Jury Instruction addressing eyewitness testimony, the
Virginia Model Jury Instruction Committee includes a “Note” in the most recent edition of the
Virginia Model Jury Instructions. See Va. Model Jury Instr.—Crim., 2.800, Note on Eyewitness
Identification (2014 replacement ed.). This Note, while not an official instruction, does set forth
suggested language for an eyewitness identification instruction. The Committee prefaced such
language with the following explanation: “Given the complexity of the issue as well as the
Supreme Court’s view that a trial court may grant such an instruction in its discretion, the
instruction below represent the committee’s effort to craft such an instruction in order to assist
the practitioner.” Id.
                                              - 12 -
trial court did not abuse its discretion by refusing the defendant’s proffered eyewitness

identification instruction because the principles of law contained in the proffered instruction

were fully and fairly covered by other instructions addressing witness credibility, inconsistent

statements by witnesses, and the Commonwealth’s burden of proof. Id. at 466, 657 S.E.2d at 87.

The Supreme Court was clear that it was not going so far as to say that there was no place for

eyewitness identification instructions. Id. at 465, 657 S.E.2d at 86 (stating that the court has not

“opined that such an instruction would never be appropriate, nor that a court would abuse its

discretion by granting such an instruction”).

       In Daniels, the appellant did not assert that a specific eyewitness identification instruction

was always required. Id. Payne now makes that assertion.11 We decline to adopt a rule

requiring a trial court to give an eyewitness identification instruction. Our decision is consistent

with the Supreme Court’s holding in Daniels, with the majority approach in the Federal Circuits,

and with the majority approach of our sister states.

       The purpose of a jury instruction is a simple one: it conveys a principle of law to the

jury. See Keen v. Commonwealth, 24 Va. App. 795, 807, 485 S.E.2d 659, 665 (1997); see also

Code § 19.2-263.2 (referring to “[a] proposed jury instruction submitted by a party, which

constitutes an accurate statement of the law applicable to the case”). A statement may accurately

summarize long-accepted findings from the fields of psychology, biology, sociology, or history,



       11
           Payne argues “it is now time for Virginia to adopt a uniform model jury instruction
regarding eyewitness testimony” and urges that “[t]his Court . . . adopt such an instruction to
prevent mistaken identifications from falsely imprisoning citizens of Virginia and to ensure that
justice is achieved.” In Virginia, drafting and adopting model jury instructions is not a function
of the courts. Although this Court may, in the course of an opinion, comment favorably or
unfavorably upon the text of a model jury instruction, we do not, as a body, author model
instructions, nor do we dictate their contents to the authors. The Chief Justice of the Supreme
Court of Virginia appoints the members of the Virginia Model Jury Instruction Committee. The
Committee drafts the model jury instructions, and modifies them, as appropriate, in light of new
case law and changes to the Code.
                                                - 13 -
and be supported by the defendant’s evidence and theory of the case; this does not mean such

statement must, or even may, be given as a jury instruction. Likewise, even an eloquently-stated

principle of public policy cannot become a jury instruction unless it also states an accurate

principle of law. To allow jury instructions to serve any function other than conveying principles

of law is to turn instructions into mechanisms for commenting upon the evidence. “An

instruction which comments upon the evidence is inappropriate. Instructions that are statements

of scientific knowledge, rather than of legal principle, constitute an improper comment.” Charles

E. Friend, The Law of Evidence in Virginia § 1-4(f)(1) (6th ed. 2003) (footnotes omitted).

               When a trial judge instructs the jury in the law, he or she may not
               “single out for emphasis a part of the evidence tending to establish
               a particular fact.” The danger of such emphasis is that it gives
               undue prominence by the trial judge to the highlighted evidence
               and may mislead the jury.

Terry v. Commonwealth, 5 Va. App. 167, 170, 360 S.E.2d 880, 882 (1987) (quoting Woods v.

Commonwealth, 171 Va. 543, 548, 199 S.E. 465, 467 (1938)). When a trial court rejects a jury

instruction, however, it merely limits the manner by which a party may transmit information to

the jury. There are many ways to educate a jury, including those, like closing argument, where

commenting upon the evidence is the entire point.

       Payne labels as a “flawed premise” the idea that “jurors are adequately able to detect liars

from truth tellers with basic and generic instructions from the court.” Virginia has long

instructed jurors: “You are entitled to use your common sense in judging any testimony.” Va.

Model Jury Instr.—Crim., 2.500 (2014 replacement ed.). Virginia juries have served as the

arbiters of witness credibility for centuries. See, e.g., Harrison v. Brock, 15 Va. 22, 36 (1810)

(stating that juries “are the proper and exclusive Judges of credibility”); Lyles v.

Commonwealth, 88 Va. 396, 399, 13 S.E. 802, 803 (1891) (noting that the credibility of the

witness “was a matter peculiarly for the jury”). The law has not reached the point where it no

                                                - 14 -
longer relies on juries to make credibility determinations, based on their own knowledge and

experience.12 While there is no foolproof way to determine the truth, entrustment of this

function to a jury is not a flawed and antiquated premise, but the bedrock upon which the jury

system rests.

       We find that the instructions given by the trial court addressed any eyewitness credibility

concerns. Further, such instructions addressed Payne’s theory of the case (that he was

misidentified as the perpetrator of the crimes). Instruction No. 1 explained the jury’s role in

assessing witness credibility.13 Instruction No. 2 explained the presumption of innocence and the




       12
          Nor can the law reach that point, barring fundamental amendments to both the United
States Constitution and the Virginia Constitution. See U.S. Const. art. III, § 2 (requiring that
“[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury”); Va. Const. art. I,
§ 8 (declaring that a criminal defendant “shall enjoy the right to a speedy and public trial, by an
impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty” and
“shall not be deprived of life or liberty, except by the law of the land or the judgment of his
peers”).
       13
            Instruction No. 1:

                 THE COURT INSTRUCTS THE JURY THAT you are the judges
                 of the facts, the credibility of the witnesses, and the weight of the
                 evidence. You may consider the appearance and manner of the
                 witnesses on the stand, their intelligence, their opportunity for
                 knowing the truth and for having observed the things about which
                 they testified, their interest in the outcome of the case, their bias,
                 and, if any have been shown, their prior inconsistent statements, or
                 whether they have knowingly testified untruthfully as to any
                 material fact in the case.
                         You may not arbitrarily disregard believable testimony of a
                 witness. However, after you have considered all the evidence in
                 the case, then you may accept or discard all or part of the
                 testimony of a witness as you think proper.

                         You are entitled to use your common sense in judging any
                 testimony. From these things and all the other circumstances of
                 the case, you may determine which witnesses are more believable
                 and weigh their testimony accordingly.
                                                 - 15 -
Commonwealth’s burden of proving Payne’s guilt beyond a reasonable doubt.14 And Instruction

No. 4 explained that identification of the defendant was at issue and that the Commonwealth had

the burden of proving beyond a reasonable doubt that Payne was the perpetrator of the crimes.15

       Because the jury instructions given by the trial court fully informed the jury of the law

applicable to witness credibility and Payne’s theory of misidentification, Proffered Instruction 1

would have been duplicative. Parties are not entitled to redundant instructions covering

principles of law already addressed in other instructions. King, 64 Va. App. at 587, 770 S.E.2d

at 217 (citing Remington v. Commonwealth, 262 Va. 333, 349, 551 S.E.2d 620, 631 (2001)); see

also Ambrose v. Commonwealth, 129 Va. 763, 766, 106 S.E. 348, 349 (1921) (“It is not

desirable to multiply instructions and is not error to refuse even a correct instruction on a point


       14
            Instruction No. 2:
                          THE COURT INSTRUCTS THE JURY THAT the
                 defendant is presumed to be innocent. You should not assume the
                 defendant is guilty because he has been charged and is on trial.
                 This presumption of innocence remains with the defendant
                 throughout the trial and is enough to require you to find the
                 defendant not guilty unless and until the Commonwealth proves
                 each and every element of the crime beyond a reasonable doubt.
                 This does not require proof beyond all possible doubt, nor is the
                 Commonwealth required to disprove every conceivable
                 circumstance of innocence. However, suspicion or probability of
                 guilt is not enough for a conviction.

                        There is no burden on the defendant to produce any
                 evidence.

                         A reasonable doubt is a doubt based on your sound
                 judgment after a full and impartial consideration of all the evidence
                 in the case.
       15
            Instruction No. 4:

                          The Court instructs the jury that one of the disputed issues
                 in this case is the identification of the defendant as the person who
                 committed the offense(s) charged in the indictment. The
                 Commonwealth has the burden of proving this issue beyond a
                 reasonable doubt.
                                                 - 16 -
upon which the jury has already been fully and correctly instructed.”). Even viewing the facts in

the light most favorable to Payne, the trial court did not abuse its discretion when it rejected

Payne’s jury instruction on eyewitness identification, because the instruction was an improper

commentary on the evidence, and because other instructions fairly and fully instructed the jury.

                                     2. Proffered Instruction 2

       The trial court also rejected the following jury instruction proffered by Payne (“Proffered

Instruction 2”), which specifically addresses “weapons focus”16:

                       You should consider whether the witness saw the weapon
               during the incident. The presence of a weapon can distract the
               witness and take the witness’s attention away from the
               perpetrator’s face. As a result, the presence of a visible weapon
               may reduce the reliability of a subsequent identification if the
               crime is of a short duration. In considering this factor, you should
               take into account the duration of the crime because the longer the
               duration of the event, the more time the witness may have to adapt
               to the presence of the weapon and focus on other details[.]

The trial court rejected this instruction because it was “in the nature of argument” and not “an

accurate statement of the law.” We agree.

       As stated above, a trial court abuses its discretion if it rejects an instruction that correctly

states a principle of law applicable to the case. Proffered Instruction 2 was not an explanation of

a legal principle. Payne argues on appeal that weapons focus is a “scientifically validated

phenomenon,” but at trial he presented no evidence explaining or supporting this phenomenon.

Proffered Instruction 2 contains statements never presented to the jury about the decrease in the

reliability of eyewitness identification when a weapon is involved. The instruction functions as a

proxy for expert witness testimony, and an impermissible commentary on the facts of the case.


       16
          “‘Weapon focus’ occurs ‘when a weapon is visible during a crime’ and ‘can affect a
witness’ ability to make a reliable identification and describe what the culprit looks like if the
crime is of short duration.’” Moore v. Hardee, 723 F.3d 488, 492 n.4 (4th Cir. 2013) (quoting
United States v. Greene, 704 F.3d 298, 308 (4th Cir. 2013) (citation and internal quotation marks
omitted)).
                                                 - 17 -
       In Keen, this Court rejected the defendant’s proffered cautionary jury instructions

regarding DNA evidence. 24 Va. App. at 807, 485 S.E.2d at 665. This Court held that “[t]he

instructions proposed by Keen and rejected by the trial court were statements concerning

scientific knowledge, not legal principle.” Id. “The substance of the proposed instructions was

information which was properly imparted to the jury through the testimony of expert witnesses,”

and therefore, “Keen’s proposed instructions would have impermissibly commented upon the

evidence.” Id. at 807, 485 S.E.2d at 665.

       We are unaware of any precedent in this Court, the Supreme Court of Virginia, or the

Supreme Court of the United States requiring a specific jury instruction about the effect of a

weapon on witness perception. In Currie v. Commonwealth, 30 Va. App. 58, 515 S.E.2d 335

(1999), this Court affirmed a trial court’s decision to bar expert testimony on “the perpetrator’s

display of a weapon and its effect on eyewitness accuracy.” Id. at 63, 515 S.E.2d at 337. This

Court held that “the trial court properly excluded the proffered expert testimony about the . . .

effect of short viewing time, stress, and the display of a weapon” and agreed that such topics are

“‘within the lay knowledge of the jurors.’” Id. at 65, 515 S.E.2d at 339 (quoting the trial judge in

the case).

        Here, the trial judge properly denied Proffered Instruction 2. To the extent Payne wished

to instruct the jury on weapons focus as a “scientifically validated phenomenon,” he laid no

evidentiary foundation at trial supporting or explaining the phenomenon that the instruction

purported to convey. We also find the instruction to be an impermissible comment upon the

evidence. Lastly, we find the distraction caused by a brandished weapon to be a circumstance

within the common knowledge of the jury. Therefore, we hold that the trial court did not abuse

its discretion by rejecting Proffered Instruction 2.




                                                - 18 -
                                    B. Detective Saul’s E-mail

       Payne’s third assignment of error alleges that “the trial court erred by refusing to

introduce [sic] highly relevant and exculpatory17 evidence.” A trial court’s ruling on

“admissibility of evidence . . . will not be disturbed on appeal in the absence of an abuse of

discretion.” Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). Payne

sought to introduce the entirety of the following e-mail,18 which Detective Saul sent to an

Assistant Commonwealth’s Attorney on February 27, 2012:

               Actually I gave Via a photo line-up with Deante and he did pick
               him out. The problem is, Deante looks like Dustin’s friend
               “Boonie” who we initially thought was helping Dustin with the
               crime. Attached is [sic] some pictures I found of Boonie. I felt
               very uncomfortable getting warrants on Deante just off of a photo
               id since I had interviewed him on multiple occassions [sic] and he
               appeared to be truthful. To date, I’m still not sure he was
               involved? I have all of this documented in my case file.
               Unfortunately I ran out of time before leaving and didn’t put it in a
               supplement form. I don’t have access to mobile while in
               Richmond therefore I can’t type a supplement. I don’t return to
               work until April 15th. I told John that if he needed my case file to
               get Sgt. Herrick to make him a copy of it. If you need something
               before I return let me know and I’ll do my best to make
               arrangements to get it to you. If you need a supplement, I can go
               in over the weekend and try to get it done.


       17
          Payne’s inclusion of this word implies that the status of evidence as exculpatory
somehow enhances its admissibility, but this is not so. Whether evidence is exculpatory and
whether evidence is admissible are discrete inquiries. That evidence is exculpatory and must be
disclosed in discovery does not automatically make such evidence admissible at trial, nor does its
exculpatory status make it more worthy of admission than other evidence. See, e.g., Workman v.
Commonwealth, 272 Va. 633, 647-48, 636 S.E.2d 368, 376 (2006) (“‘Evidence may be material
under Brady even though it is inadmissible . . . . Because of the requirement that the outcome of
the proceeding be affected, we often consider whether the suppressed, inadmissible evidence
would have led to admissible evidence.’” (quoting United States v. Sipe, 388 F.3d 471, 485 (5th
Cir. 2004))). Detective Saul’s doubts as to Payne’s guilt and her feeling that he was truthful
must be disclosed, as they might lead to admissible evidence, and could be useful on
cross-examination. But the entire e-mail does not become admissible simply because it might
help Payne.
       18
          The e-mail refers to Payne as “Deante,” to Payne’s cousin as “Dustin,” and to the
victim as “Via.”
                                             - 19 -
The trial court redacted all but the first three sentences of the e-mail. The trial court reasoned

that those three sentences were relevant to the manner in which Detective Saul’s investigation

progressed, but ruled that the remainder of the e-mail was irrelevant because Detective Saul’s

“feelings on whether or not the defendant is credible, whether he did it, whether he didn’t do it,

is not germane to this case.” Specifically, “[h]er feelings about whether or not [Payne] did it or

didn’t do it, while it may have impacted the manner in which she conducted her investigation, it

has nothing to do with the issue that’s before this trier—this jury.” We agree with both the

ruling and the logic of the trial court, and hold that the trial court did not abuse its discretion

when it refused to admit the entire e-mail.

        Evidence must be relevant to be admissible. It is relevant if it has “any tendency to make

the existence of any fact in issue more probable or less probable than it would be without the

evidence.” Va. R. Evid. 2:401. The redacted portion of the e-mail contained Detective Saul’s

opinion, which is irrelevant. The trial court could not admit Detective Saul’s opinion that Payne

was truthful and innocent, any more than it could have admitted a contrary opinion (that Payne

was dishonest and guilty). Such conclusions are not facts at all.

        Admitting Detective Saul’s opinion would have invaded the province of the jury. In

Pritchett v. Commonwealth, 263 Va. 182, 557 S.E.2d 205 (2002), the defendant wished to

present expert testimony on the lack of truthfulness of his own confession. The Supreme Court

of Virginia stated that “[a]n expert witness may not express an opinion as to the veracity of a

witness because such testimony improperly invades the province of the jury to determine the

reliability of a witness.” Id. at 187, 557 S.E.2d at 208; see also Mullis v. Commonwealth, 3

Va. App. 564, 571, 351 S.E.2d 919, 923 (1987) (“For a juror to give unqualified credence to the

testimony of a law enforcement officer and to decide credibility issues solely on that basis is an

impermissible basis for resolving credibility and would constitute bias.”).

                                                 - 20 -
       Additionally, in Virginia, even expert witnesses (which Detective Saul would be if her

e-mail were received for the truth of her opinion as to Payne’s truthfulness and lack of

involvement in the crime) may not testify as to the ultimate issue at stake in a trial.19 Here, if

Payne was uninvolved in the crime, it would mean he was not guilty. Detective Saul’s e-mail

was properly barred as an improper expression of opinion as to an ultimate issue. See Zelenak v.

Commonwealth, 25 Va. App. 295, 300, 487 S.E.2d 873, 875 (1997) (refusing to permit expert

testimony that defendant had a “disorder that made her ‘susceptible to duress’” because such

“testimony expresses an opinion on the precise and ultimate issue in this case”).

       Although the redacted opinions were inadmissible, any facts that caused Detective Saul

to doubt Payne’s guilt or that objectively supported a conclusion as to Payne’s honesty would be

admissible. Detective Saul would be free to testify, for example, “There is another man that

looks very much like Payne, and we have never been able to rule him out as a suspect.” The jury

would then be free to weigh this fact in assessing whether it had reasonable doubt. But it is a

jury’s job to determine whether reasonable doubt exists. A jury cannot rely on the proxy

judgment of a witness. Similarly, as to Payne’s truthfulness, Detective Saul would be free to

testify, for example, “Payne looked me in the eye the entire time we were talking, he was not

sweating, his voice was not shaking, and I verified that he was across town when the crime

occurred.” The jury would be free to infer that Payne was telling the truth. What is

impermissible is for a witness to testify to the follow-up conclusion: “Therefore I believed him.”


       19
           Notwithstanding the trial court’s refusal to admit the entire e-mail, on
cross-examination of Detective Saul, Payne was able to elicit the sentiment of the redacted
portions of the e-mail (“And at the time that you wrote this e-mail, you did not think Deante was
involved in this crime, right?” “No.”). As part of his closing argument, Payne’s attorney also
said this: “If you share the same doubts that a ten-year veteran on the force found, you have to
find my client not guilty.” Both the cross-examination question and the argument in closing
were objectionable for the same reason the unredacted e-mail was, but the Commonwealth made
no objection. In this way, Payne was able to use Detective Saul’s e-mail much more expansively
than the redaction should have permitted.
                                                - 21 -
                                      C. Expert Witness Funds

        Payne’s fourth assignment of error alleges that “the trial court erred by refusing to

provide the indigent defendant with the necessary funds to hire an expert for his defense.”

“Whether a defendant has made the required showing of particularized need [for the

authorization of state funds to hire an expert witness] is a determination that lies within the sound

discretion of the trial court.” Commonwealth v. Sanchez, 268 Va. 161, 165, 597 S.E.2d 197, 199

(2004). Payne sought an expert witness on “eye-witness misidentification, weapons focus, and

cross-racial misidentification” to provide “generalized education of the jury members regarding

factors that affect eyewitness identifications and how—and how those factors are present in this

case . . . .” 20 Payne anticipated that the total cost of the expert, including travel to and from

California, would be approximately $8,000. The trial court denied Payne’s request for funds to

hire an expert, stating that it was “not satisfied that the defendant has adduced a particularized

need which would be addressed by the expert testimony he proposes to adduce” and further

stating that it was:

                not satisfied that, one, such evidence is not invasive of the jury
                function, and, two, such evidence is necessary, given the ability on
                cross-examination to test before the trier of fact the basis upon
                which an identification is made, duration of contact, opportunity to
                observe, all those types of issues.

We agree.



        20
           In support of his argument that the trial court erred by not funding his expert, Payne
states that the concept of cross-racial identification is not widely understood, and argues: “This
is especially true in the instant matter where the jury was composed of all white men and women.
The jury, by its own demographics, did not have the ability to evaluate the impact of a
cross-racial identification.” We decline to consider this portion of Payne’s argument for two
reasons. First, to the extent the argument implies that the racial make-up of the jury rendered
their verdict constitutionally infirm, Payne made no objection at trial following jury selection,
when given the explicit opportunity to object. See Rule 5A:18 (requiring that that any objection
be “stated with reasonable certainty at the time of the ruling” in order to preserve an issue for
appellate review). Second, there is no indication in the record of the racial make-up of the jury.
                                                 - 22 -
       The Due Process Clause of the United States Constitution requires the Commonwealth to

provide criminal defendants with “‘the basic tools of an adequate defense,’” which “may include

the appointment of non-psychiatric experts.” Husske v. Commonwealth, 252 Va. 203, 211, 476

S.E.2d 920, 925 (1996) (quoting Ake v. Oklahoma, 470 U.S. 68, 77 (1985)). A defendant must

demonstrate a “particularized showing of the need for the assistance of such experts.” Id. The

right is not absolute, and “does not confer a right upon an indigent defendant to receive, at the

Commonwealth’s expense, all assistance that a non-indigent defendant may purchase.” Id.

       An indigent defendant who seeks government funds to hire an expert witness must

demonstrate that: (1) “the subject which necessitates the assistance of the expert is ‘likely to be a

significant factor in his defense,’” and (2) “he will be prejudiced by the lack of expert

assistance.” Id. at 212, 476 S.E.2d at 925 (quoting Ake, 470 U.S. at 82-83). “[A]n indigent

defendant satisfies this test by showing that ‘the services of an expert would materially assist him

in the preparation of his defense and that the denial of such services would result in a

fundamentally unfair trial.’” Dowdy v. Commonwealth, 278 Va. 577, 592-93, 686 S.E.2d 710,

718-19 (2009) (quoting Husske, 252 Va. at 212, 476 S.E.2d at 925).

       Payne satisfied the first prong of the two-part test enunciated in Husske by showing that

the testimony of the eyewitness and the weight to be afforded such testimony was “‘likely to be a

significant factor in his defense.’” Husske, 252 Va. at 212, 476 S.E.2d at 925 (quoting Ake, 470

U.S. at 82-83). However, Payne failed to satisfy the second prong because he did not

demonstrate that he would be prejudiced by the lack of expert assistance. Furthermore, we find

that the proffered expert testimony would not have been admissible at trial in any event.

       The trial court did not rule that the expert testimony summarized by Payne would be

inadmissible, since that question was not before the court. Rather, the trial court ruled on the

motion for funds to hire such an expert. Though Payne assigns error only to the trial court’s

                                               - 23 -
denial of funds to hire an expert, the hypothetical admissibility (or inadmissibility) of the desired

expert’s testimony is relevant in determining whether the trial court abused its discretion in

refusing to fund such an expert.

       Although Payne claims that the expert he sought to hire was not intended to opine as to

the victim’s credibility,21 in essence Payne wanted an expert to testify to the infirmities of a

specific witness’ testimony. In Coppola v. Commonwealth, 220 Va. 243, 257 S.E.2d 797 (1979),

the Supreme Court addressed the issue of expert testimony concerning witness credibility:

               It is well settled in Virginia that the credibility of witnesses and the
               weight to be given their testimony are questions exclusively for the
               jury. In any proper case, an expert witness may express his
               opinion upon matters not within the common knowledge or
               experience of the jury. However, expert testimony concerning
               matters of common knowledge or matters as to which the jury are
               as competent to form an opinion as the witness is inadmissible.
               Where the facts and circumstances shown in evidence are such that
               men of ordinary intelligence are capable of comprehending them,
               forming an intelligent opinion about them, and drawing their own
               conclusions therefrom, the opinion of an expert based upon such
               facts and circumstances is inadmissible.

Id. at 252, 257 S.E.2d at 803-04 (internal citations omitted).22 Here, because the subject of

testimony sought from the expert was within the common knowledge and experience of the

jurors, such testimony would have been inadmissible, and its absence could not result in a

fundamentally unfair trial. See Currie, 30 Va. App. at 64, 515 S.E.2d at 338 (stating that the


       21
           Payne’s attorney stated at the motion hearing “He [the desired expert] can’t say oh—he
can’t attack Mr. Via’s credibility.”
       22
           Since deciding Coppola, this Court has decided Currie, in which this Court
acknowledged “that in some ‘narrow’ circumstances, expert testimony may be useful to the jury,
including in the following areas: ‘such problems as cross-racial identification, identification after
a long delay, identification after observation under stress, and psychological phenomena as the
feedback factor and unconscious transference.” Currie, 30 Va. App. at 64-65, 515 S.E.2d at 338
(quoting Rodriguez, 20 Va. App. at 127, 455 S.E.2d at 727). Recognizing that there could be
circumstances where eyewitness expert testimony would be appropriate does not mean that
denial of funding for such expert testimony automatically renders a trial fundamentally unfair. A
trial court retains the discretion to permit or forbid such testimony.
                                                  - 24 -
“trustworthiness of eyewitness observations is not generally beyond the common knowledge and

experience of the average juror”).

        Furthermore, as the trial court noted, defendants can challenge the reliability of

eyewitness testimony in many ways during trial. See id. (explaining that “the weaknesses of

[eyewitness] identifications can be explored on cross-examination and during counsel’s final

arguments to the jury”); Rodriguez v. Commonwealth, 20 Va. App. 122, 128-29, 455 S.E.2d

724, 727-28 (1995) (affirming a trial court’s decision disallowing expert testimony on

eyewitness identifications); supra note 5 (discussing Perry). Payne took advantage of the

opportunity to cross-examine the victim, and he questioned the victim extensively on various

topics bearing on his ability to see his assailant, his lack of prior familiarity with his assailant, the

stress of the situation, the lighting, and the duration of the encounter. Payne also made these

points in his closing argument to the jury.

        The subject of the testimony sought from the expert was within the common knowledge

and experience of the jury. As such, the testimony of the expert Payne wished to retain would

have been inadmissible. Additionally, Payne failed to demonstrate a particularized need for the

expert, and failed to demonstrate that the denial of an expert’s services would result in a

fundamentally unfair trial. For these reasons, the trial court did not abuse its discretion when it

denied his motion for funds to hire an expert.

                                         III. CONCLUSION

        The trial court did not abuse its discretion when it (1) refused Payne’s proffered jury

instruction regarding eyewitness identification testimony, (2) refused Payne’s proffered jury

instruction regarding “weapons focus,” (3) excluded the redacted portion of Detective Saul’s




                                                 - 25 -
e-mail, and (4) denied Payne’s requests for funds to hire an eyewitness identification expert

witness.

                                                                                        Affirmed.




                                              - 26 -
