Ray v. Commonwealth
| Decision Date | 01 February 2022 |
| Docket Number | Record No. 0808-20-3 |
| Parties | Dwayne Allen RAY, Jr. v. COMMONWEALTH of Virginia |
| Court | Virginia Court of Appeals |
Naomi R. Huntington (Huntington, Huntington & Huntington, on brief), for appellant.
Maureen E. Mshar, Assistant Attorney General (Mark R. Herring,1 Attorney General, on brief), for appellee.
Present: Judges Humphreys, AtLee and Raphael
OPINION BY JUDGE RICHARD Y. ATLEE, JR.
Dwayne Allen Ray, Jr. appeals his conviction for distribution of a Schedule I or II controlled substance, third or subsequent offense, in violation of Code § 18.2-248. He makes two arguments on appeal. First, he argues that the trial court erred in denying his motion to suppress the "out-of-court and in-court identifications of Ray by a confidential informant who was shown a single photo of the defendant" prior to conducting a controlled buy. Second, he argues that the evidence was not sufficient to support his conviction because the primary witness was inherently incredible. For the following reasons, we disagree and affirm his conviction.
"On appeal, we review the evidence in the ‘light most favorable’ to the Commonwealth, the prevailing party in the trial court." Yerling v. Commonwealth , 71 Va. App. 527, 530, 838 S.E.2d 66 (2020) (quoting Vasquez v. Commonwealth , 291 Va. 232, 236, 781 S.E.2d 920 (2016) ).
Ray was arrested for distribution of a Schedule I or II controlled substance after the police worked with a confidential informant to set up a controlled drug buy from Ray. Prior to his jury trial, Ray filed a motion to suppress the in-court and out-of-court identifications of Ray made by the confidential informant.
Detective Jimmy Smith of the Radford Police Department testified at the hearing on the motion to suppress. Smith named Jeremy Cumbee as the confidential informant involved in the controlled buy. He testified that Cumbee had agreed to become a confidential informant after being arrested in a similar controlled buy.
Smith explained that when he worked with an informant, he would ask the informant who they can "deal with, because whoever they are dealing with is usually the easiest and safest way to ... work these investigations." Once the informant has provided the name, Smith conducts an investigation to confirm the identity of the person named. Once he has confirmed the identity, he shows the informant an "unnamed, unidentified photograph, just the face," and he asks the informant if that is the person they are going to purchase narcotics from.
Cumbee told Smith he could buy drugs from a man he knew as "Squirmy," whose real name he thought was Dwayne Wood. He also provided Smith with the location, though not the exact address, of Squirmy's residence. Smith discussed the case with another officer in his department, who was familiar with "Squirmy" and who provided Smith with the name Dwayne Ray. Smith then verified through the DMV that Ray lived at the address Cumbee had provided and obtained a photo of Ray from DMV records. Smith testified at the hearing that he had also searched "squirm" and "squirmy" on Ray's Facebook page, and he found a post where Ray said he might "change his name from Squirm to Snail emoji." He also testified that he had "watched [Cumbee] do previous buys in the past," and, in the buy where Cumbee was arrested, he watched Cumbee enter Ray's residence. Cumbee then told Smith that Squirmy, i.e. , Ray, was his supplier.
On the day of the controlled buy, Smith showed the single, unmarked DMV photo of Ray to Cumbee, who confirmed that the man in the photo was Squirmy. Smith asked Cumbee to say "out loud three random letters" and then mark those letters on the photo to confirm he identified that specific photo. After identifying Ray in the photo, Cumbee entered the residence, which, according to Smith's investigation, belonged to Ray. Cumbee returned with cocaine and confirmed that the person who sold him the cocaine was the same person he had previously identified to the police as Squirmy.
At the hearing, Ray acknowledged that this was not "a traditional single-photo lineup because the crime happened after the identification took place." Nevertheless, he argued that the use of a single-photo lineup was unduly suggestive and that there was no evidence that the witness was so reliable as to outweigh the risk of misidentification.
The trial court denied the motion to suppress. It noted that the photo was not produced until Cumbee had already provided Smith with Ray's identifying information and Smith had verified the information. Furthermore, the trial court noted that both Cumbee and the police department "knew who the target was before the alleged incident occurred[.]" The trial court concluded that any question as to Cumbee's reliability was within the "purview of the jury."
At trial, Cumbee testified that he had been arrested by police earlier in the summer and, as a result, agreed to become a confidential informant to earn consideration for his charge. As part of his cooperation agreement, he agreed to perform a controlled buy. Cumbee provided Detective Smith with the name of someone from whom he could purchase cocaine. Cumbee gave the name "Squirmy," whom he thought was actually named "Dwayne Woods," but later learned was Dwayne Ray. Cumbee testified that he had known Ray for two or three years and that he saw him on a weekly basis during that time. He also described Ray as his "best friend."
On the morning of July 16, 2018, Cumbee called Ray and arranged to purchase cocaine from him. Cumbee then contacted Smith and informed him of the planned buy, and Smith drove to Cumbee's house to pick him up. Cumbee explained that Ray wanted to be paid partly with beer and cigarettes. Smith agreed to stop at a store on the way, and Cumbee used some of the buy money to purchase beer and cigarettes for Ray. Smith did not go into the store with Cumbee, but he inspected the beer and cigarettes to make sure they were unopened and that nothing was hidden in them. Smith also searched Cumbee "for any drugs or monies" before giving him the money for the drug buy. As described during the suppression hearing, Smith had Cumbee identify Ray from his unmarked DMV photograph.
Smith dropped Cumbee off at the "stage" area. He then drove around in his unmarked car and watched Cumbee as he entered Ray's residence. Cumbee was wired with audio recording equipment that allowed the police to record the interaction and listen to it in real time. He was also wired with a GPS tracker. Other officers were in the area in case back up was needed. The transaction took about thirty seconds, and Cumbee testified he was inside the house "maybe a minute." After the buy, Cumbee walked back to where he was supposed to meet Smith. He gave Smith the cocaine that he had purchased from Ray, and he confirmed that Ray was the person from whom he purchased drugs.
During his testimony, Smith acknowledged that Cumbee did not comply with all the terms of his cooperation agreement. He acknowledged that Cumbee violated multiple terms, including getting new criminal charges, failing to check in, and failing to attend a court date. He noted, however, that Cumbee was lucid and alert on the day of the buy.
Cumbee admitted he agreed to cooperate because he "didn't want to do any more time." He also admitted that he did not comply with the terms of the agreement and that he had multiple prior felony convictions.
The trial court denied the motion to strike.
Ray then presented evidence on his own behalf. His fiancée testified that she and Ray moved out of the home in question on June 4, 2018 and that they lived in a hotel until they found a permanent place to live. She acknowledged that they continued to pay utility bills for the home for several months, but claimed they were disputing those payments. She also admitted she did not know where Ray was on the morning of the buy. Ray renewed his motion to strike, stating "the arguments I made previously remain the same." He also mentioned that the trial court should strike the evidence because it had additional evidence of where Ray may have been living.
The trial court denied the renewed motion. It concluded that the case turned on the credibility of witnesses, which was a matter for the jury as the factfinder. The jury found Ray guilty of distribution, third or subsequent offense. Ray now appeals to this Court.
Ray argues on appeal, as he did in the trial court, that the out-of-court identification of Ray should have been suppressed because it resulted from an "impermissibly suggestive single photo display" shown to the confidential informant prior to the controlled buy. He contends that the out-of-court identification using the single photo display tainted the later in-court identification, which should likewise be suppressed. We disagree.
When reviewing the denial of a motion to suppress, "we view the evidence in the light most favorable to the Commonwealth." Jones v. Commonwealth , 71 Va. App. 375, 380, 836 S.E.2d 710 (2019) (quoting Carlson v. Commonwealth , 69 Va. App. 749, 757, 823 S.E.2d 28 (2019) ). "Our review includes ‘evidence adduced at both the trial and the suppression hearing.’ " Carlson , 69 Va. App. at 758, 823 S.E.2d 28 (quoting Greene v. Commonwealth , 17 Va. App. 606, 608, 440...
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