James Edward Clement v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Willis, Fitzpatrick and Overton
Argued at Salem, Virginia
JAMES EDWARD CLEMENT
v. 	Record No. 0249-95-3 	MEMORANDUM OPINION* BY
JUDGE NELSON T. OVERTON
COMMONWEALTH OF VIRGINIA 	MAY 7, 1996
FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
Nicholas E. Persin, Judge
Timothy L. Forbes for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
James Edward Clement, the appellant, was convicted by a jury
of two counts of inflicting bodily injury on correctional
officers, in violation of Code § 18.2-55. 	Clement appeals,
contending that the out-of-court and in-court identification
procedures were improper. 	We disagree and affirm the
convictions.
On May 8, 1994, at the Keen Mountain Correctional Center,
Correctional Officer James Yost was struck by an inmate from
behind in the hallway and knocked unconscious. 	Officer Harold
Carter was present and came to Yost's aid, at which time he too
was assaulted by the inmate. 	Later that evening, an investigator
showed Carter a photograph of the appellant, and Carter
identified Clement as the assailant. 	The next day Yost was shown
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

- 2 -
the same photograph, and he identified the man in the photograph
as an inmate to whom he had spoken immediately before being
assaulted. 	At trial, Carter testified that he saw Clement come
up behind Yost and strike him, and that Clement later hit Carter
himself. 	The earlier out-of-court identification was not
admitted, but its existence was elicited in cross-examination.
The appellant first argues that the out-of-court
identification was improper because only one photograph was shown
to the victims, and that this improper procedure irretrievably
tainted the in-court identification. 	While display of a single
photograph constituted a suggestive identification procedure, the
identification may nevertheless have been valid if it was "so
reliable that no substantial likelihood of misidentification
existed." 	Curtis v. Commonwealth, 11 Va. App. 28, 31, 296 S.E.2d
386, 388 (1990) (citing Neil v. Biggers, 409 U.S. 188, 198
(1972)); see Doan v. Commonwealth, 15 Va. App. 87, 95, 422 S.E.2d
398, 403 (1992). 	The reliability is weighed considering
the opportunity of the witness to view the criminal at
the time of the crime, the witness' degree of
attention, the accuracy of the witness' prior
description of the criminal, the level of certainty
demonstrated by the witness at the confrontation, and
the length of time between the crime and the
confrontation.
Biggers, 409 U.S. at 199-200. 	Applying these factors to the case
at bar demonstrates clearly that no likelihood of
misidentification existed. 	The out-of-court identification by
Yost and Carter therefore has no negative effect upon the in-

- 3 -
court identification.
Unburdened by an impermissible out-of-court identification,
the in-court identification becomes solely a question for the
jury. 	See Manson v. Brathwaite, 432 U.S. 98, 116-17 (1977);
Curtis, 11 Va. App. at 33, 396 S.E.2d at 389. 	The record in this
case supports a jury finding that Clement was indeed the
assailant in this case.
Accordingly, the convictions are affirmed.
Affirmed.