COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Frank and Senior Judge Hodges 

Argued at Chesapeake, Virginia 

KENNETH W. BOND, S/K/A 

 KENNETH WAYNE BOND 

 OPINION BY 

v. Record No. 0269-99-1 JUDGE ROBERT P. FRANK 

 JUNE 20, 2000 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

Norman Olitsky, Judge 

 Gregory K. Matthews for appellant. 

 Michael T. Judge, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Kenneth W. Bond (appellant) was convicted of robbery in 

violation of Code § 18.2-58 and use of a firearm in the 

commission of a robbery in violation of Code § 18.2-53.1. On 

appeal, he contends the trial court erred in not allowing his 

twin brother to sit in the courtroom to test the accuracy of a 

witness' in-court identification of appellant. We hold that the 

trial court did not abuse its discretion and affirm appellant's 

conviction. 

I. BACKGROUND 

 At trial, appellant requested that his twin brother be 

permitted to sit at the defense counsel table or in the courtroom 

during the trial. Appellant argued that having his twin brother 

in court would ensure that the witnesses did not merely point to 
the defense table when asked if they could identify the 

perpetrator. Appellant wanted his brother in the courtroom so 

that the victim, the witnesses, and the jury could see the twin 

brother. 

 Upon inquiry by the trial court, the Commonwealth's attorney 

stated that appellant's twin brother was arrested in October 1997 

on robbery charges and was incarcerated continuously in the 

Portsmouth City Jail until after a parole violation hearing on 

April 29, 1998. Sometime after that date, the twin brother was 

transferred to the Department of Corrections and incarcerated at 

the Indian Creek Correctional Center. The instant offenses were 

committed on May 7, 1998. It is evident that the twin brother 

could not have been the perpetrator of this offense, nor does 

appellant claim such. 

 The twin brother was incarcerated on the day of appellant's 

trial and was dressed in jail attire. Todd Gibson, the twin 

brother's parole officer, was present to testify if the court so 

desired. Based on the proffer of Gibson's testimony, the court 

ruled that it would wait until the twin brother was called "as a 

witness and see how it develops." 

 Defense counsel then stated that appellant had no intention 

of calling his twin brother as a witness but simply wanted to 

"have him present in the courtroom so that he [could] be seen, 

not only by the victim and witnesses in this case, but by the 

jury." 

 The Commonwealth's attorney opposed the motion and stated 

there was "evidence to show unequivocally that [the] twin brother 

had no involvement in this instance whatsoever and" that the 

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court should deny appellant's motion because "such would amount 

to confusion and trickery." 

 The Commonwealth's attorney further objected to the 

procedure because it was akin to introducing evidence that the 

Commonwealth would not have an opportunity to cross-examine. The 

trial judge ruled that appellant was free to call his brother or 

any other person to show misidentification by a witness, but 

under the circumstances of the case, he would sustain the 

Commonwealth's objection to simply having him sit in the 

courtroom. 

 The trial court further stated: 

 I think it would be improper for me just 

to let him sit there with bailiffs. He is 

incarcerated for the safety of the courtroom 

as well. But I certainly, if he was going to 

testify, would allow him to go into civilian 

clothes, change, and let him take the witness 

stand so that the witnesses could see him and 

the jurors could see him and so then they 

could, you know, make up their minds which 

one of the two, if either one, did the 

alleged act. 

 So I'll certainly give –- as I said 

earlier, give you all the opportunity in the 

world to present anyone who looks exactly 

like him, or whether it be his twin brother 

or not, certainly have that opportunity to be 

able to say when this person takes the stand 

or is presented before the court in any way 

you want to use it as a trial strategy to 

show that this gentleman, your client, was 

not the person who did this alleged offense, 

and I would certainly give you every 

opportunity to do that, but not just to have 

some person who is a twin brother. 

 Under those circumstances then, being 

incarcerated and with all the previous 

statements as made by the court, I would 

think that would be really putting a 

spotlight on the situation that may or may 

not be germane to the issue, I don't know, 

but I certainly would allow the opportunity 

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to present him in a proper way like any other 

witness. 

II. ANALYSIS 

 "The conduct of a trial and the imposition of measures 

necessary to ensure security and maintain decorum is left to the 

sound discretion of the trial court," Martin v. Commonwealth, 11 

Va. App. 397, 405, 399 S.E.2d 623, 627 (1990), and its rulings 

and orders will not be reversed on appeal unless plainly wrong. 

Further, federal courts have held that there is no right to an 

in-court lineup and that the decision over how in-court 

identifications are to be made is a matter to be left to the 

discretion of the trial judge. See United States v. Burdeau, 168 

F.3d 352, 358 (9th Cir.), cert. denied, 120 S. Ct. 388 (1999); 

United States v. Williams, 436 F.2d 1166, 1168-69 (9th Cir. 

1970). 

 In United States v. Bennett, 675 F.2d 596, 598 (4th Cir. 

1992), the appellant contended that the district court erred in 

refusing his motion to subpoena other black males of his 

approximate age and appearance to be present in the courtroom 

during the in-court identification testimony. The Fourth Circuit 

ruled that "[t]he propriety of an in-court eyewitness 

identification procedure is determined by the trial court in the 

exercise of its discretion." Id. (citations omitted). The court 

further opined that "the district court may . . . deny a motion 

for compulsory production of witnesses who could not offer 

relevant evidence and which the court believed would bring 

confusion to the trial without offering protection to a defendant 

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not already available by the normal identification procedures." 

Id. 

 In this case, appellant conceded that he did not plan to 

call his twin brother as a witness and subject the twin brother 

to cross-examination as to his whereabouts on the date of the 

offense. Appellant does not contend that his twin brother 

committed the offense; the unchallenged evidence established that 

the twin brother was incarcerated on the date of the offense. 

Appellant could not contend that the witness had confused the 

twin brother with appellant as the perpetrator. 

 While there is no testimony that appellant and his brother 

are identical twins, we can infer from appellant's motion that 

the brothers looked sufficiently similar to cast some doubt on 

the identification of the perpetrator. If the twin brother sat 

in the courtroom and witnesses or jurors saw him and noticed the 

similarity between the brothers, such similarity would have no 

bearing on the identification of appellant because other evidence 

would establish that appellant's twin brother was in custody at 

the time of the offense. 

 The trial court made it very clear, on numerous occasions, 

that appellant could call his twin brother as a witness or could 

present him before the court in any way to show that appellant 

was not the perpetrator. Appellant did not call his twin brother 

as a witness nor did he offer to present him in any other 

fashion. 

 Properly, the trial court, exercising its responsibility for 

courtroom security, would not allow the twin brother, as a 

prisoner, to sit among the audience in the courtroom. 

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Nevertheless, the trial court offered appellant an opportunity to 

present the twin brother to the jury and witnesses in a different 

manner. Appellant declined that invitation.1

 As in Bennett, placing the twin brother in the courtroom 

could not offer relevant evidence and would bring confusion to 

the trial. Finding the trial court did not abuse its discretion, 

we affirm the judgment of the trial court. 

Affirmed.

 

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1

 Appellant, for the first time on appeal, challenged the 

reliability of the in-court identification. We do not address 

this issue since it was not raised at trial. See Rule 5A:18.