At an oral argument before the Supreme Court of Virginia, appellant counsel Charles E. Hayden argued that the trial court erred by excluding lay-witness identification testimony in the murder conviction of Shaquis Cappy and that the Court of Appeals' conclusion that the error was harmless should be overturned. Assistant Attorney General Elizabeth K. Fitzgerald countered that the harmless-error argument was not adequately developed in the appellant's brief and that the remaining record evidence supported the Court of Appeals' harmless-error finding.

Hayden, representing appellant Shaquis Cappy, told the court he was asking the justices to consider the impact of excluding testimony from a long‑familiar family friend, identified in the trial record as Miss Kuykendall. "Her opinion could have aided the jury's analysis. She should have been permitted permitted to testify based on her lengthy knowledge of the defendant's appearance," Hayden said, arguing the jury's limited exposure to the defendant and the poor quality of the surveillance image made lay opinion especially probative. He urged the court that the excluded testimony was not merely cumulative and that the Court of Appeals erred in treating the exclusion as harmless.

Justice Kelsey pressed Hayden on a procedural point: whether the appellant had actually briefed the applicable harmless-error standard. "You did not make a single argument on brief that the error that was found was harmful under the proper legal standard," Justice Kelsey said, noting that the briefs did not set out whether the harmless-error question was constitutional or nonconstitutional and did not marshal factual argument comparing the strength of the Commonwealth's case to the excluded testimony.

Fitzgerald, for the Commonwealth, told the court that Rule 5.27 requires a brief to contain argument and authorities for each assignment of error and that the court has discretion to dismiss inadequately developed assignments. She acknowledged the Court of Appeals' lengthy discussion of lay‑identification law but said the appellate opinion's ultimate harmless‑error conclusion rested on the record's substantial circumstantial evidence and the jury's opportunity to compare the defendant to the surveillance image in open court. "That testimony comes with inherent bias," Fitzgerald said of the proffered lay witness statement, adding that the witness also testified she did not know the defendant's appearance at the time of the offense.

Fitzgerald pointed the court to time stamps and exhibits in the record in support of the Commonwealth's theory: "Pemberton calls Cappy at 11:27," she said while describing the video and call logs the Commonwealth relied on. She also described other circumstantial evidence the Court of Appeals relied on in finding any error harmless: testimony and exhibits showing the defendant's vehicle at the scene, a shell casing found in that vehicle, communications among participants before the shooting, and incriminating text messages sent after the shooters' images were released to the public.

Justices at argument debated several procedural options the court could take. Justice Kelsey observed that because the Court of Appeals treated harmlessness as dispositive, its extended analysis of a novel evidentiary question might be dicta and therefore insulated from further review unless this court addressed it. The justices discussed whether the Supreme Court should dismiss the harmless‑error assignment for inadequate briefing under Rule 5.27(d), resolve the harmless‑error question on the merits, or vacate the Court of Appeals' opinion in whole or in part to avoid issuing a widely citable intermediate‑court ruling on the underlying evidentiary issue.

Counsel and the justices also debated the distinction between a lay witness offering an identification opinion and the jury's own role as factfinder. The court noted that the defendant had been asked by defense counsel to stand in front of the jury during trial so jurors could compare the person before them to the surveillance still; Hayden argued the proposed witness's testimony would have reinforced that point. Fitzgerald responded that jurors are capable of making those comparisons and that the proposed witness's testimony was weak and potentially biased.

The court heard argument on multiple related procedural and substantive questions but did not issue a ruling from the bench at the conclusion of the argument. The session ended with the court adjourning after oral argument was completed.

(Reporting note: quotations and attributions come from the court's oral-argument transcript; the justices and counsel discussed Rule 5.27(d), Bowman v. Commonwealth, and other authorities during argument.)