Argued: September 2, 2014.
Indictments found and returned in the Superior Court Department on June 11, 2001.
Following review by the Appeals Court, 74 Mass.App.Ct. 1129 (2009), the cases were tried before Patrick F. Brady, J.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Brad P. Bennion for the defendant.
Cailin M. Campbell, Assistant District Attorney ( David S. Bradley, Assistant District Attorney, with her) for the Commonwealth.
David W. Ogden, Daniel S. Volchok, Francesco Valentini, & Natalie F.P. Gilfoyle, of the District of Columbia, & John C. Polley, for American Psychological Association & another, amici curiae, submitted a brief.
M. Chris Fabricant & Karen Newirth, of New York, Joshua D. Rogaczewski & Johnny H. Walker, of the District of Columbia, & Kevin M. Bolan, for Innocence Network, amicus curiae, submitted a brief.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
In Commonwealth v. Franklin, 465 Mass. 895, 912, 992 N.E.2d 319 (2013), we recognized " that eyewitness identification may be an important issue at trial even where no eyewitness made a positive identification of the defendant as the perpetrator, but where eyewitnesses have provided a physical description of the perpetrator
or his clothing, or have identified a photograph in an array as someone who looks [22 N.E.3d 156] like the perpetrator," and we declared that, " where requested by the defendant, a judge should provide specific guidance to the jury regarding the evaluation of such eyewitness testimony through some variation of the approved identification instruction." Here, the eyewitnesses described only the defendant's gender and race, and the color of his shorts; identified other individuals as the perpetrator when shown a live lineup; and made no in-court identification. The trial judge declined the defendant's request to give a variant of the approved identification instruction that included the directive, " You may take into account whether a witness ever participated in an identification procedure and failed to identify the defendant as the perpetrator." We conclude that the judge did not abuse his discretion in declining to give the proposed instruction where there was no positive identification and no other eyewitness testimony that significantly incriminated the defendant. Therefore, we affirm the defendant's convictions.
On December 10, 2004, the defendant was convicted by a Superior Court jury of (1) assault by means of a dangerous weapon, in violation of G. L. c. 265, § 15B ( b ); (2) possession of a firearm without a license, in violation of G. L. c. 269, § 10 ( a ); (3) possession of ammunition without a firearm identification card, in violation of G. L. c. 269, § § 10 ( h ); (4) armed carjacking, in violation of G. L. c. 265, § 21A; and (5) armed robbery, in violation of G. L. c. 265, § 17. On August 11, 2009, in an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court vacated the judgments against the defendant due to an erroneous joint venture instruction and ordered a new trial. See Commonwealth v. Johnson, 74 Mass.App.Ct. 1129, 910 N.E.2d 974 (2009). At ...