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Commonwealth v. Johnson

Supreme Judicial Court of Massachusetts, Plymouth

February 12, 2016

Commonwealth
v.
Kyle L. Johnson

         Argued October 6, 2015.

          Indictments found and returned in the Superior Court Department on March 11, 2013.

         A pretrial motion to suppress evidence was heard by Cornelius J. Moriarty, II, J.

         An application for leave to prosecute an interlocutory appeal was allowed by Cordy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth.

          Edward Crane for the defendant.

          Karen A. Newirth, James L. Brochin, & Jennifer H. Wu, of New York, & R.J. Cinquegrana, for The Innocence Project & another, amici curiae, submitted a brief.

          Lisa Kavanaugh, Benjamin H. Keehn, Patrick Levin, Radha Natarajan, & Paul R. Rudof, Committee for Public Counsel Services, & David Lewis, for Committee for Public Counsel Services & another, amici curiae, submitted a brief.

         Present (Sitting at New Bedford): Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

          OPINION

Page 595

          [45 N.E.3d 86] Gants, C.J.

          The issue presented in this case is whether the motion judge, applying the common-law principles of fairness in Commonwealth v. Jones, 423 Mass. 99, 109, 666 N.E.2d 994 (1996), committed an abuse of discretion in allowing the defendant's motion to suppress the victim's identifications of the defendant as the intruder he had struggled with in his home. The judge found that, through no fault of the police, the identifications were " impermissibly tainted by the suggestive circumstances." We provide guidance regarding the application of the Jones standard and conclude that the judge did not abuse his discretion in allowing the motion to suppress.[1]

          Background.

          We summarize the facts found by the motion judge, supplemented where necessary with undisputed evidence that was implicitly credited by the judge. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431, 35 N.E.3d 357 (2015), citing Commonwealth v. Isaiah I., 448 Mass. 334, 337, [45 N.E.3d 87] 861 N.E.2d 404 (2007), S.C., 450 Mass. 818, 882 N.E.2d 328 (2008).

         On September 21, 2012, Adebayo Talabi, the victim, received a telephone call from a neighbor that the door to his apartment was open. He returned to his home and encountered a stranger, who was armed with a firearm, inside his apartment. They struggled, and during the struggle the firearm went off, striking no one. The intruder fled. The victim reported the incident to the Brockton police department and described the assailant as a light-skinned black male wearing a gray hooded sweatshirt. Brockton police Detective Jacqueline Congdon asked the victim to come to the police station to review booking photographs to see if he could identify the intruder, but he did not do so.

         On September 27, 2012, the victim telephoned Brockton police Officer Scott Besarick and told Besarick he now knew the identity of the intruder. Officer Besarick transferred the telephone call to Detective Congdon's line, and the victim explained to her that he had recently spoken to his cousin, T.J. Hendricks, who lived in the Roxbury section of Boston and whose home had been broken into one day before the incident at the victim's apartment. The victim then added Hendricks to the telephone call so that it was a three-way call. Hendricks said that the break-in at his Roxbury home had been captured in a video recording by a neighbor's

Page 596

surveillance system that showed the person who had broken into his home. By the " size and shape" of the person in the surveillance footage, Hendricks believed that the intruder " could possibly be" the defendant, who was the boy friend of a cousin of both Hendricks and the victim. Hendricks obtained a photograph of the defendant and his girl friend taken by Hendricks's mother at a cookout, which he forwarded to the victim. The victim viewed the photograph and identified the defendant as the intruder he had discovered in his home.

         Using this information, Detective Congdon assembled an eight-person photographic array containing the defendant's photograph. Detective Thomas Hyland met with the victim to show him the photographic array. The victim positively identified the defendant's photograph in the array as the man he discovered in his apartment.

         The defendant was indicted on seven charges, including armed assault in a dwelling, in violation of G. L. c. 265, § 18A, and breaking and entering in the daytime, in violation of G. L. c. 266, § 17. The defendant moved to suppress all out-of-court and in-court identifications of the defendant by the victim. The motion judge held an evidentiary hearing at which Detectives Congdon and Hyland testified. The judge found that the police did not violate the defendant's constitutional rights in administering the photographic array but allowed the motion to suppress the two out-of-court identifications under the common-law principles of fairness recognized in Jones, 423 Mass. at 109, concluding that they were " impermissibly tainted by the suggestive circumstances." The motion judge also allowed the motion to suppress any in-court identification, concluding that the Commonwealth had failed to meet its burden of showing by clear and convincing evidence that an in-court identification would be based upon an independent source, citing Commonwealth v. Botelho, 369 Mass. 860, 868, 343 N.E.2d ...


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