Supreme Judicial Court of Massachusetts, Plymouth
October 6, 2015.
Indictments found and returned in the Superior Court
Department on March 11, 2013.
pretrial motion to suppress evidence was heard by
Cornelius J. Moriarty, II, J.
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
Carolyn A. Burbine, Assistant District Attorney, for the
Crane for the defendant.
A. Newirth, James L. Brochin, & Jennifer H. Wu, of New
York, & R.J. Cinquegrana, for The Innocence Project &
another, amici curiae, submitted a brief.
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.
(Sitting at New Bedford): Gants, C.J., Spina, Cordy,
Botsford, Duffly, Lenk, & Hines, JJ.
N.E.3d 86] Gants, C.J.
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
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).
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.
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
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.
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.
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 ...