Heard: October 7, 2016.
Law, Identification. Due Process of Law,
Identification, Identification of inanimate object.
Evidence, Identification, Identification of
inanimate object. Identification. Practice,
Criminal, Motion to suppress.
found and returned in the Superior Court Department on April
3, 2015. Pretrial motions to suppress evidence were
considered by Edward J. McDonough, Jr., J.
for leave to prosecute interlocutory appeals were allowed by
Spina, J., in the Supreme Judicial Court for the
county of Suffolk, and the appeals were reported by him to
the Appeals Court. The Supreme Judicial Court granted an
application for direct appellate review.
M. Ohrt-Gaskill, Assistant District Attorney, for the
Commonwealth. Paul R. Rudof, Committee for Public Counsel
Services, for the defendant.
following submitted briefs for amici curiae
Zhang, of China, Karen A. Newirth, of New York, Joshua Asher,
of Illinois, & Radha Natarajan & Kirsten Mayer for
The Innocence Project, Inc. & another.
Anthony D. Mirenda, Michael J. Licker, Melissa A. Stewart,
& Chauncey Wood for Massachusetts Association of Criminal
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy,
& Budd, JJ.
interlocutory appeals from two rulings on motions to suppress
raise three substantial issues regarding eyewitness
identification. First, we consider what consequence, if any,
is appropriate where a police officer who is showing a
photographic array to an eyewitness fails to use the protocol
that we outlined in Commonwealth v.
Silva-Santiago, 453 Mass. 782, 797-798 (2009),
despite our declaration in that opinion that we
"expect" police to use the protocol in the future.
Second, we examine whether, based on subsequent research, we
should revisit the conclusion we reached in
Silva-Santiago, supra at 798-799,
and confirmed in Commonwealth v. Walker, 460 Mass.
590, 602-603 (2011), that the choice of a simultaneous rather
than a sequential display of photographs in an array may be
relevant to the weight to be given to an identification but
does not affect its admissibility. The third issue concerns
the identification of an inanimate object -- a firearm. We
determine whether suggestive police questioning and
subsequent police confirmation appropriately may result in
suppression of the identification of a firearm as the firearm
used by the defendant during the commission of the crime.
issues arise in the context of cross interlocutory appeals:
the defendant's appeal of the denial of his motion to
suppress the identification of him by an eyewitness, Brianna
Johnson, who was familiar with the defendant and knew his
first name; and the Commonwealth's appeal of the
allowance of the defendant's motion to suppress the
identification of a firearm by Johnson as the one used by the
defendant in the commission of the crime. We affirm the
judge's ruling on both motions.
was no evidentiary hearing conducted regarding the two
motions to suppress. The Commonwealth and the defendant
instead submitted to the motion judge various exhibits,
including a joint stipulation of facts and videotaped
recordings of two interviews with Johnson, the first
conducted on the evening of the incident and the second
conducted four days later, after the defendant had been
arrested and a firearm that had allegedly been in his
possession had been found. Because we are in the same
position as the motion judge to make findings, we do not
limit the facts recited below to the facts found by the
motion judge. See Commonwealth v. Neves, 474 Mass.
355, 360 (2016), quoting Commonwealth v. Novo, 442
Mass. 262, 266 (2004) (where decision is based on recorded
rather than live testimony, "we will 'take an
independent view' of recorded confessions and make
judgments with respect to their contents without deference to
the fact finder, who 'is in no better position to
evaluate the[ir] content and significance'").
Springfield early in the evening of September 21, 2014, the
defendant was in the rear passenger seat of a vehicle driven
by Tavis Humphrey-Frazer; Johnson sat in the front passenger
seat. According to Johnson, the defendant stated that he saw
a particular individual among a crowd of people standing in
front of a house on Smith Street. Humphrey-Frazer turned the
vehicle onto Smith Street and drove towards the group of
people. The defendant leaned out of the rear driver's
side window and fired one or two shots at the group before
his firearm jammed, and then was able to fire one or two more
rounds in the direction of the group. The defendant's
gunshots were met by return fire; a bullet penetrated a
window of the vehicle and struck Humphrey-Frazer in the head,
that night, Springfield police Detectives Kevin Lee and
Anthony Pioggia interviewed Johnson at the Springfield police
station. Johnson said that her cousin, Humphrey-Frazer,
received a telephone call from "Marcus, " who was a
member of the same gang as was Humphrey-Frazer.
Humphrey-Frazer asked Johnson if she wanted to join him while
he drove to pick up Marcus, and she agreed. When asked to
tell the detectives about Marcus, Johnson said, "I
don't know that much about him." She explained that
he was Humphrey-Frazer's friend, not her friend. She said
she did not see Marcus that often "because . . . [they]
don't associate with the same people." After saying
that she had seen Marcus at a party, she added, "I just
know it's him because he's known up here." She
said that Marcus "look[s] like he's [nineteen] or
something, " and is "kind of chunky." She
assured the detectives that she would recognize him if she
saw him. The detectives then stopped the interview in order
to perform an identification procedure. They presented
Johnson with a computer screen that simultaneously displayed
photographs of eleven individuals. No cautionary warnings
were given to Johnson; the detectives simply asked her to sit
down, "[l]ook at the pictures . . . [a]nd if [she saw]
somebody [she] recognize[d] in relation to [the] incident, to
identify them if [she] could." Johnson picked a photograph
of the defendant and signed a copy of that photograph.
the interview, an arrest warrant issued against the
defendant. On September 23, Detectives Lee and Pioggia saw
the defendant in Springfield riding a motorized scooter and
pursued him, using their lights and sirens in an attempt to
cause him to stop. The defendant drove the scooter to a
grassy area and then drove back into the street, where he
lost control of the scooter and was
apprehended. The next morning, a canine unit from the
State police searched the grassy area and found a nine
millimeter handgun, loaded with a magazine containing twelve
rounds of ammunition.
next day, September 25, Detectives Lee and Pioggia brought
Johnson back to the police station for a second interview. At
the first interview, Johnson had told the detectives that the
firearm used by the defendant was "big" and
"black" and looked like the gun carried by the
detectives. At the second interview, conducted by Detective
Lee and Detective Timothy Kenney, Detective Lee started to
question Johnson again about the gun when Detective Kenney
interrupted and asked, "Can I go after something here at
this juncture?" Detective Kenney then placed a
photograph of a gun onto the table in front of Johnson.
"That's probably it, yup, " Johnson responded.
Detective Kenney: "That's probably
Detective Lee: "Brianna, did you see him with
this type of gun before?"
Detective Lee: "Brianna?"
Johnson: "Hold on. I'm thinking."
Detective Lee: "Okay. I mean, the picture is
the picture, right? It's a photograph."
Detective Lee: [Grabs photograph away] "Let me
show the camera what we're showing you, okay? [Turning
back to Johnson] Black, right? Black?"
Johnson: "Hold on."
Detective Lee: "All right."