Date October 16, 2017
OPINION TITLE: FINDINGS OF FACT, RULINGS OF LAW, AND
ORDER ON DEFENDANTS' MOTIONS TO SUPPRESS
Kenneth W. Salinger, Justice of the Superior Court.
Defendants have all been charged with participating in an
armed robbery of a convenience store, assault with a
dangerous weapon (because one of them allegedly fired a shot
at two people as Defendants fled), and receiving a stolen
motor vehicle. Three witnesses (the convenience store owner,
the owner of a neighboring pizza shop, and one of the
neighbors who was shot at) identified some or all of the
defendants as the perpetrators after police had them show up
and view three suspects standing next to a marked police
cruiser, with their hands behind their backs, and flanked by
two uniformed police officers. The fourth witness could not
identify any of the suspects. Defendants move to suppress
these three identifications.
Court concludes that it must suppress the identifications
made by the convenience store owner because they were brought
about by an unnecessarily suggestive identification procedure
and also because the limited probative value of his
identifications is substantially outweighed by the unfair
prejudice of admitting identifications tainted by highly
suggestive circumstances. It further concludes that it must
also suppress the identifications by the neighbor; although
the identification procedure used with this witness was not
unnecessarily suggestive in a constitutional sense, the
probative value of his identifications is also substantially
outweighed by the unfair prejudice of admitting
identifications tainted by suggestive circumstances. However,
the Court concludes that the separate identification by the
pizza shop owner is admissible.
Findings of Fact
Court heard testimony by Lt. Maurice Aguiler and Det. Frank
Daly of the Lawrence Police Department. The Court finds that
both witnesses were credible and credits all of their
testimony. It makes the following findings based on this
evidence and reasonable inferences drawn from the evidence.
The Robbery and Witness Statements
October 17, 2016, shortly before 11:45 a.m., the Lawrence
police department received a 911 call reporting an armed
robbery at the D& C Convenience store. At that time
Aguiler was a police sergeant and was overseeing the day
shift. Daly was working his very first shift as a police
detective. They responded together to the call, driving to
D& C Convenience in an unmarked Ford Crown Victoria
sedan. Other police officers also responded.
Ashness, the owner of D& C Convenience, was the robbery
victim. The Court infers and therefore finds that Ashness was
the person who had made the 911 call. Det. Daly took his
statement. Ashness was bleeding from the head when Daly
arrived. Ashness told Daly that he had been robbed by two
Hispanic men, that he could not see their faces because both
men wore masks, and that the men wore dark clothing. He said
that one of the robbers had threatened him with a firearm and
then struck Ashness in the head using the butt of the gun.
Ashness was unable to provide any other description of the
two robbers or their clothing. Ashness suffered a serious
laceration when he was struck by the gun. At some point an
ambulance arrived and an EMT stitched up Ashness's head
wound inside the ambulance.
Ortiz, Sr. and his son Michael Ortiz, Jr. lived on Weare
Street around the corner from D& C Convenience. They told
the police that they had been outside their home when two men
ran past and got into a white BMW with New Hampshire plates,
which was being driven by a third man who then drove off. As
the two men ran past one of them pointed a handgun at the
Ortiz's, yelled " you didn't see anything,"
and fired a shot in their direction. The Ortiz's saw
these three men only for a few brief seconds, while being
threatened with a handgun and shot at.
police also spoke with John Enos, who owns the All-Star Pizza
shop next door to D& C Convenience. Enos told the police
that an Hispanic man had been in his pizza shop for several
minutes at around the time of the robbery next door, ordering
a sandwich. Enos also reported that after that man left, and
presumably after a shot was fired nearby and police responded
to the scene, Enos had reviewed surveillance video recorded
by a system he had installed. Enos could see what appeared to
be someone running to a car parked outside of his shop in the
video recording, immediately after the Hispanic man had left
The Chase and Apprehension of Suspects
police officer who spoke with the Ortizes broadcast by police
radio that three Hispanic men believed to have committed the
armed robbery were fleeing the area in a white BMW with New
Hampshire license plates. When then-Sgt. Aguiler heard that
report, he left Det. Daly at D& C Convenience and headed
out in his vehicle to help look for the BMW.
few minutes Aguiler heard on the radio that an officer had
located and was pursuing a white BMW sedan with New Hampshire
plates not far from D& C Convenience. Aguiler positioned
his vehicle on a side street near Market Street, based on
radio reports of the motor vehicle chase. He soon saw the BMW
approach him with several police cruisers in pursuit. Aguiler
saw the BMW turn onto the street where he was waiting; it was
moving fast and fish-tailed as it turned the corner.
activated his emergency lights and siren as the BMW drove
toward him. In response the BMW driver took a sharp right
turn into an alley. Aguiler followed, about three- to
four-car lengths behind.
driver stopped his vehicle a short distance down the alley.
Aguiler saw three men leap out and jump a fence into
someone's back yard. Aguiler got a good look at the three
men as he stopped his vehicle behind the BMW. Aguiler leapt
out to give chase. He ran past the BMW, glancing inside to
make sure there was no one else in the case, and pursued the
men over the fence. Aguiler called out on his radio to alert
the nearby officers. By this time roughly ten police
officers, including detectives and uniformed officers, had
responded and began searching for the three suspects.
police located and seized all three men within the next
half-hour. Aguiler confirmed that the three men taken into
custody were the same three men he had seen jump out of and
run away from the BMW. The three defendants in this case are
the three men that Aguiler saw exit the BMW.
The Showup Identifications.
decided to conduct showup identifications to see whether any
of the witnesses could confirm that the three men in custody
were involved in the armed robbery. By this time most of the
detectives and officers at the scene were searching for the
firearm that had been used in the robbery. No gun had been
found in the BMW or on any of the suspects.
instructed two uniformed officers to hold the three suspects
near a marked police SUV cruiser on Farnham Street, very
close to the spots where the three suspects had been
apprehended. All three suspects had their wrists handcuffed
together behind their backs.
Aguiler drove back to D& C Convenience where he picked up
Det. Daly and Mr. Ashness, in order to conduct a showup
identification procedure with Ashness. By this time just over
an hour had passed since Ashness had called the police to
report the armed robbery. When Aguiler arrived at the
convenience store he saw Ashness stepping out of the
ambulance, where his head had just been stitched up. Daly got
into the front passenger seat of the cruiser that Aguiler was
driving. Ashness sat in the rear seat. There was no prisoner
cage or other divider between the front and rear seats.
Aguiler drove back to Farnham Street, Daly gave Ashness an
explanation and some instructions. Daly told Ashness that the
police had detained some men, that those men may or may not
have been involved in the robbery, that even if they were
involved they may not look the same as at the time of the
incident, that the police wanted Ashness to look at the men
and see whether he recognized anyone and if so tell the
police how certain he was, that it was just as important to
clear innocent people as to identify people involved in the
incident, and that the police would continue to
investigate the matter whether or not Ashness identified
they arrived at Farnham Street, defendant Morales-Alvarez was
standing apart from the other suspects. Ashness immediately
said that Morales-Alvarez was one of men who had committed
the armed robbery. The police then had Morales-Alvarez stand
with the other two men.
could see all three suspects standing side-by-side and that
they were being held behind a marked police SUV, between two
uniformed officers, with their arms restrained behind their
backs. Ashness had a clear view--through the front windshield
of the unmarked cruiser he was seated in--of the suspects,
the police SUV, and the two officers guarding the suspects.
Morales-Alvarez was on the left and was wearing a black
shirt, grey or faded black pants, and white shoes. Rojas was
standing in the middle and was wearing a shirt with light
horizontal stripes and a dark background, black pants, and
light-colored shoes. Fernandez-Pagan was standing on the
right and was wearing a black shirt and grey or faded black
pants; his shoes are not visible in the photograph of the
showup ID that is in evidence.
viewing the three suspects standing together, Ashness
identified Morales-Alvarez and Fernandez-Pagan as the two men
who had been inside his store. Ashness said he could do so
based on the clothing that the two men were wearing. The two
men he identified were wearing outfits that were not very
distinctive but were quite similar to each other (black
shirts and grayish or faded black pants). Their clothing was
notably different from that worn by Rojas, who was the only
suspect wearing a striped shirt. Ashness did not say he
recognized anything about the two men he identified other
than their clothing. For example, he did not say that the
suspects had the same size, build, or skin color as the men
who attacked him and robbed his store.
was not asked to and did not say how certain he was that
Morales-Alvarez and Fernandez-Pagan were the men who had
robbed and attacked him.
Ashness identified two of the suspects, Aguiler used his
radio to report that to the other officers and detectives. He
did so by broadcasting something like, " Okay, we've
got a positive." The Court finds that the other three
witnesses probably heard that, and were aware that some other
witness had made a positive identification, because police