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Commonwealth v. Dew

Supreme Judicial Court of Massachusetts, Essex

November 6, 2017


          Heard: May 1, 2017.

         Indictment found and returned in the Superior Court Department on February 20, 2014. A pretrial motion to suppress evidence was heard by Timothy Q. Feeley, J., and the case was tried before him.

         The Supreme Judicial Court granted an application for direct appellate review.

          Merritt Schnipper for the defendant.

          Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

         The following submitted briefs for amici curiae:

          James L. Brochin, of New York, Patrick Levin, Committee for Public Counsel Services, & Chauncey B. Wood for Committee for Public Counsel Services & others.

          Steven Penrod, pro se.

          Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ. [1]

          GAZIANO, J.

         This appeal from the defendant's convictions in the Superior Court of masked armed robbery and of being a subsequent offender raises two issues concerning eyewitness identification: first, whether the defendant established by a preponderance of the evidence that a showup identification procedure was so unnecessarily suggestive and conducive to misidentification as to deny him the due process of law; and second, whether the trial judge committed prejudicial error in denying the defendant's motion to preclude the victim from making an in-court identification. In raising this second claim, the defendant argues that an inherently suggestive showup identification can never serve as a prerequisite to an eyewitness's in-court identification under the rule we adopted in Commonwealth v. Collins, 470 Mass. 255, 259-267 (2014).

         The case was entered in the Appeals Court, and we allowed the defendant's motion for direct appellate review. We conclude that the defendant has not met his burden of demonstrating that the showup identification procedure was unnecessarily suggestive. We conclude also that there was no abuse of discretion in the judge's decision to allow the in-court identification testimony. In so holding, we decline to extend our holding in Collins, supra, to preclude all in-court identifications preceded by out-of-court showup identification procedures. Accordingly, we affirm the defendant's convictions.

         1. The robbery and showup procedure.

         Our summary of the facts is based on the findings of the motion judge, who was also the trial judge, after a pretrial evidentiary hearing on the defendant's motion to suppress, supplemented where necessary with undisputed evidence at the motion hearing. See Commonwealth v. Torres, 433 Mass. 669, 670 (2001).

         On December 18, 2013, at approximately 7:30 P.M., the victim, a pizza delivery driver, telephoned 911 to report that he had been robbed at knifepoint on Park Street in Beverly. He described the armed robber as a black male, wearing a dark jacket and a red scarf. Beverly police Officer Erik Abrahamson responded to the scene and spoke to the victim.

         Given the general description of the suspect, and the fact that the victim had observed the robber flee toward Rantoul Street, Abrahamson immediately drove to Jose Torres's apartment, located a short distance away on Rantoul Street. Abrahamson suspected, from previous interactions with Torres and the defendant, who is African-American, that the two might have been involved in the armed robbery. Torres's mother allowed Abrahamson to enter the apartment. Once inside, Abrahamson found the defendant hiding in Torres's bedroom. The defendant was dressed in a red T-shirt; a black jacket was nearby. Other occupants of the apartment informed Abrahamson that the defendant had left the apartment earlier in the evening wearing a black jacket and a red scarf. Torres's mother told Abrahamson that she had overheard the defendant using his cellular telephone to order a pizza.

         Abrahamson brought the defendant and another person who had been in the apartment to the end of the driveway for a showup identification.[2] The defendant "had his hands cuffed behind his back, and a black jacket over his shoulder(s)." Officer Mark Panjwani of the Beverly police department drove the victim to the front of Torres's apartment building. Panjwani briefly instructed the victim about the showup identification procedure, including that the robber may or may not be shown to him. The victim immediately identified the defendant as the robber. The showup was conducted "[n]o more than thirty minutes, and perhaps less" from the time that the victim reported the crime.

         2. Suppression of showup identification evidence.

         The defendant claims that the judge erred in denying his motion to suppress the results of the showup identification conducted within thirty minutes of the masked armed robbery. After an evidentiary hearing, the judge denied the motion, concluding that "the procedure used in this case was not unnecessarily or impermissibly suggestive."

         We repeatedly have held that one-on-one identification procedures, such as showup identifications, are generally disfavored as inherently suggestive. See, e.g., Commonwealth v. Figueroa, 468 Mass. 204, 217 (2014); Commonwealth v. Meas, 467 Mass. 434, 441, cert, denied, 135 S.Ct. 150 (2014); Commonwealth v. Martin, 447 Mass. 274, 279 (2006). A showup identification conducted in the immediate aftermath of a crime is not, however, presumptively impermissible. In order for the results of a showup identification to be excluded, a defendant is required to prove, by a preponderance of the evidence, "that the showup was 'so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny [the defendant] due process of law'" (citation omitted). See Martin, supra at 279-280. "If the identification passes muster under this test, then it is for the jury to decide what weight to give to the identification." Commonwealth v. Amaral, 81 Mass.App.Ct. 143, 148 (2012).

         Police are permitted to conduct a showup identification if there is a "good reason" to secure the prompt identification of a suspect. See Figueroa, 468 Mass. at 217-218 ("good reason" to conduct showup identification two and one-half hours after fatal shooting). The existence of "good reason" for a show up identification is a question of law to be decided by an appellate court, based on facts found by the motion judge. Commonwealth v. Austin, 421 Mass. 357, 362 (1995) . Factors relevant to this inquiry include "the nature of the crime involved and corresponding concerns for public safety; the need for efficient police investigation in the immediate aftermath of a crime; and the usefulness of prompt confirmation of the accuracy of investigatory information, which if in error, will release the police quickly to follow another track." Id. See Commonwealth v. Crayton, 470 Mass. 228, 235-236 (2014) ("there is generally 'good reason' where the showup identification occurs within a few hours of the crime, because it is important to learn whether the police have captured the perpetrator or whether the perpetrator is still at large, and because a prompt identification is more likely to be accurate when the witness's recollection of the events is still fresh").

         Even where there is a good reason to conduct a one-on-one identification procedure, the evidence must be excluded "[i]f there are special elements of unfairness, indicating a desire on the part of the police to 'stack the deck' against the defendant." Commonwealth v. Leaster, 395 Mass. 96, 103 (1985), citing Commonwealth v. Moon, 380 Mass. 751, 756-759 (1980) . See Figueroa, 468 Mass. at 217.

         The defendant suggests that the Commonwealth, at "a superficial level, " appears to have satisfied the requirements for a showup identification because the procedure "occurred in close temporal proximity" to the crime, while the witness's memory was fresh, and the showup enabled an efficient police investigation. He argues, however, that a more thorough examination of the facts reveals a need for per se exclusion because (1) the police had probable cause to arrest the defendant and therefore ample time to assemble a nonsuggestive photographic array; (2) the police inserted special elements of unfairness by improperly draping a black jacket over the defendant in order to influence the victim's identification of the suspect; and (3) the police further stacked the deck by placing a person with a lighter complexion next to the defendant. Having considered each of the defendant's arguments, we conclude that he has not demonstrated error in the denial of his motion to suppress.

         The defendant focuses first on the judge's conclusion that the need for an efficient police investigation constituted a good reason to conduct the showup identification here. The judge determined that, "although probable cause may have existed to arrest [the defendant] prior to the show-up, good police practices warranted immediate confirmation of Abrahamson's investigation, in order to permit the investigation to pursue other avenues in the event of a negative identification." The defendant argues, however, that the investigators should have arrested him and then asked the victim to review a nonsuggestive photographic array the following morning.

         In Martin, 447 Mass. at 280, we held that the failure of the police to pursue alternative investigatory techniques does not, standing alone, render an identification suggestive. The fundamental question is whether the police "acted permissibly" in conducting the showup identification procedure. Id. The answer does not depend on the availability or reasonableness of pursuing an alternative identification procedure. See Commonwealth v. Forte, 469 Mass. 469, 476, 478 n.15 (2014) (rejecting claim that one-on-one display of defendant's image on ...

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