Heard: May 1, 2017.
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.
Supreme Judicial Court granted an application for direct
Merritt Schnipper for the defendant.
Kenneth E. Steinfield, Assistant District Attorney, for the
following submitted briefs for amici curiae:
L. Brochin, of New York, Patrick Levin, Committee for Public
Counsel Services, & Chauncey B. Wood for Committee for
Public Counsel Services & others.
Penrod, pro se.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, &
Cypher, JJ. 
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).
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.
The robbery and showup procedure.
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).
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.
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.
brought the defendant and another person who had been in the
apartment to the end of the driveway for a showup
identification. 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
Suppression of showup identification evidence.
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."
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
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").
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.
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.
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.
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