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Commonwealth v. German

Supreme Judicial Court of Massachusetts, Essex

November 13, 2019


          Heard February 4, 2019

         INDICTMENTS found and returned in the Superior Court Department on August 3, 2015. A pretrial motion to suppress evidence was heard by James F. Lang, J., and the cases were tried before Timothy Q. Feeley, J.

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

         Patrick Levin, Committee for Public Counsel Services, for the defendant.

         David F. O'Sullivan, Assistant District Attorney, for the Commonwealth.

         Anthony Mirenda, K. Neil Austin, Caroline S. Donovan, Madeleine K. Rodriguez, & Meagen Monahan, for New England Innocence Project & others, amici curiae, submitted a brief.

          GAZIANO, J.

         A Superior Court jury convicted the defendant of the armed robbery of a restaurant owner and her employees in Lawrence. In this appeal, the defendant contends that his motion to suppress evidence of a showup identification should have been allowed because the procedure was so unnecessarily suggestive and conducive to mistaken identification as to deny him due process of law. The defendant also challenges several of the trial judge's evidentiary rulings on eyewitness identification.

         For the reasons that follow, we affirm the motion judge's denial of the motion to suppress, and discern no reversible error in the trial judge's evidentiary rulings. Accordingly, the defendant's convictions shall be affirmed. We conclude further, however, that, for showup identification procedures conducted after the issuance of the rescript in this case, the officers conducting the showup will be required to provide instructions similar to those used in identifications through photographic arrays.

         1. Background.

         We summarize the facts presented at the hearing on the motion to suppress, based on the findings of the motion judge, supplemented with undisputed facts in the record that are not contrary to the judge's findings. See Commonwealth v. Torres, 433 Mass. 669, 670 (2001).

         On a night in June 2015, Maria, a restaurant owner in Lawrence, and three of her wait staff -- Ruth, Jeannie, and Carolyn -- left work at 3 a.m. [1] Carolyn had called a taxicab, which the three servers intended to share; Maria had driven to work. After the women left the restaurant, Carolyn got into the front passenger seat of the taxicab, while Jeannie and Ruth stood with Maria as she locked the door to the restaurant. As the three turned toward the taxicab, a man approached to within a few feet and demanded, "Give me everything."

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         When the women did not respond, the man pulled out a firearm. He appeared to focus on Jeannie, who was holding a purse, a cellular telephone, and a laptop computer. Maria told her to "throw him everything," and Jeannie tossed the items on the ground near the man. The robber appeared temporarily startled, allowing Maria a chance to run around the corner to her parked vehicle, where she telephoned 911. [2] The taxicab, with Carolyn in the front seat, was driven away at approximately the same time, while Ruth and Jeannie started walking across the street. The robber followed them, continuing to demand their property. A group of men, who were standing on the roof of a nearby building, began yelling at the robber. He fired his weapon toward the men, and then turned and walked away.

         Ruth and Jeannie started walking toward the police station, in the opposite direction from the robber. The taxicab driver, who had circled the block, picked them up nearby. [3] They all drove back to the restaurant to attempt to retrieve Jeannie's property, and encountered the defendant, who was walking down the street. He fired the weapon twice in their direction, while Ruth was speaking to 911 dispatchers on her cellular telephone. The taxicab was driven to a nearby parking lot, so the women could meet up with Maria. Ruth got out of the taxicab and into Maria's vehicle. The taxicab driver drove off with Carolyn and Jeannie still inside the vehicle, while Maria, at the request of police, returned to the restaurant.

         While these events were unfolding, Lawrence police Officers Ryan Guthrie and Michael Colantuoni, each driving a marked police cruiser, searched the area for a Hispanic male wearing a black hooded jacket. Guthrie, who had heard gunshots from a few blocks away, encountered two parked taxicabs on a street corner. One of the drivers spoke to him in Spanish, which Guthrie did not understand, and pointed in a specific direction. [4] Guthrie broadcast this information on his police radio, and headed in the direction indicated. When Guthrie stopped briefly, the taxicab driver pulled alongside Guthrie's cruiser and indicated that the suspect had entered a park.

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         Guthrie and Colantuoni drove through the park. Within minutes of the 911 call, Guthrie saw a man in a black jacket, later identified as the defendant, walking just south of the park. The man was the first pedestrian Guthrie had encountered during his search. [5] Guthrie activated his lights and siren and tried to head the suspect off. When Guthrie reached a cross street, he observed the defendant emerging from another, in the process of removing his jacket. Upon seeing the police cruiser, the defendant ran away, heading east toward Jackson Street. Guthrie pursued him, yelling for the defendant to stop. Ultimately Colantuoni and another police officer apprehended the defendant on Jackson Street. A pat frisk for weapons revealed a single round of .45 caliber ammunition in the defendant's pants pocket. After being advised of the Miranda rights, and without prompting, the defendant said, "It wasn't me, it was the other guy." He added that if the officers uncuffed him, he would tell them who it was.

         Guthrie went to the restaurant to interview Maria and Ruth. Maria translated for Ruth, who did not speak English. Guthrie was able to elicit only the same bare bones description of the robber that had been broadcast by the police dispatcher, i.e., a Hispanic man in a black hooded jacket. Both witnesses said that they would be able to identify the suspect if they saw him. Guthrie instructed Maria and Ruth that the police had a man in custody, that they did not know if he was the robber, and that they needed the witnesses to tell them whether or not he was the robber. Guthrie wanted to transport Maria and Ruth separately to see the defendant on Jackson Street, where he was being detained for purposes of a showup identification. Guthrie advised the witnesses that he intended to transport them one at a time, in the rear seat of his police cruiser. Both protested. Due to their fear of the suspect, they wanted to be together, and asked for assurances that the individual would not be able to see them. Ultimately, Guthrie acquiesced and drove to Jackson Street with both Maria and Ruth in the rear seat.

         The defendant was standing in front of a wall, handcuffed, and amidst several police officers. Guthrie illuminated the area with the spotlight of his cruiser. Before Guthrie could pose a question, Maria and Ruth simultaneously identified the defendant as the robber, Maria in English, and Ruth in Spanish, in words to the

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effect of, "That's him." When asked about their level of certainty, Maria told Guthrie she was one hundred percent; Ruth, as translated by Maria, said the same thing. The identifications took place within ten minutes of the initial police dispatch.

         2. Prior procedure.

         In August 2015, the defendant was indicted on one count of armed robbery, G. L. c. 265, § 17; three counts of assault by means of a dangerous weapon, G. L. c. 265, § 15B (b); and carrying a firearm without a license, G. L. c. 269, § 10 (a). Prior to trial, he filed a motion to suppress the showup identifications. After an evidentiary hearing, the motion judge denied the motion in a written memorandum and order. In June 2017, the defendant was tried before a Superior Court jury. Although he was able to call an expert on eyewitness identification, his motion in limine to allow the introduction of certain expert testimony relative to witness certainty was denied. The defendant was convicted of all counts. He filed a timely notice of appeal, and we allowed his petition for direct appellate review.

         3. Discussion.

         The defendant contends that suppression is required because the police allowed the two witnesses to participate in the showup identification together, and because the officers did not provide the witnesses with adequate instructions prior to the showup identification. He argues also that the judge denied the motion to suppress by improper reliance on the Federal standard of admissibility, rather than the appropriate test under art. 12 of the Massachusetts Declaration of Rights. In addition, the defendant challenges two of the judge's evidentiary rulings at trial: the admission of evidence of the witnesses' degree of certainty of their identification, and the denial of his motion to introduce expert testimony with respect to the question of a witness's degree of certainty in an identification.

         a. Showup identification procedure.

         Although disfavored as inherently suggestive, a showup identification conducted in the immediate aftermath of a crime is not necessarily impermissible. Commonwealth v. Dew, 478 Mass. 304, 306 (2017). "[S]uggestiveness alone is not sufficient to render a showup identification inadmissible in evidence" (citation omitted). Commonwealth v. Crayton, 470 Mass. 228, 235 (2014). Under both the Fourteenth Amendment to the United States Constitution and art. 12, a defendant seeking suppression of a showup identification must establish by a preponderance of the evidence that the procedure was unnecessarily suggestive. Id. See Perry v. New Hampshire, 565 U.S. 228, 238-239 (2012); Manson v. Brathwaite,

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432 U.S. 98, 110, 113-114 (1977). Under Federal due process requirements, if an identification procedure was unnecessarily suggestive, yet nonetheless was reliable in the totality of the circumstances, it may still be admissible. See Perry, supra at 239; Manson, supra. Under the more protective requirements of art. 12, an identification procedure that is unnecessarily suggestive and conducive to irreparable mistaken identification is per se excluded. Commonwealth v. Johnson, 473 Mass. 594, 597 (2016).

         There may be good reason for police to conduct a showup identification, notwithstanding its inherent suggestiveness, due to "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." [6]Commonwealth v. Austin, 421 Mass. ...

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