Heard February 4, 2019
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.
Supreme Judicial Court granted an application for direct
Levin, Committee for Public Counsel Services, for the
F. O'Sullivan, Assistant District Attorney, for the
Mirenda, K. Neil Austin, Caroline S. Donovan, Madeleine K.
Rodriguez, & Meagen Monahan, for New England Innocence
Project & others, amici curiae, submitted a brief.
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
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.
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).
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.  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
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.
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.
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.  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
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.  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.
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.  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
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.
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
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.
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.
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.
Showup identification procedure.
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,
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).
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." Commonwealth v. Austin, 421 Mass.