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.
Supreme Judicial Court granted an application for direct
Patrick Levin, Committee for Public Counsel Services, for the
F. 0'Sullivan, Assistant District Attorney, for the
Anthony Mirenda, K. Neil Austin, Caroline S. Donovan,
Madeleine K. Rodriguez, & Meagen Monahan, for New England
Innocence Project & others, amici curiae, submitted a
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
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. 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.
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
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 was.
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. 357, 362 (1995). Otherwise put, in
such circumstances, an inherently suggestive procedure may
not be unnecessarily suggestive.
general, a defendant may challenge a showup identification as
unnecessarily suggestive in two ways. First, a defendant may
attempt to show that the police did not have a good reason to
conduct this type of disfavored, inherently suggestive,
one-on-one identification procedure. Id. at 361. See
Mass. 204, 217 (2014); Commonwealthv.Martin, 447 Mass. 274, 282 (2006). Second, a showup
identification is unnecessarily suggestive if the procedure