|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v.
Supreme Judicial Court of Massachusetts,
Middlesex.
Argued
Decided
Patricia A. O'Neill, Committee for Public Counsel
Services,
Patricia M. Darrigo, Asst. Dist. Atty., for Com.
Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and
O'CONNOR, JJ.
LYNCH, Justice.
The
defendant, Dean M. Holland, appeals from his convictions of assault with intent
to rape, and indecent assault and battery on a person over fourteen years. (FN1)
He asserts that the trial judge erred in (1) the admission of out‑of‑court
photographic identifications and an in‑court identification that he
claims resulted from unnecessarily suggestive police procedures; and (2) the admission of testimony that a
police detective requested the defendant voluntarily to submit to a
lineup. We transferred the case to this
court on our own motion. We find no
error and affirm the convictions.
There was
evidence from which the jury could find the following facts. The then nineteen year old victim worked
evenings at a shoe store in
Immediately
after receiving the call about the assault, the police searched the area around
Elm Street for about forty‑five minutes, and found no suspect. A detective was aware that someone lived in
what was called the Zorak Building, located across the street from the Atlantic
Battery parking lot on the other side of Elm Street. He called the son of the building's owner,
who awakened the man, Dean Holland, an employee of his father's who worked as
well as lived in the building.
(FN2) When Holland came
downstairs to talk to the police, he was wearing boxer shorts, and had his hair
pulled back in a tight ponytail so that it appeared short. He had a moustache and was pale‑skinned.
I. Photographic identifications. After her release from the hospital, the
victim went to the Watertown police station.
There she described her attacker as very pale, thirty to thirty‑five
years old, stocky, with a pot‑belly, and with very short, reddish brown
hair, and a reddish brown moustache. She
reviewed three to six books of photographs of white males of approximately the
same age. Each book contained between
twenty and sixty photographs. One
photograph of the defendant, depicting him with long, full hair and a moustache,
was included among these, in book "2‑D." The victim did not select the defendant's
photograph at this time. She did,
however, pick out a photograph of another man who she said was not her attacker
but resembled him. The photograph
depicted a fat‑faced man with reddish brown hair, moustache, beard, and
glasses.
[410 Mass. 251] The next morning, the victim returned to the police station and
reviewed another book or two, containing fifty to eighty photographs of white
males. These books did not contain the
defendant's photograph. The victim
selected a photograph of a second man who she said was also not her attacker,
but bore an eighty percent resemblance to him.
This photograph depicted another fat‑faced man with reddish brown
hair and moustache. (FN3)
That same
afternoon, on August 8, 1989, a detective brought to the victim's home a book
with four pages, containing sixteen photographs, all from the same book "2‑D"
which she had reviewed the night of August 7.
The defendant's photograph was the first of four on the first page of
the book. The detective told the victim
to "[c]oncentrate on eyes, nose, and mouth because those things don't
change," and to block out all other things such as moustaches, hair, and
clothing. After looking at all the
pages, she selected the photograph of the defendant and told the detective that
she was very sure that it was her attacker except that the person in the
photograph "had really long, ... puffy hair". She said that she would be "very sure
that it was him, 95 percent sure," if his hair had been short or
"pulled back."
After the
attack, the victim was driven back and forth to work, taking the same route she
had walked, past the Atlantic Battery parking lot on one side and the Zorak
Building on the other side of Elm Street.
On her way to work on September 3, 1989, a bright sunny day, the victim
noticed the defendant standing in the doorway of the Zorak Building, directly
across the street from the scene of the assault. She could see his face, his moustache, and
the color of his hair. His hair was
pulled back and appeared short. She
recognized him as the man who had attacked her.
She was also aware that he was the man in the picture she had
selected. The following Wednesday,
September 6, while on her way to [410
Mass. 252] work, she saw her
attacker again, sitting in the doorway of the Zorak Building. She called the police station and reported
that she had seen the man who had attacked her.
(FN4)
The victim
then went to the police station, where she was shown an array of eight
photographs, all of which she had viewed previously on the night of the crime,
and which had also been included in the array of sixteen which she had viewed
on the afternoon of August 8. The victim
selected the same photograph of the defendant she had selected previously, the
moment she came upon it. This time, she
said she was certain it was the man who had attacked her. Subsequent to this final photographic
identification, the victim observed the defendant one more time as she walked
down Elm Street with a friend. At trial,
the victim identified the defendant in court and stated there was no doubt he
was the man who had attacked her.
After a
pretrial hearing on the defendant's motion to suppress the identification, the
judge found that the police procedure was not improperly suggestive and that the
victim's identification of the defendant was based on her opportunity to view
him at the time of the crime.
The
defendant now claims that the victim's selection of his photograph from the
array of sixteen on August 8 was the result of unnecessarily suggestive
procedures, and that her subsequent positive photographic identification of the
defendant in September, 1989, as well as her in‑court identification,
were inadmissible as the fruits of the allegedly tainted August 8
identification. Specifically, the
defendant argues that the showing of the defendant's picture for the second
time; its lead location in the
array; the detective's direction to
concentrate on facial features; and the
fact that, according to the defendant, he was the only man in the photographic
array with long hair, combined to create an impermissibly powerful[410 Mass. 253] suggestion that the
defendant's photograph was the one to pick.
(FN5)
[1] A
photographic identification procedure is constitutionally invalid if the
procedure was "so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification."
Commonwealth v. Thornley, 406 Mass. 96, 98, 546 N.E.2d 350 (1989) (Thornley II ), quoting Simmons v. United States, 390 U.S. 377,
384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).
The initial burden rests on the defendant to show, by a preponderance of
the evidence, that, considering the totality of the circumstances attending the
particular identification, the witness was subjected by the State to an
identification so unnecessarily suggestive and conducive to irreparable
misidentification as to deny the defendant due process of law.
Commonwealth v. Botelho, 369 Mass. 860, 865‑868, 343 N.E.2d
876 (1976), citing Stovall v. Denno,
388 U.S. 293, 301‑302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967).
[2] If the
defendant sustains this burden, the Commonwealth may offer evidence of
subsequent identifications only if it can show by clear and convincing evidence
that they were not the product of the suggestive identification, but had a
source independent of the suggestive identification. See
Thornley II, supra 406 Mass. at 99, 546 N.E.2d 350; Commonwealth v. Botelho, supra
369 Mass. at 868, 343 N.E.2d 876. (FN6)
[3][4] [410 Mass. 254] Looking at the totality of the circumstances attending the August
8 identification, the judge would have had an ample basis to conclude that the
police did not use any impermissibly suggestive procedures. The argument that the showing of the
defendant's photograph for the second time would make the victim more likely to
choose it is unconvincing where all the other photographs in the array had also
been seen previously by the victim, and the defendant's photograph had not been
singled out in any manner in the previous viewing. This is not a case where a defendant's
photograph was the only one duplicated in one or more arrays; but even in those cases, such duplication has
not been held sufficient, by itself, to compel exclusion of the resulting
identification. See Commonwealth v. Paszko, 391 Mass. 164, 169‑170, 461 N.E.2d
222 (1984), and cases therein collected.
The victim
explained that she did not select the defendant's photograph from the large
number shown her on the night of August 7 because, at the time, she was looking
mainly for people with short hair and she passed over anyone with long
hair. In light of this explanation, her
failure to pick the defendant's photograph from the initial array of
approximately 120 to 360 photographs has little significance. Cf.
Commonwealth v. Correia, 381 Mass. 65, 68, 72‑73, 407 N.E.2d 1216
(1980);
Commonwealth v. Paszko, supra 391 Mass. at 171, 461 N.E.2d 222;
Commonwealth v. LaPierre, 10 Mass.App.Ct. 641, 644, 411 N.E.2d 1314
(1980).
The
detective's direction to the victim to concentrate on facial features
"that don't change" while looking at the four pages of photographs
was a commonsense suggestion of general application. Despite the defendant's claim that the suggestion
"must have telegraphed to [the victim] the message that something
changeable such as hair was the key to making an identification," it did
not target any one particular photograph or create a likelihood of
misidentification. Cf. Commonwealth v. Correia, supra 381
Mass. at 72, 407 N.E.2d 1216 (detective's comment that witness should look
carefully because robbers often wore disguises, and his action in pointing to
two pictures of defendant as an example, was made in good faith as general
advice, and he was not attempting to accentuate the defendant[410 Mass. 255] although defendant was
only person whose pictures appeared in array both in disguise and
without). The fact that the photograph
was the first one on the first page does not compel a different conclusion.
In a
related point, the defendant's claim that he was the only man in the array
depicted with long hair is not accurate:
many of the men pictured in the array had long hair, of varying
styles. Although the defendant's hair
may have been the fullest, that was not enough to render the array
impermissibly suggestive, especially where it was contrary to, rather than
consistent with, the description of the attacker. Cf.
Commonwealth v. Napolitano, 378 Mass. 599, 603, 393 N.E.2d 338 (1979)
(police not required to limit array to pictures of heavy men with beards, and
array was fair where only three of forty‑four photographs depicted heavy
men with scraggly beards, a description of the assailant). The victim's statement that she would be more
certain it was her attacker if she could see him with short hair indicates she
selected the defendant's photograph not because of the hair, but in spite of
it. Cf. Commonwealth v. Melvin, 399 Mass. 201, 206‑207 n. 10, 503
N.E.2d 649 (1987) (although photograph of defendant was only one where arm was
in sling and witness had seen intruder fall on his shoulder, identification
sustained where victim did not select the photograph on that basis);
Commonwealth v. Mobley, 369 Mass. 892, 896, 344 N.E.2d 181 (1976)
(where defendant was only one in photographic array wearing ski cap, and robber
had worn a ski cap, identification admissible where witness testified he was
not looking for a hat when he examined the pictures). The victim's qualification of the
identification by stating she could not be sure without seeing the defendant
with short hair also supports the conclusion that the conduct of the police was
without significant effect. See Commonwealth v. Paszko, supra 391 Mass.
at 171, 461 N.E.2d 222; Commonwealth v. Correia, supra 381 Mass.
at 79, 407 N.E.2d 1216; Commonwealth v. Mayo, 21 Mass.App.Ct.
212, 217, 486 N.E.2d 84 (1985).
That the
victim previously selected two other photographs does not render her subsequent
identification of the defendant suspect, where she clearly qualified her
selections, stating [410 Mass. 256] that neither of the men depicted was
her attacker, but merely resembled him in some respects. Cf.
Commonwealth v. Paszko, supra. The
defendant's contention that those men did not resemble the defendant at all is
contradicted by the record. (FN7)
[5] Even
if the August 8 identification had been unconstitutionally suggestive, the
subsequent photographic and in‑court identifications would still be
admissible, because the record amply supports the judge's finding that they
resulted from the victim's independent observations of the defendant at the
time of the crime. See Commonwealth v. Botelho, 369 Mass. 860,
868, 343 N.E.2d 876 (1976). The
following factors are to be considered in determining whether there was an
independent source: (1) the extent of
the witness's opportunity to view the criminal at the time of the crime; (2) the accuracy of the witness's
description, and any errors in failing to identify the defendant or identifying
some other person; (3) whether
suggestions were given to the witness regarding identification of the
defendant; (4) the level of certainty of
the witness; (5) the length of time
between the crime and the identification.
See Thornley II, 406 Mass. 96,
101, 546 N.E.2d 350 (1989); Commonwealth v. Thornley, 400 Mass. 355,
364, 509 N.E.2d 908 (1987) (Thornley I
);
Commonwealth v. Mobley, 369 Mass. 892, 896, 344 N.E.2d 181 (1976).
[6] In
this case, the victim had an opportunity to observe her assailant close‑up
and face‑to‑face while he stood over her for some time. The parking lot where the assault took place
was well lit by the nearby street lights.
The victim's description of her attacker remained consistent from the
start. Even the discrepancy between her
description of her attacker as short‑haired and the defendant's long hair
proved not to be an inconsistency, because of the manner in which the defendant
wore his hair.
[7] II.
Testimony on request to submit to lineup. On the morning of August 9, 1989, a
detective again visited the defendant at the Zorak Building. At a pretrial voir dire hearing,[410 Mass. 257] defense counsel objected
to the proposed admission of the conversation that ensued, because it included
testimony that the detective requested the defendant to submit to a
lineup. (FN8) The judge ruled that the detective should not
refer in his testimony to the defendant's ultimate decision not to cooperate,
stating: "I agree with the defense
that a statement by the detective to that effect risks being misconstrued by
the jury as consciousness of guilt when, in fact, it is simply the assertion of
a right that was his." However,
the judge ruled that the detective would be permitted to testify that he had
asked the defendant to submit to a lineup.
The
jury heard the following exchange:
"Q.
After advising the defendant of these particular [Miranda] rights, what, if
anything, did you tell him?
"A.
I told the defendant that the victim had picked out his photo as her assailant.
"Q.
Did you tell him anything else at that time?
"A.
Yes, I also told him that I would like him to submit to a line up.
"Q.
And did you indicate to him why you wanted him to submit to a line up?
"A.
Yes, I did.
"Q.
What did you tell him?
"A.
I felt as though that taking a third photo with him having his hair in a
ponytail as he was wearing it at the time, would be unfair to him.
"Q.
After you told the defendant all of this, did he say something back to you?
[Objection overruled]
"A.
Yes, he did.
"Q.
What did he say to you?
[410 Mass. 258] "A. At that time he informed me that he was left handed and
then he asked me if the victim had told us that a left handed person had hit
her on the back of the head.
"Q.
Now, prior to him saying that, had you had any discussion at all regarding
striking blows to the head of the victim?
[Objection overruled]
"A.
We had never described the assault to him, whatsoever." (FN9)
On
cross‑examination, the detective testified that it was the defendant who
offered to have his picture taken with his hair pulled back in a ponytail.
The
defendant claims that "[o]nly the densest of jurors would have failed to
infer ... that the defendant had refused the request." He claims the Commonwealth's purpose in
introducing evidence of the detective's request was so that the jury would
infer the defendant refused, and would further infer that the refusal
communicated an admission or consciousness of guilt. The Miranda warnings given to the defendant
would have suggested "that he could cease cooperating with the police whenever
he chose." Commonwealth v. Rembiszewski, 363 Mass.
311, 316, 293 N.E.2d 919 (1973). Thus
the defendant's refusal to appear in a lineup may have meant no more than that
he did not wish to risk any action that might incriminate him or take any such
action without first consulting with
counsel. If evidence of the refusal is
admissible in evidence, he argues, the defendant was placed in a "Catch‑22"
situation in which he would risk incriminating himself no matter what he
did: if he agreed to participate he
would risk [410 Mass. 259] evidence of an identification, (FN10)
but if he refused to participate, his refusal could be used as incriminating
evidence of consciousness of guilt.
The
defendant contends that forcing him to make such a choice violates the fairness
requirement of the due process clause of the United States Constitution, as
well as art. 12 of the Massachusetts Declaration of Rights. He also argues that evidence of his refusal
to stand in a lineup was not probative and was unfairly prejudicial. See
Commonwealth v. Nickerson, 386 Mass. 54, 60‑61, 434 N.E.2d 992 (1982)
(inappropriate to permit jury to consider defendant's failure, prior to arrest,
to come forward to identify another member of gang as person who cut victim,
where defendant had no duty to report other member to police and it would not
have been "natural" for him to do so). Furthermore, the defendant argues that the
request to submit to a lineup was introduced for the information that could be
inferred concerning the knowledge, understanding, and thoughts of the defendant‑‑the
consciousness of guilt‑‑and as such was testimonial evidence
protected under art. 12 of the Massachusetts Declaration of Rights.
Commonwealth v. Doe, 405 Mass. 676, 679, 544 N.E.2d 860 (1989).
The Commonwealth
argues that evidence of the detective's request was relevant and necessary for
the jury to understand that the defendant made a nonresponsive reply evincing
consciousness of guilt because he was evading the detective's question and
attempting to determine the strength of the case against him before deciding
whether to submit to the lineup. (The
prosecutor made no attempt at trial to have the jury speculate as to the
defendant's thought processes.)
The
request to submit to a lineup could have been excluded without impairing the
jury's ability to understand or to appreciate the testimony about the rest of
the conversation, which concerned the defendant's knowledge of details of [410 Mass. 260] the assault. However, even
if the judge's decision did not go far enough, any error was harmless beyond a
reasonable doubt.
The
defendant's arguments rest on the assumption that allowing evidence of the
request was tantamount to using his refusal to participate in a lineup against
the defendant, as an admission of guilt.
There is no basis for that assumption.
The focus of the detective's testimony was not on the request that the
defendant submit to a lineup, but rather on the defendant's inquiry indicating
he knew the victim had been hit on the back of the head. The prosecutor came back only to this latter
part of the testimony in his examination and closing argument. After eliciting the initial testimony about
the conversation, the prosecutor never again referred to the request, and never
suggested any inference should be drawn therefrom. Cf.
Chapman v. United States, 547 F.2d 1240, 1249‑1250 (5th Cir.), cert.
denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977) (harmless error when
single reference to silence was neither repeated nor linked to exculpatory
story);
Commonwealth v. Rembiszewski, 363 Mass. 311, 316‑317, 293
N.E.2d 919 (1973).
Also, if
the jury did speculate about whether the defendant agreed to a lineup, the
evidence that the defendant offered
to have a picture taken with his hair pulled back might well have caused them
to speculate that he did agree. At the least, it would have defused any
inference that he refused to participate, and that such refusal was motivated
by a consciousness of guilt. In
declining the judge's offer to give a cautionary instruction defense counsel impliedly
recognized that the jury would not necessarily draw the adverse inferences the
defendant claims are so obvious.
Finally,
evidence of consciousness of guilt had at best a collateral relationship to the
defense's only issue at trial, identification.
If such evidence played any role in the jury's decision, the much
stronger evidence of consciousness of guilt suggested by the defendant's
knowledge of details of the assault overshadowed the evidence about the request
to submit to a lineup. Cf. Commonwealth v. Mahdi, 388 Mass. 679,
696 n. 16, 697, 448 N.E.2d 704 (1983), and cases cited therein. See
Commonwealth[410 Mass. 261]
v. Simmonds, 386 Mass. 234, 240‑241, 434 N.E.2d 1270 (1982)
(comment that defendant knew he had already been picked out in lineup as
individual who had raped one party, when defendant was charged with assault
with intent to rape, was obscure and would not have appreciably influenced
jury);
Commonwealth v. Vanetzian, 350 Mass. 491, 495, 215 N.E.2d 658 (1966)
(testimony indicating defendant had met police officer in the past was obscure
and relevance to issues being tried tenuous, and it could not have tainted
jury's verdict).
For the
foregoing reasons, we affirm the convictions.
Judgments affirmed.
(FN1.) A third conviction of assault and
battery was placed on file with the defendant's consent.
(FN2.)
A detective wrote in his police report and testified that, when he asked the
owner's son to describe Holland's condition when the son found him in bed, the
son stated that Holland was totally naked.
The owner's son testified at trial that Holland was wearing boxer shorts
when the son found him in bed.
(FN3.)
The police interviewed the man depicted in this photograph. They found he had an alibi for the night of
the crime, and his body had numerous tattoos.
(FN4.)
The police played no part in the victim's chance sighting of the defendant,
and, in fact, had been careful to avoid suggesting that a suspect lived in the
area.
(FN5.)
The Commonwealth contends the defendant has waived the right to appeal the
motion judge's finding, because he did not raise his ground for appeal‑‑the
allegedly suggestive procedures of the August 8 identification‑‑at
the motion hearing. See Commonwealth v. Pares‑Ramirez,
400 Mass. 604, 609, 511 N.E.2d 344 (1987).
In this case, trial testimony subsequent to the motion hearing revealed,
apparently for the first time, that the detective at the August 8 array
suggested that the victim concentrate on features that do not change, rather
than things like moustaches or hair. The
defendant did not renew his motion to suppress in the light of this
evidence. Even if he had, our discussion
demonstrates that the result would not have been different.
(FN6.) Manson v. Brathwaite, 432 U.S. 98, 109‑114,
97 S.Ct. 2243, 2250‑53, 53 L.Ed.2d 140 (1977), allows use of an out‑of‑court
identification even where suggestive procedures have been employed, provided
certain indicia of reliability exist to ensure that the identification is
correct. We need not decide whether to
adopt this analysis in this case, since we conclude that the procedures were
not suggestive. See, e.g., Commonwealth v. Melvin, 399 Mass. 201,
205 n. 6, 503 N.E.2d 649 (1987).
(FN7.)
A resemblance is visible in the shape of the nose, the downturned moustaches
and mouths, and the heavy‑lidded eyes.
(FN8.)
The defendant never explicitly refused to submit to a lineup. However, after asking the detective what
would happen if the victim picked him out of a lineup and being informed that
he would be arrested, he told the detective to get out of his house and not to
come back without a warrant.
(FN9.)
The detective later admitted that on the previous day, August 8, while visiting
the defendant at his workplace, he had asked to see the defendant's hands, and
had questioned him about the cause of swelling on the knuckles of the his right
hand. He also testified, however, that
the only details he told the defendant about the assault were that a girl was
attacked across the street from his location and the man was naked.
(FN10.) That
the defendant may not have had the right under the Fifth Amendment to the
United States Constitution to refuse an order to appear in a lineup, United States v. Wade, 388 U.S. 218,
221‑222, 87 S.Ct. 1926, 1929‑30, 18 L.Ed.2d 1149 (1967), is
irrelevant. Here, the defendant had no
duty to submit to a lineup; he was never
ordered to do so but was requested to submit voluntarily.