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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. Riley, 26 Mass.App.Ct.
550 (1988)
Appeals Court of Massachusetts, Middlesex.
No. 88‑P‑354.
Argued
Decided
Further Appellate Review Denied
Regina Zupan, Committee
for Public Counsel Services,
Cheryl A. Jacques, Asst. Dist. Atty., for the Com.
Before GREANEY, C.J., and SMITH and FINE, JJ.
FINE, Justice.
The only
real issue at the defendant's trial was whether he was the individual who broke
into an apartment in
We recite
the subsidiary facts found by the motion judge, supplemented by uncontroverted testimony.
The victim, a thirty‑year‑old music teacher with a
responsible administrative position, was awakened by noise while alone in her
apartment in Somerville at 2:30 A.M. on July 7, 1981. She remained awake, reading and watching
television, with a bright night‑lamp on.
Sometime after 3:30, she heard more noise and saw a man crouching by her
bed and looking up at her. The man
attacked her. As they struggled, for
about two seconds she looked at his face, which was two inches away from
hers. She watched his face again from an
arm's length away for about six seconds as he was grabbing her chest. She screamed, and he started to leave. She watched him as he ran out.
Within
three or four minutes the police arrived, and the victim described her
assailant to them as follows:
"about 5' 4"' ('about my height'); weight‑‑120‑130
pounds; age‑‑18‑25; color‑‑white; hair‑‑blond, kinky; clothes‑‑blue jeans only; no facial hair; with his 'head too big for his body'; and a good tan." The police had brought books of photographs
with them which they showed to the victim.
She pointed out three photographs, identifying features in each
resembling those of her [26 Mass.App.Ct. 552]
assailant, but stated that none of the photographs depicted her assailant.
On August
7, 1981, the victim went to the police station to look at more pictures. As she began, the officer said only,
"See if you can pick out the assailant." After viewing one book, she selected a
photograph of the defendant. She said,
"I think that's the man." She
stated that the photograph varied from her recollection of the assailant in
that in the photograph the person's hair was less kinky and shorter, the person
depicted had a moustache, and his complexion was different from that of her
assailant. After the victim selected the
photograph, the officer said, "You picked out the same picture as Jan
did." The victim did not know, and
was not told, who "Jan" was.
She was shown another book of photographs from which she did not make
any selection. She was then shown a
third group. She selected a photograph
of the defendant from the third group and said, "This is definitely
him." The photograph was a more
recent one than the one she had selected earlier; in it the defendant had no moustache, his hair
was longer and kinkier, and his complexion was darker. The victim was then told that the person
whose picture she had selected had been charged with some other sex
crimes. She was asked whether she would
be willing to go to the Somerville District Court within a few days, as, she
was told, he might be there on the other charges.
On August
11, 1981, the victim identified the defendant in a crowded courtroom after
being told to look around the room. The
defendant was one of six men in the prisoner's dock. The defendant appeared shocked when he made
eye contact with the victim, reacting nervously and squirming in his seat. The victim, without reservation, identified
the defendant again at a probable cause hearing on August 17, 1981.
After
considering the reliability factors set forth both in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), and several
Massachusetts cases, (FN1) the judge ruled that the photographic
identifications were "not unnecessarily suggestive and were, in fact, [26 Mass.App.Ct.
553] highly reliable." He found also that neither the in‑person
identification based on the confrontation on August 11, 1981, at the Somerville
court,
nor the identification at the
probable cause hearing, was tainted due to unnecessary suggestiveness. Implicitly, the judge decided that the
suggestive factors in the victim's identifications of her assailant were
outweighed by the reliability factors. The
question for us to decide is whether, on the uncontroverted
testimony and the subsidiary facts found by the judge, that conclusion is
correct.
[1] We
agree with the defendant that the police officer's remark about "Jan"
was both unnecessary and suggestive. It
had a tendency to confirm in the victim's mind the correctness of her initial
tentative choice of the defendant's photograph.
So, too, was it unnecessarily suggestive for the officer to let the
victim know, after she had selected the second photograph of the defendant and
before the in‑court confrontation, that the defendant was facing other
sex‑related charges. That
information had a further tendency to confirm the identification of the
defendant as her assailant in the victim's mind.
[2][3]
Unnecessarily suggestive identifications need not be excluded, however, where
it is determined, based on the totality of the circumstances, that the
suggestiveness has not caused the identifications to be unreliable. See
Commonwealth v. Bernard, 6 Mass.App.Ct. 499, 505,
378 N.E.2d 696 (1978); Commonwealth v. Cincotta,
6 Mass.App.Ct. 812, 816‑817, 384 N.E.2d 1244
(1979);
Commonwealth v. Avery, 12 Mass.App.Ct. 97,
102‑103, 421 N.E.2d 787 (1981); Commonwealth v. Hicks, 17 Mass.App.Ct. 574, 577‑578, 460 N.E.2d 1053 (1984);
Commonwealth v. Crowe, 21 Mass.App.Ct.
456, 467‑468, 488 N.E.2d 780 (1986), cert. denied, 479 U.S. 838, 107 S.Ct. 138, 93 L.Ed.2d 81 (1986); Commonwealth v. Jones, 25 Mass.App.Ct. 55, 60, 514 N.E.2d 1337 (1987);
Commonwealth v. Laaman, 25 Mass.App.Ct. 354, 362, 518 N.E.2d 861 (1988). The focus of the required analysis is on the
initial identification, not the [26 Mass.App.Ct. 554]
later repetitions, and of most importance are the victim's attentiveness and
opportunity to observe the assailant during the commission of the crime. See Commonwealth v. Wheeler, 3 Mass.App.Ct. 387, 392, 331 N.E.2d 815 (1975);
Commonwealth v. Hicks, 17 Mass.App.Ct. at
577, 460 N.E.2d 1053.
Although
the victim may have seen her assailant's face for no more than eight seconds,
the judge found that she had an adequate opportunity to observe him. See
Commonwealth v. Correia, 381 Mass. 65, 75 &
n. 2, 407 N.E.2d 1216 (1980); Commonwealth v. Melvin, 399 Mass. 201,
203, 503 N.E.2d 649 (1987). The lighting
was good, the witness was alert and intelligent, and the terrifying circumstances
of the assault were likely to fix her attention on the assailant and imprint
his features in her mind. The victim's
immediate description to the police was unusually detailed and found by the
judge to be "remarkably identical to the defendant's physical
characteristics."
The
defendant emphasizes that the victim could only say, "I think that's the
man" when she selected the first photograph. Rather than indicating unreliability,
however, the circumstances of that first selection indicate a very high degree
of reliability. The victim explained her
reservations by calling the officer's attention to specific physical
differences between the defendant's appearance in the photograph and her
recollection of his appearance during the incident. When later shown a more recent photograph,
depicting the very changes in his appearance to which she had referred, she
expressed no doubt that the man in the photograph was her assailant. The victim made her unequivocal identification
only a month after the incident, soon enough for her memory to have remained
intact. See Commonwealth v. Porter, 384 Mass. 647, 657‑658, 429 N.E.2d
14 (1981). There is no evidence that the
victim ever identified someone other than the defendant or that, from the
hundreds of photographs she was shown on several occasions, she ever selected a
photograph of someone other than the defendant.
See Commonwealth v. Key, 19 Mass.App.Ct. 234, 240, 472 N.E.2d 1381 (1985).
[4]
Against these strong indicia of reliability, we weigh the officer's two
improperly suggestive remarks. The
officer's reference to "Jan" was made after the victim
had already provided [26 Mass.App.Ct. 555]
a detailed description of her assailant to the police, selected the defendant's
photograph, and noted specific differences between the photograph and her
recollection of his appearance at the crime scene. Although it was a reasonable assumption on
the victim's part that "Jan" was another woman against whom a sex
offense had been committed, the victim knew that only she was present during
the incident in her bedroom and only she could identify her assailant. As to the second suggestive remark, the
officer simply should not have told the victim that the defendant was charged
with other sex crimes. Before that
improper remark was made, however, the victim had made an unequivocal
identification of the defendant from a more recent photograph. Moreover, it is not unusual, while an
investigation or prosecution of a case is pending, for a crime victim to learn
facts confirmatory of a suspect's guilt or about his criminal history. See
Commonwealth v. Bonnoyer, 25 Mass.App.Ct.
444, 451, 519 N.E.2d 791 (1988). As long
as the initial identification and its later repetitions are based on the
witness' firsthand observations, no admissibility problem arises. Id.
at 451, 519 N.E.2d 791.
The
Somerville courtroom confrontation also raises questions of propriety. See
Commonwealth v. Napolitano, 378 Mass. 599, 605‑608, 393 N.E.2d 338
(1979). It is not clear whether it was
arranged as a reasonable step in the investigation or in an attempt to bolster
the victim's identification. See Martin v. Donnelly, 391 F.Supp. 1241, 1248 (D.Mass.1974). Compare
Commonwealth v. Marks, 12 Mass.App.Ct. 511, 514‑515
& n. 5, 426 N.E.2d 1172 (1981). The
defendant failed to produce any evidence, however, that the particular
circumstances of the courtroom identification were suggestive. Although the confrontation may have been
unnecessary and a lineup preferable, we decline to rule that any possibly improper
police motivation tainted the otherwise reliable identification. Further, nothing suggestive has been pointed
to in connection with the victim's identification of the defendant at the
probable cause hearing. Thus,
considering the totality of the circumstances, we conclude that the reliability
test has been satisfied as to both the in‑person and the photographic
identifications.
[5] [26 Mass.App.Ct.
556] On the second point raised by
the defendant on appeal, his inability as a practical matter to conduct
effective cross‑examination, unquestionably he was faced with a dilemma
at trial: whether or not to cross‑examine
the victim about the suggestiveness of the police officers' statements. To do so would have brought to the jury's
attention the information that "Jan" had also identified the
defendant's photograph and that he had been charged with other sex crimes. To the extent that the defendant is relying
on Commonwealth v. Bonnoyer,
25 Mass.App.Ct. at 448‑452, 519 N.E.2d 791
(information conveyed by the police to the identifying witness that a
codefendant had made a confession implicating the defendant), he would have to
have raised the issue before the trial judge, who may have had some discretion
to protect him against the unfairness of the situation. The defendant failed to point out the
unfairness of his dilemma at the appropriate time to the trial judge in this
case.
JUDGMENTS
AFFIRMED.
(FN1.) The factors are as follows: "[1] the opportunity of the witness to
view the criminal at the time of the crime, [2] the witness' degree of
attention, [3] the accuracy of his prior description ..., [4] the level of
certainty demonstrated at the confrontation, and [5] the time between the crime
and the confrontation." Manson v. Brathwaite,
432 U.S. at 114, 97 S.Ct. at 2253. Neil
v. Biggers, 409 U.S. 188, 199‑200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). See also
Commonwealth v. Botelho, 369 Mass. 860, 867‑869,
343 N.E.2d 876 (1976); Commonwealth v. Mobley, 369 Mass. 892,
895‑896, 344 N.E.2d 181 (1976); Commonwealth v. Venios,
378 Mass. 24, 27, 389 N.E.2d 395 (1979).