|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Thornley, 406
Supreme Judicial Court of Massachusetts,
Argued
Decided
Eric Brandt, Committee for Public Counsel Services,
for defendant.
Charles J. Hely, Asst. Dist. Atty. (Stephanie Martin Glennon, Asst. Dist. Atty.,
with him), for the Com.
Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN,
LYNCH and O'CONNOR, JJ.
ABRAMS, Justice.
In Commonwealth v. Thornley, 400
In his original
findings the motion judge found that "the photo array ... was only
suggestive in that the defendant had glasses on. Otherwise, there was no suggestiveness."
The
defendant appeals from the further findings claiming that (1) the original
photographic identifications were impermissibly suggestive because both
witnesses already had described the suspect as a man wearing glasses, the
defendant's photograph was the only one showing a man with glasses, in a
thirteen‑photograph array, and both witnesses relied on the defendant's
glasses in identifying him as the suspect;
and (2) [406 Mass. 98] the subsequent lineup and courtroom
identifications should have been suppressed because the Commonwealth failed to
prove by clear and convincing evidence that the subsequent identifications were
based on a source independent of the suggestive array. We conclude that, based on the judge's
findings, there must be a new trial.
[1] 1. Suggestiveness of the photographic array. "Photographic identification procedures
are constitutionally invalid if the procedures were 'so impermissibly
suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.' " Thornley I, supra at 364, 509 N.E.2d 908, quoting Simmons, supra 390
If the
defendant sustains his burden, then, in order to introduce any subsequent identifications
at trial, the Commonwealth must establish by clear and convincing evidence that
the later identifications were not the product of the suggestive identification
and were based on a source independent
of the initial suggestive identification. Botelho, supra 369 Mass. at 866‑868,
343 N.E.2d 876.
In
addition to his finding that "the eyeglasses of the defendant had become a
major issue in this case," the judge also found that "the identifying
witnesses did not spend much time in looking at photographs, but immediately
picked out [the defendant's] photograph."
(FN4) The findings that (1) the
defendant's picture was the only one in the array with glasses; (2) the glasses were a "major
issue"; and (3) the witnesses
relied on the glasses in selecting the defendant's picture, warrant the
conclusion that the witnesses identified
[406 Mass. 100] the defendant
because the defendant's photograph showed him wearing glasses. (FN5)
[2][3]
"[W]e disapprove of an array of photographs which distinguishes one
suspect from all the others on the basis of some physical characteristic."
Commonwealth v. Melvin, 399 Mass. 201, 207 n. 10, 503 N.E.2d 649
(1987).
Commonwealth v. Clark, 378 Mass. 392, 400, 393 N.E.2d 296 (1979),
quoting United States v. Magnotti, 454
F.2d 1140, 1142 (2d Cir.1972) (photograph in an array may not "single out
any distinguishing personal characteristics of defendant not possessed by the
men in the other photographs"). Cf. Simmons, supra 390 U.S. at 383, 88
S.Ct. at 971 (even the best arrays involve "some danger [of] an incorrect
identification" and this danger is increased where "the photograph of
a single ... individual ... is in some way emphasized"). Nevertheless, identifications based on a
suggestive array where only one subject is pictured with a distinctive feature
are admissible if "it is clear that the [witness] did not select the photograph on that basis" (emphasis added).
Commonwealth v. Melvin, supra 399 Mass. at 207 n. 10, 503 N.E.2d
649. (FN6) A witness's unequivocal testimony that he was not relying on a distinctive feature
will considerably neutralize any suggestiveness in a photographic array.
Commonwealth v. Mobley, 369 Mass. 892, 896, 344 N.E.2d 181
(1976). The instant case is
distinguishable from Mobley and Melvin in that here, both witnesses
unequivocally and explicitly said that the glasses were the significant factor
that they relied on in their selection of the defendant's photograph. Thus, the suggestiveness in this case was not
"considerably neutralized." Mobley, supra 369 Mass. at 896, 344
N.E.2d 181. Because the witnesses
selected the defendant's photograph on the basis of the [406 Mass. 101]
glasses, we conclude that the array was "impermissibly" suggestive.
[4] After
a defendant proves that an initial identification was impermissibly suggestive,
the Commonwealth bears the burden to prove, by clear and convincing evidence,
that any subsequent identifications are based on an independent source.
Botelho, supra 369 Mass. at 867‑868, 343 N.E.2d 876. As we noted in Thornley I, supra 400 Mass. at 364, 509 N.E.2d 908, application of
this test requires consideration of the five factors set forth in Simmons and Wade. The judge found that
the "identification of the defendant was primarily an eyeball identification
and was not wholly dependent on [the]
photographic array" (emphasis added).
A finding that the lineup and courtroom identifications were "not
wholly dependent" on the suggestive array falls short of a determination
that the identifications have an independent source. The judge's original finding that "the
identifying witnesses were relying 'upon their view of the defendant on the
night of the shooting' " does not aid the Commonwealth because the judge
did not conclude that the witnesses were relying solely on their view of the
defendant during the crime without regard to the photographic array. Indeed, this judge's determination that the
identification of the defendant was not
wholly dependent on the photographic array suggests otherwise. Because the Commonwealth did not convince the
judge that the lineup and courtroom identification were based on a source
independent of the suggestive photographic identification, it was error to
admit that testimony.
[5] 2. Harmless error. We next consider whether the constitutional
errors in the present case were harmless beyond a reasonable doubt.
Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d
705 (1967). Commonwealth v. Kelleher, 395 Mass. 821,
827, 482 N.E.2d 804 (1985). Commonwealth v. Garcia, 379 Mass. 422,
441, 399 N.E.2d 460 (1980). Whether an
error is harmless depends on a host of factors, Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438,
89 L.Ed.2d 674 (1986), including whether the "erroneously admitted evidence
was 'merely cumulative' of evidence properly before the jury," Commonwealth v. Sinnott, 399 Mass. 863,
872 n. 8, 507 N.E.2d 699 (1987). The
essential question is whether the error had or might have [406 Mass. 102] had an
effect on the jury and whether the error contributed to or might have
contributed to the verdict. See Commonwealth v. Marini, 375 Mass. 510,
520, 378 N.E.2d 51 (1978).
[6]
Applying the foregoing standard, we have no doubt that the errors here were not
harmless to the defendant. The sole
issue at trial was whether the defendant was mistakenly identified as the
assailant. "The reasonable doubt
standard is most crucial in cases where central facts (such as identity ...)
are at issue, and credibility plays a key role." Commonwealth v. Garcia, supra
379 Mass. at 441, 399 N.E.2d 460. The
evidence erroneously admitted went to the central issue in this case‑‑the
question of identification‑‑and not to a collateral issue. See
Commonwealth v. Marini, supra 375 Mass. at 521, 378 N.E.2d 51.
The
Commonwealth's case consisted of evidence regarding the original description,
the "Identikit" composite sketch, the photographic array, the lineup,
courtroom identifications, and testimony about the night in question. In an eyewitness identification case such as
this, where the bulk of the trial was consumed by testimony regarding the
improperly admitted identifications, we are unable to conclude that these
identifications were "merely cumulative."
Accordingly,
the judgments are reversed, the verdicts are set aside, and the case is
remanded for a new trial.
So ordered.
(FN1.) The facts are set forth in Thornley I, supra 400 Mass. at 356‑358,
509 N.E.2d 908.
(FN2.)
The Commonwealth urges us to adopt Manson
v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), which
allows the 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. Id.
at 109‑114, 97 S.Ct. at 2250‑53.
The parties and the judge tried the case on the basis that Botelho, supra 369 Mass. at 865‑870,
343 N.E.2d 876, was the applicable law.
"In these circumstances we shall not disregard the theory of law on
which the parties proceeded at trial." Commonwealth v. Thompson, 382 Mass. 379,
382, 416 N.E.2d 497 (1981), and cases cited.
We note that
the Commonwealth concedes that "[a]part from questions on burden of proof
and quality of evidence, the Brathwaite
focus on reliability factors and the likelihood of misidentification does not
appear to be substantially different from the Botelho focus on whether there was an 'independent source' for the
subsequent identification." The
Commonwealth asks us to conclude that the opportunity to view during the crime
was the independent source for identification.
The judge did not make that finding of fact. Although the judge could have made such a
finding, he did not do so. "[T]he
responsibility of weighing credibility and finding fact is reposed in the trial
court." Commonwealth v. Haas, 373 Mass. 545, 550,
369 N.E.2d 692 (1977). "[It] is
inappropriate to ask us to reverse a judge's findings involving credibility,
since he saw the witnesses and we did not." Commonwealth v. Murphy,
362 Mass. 542, 550‑551, 289 N.E.2d 571 (1972) (Hennessey, J.,
concurring).
(FN3.) At that point, the judge examines only
the totality of the circumstances of the particular confrontation or
identification itself and does not consider "the witness's entire
connection with the case to determine whether the confrontation, although ...
unnecessarily suggestive, was nevertheless reliable, and therefore
usable...." Botelho, supra 369 Mass. at 867, 343
N.E.2d 876. Here, for example, that the
three witnesses had ample opportunity to view the two men at the bar on the
night in question has no bearing on the suggestiveness of the photographic
array. See id. Rather, such evidence,
external to the array, enters into the second stage of analysis, if reached,
i.e., "whether the witness's ability to identify had an independent
source." Id. at n. 5.
(FN4.) That the glasses were "a major
issue" is confirmed by the descriptions the witnesses gave immediately
following the incident. Both described
the suspect as wearing glasses. The
glasses worn by the defendant in the photographic identification had metal
frames resembling the glasses described by the witnesses. In addition, as we observed in Thornley I, the composite sketch
pictured the man's glasses as a "prominent feature" of his appearance.
Thornley I, supra 400 Mass. at 364, 509 N.E.2d 908. Further, both Davis and McCarthy said that
they relied on the glasses as probably the most significant factor in making
their selection of the defendant's photograph.
(FN5.)
This conclusion is supported by McCarthy's testimony that, in making his
selection, he "picked the one with glasses."
(FN6.) See
Commonwealth v. Melvin, supra 399 Mass. at 207, 503 N.E.2d 649 (involving
array in which the victim specifically testified that the distinguishing
feature‑‑an arm sling‑‑played "no part" in
his selection of defendant's photograph, which was based "solely on his
[original] observations" of the suspect). Commonwealth v. Mobley,
369 Mass. 892, 894‑895, 344 N.E.2d 181 (1976) (involving an array in which
the defendant's photo was the only one showing a ski hat, where the victim
testified that he was not looking for
a hat, did not focus on it, and could not even remember which photo had the
hat).