Opinion
16-P-550
05-05-2017
COMMONWEALTH v. DELMORE D., a juvenile.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The appellant, the Commonwealth of Massachusetts, appeals from the order of a juvenile court judge allowing the defendant's motion to suppress his identification. The Commonwealth contends that the judge erred because the Boston police conducted a showup procedure, not a lineup procedure, and that the procedure was not conducted in an unnecessarily suggestive manner. We reverse.
Background. On May 28, 2014, in the Dorchester section of Boston (Dorchester), two victims of an armed robbery, a male and a female, reported that they had met an acquaintance and two unidentified African-American males behind Murphy Public School to purchase marijuana. One of the unknown males, who was later identified as the defendant, wore a black and white jacket and black pants. The other male wore a red hooded sweatshirt and gray pants. The victims reported that the defendant pulled out a knife and demanded that they hand over their cell phones. After taking the cell phones, the three males fled the scene.
Officer Luis Lopez stopped two males on Neponset Avenue in Dorchester who matched the victims' descriptions. He was joined by a second officer and they searched the suspects for the stolen cell phones and the knife used in the robbery. One of the males who was stopped was the defendant. The second officer recovered a knife from the defendant, but no stolen cell phones were found.
The defendant was a seventeen year old African American male, weighing 140 pounds, and had no facial hair. In effort to make the showup procedure less suggestive, Sergeant Sean Smith instructed Officers Norman Texeira, Antoine Ramos, and Corey Franklin, who were present on the scene, to stand next to the defendant. Officer Texeira was a thirty-three year old African American male with a beard, and weighed 185 pounds. Officer Ramos was a thirty-four year old African American and Puerto Rican man with a beard, and weighed 220 pounds. Officer Franklin was a twenty nine-year old, African American man with a beard, and weighed 180 pounds. Two of the officers stood on the left side of the defendant, and the remaining officer was positioned on the right side of the defendant. The officers were dressed in plain clothes and had removed any identifiers associating them with the Boston police department. The identification procedure took place at the intersection of Thelma Road and Neponset Avenue.
At the suppression hearing, the defendant was described as having a medium build.
When asked by the judge, why he conducted the identification procedure in this manner, Sergeant Smith testified:
"... [I]t's not uncommon to have a show-up one-on-one, or maybe if I didn't have the Gang Unit available to use, maybe I would have just had the two suspects stopped, but I thought this would be a little less influential or a little bit—thought it'd be a little more freer or fairer if I put three people in with the suspect. That's why I did it."
Despite testimony that the three officers had various physical builds ranging from muscular, stocky, and thin, the judge found that "[a]ll three [officers were] described as having muscular builds." For the reasons detailed throughout this opinion, this finding is not determinative to our analysis.
Meanwhile, Sergeant Charles MacKinnon instructed the male victim about the showup procedure, reciting from a preprinted card. He asked the victim to identify, if he could, anyone in the lineup on Neponset Avenue and to state his degree of certainty as to the identity of any such person. Sergeant MacKinnon then drove the victim past the line of four people standing on Neponset Avenue. The victim identified the defendant by his clothing and stated that he was eighty-five percent certain that the defendant was one of the males that had robbed him with a knife. The officers then arrested the defendant. The identification occurred fifteen minutes after the incident.
Sergeant MacKinnon testified that he gave the victim the following instruction:
"We have someone stopped we'd like you to take a look at. This person may or may not be involved.
"If he's not involved, the investigation will continue whether or not you make an identification.... It's just as important to free the innocent from suspicion as it is to identify the offenders.... We want you to make a statement of certainty in your own words if there is an identification."
Sergeant MacKinnon testified that the officers and the defendant were standing in a "loose line."
Sergeant MacKinnon testified that when the victim made the identification, "[h]e described the clothing that [the defendant] was wearing" and that "[h]e had [on] a black jacket over a gray hoodie."
The police then conducted a showup procedure for the second male suspect stopped by the police, using an identical identification procedure with the same three plain clothes police officers. Neither the male victim nor the female victim were able to identify the second male suspect.
Discussion. The Commonwealth argues that the judge erred in suppressing the identification of the defendant. "[W]e accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of [the judge's] ultimate findings and conclusions of law." Commonwealth v. Meas, 467 Mass. 434, 440 (2014) (quotation omitted).
I. Identification procedure. The Commonwealth alleges that the judge erred in concluding that "in this case, the showup [procedure] was turned into a lineup." We agree.
"It is true that ‘[o]ne-on-one [showup] identifications are generally disfavored because they are viewed as inherently suggestive.’ " Id. at 441, quoting from Commonwealth v. Martin, 447 Mass. 274, 279 (2006). "[B]ut such showups of suspects to eyewitnesses of crimes have been regularly held permissible when conducted by the police promptly after the criminal event." Commonwealth v. Barnett, 371 Mass. 87, 92 (1976). In contrast, a lineup is "[a] police identification procedure in which physically similar persons, one of whom may be the suspect, are shown to the victim ... or a witness to determine whether the suspect can be identified as the perpetrator of the crime." Black's Law Dictionary 1071 (10th ed. 2014). Lineups are not typically conducted in the immediate aftermath of a criminal activity. See e.g. Commonwealth v. Britto, 433 Mass. 596, 598 (2001) (videotaped lineup conducted several months after the incident).
Here, the police officers conducted an identification procedure, fifteen minutes after the commission of the crime, by positioning the defendant between three plain clothes police officers. The male victim was then asked whether he was able to make an identification and to state the degree of certainty of his identification, if any.
Massachusetts courts have recognized similar identification procedures as showups. See Barnett, supra; Commonwealth v. Figueroa, 468 Mass. 204, 217-218 (2014). For example, in Meas, supra at 442-444, the Supreme Judicial Court held that a showup procedure was not impermissibly suggestive where the police had placed four potential suspects in a line and asked several witnesses, separately, whether they were able to identify any of the individuals. Similarly, in Figueroa, supra at 217-218, the Supreme Judicial Court upheld a showup identification procedure as not unnecessarily suggestive, where the eyewitness was shown a suspect that was flanked between two plain clothes police officers. Therefore, the manner in which the police officers conducted the identification procedure here, by positioning the defendant between three plain clothes police officers, did not change the identification procedure from a showup to a lineup. See ibid.; Meas, supra. Thus, the identification procedure in this case was a showup, and the judge erred in finding that the identification procedure transformed into a lineup.
II. Unnecessary suggestiveness of the identification procedure. Next, we consider whether the showup procedure was unnecessarily suggestive. See Figueroa, supra. "A showup identification is unnecessarily suggestive where there was not good reason for the police to conduct it under the circumstances." Id. at 217 (quotation omitted). "Each case is fact dependent and the existence of good reason presents a question of law for the appellate court to resolve on the facts found by the motion judge." Meas, 467 Mass. at 441 (quotation omitted).
"There is generally good reason where a showup identification occurs within a few hours of the crime." Commonwealth v. Crayton, 470 Mass. 228, 235 (2014) (quotation omitted). Here, the judge properly concluded that the police officers had good reason for conducting a show up because they were investigating "a crime of violence, with the use of a weapon," and the showup was conducted "in the immediate aftermath of the crime." See Figueroa, 468 Mass. at 217 ("We regularly conclude that there is good reason for a showup identification where an eyewitness is shown a suspect promptly after the commission of the crime"). Indeed, the suspects were yet to be apprehended and the need for public safety was critical. See Meas, supra, quoting from Commonwealth v. Austin, 421 Mass. 357 (1995) ("Relevant to the good reason examination are 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. Phillips, 452 Mass. 617, 629 (2008) ("[A] prompt identification serve[s] to limit risk to the public and to avoid the escape of dangerous suspects").
Here, the showup occurred fifteen minutes after the crime was committed.
However, "[e]ven where there is ‘good reason’ for a showup identification, it may still be suppressed if the identification procedure so needlessly adds to the suggestiveness inherent in such an identification that it is ‘conducive to irreparable mistaken identification.’ " Figueroa, supra at 217, quoting from Phillips, supra at 628. Here, Sergeant Mackinnon testified that the male victim identified the defendant by his clothing. See Meas, 467 Mass. at 443 ("It was not improper for [two witnesses] to identify the shooter based on each man's memory of what clothing the shooter wore"). In addition, the fact that the defendant was flanked by plain clothes police officers did not render the showup "conducive to irreparable mistaken identification." Id. at 217-218. See Phillips, supra at 628.
Because the judge erroneously determined that the showup procedure transformed into a lineup, he did not reach this part of the analysis.
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Moreover, there are no "special elements of unfairness [that would] indicat[e] a desire on the part of the police to 'stack the deck' against the defendant." Commonwealth v. Leaster, 395 Mass. 96, 103 (1985). Indeed, Sergeant Smith testified that he took steps to mitigate the suggestiveness that is inherent in show up procedures. Also, while the procedure of positioning the defendant next to three plain clothes police officers may "contain some inherent suggestiveness, ... our decisions do not deem that amount of suggestiveness either unnecessary or unfair." Id. at 103-104. See Phillips, 452 Mass. 428 ("The facts that [the defendant] had been detained in a police wagon, was handcuffed, and was flanked by two [uniformed] police officers during the investigation did not render the procedure unnecessarily suggestive" [emphasis added] ). The absence of unfairness is further demonstrated by the male victim's and the female victim's inability to identify the second male suspect during an identical showup procedure.
Conclusion. The order allowing the defendant's motion to suppress must be reversed because the judge erred in finding that the identification procedure was transformed from a showup into a lineup. The identification procedure used by the police was, and remained, a showup. The order must also be reversed because the showup procedure was not unfair or unnecessarily suggestive.
The order allowing the motion to suppress is reversed and a new order is to enter denying the motion.
So ordered.
Reversed, and order entered.