Opinion
17-P-1329
04-26-2019
COMMONWEALTH v. TAYLOR DZICZEK.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Taylor Dziczek, was convicted of unarmed robbery, see G. L. c. 265, § 19 (b), after a jury trial in the Superior Court. On appeal, he challenges the denial of his motion to suppress an out-of-court identification, the trial judge's denial of his request for a preliminary instruction on identification, and statements in the prosecutor's opening and closing remarks. We affirm.
1. Out-of-court identification. After an evidentiary hearing on the defendant's motion to suppress, the motion judge made the following findings. An off-duty Holyoke police officer, Dorota Beben, was driving by the Easthampton Savings Bank in South Hadley when a man's unusual attire and behavior caught her attention. After following the man in his car, getting a good view of his face, taking down his license plate number, and calling it in, Beben broke off her pursuit and went to the South Hadley police department to write out a statement.
As a police officer considered to be involved in the investigation, Beben was admitted into a nonpublic area of the police station. She consulted a wall map to determine the names of the streets where she followed the suspect so she could include them in her statement. At the same time, following up on the leads generated from Beben's description of the suspect's car, South Hadley Police Detective Trudy Romanovicz was using a computer to conduct a search of Registry of Motor Vehicles data. Beben turned around at the moment Romanovicz was viewing two photographs on her monitor, including one of the defendant. Beben recognized the defendant's photograph as that of the man she had followed.
At trial, Beben testified how she identified the photograph of the defendant; she did not identify the defendant in court.
The motion judge found that the police did not intentionally bring about the identification, and that "Beben's view of the computer photograph of the Defendant was accidental and inadvertent." The judge concluded that the procedure was not "unnecessarily suggestive." In addition, although Romanovicz did not create a photographic (photo) array or conduct a one-on-one showup by displaying the defendant's photograph, the judge further concluded that the police would have had good reason to conduct a showup. Considered as such, "the procedure was not unconstitutionally suggestive."
"Where an out-of-court eyewitness identification arises from an identification procedure that was conducted by the police, the identification is not admissible under art. 12 of the Massachusetts Declaration of Rights if the defendant proves by a preponderance of the evidence that the identification was 'so unnecessarily suggestive and conducive to irreparable misidentification that its admission would deprive the defendant of his right to due process.'" Commonwealth v. Johnson, 473 Mass. 594, 596-597 (2016), quoting Commonwealth v. Walker, 460 Mass. 590, 599 (2011). On the other hand, "due process does not require exclusion of identification testimony if 'the suggestive circumstances do not arise from police activity.'" Commonwealth v. Powell, 72 Mass. App. Ct. 22, 26 (2008), quoting Commonwealth v. Odware, 429 Mass. 231, 236 (1999). See Commonwealth v. Jones, 423 Mass. 99, 104 n.5 (1996) ("accidental encounters not brought about by police conduct have been held not to raise due process considerations even if the encounter occurs in a suggestive setting"). Even if the police are not responsible for a suggestive confrontation, however, "common-law principles of fairness dictate that an unreliable identification arising from 'especially suggestive circumstances' should not be admitted in evidence." Walker, supra at 605, quoting Jones, supra at 108-109. See Commonwealth v. Crayton, 470 Mass. 228, 235 (2014).
To evaluate a claim that an unnecessarily suggestive police procedure violated the defendant's due process rights, "we review a judge's findings of fact to determine whether they are clearly erroneous but review without deference the judge's application of the law to the facts as found." Johnson, 473 Mass. at 602. "Where an identification does not arise from a police procedure, admissibility rests on an evidentiary judgment regarding the reliability of the identification, so we review under the abuse of discretion standard." Id.
At the threshold, we agree with the motion judge that the identification did not arise from police activity. While the identification occurred inside a police station, it was not an identification procedure in any formal sense of the term. Beben was not shown a photo array. She was not asked to perform a one-photograph identification, which is the constitutional equivalent of a showup. See Commonwealth v. Carlson, 92 Mass. App. Ct. 710, 712 (2018). The judge found that Beben's viewing of the photograph on Romanovicz's computer was "accidental and inadvertent." This finding is not clearly erroneous. See Commonwealth v. Bruno-O'Leary, 94 Mass. App. Ct. 44, 49 (2018) (finding is clearly erroneous when there is no evidence to support it, or when reviewing court is left with firm conviction that mistake has been made).
The defendant argues that because Romanovicz recklessly or negligently created the circumstances in which Beben identified the defendant, we should treat the identification as a police procedure and apply "our per se exclusion standard" under art. 12 of the Massachusetts Declaration of Rights to deter the use of such suggestive techniques. Johnson, 473 Mass. at 597. The defendant reasons that the remedy of suppression in this case would encourage officers like Romanovicz to be more careful. In the circumstances of this case, where the eyewitness happened to be an off-duty police officer from a nearby jurisdiction who was voluntarily assisting in the investigation of a bank robbery in the nonpublic area of the police station, we think it unnecessary to create incentives for investigating officers to be more guarded in what they display on their computer screens. In other words, per se exclusion is not warranted "because there is no police misconduct to deter through suppression" (emphasis added). Id. at 600.
The judge nonetheless analyzed the identification under the more exacting "unnecessarily suggestive" standard and concluded that it was not. We agree. As the judge noted, the identification was made approximately thirty to forty minutes after the bank robbery. Beben was a trained, experienced police officer who had a good opportunity to observe the defendant's face from a close distance. Romanovicz did not display the photograph to Beben or make any effort to force an identification. "[Beben's] identification of the defendant's photograph was not the product of unnecessarily suggestive police procedures that were conducive to a mistaken identification." Commonwealth v. Cavitt, 460 Mass. 617, 633 (2011). The judge did not err or abuse her discretion in denying the motion to suppress.
We decline to address the identification under the standards applicable to photo arrays. See Walker, 460 Mass. at 600-604. The South Hadley police did not conduct a photo array procedure.
2. Preliminary instruction on identification. Prior to trial, the defendant asked the trial judge to give the jury a "pre-charge" on eyewitness identification. The defendant's motion tracked, without attribution, the Model Jury Instructions on Eyewitness Identification approved by the Supreme Judicial Court on November 16, 2015, which replaced the provisional instruction from Commonwealth v. Gomes, 470 Mass. 352, 379-388 (2015). The model instructions include a short, two-paragraph preliminary instruction on identification, which, "[u]pon request by any party, the trial judge shall give . . . before opening statements or immediately before or after the testimony of an identifying witness, saving the full model instruction to be given at a later time during trial." However, rather than request the preliminary instruction from the model instructions, the defendant requested all but two of the relevant paragraphs from the model eyewitness identification instruction. The judge declined to give the model eyewitness identification instruction as part of his preliminary charge, noting that the defendant did not "cite any case in support of giving it prior to a witness testifying." Instead, the judge offered to give the requested instruction, and in fact did give it, in the final charge.
The defendant did not request the instruction regarding passage of time between the event observed and the identification or the instruction regarding expressed certainty in the identification. The judge, however, did include both instructions in his final charge.
The defendant did not request the preliminary instruction, nor make any effort to bring it to the trial judge's attention, and the judge did not err by declining the defendant's request that he give the model eyewitness identification instruction before the witnesses testified. In any event, the defendant suffered no prejudice because the judge ultimately gave the entire model eyewitness identification instruction during his final charge, and the defendant's ability to present his defense of a mistaken and tainted identification was not impaired. See Commonwealth v. DeGennaro, 84 Mass. App. Ct. 420, 430-431 (2013).
3. Prosecutor's statements. The defendant contends that the prosecutor improperly commented on his silence and shifted the burden of proof by stating in his opening that the defendant did not "give any reason for being in Wilbraham" when he was arrested and stating both in the opening and in closing argument that he did not have a reason for being in Wilbraham, after he was arrested, "except for the bag of cash."
"A defendant has the right not only to remain silent, but also 'to remain passive, and to insist that the Commonwealth prove its case beyond a reasonable doubt without explanation or denial by him.'" Commonwealth v. Collazo, 481 Mass. 498, 503 (2019), quoting Commonwealth v. Grant, 418 Mass. 76, 83 (1994). "[P]rosecutors should scrupulously avoid any statement that suggests that the defendant has any burden to produce evidence." Commonwealth v. McMahon, 443 Mass. 409, 419 (2005). However, "[a] prosecutor is entitled to emphasize the strong points of the Commonwealth's case and the weaknesses of the defendant's case, even though he may, in so doing, prompt some collateral or passing reflection" on the defendant's failure to produce evidence. Commonwealth v. Nelson, 468 Mass. 1, 12 (2014), quoting Commonwealth v. Feroli, 407 Mass. 405, 409 (1990).
The thrust of the prosecutor's comments was that the defendant's initial presence and later activities by the side of the road in Wilbraham were suspicious and connected him with the robbery. The evidence supported this inference, and the prosecutor was entitled to exploit it. Even if the statements may have touched upon the defendant's silence or failure to produce evidence, "in the context of the entire argument," the remarks were "directed more at the general weakness of [the defendant's] defense than toward the defendant's own failure to testify." Nelson, 468 Mass. at 12, quoting Feroli, 407 Mass. at 409.
Moreover, to the extent the statements may have caused the jury to look to the defendant for an explanation, the judge's instructions cured any such error. Immediately before opening statements, the judge instructed the jury that the defendant was presumed innocent, that the Commonwealth had the burden to prove his guilt beyond a reasonable doubt, and that "[t]he law does not require the defendant to prove his innocence or to produce any evidence whatsoever." In the final charge, again addressing the presumption of innocence, the judge stated, "The defendant did not have to explain anything." The judge also forcefully instructed on the defendant's right not to testify. We discern no error or prejudice to the defendant.
Judgment affirmed.
By the Court (Meade, Blake & Massing, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 26, 2019.