Opinion
No. 14–P–1002.
07-05-2016
COMMONWEALTH v. Michael J. SOTO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of assault and battery by means of a dangerous weapon. On appeal, he argues that the witness's out-of-court witness identification was tainted “by unduly suggestive circumstances,” and that the police officer's trial testimony regarding the assembly of the photographic array was improperly admitted, each being an error that created a substantial risk of a miscarriage of justice. We affirm.
The defendant was acquitted of breaking and entering into a vehicle in the nighttime with intent to commit a felony.
We note that this case was tried in May, 2013, before the Supreme Judicial Court established new prospective requirements for the admission of eyewitness identification evidence and related jury instructions. Compare Commonwealth v. Gomes, 470 Mass. 352 (2015).
The defendant first argues that the out-of-court identification was the product of an unduly suggestive process. “For exclusion of an identification, ‘the defendant bears the burden of demonstrating, by a preponderance of the evidence, that the “witness was subjected by the State to a confrontation that was unnecessarily suggestive and thus offensive to due process.” ‘ “ Commonwealth v. Meas, 467 Mass. 434, 440 (2014), quoting from Commonwealth v. Johnson, 420 Mass. 458, 463 (1995). In this case, because the defendant neither sought to suppress the witness identification, nor to exclude it, we have only the trial record on which to rely in determining whether the defendant has met his burden. Compare Commonwealth v. Watson, 455 Mass. 246, 250 (2009) ; Commonwealth v. Vardinski, 53 Mass.App.Ct. 307, 310 (2001), S. C., 438 Mass. 444 (2003).
The underlying charges against the defendant stem from an altercation that occurred on April 28, 2012, during which the defendant stabbed the victim. At trial, the victim testified that, after he was discharged from his five-day hospital stay, a New Bedford police officer, Michael Carrier, came to his home with a photographic “lineup”; the victim identified the defendant from the photographic array as the person who stabbed him. In addition, the victim made an in-court identification of the defendant; when presented at trial with a copy of the original photographic array, the victim placed an “X” on the defendant's photograph, indicating the photograph he had previously identified to Carrier as being that of the defendant.
The victim also testified that just prior to the stabbing, the defendant was standing about ten feet away from him, and he was able to see the defendant's face clearly, even though the defendant had his sweatshirt hood pulled up over his head; the victim previously “knew of” the defendant because they attended the same “Bedford” school. The victim stated that, prior to speaking with the police officer, he had learned the name of the defendant from his friend who was present during the incident; the victim then looked up the defendant's photograph on Facebook, immediately recognizing the defendant as the man who had stabbed him.
After objection by the defendant that “the better evidence would be the actual pictures which [the victim] signed” at the time of identification, the judge allowed the copy to be marked for identification after the prosecutor stated that she did not have the original.
Carrier testified that, after being assigned to investigate the April 28 incident, he visited the victim's home for the purpose of collecting additional information. Because the victim's father previously had spoken with Carrier and had given the defendant's name as a potential suspect, Carrier included the defendant's photograph in a six-photograph array shown to the victim during the interview. The victim selected the defendant from the array as the person who stabbed him. Based on a later interview with the victim, and interviews with other witnesses to the crime, the defendant was arrested.
Carrier used the police department's software to select five other individuals that looked similar to the defendant to include in the photographic array.
Although he knew the identity of the suspect, there is no evidence that Carrier signaled a particular response or otherwise influenced the victim in identifying the defendant from the photographic array. See Commonwealth v. Silva–Santiago, 453 Mass. 782, 797 (2009). Thus, based on this record, the defendant has failed to meet his burden that the out-of-court identification was unduly suggestive. See Meas, 467 Mass. at 440.
The defendant's second argument also lacks merit. He asserts that the admission of Carrier's testimony, without objection, was an error that created a substantial risk of a miscarriage of justice as it suggested that the defendant was involved in prior criminal activity. This argument is unavailing, as the police have access to noncriminal databases, such as that of the Registry of Motor Vehicles, from which they may obtain an individual's photograph. See, e.g., Commonwealth v. Kenney, 449 Mass. 840, 844 (2007) ; Commonwealth v. Monteiro, 80 Mass.App.Ct. 171, 172 (2011). For this reason, and because of the strength of the Commonwealth's case, we discern no error in the admission of Carrier's testimony.
Carrier testified that he obtained the defendant's photograph for inclusion in the array after a search of the police department database.
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Judgment affirmed.