960 N.E.2d 902
Mass. App. Ct.2012Background
- Milkey, J. affirms conviction for armed assault with intent to rob after trial focusing on eyewitness identification.
- Evening of March 16, 2009, Walgreens in Fall River; suspect described as white male with facial hair, wearing two-tone jacket; victim Dumont threatened with knife; video shows suspect wearing jacket; suspect fled after cigarettes demand failed.
- Police responded quickly; Dumont and Syde described the suspect in nearly identical terms; Niles watched surveillance video but content insufficient for facial ID.
- Niles located defendant near a gas station, matching clothing; patfrisk revealed knife in inner coat pocket.
- Showup conducted outside the store with the suspect, while Dumont observed through glass doors; discrepancies emerged in subsequent accounts; suppression motion contested showup admissibility.
- Photographic array assembled but not shown to victims; undisclosed prior to trial; defense raised discovery issues during trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Showup admissibility after identification concerns | Dumont identified the defendant at the showup | Showup was unnecessarily suggestive and unfair | Showup permissible; not inherently unfair; probative value substantial |
| Non-disclosure of unused photographic array | Array exculpated by implying police doubt | Failure to disclose violated Brady and orders | No Brady violation; disclosure late but not prejudicial; limited exculpatory value |
| Bowden defense instruction denial | Bowden defense should be given explicit emphasis | Judge erred by not instructing on Bowden theory | No abuse of discretion; defense argument adequately presented |
| Continuance and peremptory challenge timing | Extra time would aid cross-examination | More time needed for strategy | No abuse; court acted within discretion |
Key Cases Cited
- Commonwealth v. Martin, 447 Mass. 274 (Mass. 2006) (one-on-one IDs disfavored but admissible if not unduly suggestive)
- Commonwealth v. Odware, 429 Mass. 231 (Mass. 1999) (weight of identification for jury; showup probative value)
- Commonwealth v. Olavarria, 71 Mass. App. Ct. 612 (Mass. App. Ct. 2008) (identification of non-facial features permissible)
- Commonwealth v. Powell, 72 Mass. App. Ct. 22 (Mass. App. Ct. 2008) (showup features not inherently suggestive when consistent with prior description)
- Commonwealth v. Bowden, 379 Mass. 472 (Mass. 1980) (Bowden defense and discovery considerations in police investigation context)
- Commonwealth v. Stote, 433 Mass. 19 (Mass. 2000) (timeliness of disclosure and prejudice analysis for discovery)
- Commonwealth v. St. Germain, 381 Mass. 256 (Mass. 1980) (relevance of discovery rules and prosecutorial obligations)
- Commonwealth v. Ellison, 316 Mass. 1 (Mass. 1978) (Brady-like considerations in disclosure; remedy limits)
- Commonwealth v. Murray, 461 Mass. 10 (Mass. 2011) (prosecutor disclosure policy; prophylactic emphasis on material exculpatory documents)