Commonwealth v. Crayton, 470 Mass. 228

Background

On Jan. 21, 2009 two teenagers (M.S. and R.M.) saw a man at a Cambridge public library computer viewing images of nude children; library staff preserved files from that computer showing child pornography and forensic evidence (cookies, temp files, images/videos, MySpace login) dated that afternoon.
Police located and questioned the defendant the next day; he admitted using library computers and checking e-mail and identified a MySpace/e-mail handle similar to that found on the seized computer, but denied viewing child pornography.
At trial (more than two years later) M.S. and R.M. made their first identifications of the defendant in-court; there had been no prior out-of-court lineup or photo array for them.
The trial judge admitted the in-court identifications, excluded the defendant’s express denial (via a Commonwealth motion in limine) under hearsay/verbal completeness doctrine limits, and admitted three pornographic child drawings found in the defendant’s jail cell months later as evidence of state of mind.
The defendant was convicted of two counts of possession of child pornography; on direct appellate review the SJC assessed three claimed errors: admission of first-time in-court IDs, exclusion of the denial, and admission of the drawings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of first-time in-court identifications by eyewitnesses with no prior out-of-court ID	In-court ID is permissible; jury can assess witness demeanor and cross-examination cures suggestiveness	First-time in-court ID is inherently and unnecessarily suggestive (comparable to a showup) and requires suppression absent good reason	New rule: treat such in-court IDs as in-court showups and admit only where there is a "good reason"; here no good reason, admission was error under the newly articulated standard (applied prospectively)
Exclusion of defendant’s express denial to police that he viewed child pornography	Denial was hearsay and not admissible under verbal completeness; exclusion proper	Denial was part of the same conversation and necessary to fairly understand defendant’s earlier admissions; exclusion distorted meaning	Court held exclusion was an abuse of discretion — the denial should have been admitted under the doctrine of verbal completeness
Admission of jail-cell pornographic drawings found months later	Drawings probative of defendant’s state of mind/intent to possess child pornography	Drawings were remote in time and mainly constituted other-bad-acts evidence with limited probative value and high risk of propensity inference	Admission abused discretion: probative value minimal for disputed issues and prejudicial effect was great; should have been excluded
Cumulative/prejudicial error and need for new trial	Commonwealth: forensic and circumstantial evidence strongly implicated defendant; errors harmless	Defendant: combined effect of inadmissible/suppressed evidence and suggestive IDs likely influenced jury	Considering cumulative effect (unreliable in-court IDs, exclusion of denial, and prejudicial drawings) there is a reasonable possibility the errors contributed to verdicts — convictions vacated and new trial ordered

Key Cases Cited

Commonwealth v. Walker, 460 Mass. 590 (discusses Massachusetts standard for excluding unnecessarily suggestive out-of-court identifications)
Commonwealth v. Johnson, 420 Mass. 458 (supports per se exclusion for unnecessarily suggestive identifications to protect due process)
Commonwealth v. Thornley, 406 Mass. 96 (identification/suggestiveness principles)
Commonwealth v. Jones, 423 Mass. 99 (exclusion of identifications under common-law fairness where especially suggestive circumstances exist)
Commonwealth v. Bol Choeurn, 446 Mass. 510 (recognizes inherent suggestiveness of in-court identifications but historically required tainting out-of-court confrontation to exclude)
Manson v. Brathwaite, 432 U.S. 98 (federal totality-of-circumstances reliability test for out-of-court IDs)
Perry v. New Hampshire, 132 S. Ct. 716 (Supreme Court: due process review of identifications not preceded by police suggestiveness)
Commonwealth v. Aviles, 461 Mass. 60 (doctrine of verbal completeness and related evidentiary principles)