Commonwealth v. Dyous
947 N.E.2d 576
Mass. App. Ct.2011Background
- Felton Dyous convicted of larceny under $250 (G. L. c. 266, § 30(1)).
- Appeal challenges identification procedure as unnecessarily suggestive and denial of suppression motion.
- Also challenges trial judge’s denial of a required finding and alleged errors in jury-question response.
- Contends voir dire was required after a juror may have been sleeping and a voir dire hearing was not conducted.
- Facts: August 17, 2008, ATM incident in Cambridge; Overy, Landis, and Dyous involved; Dyous took card and cash, then fled after a knife display.
- Identification procedure involved two photo arrays for Landis and two for Overy; Landis later identified Dyous in person with police; Landis identified the defendant from a moving re-encounter on Harvard Street, leading to arrest and Miranda warnings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the identification procedure unnecessarily suggestive? | Dyous | Commonwealth | No undue suggestiveness; identification admissible |
| Was the trial court required to conduct a voir dire on the sleeping juror issue? | Dyous | Commonwealth | Yes; reversal and new trial due to lack of voir dire |
| Did the Commonwealth meet the required-finding standard for larceny? | Dyous | Commonwealth | Yes; sufficient circumstantial evidence supported asportation and intent |
| Did the trial judge err in responding to a jury question without a voir dire? | Dyous | Commonwealth | Not reached/needs address not resolved due to reversal |
Key Cases Cited
- Commonwealth v. Johnson, 420 Mass. 458 (1995) (burden on defendant to show unnecessarily suggestive identification)
- Commonwealth v. Martin, 447 Mass. 274 (2006) (showup identifications require heightened scrutiny when applicable)
- Commonwealth v. Odware, 429 Mass. 231 (1999) (general standard for unreliability of suggestive procedures)
- Commonwealth v. Latimore, 378 Mass. 671 (1979) (circumstantial evidence and standard for required finding)
- Commonwealth v. Dancy, 75 Mass. App. Ct. 175 (2009) (need for voir dire when juror inattentive or sleeping potentially compromises impartiality)
- Commonwealth v. Braun, 74 Mass. App. Ct. 904 (2009) (voir dire required when question whether juror was truly attentive)
- Commonwealth v. Beneche, 458 Mass. 61 (2010) (trial judge's discretion in handling juror attentiveness issues)
- Commonwealth v. Keaton, 36 Mass. App. Ct. 81 (1994) (right to an impartial and attentive jury)