119 N.E.3d 328
Mass. App. Ct.2019Background
- Victim encountered a man who introduced himself as "Scott" at a health club on May 2, 2016; they interacted in the pool, hot tub, and sauna for ~30 minutes.
- While in the sauna the man masturbated; victim immediately recognized him as the same man she had been with and was "one hundred percent certain."
- The next day the victim reported the incident to a sexual assault crisis center and police; a yoga instructor at the club showed the victim a Facebook photo of a man the instructor thought matched a prior approach to her and her daughter, and the victim identified that photo as the perpetrator.
- Surveillance cameras captured a time-stamped still from the evening showing someone resembling the defendant exiting the club; the defendant was later arrested wearing orange headphones and carrying a black backpack matching items visible in the still.
- Police later conducted a five-photo serial array (nine months after the incident); the victim identified the defendant in that array, but the trial judge suppressed testimony about the array pretrial.
- At trial the court admitted (stripped of provenance indicators) the Facebook photo and a surveillance still; the victim made an in-court identification and the jury convicted the defendant of open and gross lewdness.
Issues
| Issue | Commonwealth's Argument | Fielding's Argument | Held |
|---|---|---|---|
| Admissibility/authentication of Facebook photo | Photo was the exhibit shown to the victim; that sufficed to authenticate it as the photo the victim saw | Photo was not sufficiently authenticated and was unduly suggestive (private Facebook showing) | Ruled admissible; testimony that the yoga instructor showed that photo to the victim adequately authenticated it and probative value outweighed undue prejudice |
| Exclusion of Facebook-based pretrial ID as unduly suggestive | No State action; instructor showing photo was not particularly suggestive; victim had extended observation of perpetrator | Showing a Facebook photo by a private third party tainted identifications and was unfairly suggestive | Denied suppression; judge did not abuse discretion under common-law fairness review; photo admission proper |
| Admissibility of in-court identification | Victim had independent, extensive opportunity to observe defendant; there was also an out-of-court ID (Facebook) | In-court ID was tainted by prior Facebook exposure and should be excluded | Denied motion to exclude; in-court ID reliable given victim's observations and limited exposure to the Facebook photo |
| Need for pretrial identification per Crayton | There was an out-of-court ID (Facebook) and good reason for in-court ID (familiarity from lengthy contact) | Argues Crayton requires pretrial identification and in-court ID should be precluded absent it | Court held Crayton not violated: victim's extensive observation and the Facebook out-of-court ID satisfied concerns about first identifications in court |
Key Cases Cited
- Commonwealth v. Purdy, 459 Mass. 442 (authentication standard for evidence) (establishes that proponent must show item is what claimed)
- Commonwealth v. Gomes, 470 Mass. 352 (identification jury instruction guidance)
- Commonwealth v. Jones, 423 Mass. 99 (common-law exclusion for unfair identification procedures)
- Commonwealth v. Johnson, 473 Mass. 594 (abuse-of-discretion standard for excluding identification evidence)
- Commonwealth v. Crayton, 470 Mass. 228 (requiring prosecutor to move to admit in-court ID when no out-of-court ID and discussing "good reason")
- Commonwealth v. Jones-Pannell, 472 Mass. 429 (crediting trial-court factual findings from suppression hearing)
- Commonwealth v. Isaiah I., 448 Mass. 334 (standard for evaluating bench findings at suppression)
- L.L. v. Commonwealth, 470 Mass. 169 (abuse-of-discretion definition in context of weighing evidence)