101 N.E.3d 953
Mass. App. Ct.2018Background
- Around 1:00 A.M. on April 18, 2013, three men were robbed at gunpoint after leaving the Assembly Bar in Quincy; the sole contested issue at trial was identification of the robber.
- Victim Leo Tang described a white male, ~5'10", scruffy, with facial hair, wearing a hooded sweatshirt; Tang had earlier seen a man in the bar with a Budweiser.
- The bar manager, Robert Sylva, identified the defendant (Galipeau) from surveillance video; police located the defendant at his home around 3:00 A.M.; he had apparently just shaved and had fresh lip cuts.
- A showup was conducted outside the defendant’s house; Tang viewed the defendant for 5–10 minutes but did not make a positive ID, citing the defendant’s changed (shaved) appearance.
- Later that day a photo array including the defendant and six distractors was shown to Tang; he identified a photo (with some equivocation) and, at the administrator’s request, the top of the defendant’s photo was covered to simulate the hat/hood he had worn during the robbery.
- Defendant moved to suppress the photographic ID and objected to Sylva’s in-court identification; the motion judge denied suppression and allowed in-court ID; the convictions were affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the photo array should be suppressed as unnecessarily suggestive because of prior unsuccessful showup | Police contend the showup and later array were permissible; changed appearance justified repeating ID | Galipeau argues the failed showup tainted the subsequent array and made it impermissibly suggestive | Denied — multiple procedures were permitted where defendant had altered appearance and good cause existed |
| Whether covering/cropping the defendant’s photo rendered the array suggestive | Commonwealth: covering responded to witness’s own concern about hat/hood and was done after photo selection | Defendant: covering only defendant’s photo singled him out and was suggestive | Denied — procedure responded to witness’s equivocation and went to weight not admissibility |
| Whether the out-of-court ID was nonetheless unreliable and should be excluded | Commonwealth: once procedures aren’t impermissibly suggestive, admissibility is appropriate; reliability for jury | Defendant: even absent suggestiveness, identification was unreliable and should be excluded under Johnson principles | Denied — judge applied then-governing law and, even if reliability analysis was proper, found no abuse of discretion in admitting ID |
| Whether Sylva’s in-court identification should have been excluded because he had not done an out-of-court ID | Commonwealth: Sylva knew defendant pre-crime and his testimony was admissible; Crayton “good reason” rule applies to eyewitnesses present at crime, not to Sylva | Defendant: Sylva should not identify in court without prior out-of-court ID | Denied — judge permissibly allowed in-court ID under common-law fairness; Sylva’s prior familiarity supported admission |
Key Cases Cited
- Commonwealth v. Borgos, 464 Mass. 23 (2012) (discusses cropping photos and multiple arrays; suggestiveness standard)
- Commonwealth v. Paszko, 391 Mass. 164 (1984) (declines per se rule excluding repeated identifications after a failed showup)
- Commonwealth v. Carter, 475 Mass. 512 (2016) (repeated arrays discouraged but permissible with good cause; courts may exclude ID under common-law fairness)
- Commonwealth v. Forte, 469 Mass. 469 (2014) (upheld photo-array ID after failed showup when additional evidence supported procedure)
- Commonwealth v. Johnson, 473 Mass. 594 (2016) (court may exclude identification evidence under common-law fairness if probative value is substantially outweighed by prejudice)
- Commonwealth v. Walker, 460 Mass. 590 (2011) (art. 12 due-process standard for unnecessarily suggestive identification)
- Commonwealth v. Crayton, 470 Mass. 228 (2014) ("good reason" requirement for in-court IDs by witnesses who were present at the crime)
- Commonwealth v. Dew, 478 Mass. 304 (2017) (reinforces judge's discretion to exclude unreliable eyewitness ID under common-law fairness)