126 N.E.3d 106
Mass. App. Ct.2019Background
- On March 2, 2015, Michael Nichols was approached in a hospital lobby by a man in a red hat who borrowed Nichols's phone, lured Nichols to a car, then—after two other men joined—drove away and demanded Nichols's backpack; when Nichols resisted he was punched and escaped; the perpetrators took his backpack, phone, and pool stick case.
- Nichols immediately reported the incident, gave the car license plate, and police tied the car to the defendant's girlfriend; hospital video produced still images consistent with Nichols's account.
- Two other men (Craven and DaSilva) were arrested the next day; Craven had Nichols's checkbook and DaSilva wore clothing matching one of the men seen in the stills; the defendant was arrested days later at his girlfriend's apartment.
- At trial Nichols never made an out-of-court identification of the defendant; the Commonwealth relied on (1) admitted surveillance stills, (2) the defendant’s mother identifying the red-hatted man in the stills as her son (lay opinion), (3) the arresting officer identifying the defendant as the person he arrested and the person in booking photos, and (4) circumstantial evidence tying the car to the defendant’s girlfriend.
- The judge excluded any in-court identification by Nichols but admitted the stills, the mother’s lay ID, and the booking photos; the defendant was convicted of unarmed robbery and assault and battery and appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Nichols's grand-jury testimony identifying the red-hatted man in single-person still | Commonwealth: images corroborate Nichols's prior description and are probative | Matos: one-person image showing only suspect is analogous to a suggestive showup/photo ID and should be suppressed | Court: not unduly suggestive here; witness (Nichols) was also pictured in related stills and had given prior detailed description, so no due-process violation |
| Mother's lay opinion identifying defendant in still photos | Commonwealth: mother has greater familiarity and can help jury identify unclear images | Matos: jury was as able as mother; testimony invades jury role | Court: judge properly exercised discretion; images not "unmistakably clear" and mother's familiarity was relevant and helpful |
| Arresting officer's in-court ID and booking photos | Commonwealth: officer can confirm the person arrested and photos show appearance shortly after crime | Matos: risks conflation with guilt; booking photos prejudicial and unnecessary | Court: officer identification permissible; booking photos relevant and probative (taken close in time to crime); no palpable error |
| Need for specific unanimity instruction on robbery | Commonwealth: only one incident of robbery (the Backpack/assault in car) was at issue | Matos: multiple takings (phone earlier; backpack later) required unanimity instruction | Court: no; only one charged unarmed-robbery incident supported by evidence (the taking involving force in the car) |
| Prosecutor's closing argument (claims of undisputed facts, vouching, misstating evidence) | Commonwealth: argument reasonably marshaled evidence and credibility points | Matos: prosecutor improperly said facts were undisputed, vouched for witness, and stated facts not in evidence | Court: some improper statements occurred but judge's corrective instruction plus strong evidence mitigated prejudice; no reversal required |
Key Cases Cited
- Commonwealth v. Crayton, 470 Mass. 228 (2014) (limitations on in-court identification when no prior out-of-court ID)
- Commonwealth v. Forte, 469 Mass. 469 (2014) (videotape showing only one individual is analogous to one-on-one identification and may be inherently suggestive)
- Commonwealth v. Walker, 460 Mass. 590 (2011) (due-process standard for suppressing suggestive identifications)
- Commonwealth v. Vacher, 469 Mass. 425 (2014) (admissibility of lay-opinion identifications from photographs)
- Commonwealth v. Pleas, 49 Mass. App. Ct. 321 (2000) (factors for lay-witness photograph identification reliability)
- Commonwealth v. Talbot, 444 Mass. 586 (2005) (trial judge's discretion in balancing probative value and prejudice of photographs)
- Commonwealth v. Keevan, 400 Mass. 557 (1987) (specific-unanimity instruction principles)
- Commonwealth v. Kozec, 399 Mass. 514 (1987) (considerations when evaluating impropriety in prosecutor's argument)