39 Mass. App. Ct. 396 | Mass. App. Ct. | 1995
The defendant was convicted of unarmed robbery by a jury in the Superior Court. On appeal, he argues that a substantial risk of a miscarriage of justice occurred when his photograph was presented to the jury without proper sanitizing and when the judge directed the jury to return to their deliberations without their consent after they supposedly reported they were deadlocked for the third time. We reverse on the ground that the presentment to the jury of the defendant’s photograph which contained notations suggestive of unrelated criminal activity created a substantial risk of a miscarriage of justice.
We summarize the evidence. The clerk of a Cumberland Farms store testified that at about 11:00 p.m. on March 20,
On April 23, 1993, the police asked her to look at a photographic array of eight frontal pose photographs. She selected a photograph of the defendant as the robber. Three of the photographs in the array were of people whom she knew, but she did not disclose that fact to the police. There was evidence that some time later she told a cousin that she was not sure that the defendant was the person who had committed the robbery and that during her examination of the photographic array the police kept pointing to the defendant’s picture. There was also evidence that prior to the robbery, the clerk’s boyfriend had repeatedly requested that She give him money and that she take it from the store cash register. There was also evidence that her boyfriend resembled the defendant.
Identification was the key issue in this case. Accordingly, the Commonwealth offered in evidence without objection by the defendant the photographic array from which the clerk had selected the defendant’s photograph. The array consisted of eight frontal pose photographs of males. There were no markings on the face of the photographs, but on the back of each photograph was listed a name, date, and offense. On the back of the defendant’s photograph, taken from the Greenfield police department files, was listed his name, height, weight, date of birth, the crime of armed robbery, the date of April 23, 1993, and a file number. When the array was distributed during the trial, none of this information was sanitized. At the close of the trial, the judge called counsel’s attention to this fact. Defense counsel then moved that the
Although the defendant made no objection to the failure to sanitize or the poor sanitizing, he now contends that the submission of his photograph to the jury with this information created a substantial risk of a miscarriage of justice because it suggested to the jury that the defendant had a criminal history and that he had committed a similar crime, which, he argues, could well have convinced the jury that he committed the crime in question. See Commonwealth v. Tracy, 27 Mass. App. Ct. 455, 460 (1989), quoting from Commonwealth v. Guilfoyle, 396 Mass. 1003, 1004 (1985) (“[i]t is all too easy for a jury to surmise that if a defendant earlier committed a crime, he probably committed the crime for which he i# being tried, particularly if the crimes are similar”). We have repeatedly held that where there is a need to introduce mug shots, the mug shots, to the extent possible, should not indicate a prior record and should not call attention to their origins and implications. Commonwealth v. Smith, 29 Mass. App. Ct. 449, 451 (1990). Commonwealth v. Gee, 36 Mass. App. Ct. 154, 157-158 (1994). We are not convinced, as the Commonwealth argues, that the notations on the back of the defendant’s photograph simply suggest that the photograph was taken during the police investigation of this incident because the date on the photograph did not precede the date of the offense charged here. Compare Commonwealth v. Payton, 35 Mass. App. Ct. 586, 594-595 (1993) (where the dates on the photographs were later than the date of the offenses for which the defendant was on trial, no suggestion that the defendant had a prior record). The Commonwealth argues that the date of April 23, 1993, simply reflects the date on which the clerk made her identifica
While we recognize that the judge in her instructions to the jury cautioned the jury not to draw any inference that the police had the defendant’s photograph in their possession, we do not believe that the instruction was sufficient to dispel the prejudice to the defendant from the information contained on the back of the photograph. Compare Commonwealth v. Banks, 27 Mass. App. Ct. 1193, 1194 (1989). This was not a case in which the evidence of the defendant’s guilt was overwhelming. The Commonwealth’s case was based solely on the identification by the store clerk of the defendant as the robber. The defendant offered evidence to impeach her credibility and specifically challenged her version of the identification procedures used by the police in this case. Moreover, the information contained on the back of the photograph was sufficiently prejudicial to make plausible an inference that the result might have been otherwise for the error. Commonwealth v. Tracy, 27 Mass. App. Ct. at 460. Finally, it is inescapable that counsel’s failure to object was not simply a reasonable tactical decision. Accordingly, we conclude in the circumstances of this case that the three preconditions for establishing a substantial risk of a miscarriage
As the defendant’s other claim of error is not likely to arise in the same context at retrial, we do not discuss it.
Judgment reversed.
Verdict set aside.