COMMONWEALTH VS. MARCUS THOMAS
SJC-12128
Supreme Judicial Court of Massachusetts
February 13, 2017
476 Mass. 451
Hampden. October 7, 2016. - February 13, 2017. Present: GANTS, C.J., BOTSFORD, LENK, HINES, GAZIANO, LOWY, & BUDD, JJ.
A Superior Court judge properly denied the defendant‘s pretrial motion to suppress an identification of him, where, although the failure of police officers showing an eyewitness a photographic array to follow the protocol outlined in Commonwealth v. Silva-Santiago, 453 Mass. 782, 797-798 (2009), affects a judge‘s evaluation of the admissibility of the identification and, where it is found admissible, the judge‘s instructions to the jury regarding their evaluation of the accuracy of that identification, in the circumstances of this case (i.e., given that the witness believed that she knew the defendant from prior interactions and knew the defendant‘s name), the failure to follow the protocol did not, by itself, merit suppression of the identification [457-461]; and where the use of a simultaneous display of photographs rather than a sequential display was not unnecessarily suggestive [461-464].
A Superior Court judge, in allowing the defendant‘s pretrial motion to suppress an identification of a firearm, acted well within the bounds of his discretion under the common law of evidence in concluding that the probative value of the identification was outweighed by the unfair prejudice arising from police detectives’ suggestion during questioning that the firearm in a photograph was the one an eyewitness had seen, and from the detectives’ subsequent statements confirming the witness‘s belief that it was the same firearm after she had responded to their suggestions; moreover, although the judge erred in concluding that a denial of due process had arisen from the identification based solely on the failure of the police to use a photographic array of similar firearms, this court urged police departments to devise a protocol for the identification of inanimate objects where such an identification would persuasively inculpate a defendant. [464-468]
INDICTMENTS found and returned in the Superior Court Department on April 3, 2015.
Pretrial motions to suppress evidence were considered by Edward J. McDonough, Jr., J.
Applications for leave to prosecute interlocutory appeals were allowed by Spina, J., in the Supreme Judicial Court for the county
Heidi M. Ohrt-Gaskill, Assistant District Attorney, for the Commonwealth.
Paul R. Rudof, Committee for Public Counsel Services, for the defendant.
The following submitted briefs for amici curiae:
David Zhang, of China, Karen A. Newirth, of New York, Joshua Asher, of Illinois, & Radha Natarajan & Kirsten Mayer for The Innocence Project, Inc., & another.
Anthony D. Mirenda, Michael J. Licker, Melissa A. Stewart, & Chauncey Wood for Massachusetts Association of Criminal Defense Lawyers.
GANTS, C.J. These interlocutory appeals from two rulings on motions to suppress raise three substantial issues regarding eyewitness identification. First, we consider what consequence, if any, is appropriate where a police officer who is showing a photographic array to an eyewitness fails to use the protocol that we outlined in Commonwealth v. Silva-Santiago, 453 Mass. 782, 797-798 (2009), despite our declaration in that opinion that we “expect” police to use the protocol in the future. Second, we examine whether, based on subsequent research, we should revisit the conclusion we reached in Silva-Santiago, supra at 798-799, and confirmed in Commonwealth v. Walker, 460 Mass. 590, 602-603 (2011), that the choice of a simultaneous rather than a sequential display of photographs in an array may be relevant to the weight to be given to an identification but does not affect its admissibility. The third issue concerns the identification of an inanimate object — a firearm. We determine whether suggestive police questioning and subsequent police confirmation appropriately may result in suppression of the identification of a firearm as the firearm used by the defendant during the commission of the crime.
These issues arise in the context of cross interlocutory appeals: the defendant‘s appeal from the denial of his motion to suppress the identification of him by an eyewitness, Brianna Johnson, who was familiar with the defendant and knew his first name; and the Commonwealth‘s appeal from the allowance of the defendant‘s motion to suppress the identification of a firearm by Johnson as the one used by the defendant in the commission of the crime. We
Background. There was no evidentiary hearing conducted regarding the two motions to suppress. The Commonwealth and the defendant instead submitted to the motion judge various exhibits, including a joint stipulation of facts and videotaped recordings of two interviews with Johnson, the first conducted on the evening of the incident and the second conducted four days later, after the defendant had been arrested and a firearm that had allegedly been in his possession had been found. Because we are in the same position as the motion judge to make findings, we do not limit the facts recited below to the facts found by the motion judge. See Commonwealth v. Neves, 474 Mass. 355, 360 (2016), quoting Commonwealth v. Novo, 442 Mass. 262, 266 (2004) (where decision is based on recorded rather than live testimony, “we will ‘take an independent view’ of recorded confessions and make judgments with respect to their contents without deference to the fact finder, who ‘is in no better position to evaluate the[ir] content and significance’ “).
In Springfield early in the evening of September 21, 2014, the defendant was in the rear passenger seat of a vehicle driven by Tavis Humphrey-Frazer; Johnson sat in the front passenger seat. According to Johnson, the defendant stated that he saw a particular individual among a crowd of people standing in front of a house on Smith Street. Humphrey-Frazer turned the vehicle onto Smith Street and drove towards the group of people. The defendant leaned out of the rear driver‘s side window and fired one or two shots at the group before his firearm jammed, and then was able to fire one or two more rounds in the direction of the group. The defendant‘s gunshots were met by return fire; a bullet penetrated a window of the vehicle and struck Humphrey-Frazer in the head, killing him.
Later that night, Springfield police Detectives Kevin Lee and Anthony Pioggia interviewed Johnson at the Springfield police station. Johnson said that her cousin, Humphrey-Frazer, received a telephone call from “Marcus,” who was a member of the same gang as was Humphrey-Frazer. Humphrey-Frazer asked Johnson if she wanted to join him while he drove to pick up Marcus, and she agreed. When asked to tell the detectives about Marcus, Johnson said, “I don‘t know that much about him.” She explained
The detectives then stopped the interview in order to perform an identification procedure.2 They presented Johnson with a computer screen that simultaneously displayed photographs of eleven individuals. No cautionary warnings were given to Johnson; the detectives simply asked her to sit down, “[l]ook at the pictures . . . [a]nd if [she saw] somebody [she] recognize[d] in relation to [the] incident, to identify them if [she] could.”3 Johnson picked a photograph of the defendant and signed a copy of that photograph.
After the interview, an arrest warrant issued against the defendant. On September 23, Detectives Lee and Pioggia saw the defendant in Springfield riding a motorized scooter and pursued him, using their lights and sirens in an attempt to cause him to stop. The defendant drove the scooter to a grassy area and then drove back into the street, where he lost control of the scooter and was apprehended.4 The next morning, a canine unit from the State police searched the grassy area and found a nine millimeter hand-
The next day, September 25, Detectives Lee and Pioggia brought Johnson back to the police station for a second interview. At the first interview, Johnson had told the detectives that the firearm used by the defendant was “big” and “black” and looked like the gun carried by the detectives. At the second interview, conducted by Detective Lee and Detective Timothy Kenney, Detective Lee started to question Johnson again about the gun when Detective Kenney interrupted and asked, “Can I go after something here at this juncture?” Detective Kenney then placed a photograph of a gun onto the table in front of Johnson. “That‘s probably it, yup,” Johnson responded.
DETECTIVE KENNEY: “That‘s probably it?”
DETECTIVE LEE: “Brianna, did you see him with this type of gun before?”
JOHNSON: “Wow.”
DETECTIVE LEE: “Brianna?”
JOHNSON: “Hold on. I‘m thinking.”
DETECTIVE LEE: “Okay. I mean, the picture is the picture, right? It‘s a photograph.”
JOHNSON: “Yeah.”
. . .
DETECTIVE LEE: [Grabs photograph away] “Let me show the camera what we‘re showing you, okay?” [Turning back to Johnson] “Black, right? Black?”
JOHNSON: “Hold on.”
DETECTIVE LEE: “All right.”
JOHNSON: “I‘ve got to look at it. Yeah. Is this the gun?”
DETECTIVE LEE: “You tell us. Does it look like the gun he had?”
DETECTIVE LEE: “What do you remember? What are you pointing to?”
JOHNSON: “This, this, this whole right here.” [Pointing] “It‘s like little scratches on it just like this.”
DETECTIVE LEE: “And you remember those scratches?”
JOHNSON: “Yeah because I looked back when he was going like this, like that.” [Simulating a person trying to unjam a gun]6
The conversation turned briefly to discuss the angle from which Johnson saw the defendant holding the weapon and struggling with it after it jammed. Detective Kenney then asked Johnson to sign the photograph, and the discussion continued.
DETECTIVE LEE: “That‘s what you described even the night of the murder.”
JOHNSON: “Wow.”
DETECTIVE LEE: “You said a big black handgun.”
JOHNSON: “Wow. This is crazy.”
DETECTIVE LEE: “Looks just like it, huh?”
JOHNSON: “It looks just like it.”
DETECTIVE LEE: “Good.”
JOHNSON: “Wow. That‘s crazy.”
DETECTIVE LEE: “We‘re smarter than you think, aren‘t we?”
JOHNSON: “Yeah.”
After a Hampden County grand jury returned indictments against the defendant on various charges, including three counts of armed assault with intent to murder, illegal possession of a firearm, and murder in the second degree,7 the defendant moved to suppress Johnson‘s identification of him and her identification
In denying the defendant‘s motion to suppress Johnson‘s identification of him, the judge concluded that it was “advisable” for the police to use the Silva-Santiago protocol before showing an eyewitness a photographic array because we had declared that we expected police to use the protocol. But the judge declared that “this expectation is not black letter law that requires mandatory adherence.” He also concluded that the defendant did not show “that the absence of a protocol begets a finding of undue suggestiveness.” The judge also found that the police use of a simultaneous rather than a sequential display of photographs was not unnecessarily suggestive. Where the defendant offered no evidence to suggest that the photographs in the array impermissibly distinguished the defendant or were otherwise suggestive, the judge concluded, based on the totality of the circumstances, that “the identification procedure employed by the police, though less than ideal, was not unduly suggestive.”
In allowing the defendant‘s motion to suppress Johnson‘s identification of the firearm, the judge found that the use of a single photograph in the identification procedure was unduly suggestive in the absence of exigent circumstances, and that this was “an extreme case” that “rises to the level of a denial of due process,” rendering the identification of the firearm inadmissible on that ground alone. The judge also found that the detectives made “repeated affirmative and confirmatory statements” that likely “hindered Johnson‘s ability to make an uninfluenced identification,” and rendered the identification inadmissible under the common law of evidence as “unreliable, unfair, and prejudicial.”
The defendant and the Commonwealth each applied for interlocutory review of the adverse ruling. The single justice allowed both applications, and we granted the defendant‘s application for direct appellate review.
Discussion. 1. Motion to suppress Johnson‘s identification of defendant. a. Failure to follow protocol. In Silva-Santiago, 453 Mass. at 797-798, we set forth a protocol to be used before a photographic array is provided to an eyewitness. Under the protocol, police must make clear to an eyewitness that “he [or she] will be asked to view a set of photographs; the alleged wrongdoer may or may not be in the photographs depicted in the array; it is just as important to clear a person from suspicion as to identify a
That expectation has largely been met. A joint survey conducted in 2013 by the Massachusetts Chiefs of Police Association and the New England Innocence Project identified 253 police departments that had policies regarding identification procedures, and eighty-five per cent of these policies “incorporated reform protocols.” Massachusetts Chiefs of Police Association & Massachusetts Major City Chiefs, A Response to the Final Report of the President‘s Task Force on 21st Century Policing 13 (Sept. 2015), available at http://www.masschiefs.org/files-downloads/news-1/866-mcopa-mmcc-response-to-the-final-report-of-the-president-s-task-force-on-21st-century-police/file [https://perma.cc/D4K5-EALZ]. See Supreme Judicial Court Study Group on Eyewitness Evidence: Report and Recommendations to the Justices 103-104 (July 25, 2013), available at http://www.mass.gov/courts/docs/sjc/docs/eyewitness-evidence-report-2013.pdf [https://perma.cc/WY4M-YNZN]. In fact, this is the first case where the identification procedure was conducted after we announced the protocol in Silva-Santiago in which we have been asked to consider what consequence, if any, should arise from the failure to follow the protocol. And, even here, the detectives followed the protocol where they showed Johnson photographs and asked her to identify anyone she recognized who was among the group of people that were the apparent target of the defendant‘s gunfire; they failed to follow the protocol only where they showed her the array that included the defendant.
The expectation we declared in Silva-Santiago was not intended as a prediction of future police conduct; it was meant as a warning that the failure to follow such a protocol may have consequence where the prosecution intends to offer an identification at trial that is procured without the benefit of such a protocol. See Silva-Santiago, 453 Mass. at 798, citing Common-wealth v. Diaz, 422 Mass. 269, 273 (1996) (“warning ‘that the time may come when recording in places of detention . . . will be mandatory if a statement obtained during custodial interrogation is to be admissible’ “). The superintendence authority of this court does not extend to law enforcement agencies; we cannot mandate what they must or must not do, but we can mandate what the consequence will be in a court of law where they fail to follow our guidance. See Commonwealth v. DiGiambattista, 442 Mass. 423, 444-445 (2004) (“The issue . . . is not what we ‘require’ of law enforcement, but how and on what conditions evidence will be admitted in our courts. We retain as part of our superintendence power the authority to regulate the presentation of evidence in court proceedings“).
We have recognized “that the failure to provide warnings comparable to the protocol we adopted in Silva-Santiago . . . ‘substantially increases risk of misidentification.’ ” Commonwealth v. Walker, 460 Mass. 590, 602 (2011), quoting Report of Special Master at 22 (June 18, 2010), State vs. Henderson, N.J. Supreme Court, No. A-8-08. Moreover, as part of our model jury instructions on eyewitness identification, 473 Mass. 1051, 1056-1057 (2015), we instruct juries to evaluate an identification “with particular care” where the police failed to follow the Silva-Santiago protocol during the identification procedure, which reflects our recognition that there is a near consensus in the relevant scientific community that the failure to follow such a protocol increases the risk of misidentification. See Commonwealth v. Gomes, 470 Mass. 352, 366-367 (2015) (“a principle is ‘so generally accepted’ that it is appropriate to include in a model eyewitness identification instruction where there is a near consensus in the relevant scientific community adopting that principle“). See also id. at 367 n.24.
Therefore, the consequence of a failure to follow the Silva-Santiago protocol is twofold: it affects a judge‘s evaluation of the admissibility of the identification; and, where it is found admissible, it affects the judge‘s instructions to the jury regarding their evaluation of the accuracy of the identification.
As to admissibility, under
In considering the degree of suggestiveness arising from the failure to follow the protocol, a judge may consider the witness‘s familiarity with the alleged wrongdoer. The level of familiarity between a witness and the suspect is measured by factors such as the number of times the witness viewed the suspect previously; the duration, nature, and setting of those encounters; and the period of time over which the encounters occurred. People v. Rodriguez, 79 N.Y.2d 445, 450-451 (1992). Where a witness saw the wrongdoer for the first time during the commission of the crime, the witness will examine a photographic array in search of the unknown person he or she saw during that incident. But where, as here, the witness was familiar with the alleged wrongdoer from prior interactions and knew his first name, the witness will look at a photographic array in search of that person. We cannot reasonably expect the witness to ignore her memory of what the person looked like based on prior interactions and focus only on what the person looked like during the commission of the crime. Cf. Commonwealth v. Crayton, 470 Mass. 228, 242 (2014) (“there may be ‘good reason’ for the first identification procedure
To be sure, the witness might have been mistaken in thinking that the person she saw committing the crime was the person she knew; research has shown that the perception of familiarity is often unreliable. See Model Jury Instructions on Eyewitness Identification, 473 Mass. at 1054 endnote h, citing Pezdek & Stolzenberg, Are Individuals’ Familiarity Judgments Diagnostic of Prior Contact?, 20 Psychol. Crime & L. 302, 306 (2014) (“twenty-three per cent of study participants misidentified subjects with unfamiliar faces as familiar, and only forty-two per cent correctly identified familiar face as familiar“). And we do not agree with the Commonwealth that the use of the protocol here “would not have provided any additional safeguards” because of Johnson‘s familiarity with “Marcus.” The photographic array potentially could have revealed that the “Marcus” she knew was a different “Marcus” from the person the police included in the array, or that her actual familiarity with “Marcus” was less than the modest familiarity she described. But we conclude that, where a witness believes he or she knows the perpetrator from prior interactions and knows the perpetrator‘s name, the risk of misidentification arising from the failure to follow the protocol is less than where the witness looks at an array in search of an unknown person he or she saw only during the commission of the crime. Although the motion judge here did not do so, a judge properly may consider this familiarity in determining, based on the totality of the circumstances, whether the failure to follow the protocol was so unnecessarily suggestive as to deprive the defendant of due process. We conclude that, in these circumstances, the detectives’ failure to follow the protocol, standing alone, did not warrant suppression of Johnson‘s identification of the defendant.
b. Simultaneous versus sequential photographic array. The defendant contends that the detectives’ failure to adhere to the Silva-Santiago protocol was not the only source of needless suggestiveness, and that the identification procedure was unnecessarily suggestive because the eleven photographs in the array were shown to Johnson simultaneously rather than sequentially.
We have twice examined the scientific arguments in support of sequential arrays. In Silva-Santiago, 453 Mass. at 798-799, we
“What is not clear from the studies is whether, and in what circumstances, the use of the protocol in a simultaneous photographic lineup diminishes the risk of false positive identification to a rate comparable to or less than that in a sequential lineup. We cannot determine whether a sequential display is superior to a simultaneous display and that the use of the latter is unnecessarily suggestive until we learn, at a minimum, whether the rate of false positive identification with the use of the protocol is significantly higher in simultaneous displays than in sequential displays.”
Id. at 602. We therefore concluded that “it is still too soon to conclude that sequential display is so plainly superior that any identification arising from a simultaneous display is unnecessarily suggestive and therefore must be suppressed.” Id. at 602-603. See State v. Henderson, 208 N.J. 208, 257-258 (2011) (“For now, there is insufficient, authoritative evidence accepted by scientific experts for a court to make a finding in favor of either [simultaneous or sequential lineup] procedure“).
A recent study was the first of its kind to compare the accuracy of identifications arising from the display of simultaneous and sequential arrays during identification procedures conducted by police officers in the field where the witnesses received a warnings protocol and the administering officer did not know which photograph depicted the suspect. Wells, Steblay, & Dysart, Double-Blind Photo Lineups Using Actual Eyewitnesses: An Experimental Test of a Sequential Versus Simultaneous Lineup Procedure, 39 Law & Hum. Behav. 1, 10 (2015).8 The study‘s findings were consistent with findings in comparable nonfield
In 2014, the National Academy of Sciences, based on its review of the scientific research, speaking of sequential versus simultaneous display, concluded that “the relative superiority of competing identification procedures . . . is unresolved,” and recommended that “caution and care be used when considering changes to any lineup procedure, until such time as there is clear evidence for the advantages of doing so.” National Research Council of the National Academies, Identifying the Culprit: As-
Because the failure to follow the Silva-Santiago protocol in these circumstances was not sufficient alone to warrant a finding that the identification procedure was so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny the defendant due process of law, and because the use of the simultaneous display was not unnecessarily suggestive, we affirm the judge‘s denial of the defendant‘s motion to suppress Johnson‘s identification of the defendant.
2. Motion to suppress Johnson‘s identification of firearm. The Commonwealth contends that the judge erred in suppressing Johnson‘s identification of the firearm after finding that the showing of a single photograph of a firearm to Johnson in the absence of exigent circumstances constituted a denial of due process. Before evaluating this claim of error, we offer some perspective regarding the judge‘s decision.
The judge suppressed Johnson‘s identification of the firearm as the firearm the defendant used to fire at the bystanders from the back seat of the vehicle where Johnson was a front seat passenger. We do not understand the judge‘s decision to bar her from testifying at trial to the description of the firearm she provided to
The judge did not abuse his discretion in ruling the identification inadmissible under the common law of evidence. During the first interview, Johnson told the detectives that she did not see the firearm until the defendant leaned out the rear driver‘s side window and began firing, that she ducked when the shooting started, and that she did not know whether the gun was in the defendant‘s hand when he left the vehicle immediately after the shooting. As noted, her description of the firearm provided no detail that would suggest that she could identify anything more than its type. During the second interview, she was shown the photograph of the firearm immediately after she was again asked to describe the gun. She initially said, “That‘s probably it,” but moments later asked, “Is this the gun?” The only identifying
Having affirmed the judge‘s ruling on evidentiary grounds, we now address the judge‘s due process analysis. In Simmons, 383 Mass. at 51, we recognized that, “in an extreme case, the degree of suggestiveness of an identification procedure concerning an inanimate object might rise to the level of a denial of due process.” We also recognized that there are three differences between the out-of-court identification of a defendant and an out-of-court identification of an inanimate object. Id. at 52. First, the “chances of fundamental unfairness” are greater where a defendant is identified because that “directly tends to prove the case against him,” but “[i]dentification of tangible property is only indirect proof of the defendant‘s guilt, even though its force may be most persuasive in certain instances.” Id. Second, most tangible objects “are not unique,” but “[t]here is only one person with the physical characteristics of the defendant.” Id. Third, “[a] lineup of people is practical,” but “[a] lineup of property may not be.” Id. We therefore rejected “the notion that a lineup of inanimate objects is required in circumstances where a lineup of people would be required.” Id. See Commonwealth v. Bresilla, 470 Mass. 422, 427, 431 (2015) (although identification of jacket worn by shooter was strong evidence that defendant was shooter, “Commonwealth was not required to create a photographic array of jackets“).
Due process may be denied by admitting in evidence an identification of an inanimate object where, first, the police knew or reasonably should have known that identification of the object
However, because the identification of an inanimate object potentially may implicate due process, and because under our common law of evidence the probative value of any such identification must not be substantially outweighed by unfair prejudice, the police should take reasonable steps to avoid unnecessary suggestiveness in what will generally be a showup procedure, that is, the showing of the object alone or a single photograph of the object. A police protocol would be valuable in guarding against needless suggestiveness in identification procedures involving an inanimate object and in ensuring that the fact finder learns with precision the nature of any identification by the witness. We urge police departments to devise such a protocol for the identification of inanimate objects where such an identification would persuasively inculpate a defendant.
The identification protocol we adopted in our opinion in Silva-Santiago had been recommended to law enforcement authorities by the United States Department of Justice. 453 Mass. at 798, citing United States Department of Justice, Eyewitness Evidence: A Guide for Law Enforcement 19, 31-32, 33-34 (1999). But that protocol was created for the identification of a suspect in a lineup or a photographic array; it was not designed for a showup identification of an inanimate object. To our knowledge, no protocol for the identification of inanimate objects has yet been devised by the Department of Justice or by any Federal, State, or local law
Conclusion. For the reasons stated above, we affirm the denial of the defendant‘s motion to suppress Johnson‘s identification of him, and the allowance of the defendant‘s motion to suppress Johnson‘s identification of the firearm.
So ordered.