Commonwealth v. Thomas

• Decision Date: 13 February 2017
• Docket Number: SJC-12055
• Citation: 68 N.E.3d 1161,476 Mass. 451
• Parties: COMMONWEALTH v. Marcus THOMAS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

476 Mass. 451
68 N.E.3d 1161

COMMONWEALTH
v.
Marcus THOMAS.

SJC-12055

Supreme Judicial Court of Massachusetts, Hampden..

Submitted October 7, 2016.
Decided February 13, 2017.

68 N.E.3d 1164

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, Boston, for The Innocence Project, Inc. & another.

Anthony D. Mirenda, Michael J. Licker, Boston, Melissa A. Stewart, & Chauncey Wood, Boston, for Massachusetts Association of Criminal Defense Lawyers.

Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

GANTS, C.J.

476 Mass. 452

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, 906 N.E.2d 299 (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, 906 N.E.2d 299, and confirmed in Commonwealth v. Walker, 460 Mass. 590, 602-603, 953 N.E.2d 195 (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

476 Mass. 453

affirm the judge's ruling on both motions.¹

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, 50 N.E.3d 428 (2016), quoting Commonwealth v. Novo, 442 Mass. 262, 266, 812 N.E.2d 1169 (2004) (where decision is based on recorded rather than live testimony, "we will ‘take an independent view’ of recorded

68 N.E.3d 1165

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

476 Mass. 454

that he was Humphrey-Frazer's friend, not her friend. She said she did not see Marcus that often "because ... [they] don't associate with the same people." After saying that she had seen Marcus at a party, she added, "I just know it's him because he's known up here." She said that Marcus "look[s] like he's [nineteen] or something," and is "kind of chunky." She assured the detectives that she would recognize him if she saw him.

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

68 N.E.3d 1166

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 handgun,

476 Mass. 455

loaded with a magazine containing twelve rounds of ammunition.⁵

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?"

476 Mass. 456

JOHNSON : "I think so, yeah. Because I remember this part."

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."

68 N.E.3d 1167

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,

...