Com. v. Francis

• Decision Date: 08 September 1983
• Citation: 390 Mass. 89,453 N.E.2d 1204
• Parties: COMMONWEALTH v. Walter FRANCIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1204

453 N.E.2d 1204

390 Mass. 89

COMMONWEALTH v. Walter FRANCIS.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued April 4, 1983.

Decided Sept. 8, 1983.

Susan G. Kauffman, Dorchester, for defendant.

Patricia A. McEvoy, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

WILKINS, Justice.

The single issue in this case is whether the trial judge erred in excluding expert testimony offered to assist the jury in assessing the reliability of eyewitness testimony identifying the defendant as the man who, on July 10, 1976, robbed Alexander's Supermarket in Dracut. The defendant appeals from his convictions of armed robbery and of assault and battery by means of a dangerous weapon. We affirm the convictions.

Although the armed robbery occurred in July, 1976, the defendant was not arrested and indicted until 1980. A trial in November, 1980, ended in a mistrial when the jury could not agree. The defendant was convicted at a second trial in October, 1981. The chief witnesses against him were Conrad Berube, assistant manager of the market, and Betty Southworth, the courtesy booth clerk. A salient fact in the defendant's attempt to introduce expert testimony bearing on the reliability of the eyewitnesses' identification of him is that Southworth had testified under oath at the 1980 trial and earlier at a probable cause hearing and before the grand jury that the person who robbed the store wore a short-sleeved shirt and had no distinctive features. At the time of the robbery the defendant had tattoos on his arms. The 1980 jury that could not agree on a verdict saw the tattoos. After the 1980 trial, Southworth, who was a sequestered witness at that trial, learned of the tattoos and shortly thereafter advised an assistant district attorney that she remembered that the robber was wearing a long-sleeved jacket. In February, 1981, the assistant district attorney, complying with the allowance of a motion for disclosure of exculpatory evidence, advised the defense counsel of Southworth's changed "memory." ¹

The defendant then moved for extra fees and costs for expert assistance to assess the eyewitness testimony. A Superior Court judge denied the motion because the defendant had not shown "what conclusions [the expert] would draw which would not be apparent to the average jury," and, because the evidence would not be admissible, a litigant who could afford to pay would not hire the services of an expert. A justice of the Appeals Court vacated the order denying the motion and indicated that a motion for extra fees and costs should be allowed. The justice's memorandum of decision regarded the defendant's request as directed not at the general question of the reliability of eyewitness testimony but specifically toward explaining what effect postevent information concerning the defendant's tattoos may have had on Southworth's current memory.

At the trial Berube identified the defendant as the man who approached him at 8:45 P.M. on July 10, 1976, as he was standing near the market's courtesy booth talking to Southworth. Berube said he was very nervous, too nervous to remember what the robber was wearing or any distinctive features of the robber. The gun in Berube's stomach "looked like a cannon." Southworth then testified that the defendant was the man who robbed her. She said that the robber wore a dark-colored jersey and took a gun from underneath a jacket he was wearing. On cross-examination, she admitted that she had made prior inconsistent statements concerning the robber's clothing. Before the grand jury she had testified that the man wore a short-sleeved jersey and pulled a revolver out from his shirt. She further admitted that, when she testified under oath in November, 1980, she said the man wore no jacket. On these occasions she made no reference to tattoos or other distinctive features. She then testified, on further cross-examination, that after the 1980 trial she overheard a conversation between the assistant district attorney and a police inspector and learned that the defendant had tattoos on his arms. Defense counsel pressed the cross-examination, developing the inconsistency and questioning the reason why Southworth "put a jacket on the man." ²

The night of the robbery Berube and Southworth went to the Lowell police station and looked at photographs. They selected a photograph of the defendant. While looking at numerous books of photographs, Berube and Southworth discussed various photographs, and together they identified a photograph of the defendant. Evidence of the photographic identifications and the circumstances of the identification were introduced through these two witnesses and police detectives.

The defendant presented alibi witnesses tending to show that on the night of the crime he attended a family party in Rhode Island. He exhibited his arms to the jury. The judge then conducted a voir dire to determine whether the testimony of Elizabeth Loftus, Ph.D., and Margaret Hagen, Ph.D., should be admitted. Dr. Loftus has substantial credentials as an experimental psychologist specializing in human memory and perception. She testified that at a high level of stress a person tends to have a reduced ability to remember what he observes. A person focused on a weapon, for example, has a reduced ability to identify the face of the person holding that weapon. She noted that the period of time between an event and one's attempt to recall it, the retention interval, is significant because, as a matter of common sense, the longer that interval, the less accurate the memory. Dr. Loftus testified that individuals are susceptible to the influence of postevent information, information supplied to a witness after an event is over. The witness can incorporate postevent information in his memory, thus altering prior memory. She also testified that the introduction of postevent information four years after the event could easily influence memory for a particular detail. Where postevent information conflicts with what the witness has already recalled, the witness will attempt to resolve the conflict. One way to do that "is to have a reorganization in memory that allows for this conflict." The witness is influenced "rather unconsciously" by postevent information and is not lying when the memory becomes altered. There is little relationship between the certainty and the accuracy of a witness's identification.

Dr. Hagen, an associate professor at Boston University in the department of psychiatry, testified on voir dire that the principles stated by Dr. Loftus concerning the acquisition, retention, and retrieval of information were generally accepted in the field.

The judge ruled that the expert testimony would not be admitted. He found Dr. Loftus to be "eminently well qualified as an expert in psychology; to wit memory and perception." However, he concluded that "[t]he proposed testimony is not beyond the ordinary experience and knowledge of the average juror and would not aid jurors in their deliberations" (emphasis in original). He further concluded that "[t]he proposed testimony is not based on scientific evidence." The defendant then rested and the case was argued to the jury.

Defense counsel presented the jury with a well-constructed argument that Berube's and Southworth's identifications of the defendant were wrong. She focused specifically on Southworth's change of testimony about whether the robber was wearing a jacket. ³ The jury, however, returned verdicts of guilty.

The issue of the admissibility of expert testimony offered to show the unreliability of eyewitness identification has received increased attention in State courts in recent years. State court opinions almost uniformly have upheld the trial judge's exercise of discretion to exclude such testimony. See, e.g., People v. Plasencia, 140 Cal.App.3d 853, 858-859, 189 Cal.Rptr. 804 (1983); Dyas v. United States, 376 A.2d 827, 831-832 (D.C.), cert. denied, 434 U.S. 973, 98 S.Ct. 529, 54 L.Ed.2d 464 (1977); Jones v. State, 232 Ga. 762, 763-766, 208 S.E.2d 762 (1974); State v. Hoisington, 104 Idaho 153, 657 P.2d 17, 29 (1983); State v. Warren, 230 Kan. 385, 393-395, 635 P.2d 1236 (1981); State v. Stucke, 419 So.2d 939, 944-945 (La.1982); State v. Fernald, 397 A.2d 194, 197 (Me.1979); State v. Helterbridle, 301 N.W.2d 545, 547 (Minn.1980); State v. Porraro, 404 A.2d 465, 471 (R.I.1979); State v. Onorato, 142 Vt. 99, 453 A.2d 393, 395-396 (1982). Cf. State v. Galloway, 275 N.W.2d 736, 738-739 (Iowa 1979) (no abuse of discretion in excluding expert witness's explanation that her opinion concerning the possibility of misidentification was based in part on a particular experiment performed by another); Hampton v. State, 92 Wis.2d 450, 454-459, 285 N.W.2d 868 (1979) (no abuse of discretion in not permitting a psychologist to give an opinion as to the reliability of a witness's identification of the defendant, after he was permitted to testify to factors affecting human perception). ⁴ Contra State v. Chapple, 135 Ariz. 281, 660 P.2d 1208, 1223-1224 (1983). ⁵ Some opinions have expressed concern about the aura of reliability that the jury may find in expert testimony bearing directly on their own fact-finding role. State court opinions generally note that the matter is within the jury's knowledge and that the defendants' rights can be protected by cross-examination and appropriate jury instructions. They give no particular attention to the circumstances of the eyewitness identification, such as whether a weapon was used, whether the witness was a victim of the crime, or whether the witness made a photographic identification. This is understandable because generally the expert opinions offered did not focus on the capabilities of the particular witness who had identified the defendant but rather dealt generally with problems of identification under stress and with the ability to...