Com. v. Johnson

• Decision Date: 09 June 1995
• Citation: 650 N.E.2d 1257,420 Mass. 458
• Parties: COMMONWEALTH v. Bruce C. JOHNSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1257

650 N.E.2d 1257

420 Mass. 458

COMMONWEALTH v. Bruce C. JOHNSON.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Jan. 12, 1995.

Decided June 9, 1995.

Patricia A. O'Neill, Committee for Public Counsel Services, for defendant.

Jane A. Sullivan, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR, and GREANEY, JJ.

LIACOS, Chief Justice.

The defendant appeals from his conviction of larceny from a person after a trial by a jury of six in the Boston Municipal Court Department. The sole issue on appeal is whether the judge erred in denying the defendant's motion to suppress the victim's pretrial identification after concluding that the identification procedure was unnecessarily suggestive. We granted the defendant's application for direct appellate review. We reverse.

We recite the facts found by the judge. On April 7, 1992, Leopoldino Goncalves ¹ was working at a parking lot on the corner of Traveler Street and Washington Street in Boston. After he finished work, at approximately 10:50 P.M., Goncalves walked across the street to use a public telephone that was located on Washington Street. Street lights provided the only illumination.

When Goncalves finished using the telephone, a white female with a limp approached him and asked him for a dollar. Goncalves told the woman that he did not have any money. A black male armed with a machete then approached. The man grabbed Goncalves's wallet and at the same time the woman snatched money from Goncalves's front pocket. The assailants discarded the wallet after removing the money. They left the area together in an automobile. Goncalves pursued them in his own automobile, but he lost sight of them in a public housing project. The entire incident described lasted only a few minutes.

Approximately forty-five minutes later, Goncalves went to the Area D-4 police station and reported the robbery. He described the male assailant as a twenty-seven to thirty year old black male, six feet tall with a medium build, weighing 170 pounds, and wearing a black cap, blue jeans, and a brown sweatshirt. Goncalves was shown about six books containing photographs of suspects, but was unable to identify his assailants. ² Goncalves then accompanied a police officer to view a group of potential suspects. Once again, Goncalves did not make an identification.

The day following the incident, four police officers arrived at Goncalves's place of employment at approximately 5 P.M. They told Goncalves that they wanted him to view two suspects. Goncalves accompanied the officers. When they arrived at the location where the suspects were being held, Goncalves saw a group of six to eight people. Only one adult black male, the defendant, was present and a female with a limp was the only adult white female present. The two suspects were being "detained" by police officers but they were not handcuffed. The defendant and the woman were brought forward a few steps by the officers. Goncalves then identified the pair as his assailants. Goncalves based his identification in part on the fact that the clothing worn by the suspects was the same as that worn by his assailants.

The defendant possessed several characteristics that did not match Goncalves's initial description of the male assailant. A booking photograph taken of the defendant at the time of his arrest, the day after the incident, shows that the defendant had a moustache. Yet Goncalves had never mentioned that the male assailant had a moustache. The booking sheet indicates that the defendant is thirty-seven years old and weighs 220 pounds, whereas Goncalves had described a man of approximately twenty-seven years in age, weighing 170 pounds, with a medium build. Finally, at the time of the hearing on the motion to suppress the defendant was missing several front teeth. When describing his assailants to the police, Goncalves did not tell them that the male assailant had missing teeth.

The judge ruled that Goncalves's identification of the defendant was tainted because it was made at an unnecessarily suggestive showup. The evidence presented at the motion hearing supports this conclusion. Although one-on-one confrontations are not per se excludable, they are disfavored because of their inherently suggestive nature. See Commonwealth v. Howell, 394 Mass. 654, 660, 477 N.E.2d 126 (1985); Commonwealth v. Barnett, 371 Mass. 87, 92, 354 N.E.2d 879 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d 765 (1977). Showups have been permitted when conducted in the immediate aftermath of a crime and in exigent circumstances. Commonwealth v. Barnett, supra at 92, 354 N.E.2d 879. See Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 1972-1973, 18 L.Ed.2d 1199 (1967). The showup employed by the police in this case was conducted eighteen hours after the crime. It took place in the area of the housing project where Goncalves had seen his assailants drive the previous night; the defendant was brought forward from the group before Goncalves positively identified him; and the defendant was wearing clothes similar to those worn by the male assailant. Based on these facts, the judge was warranted in concluding that the identification procedure was unnecessarily suggestive.

Although the judge found the identification procedure unnecessarily suggestive, he found that the identification was admissible because it was reliable. ³ In so doing, the judge relied on Appeals Court decisions which have adopted the "reliability test," set forth in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), regarding the admissibility of identifications obtained through unnecessarily suggestive procedures. ⁴ See Commonwealth v. Hicks, 17 Mass.App.Ct. 574, 460 N.E.2d 1053 (1984). See also Commonwealth v. Riley, 26 Mass.App.Ct. 550, 553-554, 530 N.E.2d 181 (1988); Commonwealth v. Laaman, 25 Mass.App.Ct. 354, 362, 518 N.E.2d 861 cert. denied, 488 U.S. 834, 109 S.Ct. 95, 102 L.Ed.2d 71 (1988); Commonwealth v. Jones, 25 Mass.App.Ct. 55, 60, 514 N.E.2d 1337 (1987); Commonwealth v. Key, 19 Mass.App.Ct. 234, 472 N.E.2d 1381 (1985); Commonwealth v. Gordon, 6 Mass.App.Ct. 230, 374 N.E.2d 1228 (1978).

Although the Appeals Court has applied the due process analysis set forth in the Brathwaite case, this court has never accepted the reasoning in Brathwaite as an accurate interpretation of the due process requirements of art. 12 of the Declaration of Rights of the Massachusetts Constitution. ⁵ Whether we should embrace Brathwaite, as have the majority of other States, is a question we have left open. Commonwealth v. Melvin, 399 Mass. 201, 205, 503 N.E.2d 649 (1987). Commonwealth v. Correia, 381 Mass. 65, 81, 407 N.E.2d 1216 (1980). Commonwealth v. Venios, 378 Mass. 24, 26-28, 389 N.E.2d 395 (1979). In cases involving an unnecessarily suggestive identification, we have adhered to the stricter rule of per se exclusion previously followed by the Supreme Court and first set forth in the Wade-Gilbert- Stovall trilogy ⁶ of cases. Commonwealth v. Botelho, 369 Mass. 860, 865-869, 343 N.E.2d 876 (1976). See Commonwealth v. Dinkins, 415 Mass. 715, 720-721, 615 N.E.2d 570 (1993); Commonwealth v. Smith, 414 Mass. 437, 442-443, 608 N.E.2d 1018 (1993); Commonwealth v. Thornley, 406 Mass. 96, 98-99, 546 N.E.2d 350 (1989); Commonwealth v. Melvin, supra at 205, 503 N.E.2d 649.

The rule of per se exclusion, set forth in Commonwealth v. Botelho, supra, ⁷ states that the defendant bears the burden of demonstrating, by a preponderance of the evidence, that the "witness was subjected by the State to a confrontation that was unnecessarily suggestive and thus offensive to due process." Id. at 866, 343 N.E.2d 876. If this is established, then the prosecution is barred from introducing that particular confrontation in evidence at trial. Id. ⁸ As for other identifications the witness may have made of the defendant, "the prosecution is limited to introducing at trial only such identifications by the witness as are shown at the suppression hearing not to be the product of the suggestive confrontation--the later identifications, to be usable, must have an independent source." Id. The prosecution must demonstrate the existence of an independent source by "clear and convincing evidence." Id. at 868, 343 N.E.2d 876.

"In deciding whether a particular confrontation was unnecessarily suggestive, the judge is to consider 'the totality of the circumstances surrounding it' (Stovall, 388 U.S. at 302 )." Commonwealth v. Botelho, supra at 867, 343 N.E.2d 876. Additionally, in determining whether a separate identification has a source independent of the unnecessarily suggestive identification, the judge considers the following factors: "(1) The extent of the witness' opportunity to observe the defendant at the time of the crime; prior errors, if any, (2) in description, (3) in identifying another person or (4) in failing to identify the defendant; (5) the receipt of other suggestions, and (6) the lapse of time between the crime and the identification." Id. at 869, 343 N.E.2d 876, quoting Commonwealth v. Ross, 361 Mass. 665, 671 n. 2, 282 N.E.2d 70 (1972), judgment vacated on other grounds, 410 U.S. 901, 93 S.Ct. 968, 35 L.Ed.2d 265 (1973).

The Commonwealth now urges us to abandon the per se rule of exclusion and, like the Appeals Court, follow the reliability test of Brathwaite. Under the "reliability" test, if a defendant demonstrates that an identification was unnecessarily suggestive, evidence of that identification is not per se excluded. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). Instead, the court must determine whether the identification was, under the "totality of the circumstances," nevertheless reliable. Id. at 198-199, 93 S.Ct. at 381-382. In determining whether an identification was reliable, and thus there was no "substantial likelihood of irreparable misidentification," the...