Com. v. Jones

• Citation: 423 Mass. 99,666 N.E.2d 994
• Parties: COMMONWEALTH v. Maisi JONES.
• Decision Date: 01 July 1996
• Court: United States State Supreme Judicial Court of Massachusetts

Page 994

666 N.E.2d 994

423 Mass. 99

COMMONWEALTH v. Maisi JONES.

Supreme Judicial Court of Massachusetts,

Worcester.

Argued March 4, 1996.

Decided July 1, 1996.

Benjamin H. Keehn, Committee for Public Counsel Services, Boston, for defendant.

Patricia C. Smith, Assistant District Attorney, for Commonwealth.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

WILKINS, Justice.

We deal with the question of the admissibility of an in-court identification of the defendant that (a) was based on highly suggestive confrontations with the defendant that neither the police nor the prosecution arranged and (b) was not based independently on the witness's original observations of the person whom she identified as the defendant. The trial judge, who considered the admissibility of the identification evidence by holding a voir dire during trial, ruled that, because the Commonwealth did not arrange the visual encounters between the witness and the defendant, principles of due process requiring the suppression of identifications based on unnecessarily suggestive encounters were inapplicable. He, therefore, denied the defendant's motion to suppress the witness's identification. The jury found the defendant guilty of armed assault in a dwelling, armed robbery, and confining with intent to commit a felony. We granted the defendant's application for direct appellate review.

The defendant's appeal is based solely on the denial of his motion to suppress. The Commonwealth argues that the witness's identification evidence was properly admitted for the reasons that the judge stated. The Commonwealth further asserts that the judge erred in concluding (1) that the in-court identification lacked a basis independent of the suggestive confrontations and (2) that defense counsel was not responsible because he did not guard against the suggestive encounters. The Commonwealth also argues that any error in the admission of the challenged identification evidence was harmless beyond a reasonable doubt.

The jury could have found the following facts. Late in the afternoon of May 28, 1992, two Vietnamese men and two African-American men, young and armed, forcibly entered the residence of the victim in Fitchburg. One intruder ordered the victim to lie face down on the floor, tied her up, and put a blanket over her head. Later the blanket slipped off, and from the floor she briefly saw one of the black men. The intruders took various items from the victim's residence.

Three hours after the incident, based on a tip, the police stopped a vehicle as it was leaving the parking lot of a Super 8 Motel in Leominster. There were three Vietnamese men in the vehicle. The victim, brought to the scene, identified two of the men, Cuong Ve and Du Le, as the Vietnamese men who were involved in the incident. ¹ Cuong Ve and Du Le testified that the defendant was not one of the two black men who had participated in the crimes. The victim also identified valuables taken from her home that were found in a stolen vehicle parked in the motel parking lot. On the following day, the victim identified the defendant's photograph in an array that the police showed her. At trial she identified the defendant as the person whom she saw when the blanket slipped off her head.

There was evidence that on May 28, 1992, the two Vietnamese men who had committed the crimes had stayed in room 216 at the Super 8 Motel in Leominster. Two teenage girls, runaways, had been in the motel room occupied by the Vietnamese men. They had seen two black men there in the company of the Vietnamese men. At trial one of these girls identified the defendant as one of the black men who had come to the motel where the Vietnamese had stayed. The other girl was unable to identify the defendant as a black man whom she had seen at the motel but testified that the defendant was the same size as one of them.

The issue in this case arises from the Commonwealth's introduction of the identification testimony of Krystal LeBlanc, who worked as an assistant manager at the Super 8 Motel in Leominster. She testified that between 3:30 P.M. and 4:30 P.M. on May 28, she saw the defendant in the company of Vietnamese men at the Leominster motel.

We now summarize the judge's findings of fact that led to the denial of the defendant's motion to suppress the testimony of Krystal LeBlanc. In many places, we quote the findings verbatim, making such corrections in the judge's dictated findings as the record plainly permits. "On the evening of May 28th, 1992, the witness, Krystal LeBlanc, was on duty in the Super 8 Motel in [Leominster] where she customarily worked as an assistant manager at the register. At some point during the afternoon, she saw a black man come into the lobby of that motel. He spent about a minute in the lobby walking from the front door to the elevator, and he disappeared into the elevator and reemerged about 10 minutes thereafter. He went back outside through the lobby and got into a car and drove away. The total time that Ms. LeBlanc observed that person was about three minutes. At the time of her observation, there was no event then transpiring at the motel to draw her attention to him in any particularized way. The motel lighting and other conditions were adequate, however, to give her an opportunity to see him."

Three months later, LeBlanc was summoned by counsel for a codefendant to attend a probable cause hearing in the Fitchburg District Court. She arrived there, found defense counsel for the codefendant, and spoke with him. "She, for one reason or another, wound up sitting in a courtroom in the [Fitchburg] District Court." At some point, the defendant and a codefendant, Du Le, were in the courtroom handcuffed and shackled together. LeBlanc had the opportunity to watch them for more than an hour. There was no other African-American man in the courtroom who was in handcuffs or under any visible restraints.

"At no time while she was in the [Fitchburg] courthouse did Ms. LeBlanc have any contact with the district attorney or police officials, and neither the district attorney nor the police in any way, shape or form orchestrated, planned, assisted in facilitating, or otherwise participated in the observations that Ms. LeBlanc made of the defendant and Mr. Du Le on [this] occasion."

In the first week of February (the month of the trial), "LeBlanc was summoned [by the Commonwealth] to this court in connection with a suppression hearing ... in courtroom 18." The only means of entry to courtroom 18 is to take a person in custody down a hallway past anybody who happens to be sitting in the hall or waiting to testify in a proceeding.

"LeBlanc was seated in the hallway on two occasions when she saw the defendant, Mr. Jones, again shackled to Mr. Du Le, brought into the courtroom. Once again the district attorney did not tell her to sit there. The district attorney did not point out to her anybody [whom] she should look at. The district attorney did not facilitate, attempt to facilitate, aid or participate in assisting in any identification or procedures or opportunities for observation that Ms. LeBlanc had under those circumstances. Once again, however, the defendant, Mr. Jones, was the only black person in shackles that she saw that day, and once again, Mr. Jones was shackled to Mr. Le, a Vietnamese person." When LeBlanc testified at the suppression hearing, she saw Le and Jones sitting at counsel table, not in shackles, but clearly the object of the courtroom proceeding.

Both the confrontation at the Fitchburg District Court and the confrontation at the Worcester courthouse in the first week of February "were accidental in the sense that the Commonwealth played no part in arranging or assisting in arranging those encounters. They were not in sum and in essence confrontations at all as that term is used as a term of art in decided cases."

The judge then made the following rulings of law (which we have adjusted with minor editing of his dictated rulings). "The defendant has the initial burden of proving, by a preponderance of the evidence, that a confrontation is unnecessarily suggestive and thus violated his right to due process." [If] that occurs, then that particular identification or confrontation ... is suppressed, and the Commonwealth, in addition, is permitted to introduce at trial evidence of other identifications, such as an in-court identification, only if it proves by clear and convincing evidence that the other identification has a basis.

"I add, perhaps as a footnote, that the Commonwealth has not yet adopted the Biggers ² and Brathwaite ³ test that permits introduction of a suggestive identification if that identification was nonetheless reliable. I put that consideration entirely to one side as it has played no role in the decision I am about to make."

"[F]or there to be a confrontation, the government must have played some role in arranging it. If there is no government participation in arranging an accidental or other encounter, then the entire line of analysis flowing from Stovall ⁴ does not apply. Cases standing for that proposition include Commonwealth v. Otsuki, 411 Mass. 218, 234, 581 N.E.2d 999 (1991); Commonwealth v. Paszko, 391 Mass. 164, 172, 461 N.E.2d 222 (1984); Commonwealth v. D'Ambra, 357 Mass. 260, 263, 258 N.E.2d 74 (1970); Commonwealth v. Calhoun, 28 Mass.App.Ct. 949, 951, 550 N.E.2d 896 (1990); Commonwealth v. Currier, 15 Mass.App.Ct. 929, 930, 445 N.E.2d 158 (1983)". ⁵

"Here, as I found, the Commonwealth did not participate in any of the viewings that Ms. LeBlanc had of the defendant. Consequently, the defendant's motion must be denied."

"If, however, I am wrong in that, if I have misread those cases or misapprehended the doctrine or if the court deems it appropriate to reexamine that issue, and if, therefore, a question arises as to whether or not the Commonwealth has shown by clear and convincing evidence that there is an...