Com. v. Martin

Decision Date19 July 2006
Citation447 Mass. 274,850 N.E.2d 555
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

J. Thomas Kirkman, Assistant District Attorney, for the Commonwealth.

Edward J. DeAngelo for the defendant.

David M. Skeels, Committee for Public Counsel Services, Cambridge, for Committee for Public Counsel Services, amicus curiae, submitted a brief.



This case requires the court to apply the principles applicable to one-on-one identifications to determine whether the defendant has proved that the showup here was "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to deny him due process of law. Commonwealth v. Venios, 378 Mass. 24, 27, 389 N.E.2d 395 (1979), quoting Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). We conclude that the defendant has not met this burden and that the admission in evidence of the showup identification procedure was therefore permissible. We further resolve the defendant's other claims of error against him and therefore affirm the convictions.

The defendant was indicted for assault with intent to rape a child under the age of sixteen years, assault with intent to kidnap, assault with intent to murder, and assault and battery. All the charges arose from an alleged attack on a fifteen year old girl on July 20, 1994. The defendant filed two motions before trial that are pertinent to his appeal: a motion to suppress the victim's identification of him and a motion to dismiss on speedy trial grounds, see Mass. R.Crim. P. 36, as amended, 422 Mass. 1503 (1996). Two different Superior Court judges denied these motions. Trial took place in August, 2001.1 At the close of the Commonwealth's case the defendant moved for required findings on all the indictments but the assault and battery charge. The motion was denied. The jury convicted the defendant of all the offenses except for that of assault with intent to murder. The defendant appealed and the Appeals Court reversed the convictions on the basis that the identification procedure was overly suggestive. See Commonwealth v. Martin, 63 Mass.App. Ct. 587, 827 N.E.2d 1263 (2005). We granted the Commonwealth's application for further appellate review.

1. Motion to suppress. The primary issue on appeal is the suggestiveness of the identification of the defendant and so we set forth the evidence at the motion to suppress hearing as summarized in the judge's findings. Late morning on July 20, 1994, the fifteen year old victim left the beach in Yarmouth to return to her grandparents' house. As she walked along a dirt road that leads from the beach, she saw a man about ten feet away from her. Shortly thereafter, she was grabbed from behind and thrown to the ground on her back. She screamed as the attacker hit her in the face numerous times. He told her to "shut up" and tried to drag her into a bog area that bordered the path. The approach of another person caused the assailant to flee into the bog. The attack lasted approximately three minutes, during which time the victim had a "full frontal view" of her attacker's face.

Officer Richard White of the Yarmouth police department responded. He found a "shaken and upset" victim with an apparent injury below one eye. The victim informed Officer White and another officer of the attack and explained that she had a front view of the attacker during the assault. She described him as a white male, thirty to forty-five years old, tall and thin, wearing a light blue shirt with a green alligator on the chest. She also believed he must have been wearing shorts because she could see his legs. At a hospital, the victim repeated the same general description to another officer. She returned to the scene with the police, and amplified her original description by adding that the assailant wore a yellow hat, was tanned, "as if he had been out in the sun," and had thinning brown hair with a little gray in it.

At the Yarmouth police station, the victim assisted an officer in creating a composite. The police prepared a bulletin with the description provided by the victim and the bulletin and the composite were distributed to patrol officers and local merchants.

The victim was shown a number of "mug" books at the police station, but did not identify anyone as her assailant. Later, the police learned that the defendant's picture was among the photographs viewed by the victim, but it had been taken in 1992 and depicted a thinner man with a mustache and "scraggly" beard. The victim had described the assailant as having no facial hair.

The victim informed the police that she would be able to identify her attacker if she saw him again. The Yarmouth police took her to different areas in Yarmouth and later in Hyannis where "persons within the age group of the assailant tended to congregate." During these rides along streets and beach areas, detectives and the victim stopped at least six times for the victim to view individuals who fit the general description. Twice, the person stopped was accompanied by uniformed police officers, although not in custody. The victim did not identify anyone during these viewings.

Early on the morning of July 25, the Yarmouth police were informed by the Barnstable police that they had stopped a person at Veterans' Beach who had been called to their attention by the victim's father. (The victim's father had been searching the area on his own for a person who matched the description and composite.)

On that same morning, the victim was at the Yarmouth police station preparing for another round of viewing when she was informed by a detective that "there was a suspect on the beach." The detective did not mention the victim's father. Detectives took the victim to Veterans' Beach where they drove through a "medium-sized" parking lot. They asked her to look "side to side" to see whether she recognized any of the many people in the parking lot. The defendant was at one end of the parking lot standing and talking with two uniformed Barnstable officers. He was not handcuffed or restrained. The victim saw her father a short distance from the three other men and realized at that point that her father must have alerted the police to this suspect. She had not known until then that her father would be present.

The detectives asked the victim to look at the man who was about fifteen feet away. She testified, "No one told me anything different than they had before and just asked me to look at this man." She tried "to put his face to the image that she had in her head," and asked to see him at closer view. When she did so, she recognized a mark on his head and told the police that he was the assailant. The showup lasted approximately seven minutes.

About seven hours after the showup, the victim was shown a photographic array at the police station. She was asked whether she recognized her assailant and she pointed out the photograph of the defendant that had been taken earlier that day.

The judge considered whether the victim was influenced by trying to please her father by "validating" his choice of a person he thought matched the description. The judge also considered whether a fifteen year old girl was "afraid" to contradict her father's choice. In discussing these factors, the judge reviewed the conduct of the victim at the scene of the identification and her demeanor while testifying in court. The judge took into account the fact that the victim did not immediately identify the man she saw with her father and the police, but instead asked to see the man more closely before finally selecting him because of the mark on his forehead. The judge found the victim, sixteen years of age when she testified, to possess "poise and self-assurance beyond her years." She was "reasonably composed" considering that she was testifying in the presence of the man she believed to be her attacker. When questioned by the judge, she responded with candor and apparently without "being influenced by the authority figure of a judge." Despite pause for concern because of the victim's youth, her demeanor, and "certitude" in testifying led the judge to conclude that the victim was not a young woman likely to be influenced by an authority figure.2 The judge concluded that "the aura of suggestibility" from the one-on-one identification was "dissipated by the totality of the actions of the victim" during the four-day period prior to the identification and denied the motion to suppress. We review to determine whether there was error. See Commonwealth v. Whelton, 428 Mass. 24, 25-26, 696 N.E.2d 540 (1998); Commonwealth v. Acosta, 416 Mass. 279, 284, 627 N.E.2d 466 n. 1 (1993).

2. Discussion relative to motion to suppress. The victim identified the defendant at trial as the man who had attacked her on July 20, 1994. The defendant contends that the due process clauses of the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights mandate the exclusion of the identification because of the impermissible suggestiveness of the identification procedure.

The Appeals Court noted that there is "some question" of the standard of review to be applied here; therefore, we shall address that issue. After the denial of the motion to suppress, the defendant did not object to the in-court identification at trial. Such an objection is not necessary to preserve appellate rights. A motion to suppress that rests on constitutional principles is reviewable without further objection at trial. See Commonwealth v. Whelton, supra. As the Commonwealth conceded at oral argument, the statement to the contrary in Commonwealth v. Hill, 38 Mass.App.Ct. 982, 982-983, 652 N.E.2d 621 (1995), is incorrect. We proceed to consider whether the motion judge erred in...

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