Com. v. Martin, 02-P-974.

• Citation: 63 Mass. App. Ct. 587,827 N.E.2d 1263
• Decision Date: 23 May 2005
• Docket Number: No. 02-P-974.,02-P-974.
• Parties: COMMONWEALTH v. Edward B. MARTIN.
• Court: United States State Supreme Judicial Court of Massachusetts

827 N.E.2d 1263

63 Mass. App. Ct. 587

COMMONWEALTH v. Edward B. MARTIN.

No. 02-P-974.

Appeals Court of Massachusetts.

Barnstable.

Argued January 15, 2004.

Decided May 23, 2005.

COPYRIGHT MATERIAL OMITTED

Edward J. DeAngelo for the defendant.

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

Present: PERRETTA, GELINAS, & TRAINOR, JJ.

TRAINOR, J.

Edward Martin was convicted in 2001 of assault with intent to kidnap, assault with intent to rape, and assault and battery. These charges arose out of a 1994 attack on a fifteen year old girl while she walked home from a beach in Yarmouth. On appeal, the defendant raises several grounds for reversal. He argues that the motion judge should have excluded the complainant's one-on-one identification of the defendant as overly suggestive and the subsequent in-court identification as tainted that the trial judge, who was not the same judge as the motion judge, should have sanitized a mug shot of the defendant before allowing the jury to see it, and should have given a limiting instruction to the jury regarding that mug shot; that the Commonwealth failed as matter of law to prove the intent elements of the crimes of which the defendant was convicted; and that the defendant was denied his right to a speedy trial. We conclude that the identification procedure was overly suggestive and therefore reverse the convictions. Although the case can be resolved on this issue alone, we address the defendant's other arguments to avoid needless appeals in the event of a retrial. See Fabre v. Walton, 436 Mass. 517, 522 n. 8, 781 N.E.2d 780 (2002); Commonwealth v. Mottola, 10 Mass.App.Ct. 775, 781-782, 412 N.E.2d 1280 (1980) (value of avoiding future appeals and preserving judicial resources).

1. Facts. The complainant was attacked on July 20, 1994, while she walked from the beach to her grandparents' West Yarmouth home on a path in a wooded area next to a cranberry bog. She was carrying a small purse. According to her testimony, she heard someone running up behind her. Before she could turn around, she was grabbed from behind, forcibly turned around, and thrown to the ground on her back, whereupon her assailant began punching her in the face while covering her mouth with one hand, telling her to "shut up." Soon after the attack began, other people in the area who heard the complainant's screams came to the scene. As these people drew nearer, her assailant picked her up and attempted to drag her off the path into the bog, telling her to come with him. Unsuccessful in carrying the complainant away, the assailant fled into the woods as bystanders arrived. The entire attack lasted a few minutes.

After the attack, the complainant reported the incident to the police and gave a description of her attacker, from which a composite photograph was made. The complainant described her attacker as a white man between thirty to forty years old, tall, thin, with thinning brown and gray hair, clean shaven and with tan skin. She did not mention any distinguishing marks on her assailant's face. The complainant also told police her attacker had been wearing a yellow canvas hat, a blue shirt, shorts, and sneakers with white socks. She examined a number of mug shots at the Yarmouth police department that day, including a photo of the defendant from two years earlier, but she did not identify the defendant as her attacker at that time.

For the next four days, the complainant, her father, and local police searched for the perpetrator. Yarmouth police officers drove around the area with the complainant in a police car throughout each day, stopping when they saw an individual who seemed to fit her description of her assailant and asking the complainant whether he was the attacker. The complainant testified that during this period she looked at hundreds of people. On at least three occasions prior to the complainant's positive identification of the defendant, the police actually stopped individuals so the complainant could look at them. Other officers also stopped additional individuals in the area and took their photographs, which the complainant subsequently reviewed during the course of the days after the attack. The complainant's father searched the area independently on his bicycle.

On the fourth day after the attack, the complainant's father saw the defendant and thought he might be the attacker. The complainant's father called Yarmouth police, and several officers arrived and detained the defendant in a beach parking lot while another police car brought the complainant to the scene. When the complainant arrived, the defendant was standing next to several uniformed police officers and the complainant's father was standing nearby. It was the first and only occasion on which the complainant was asked to look at a possible suspect with her father present. She looked at the defendant from inside the police car, asked the police that he be brought closer to her, and then stated that he was the man who had attacked her, saying that she recognized a mark on the defendant's forehead. The defendant was then arrested. Later that day the complainant returned to the police station, where police showed her a photo array containing eight photos, one of which was a picture of the defendant taken shortly after she identified him earlier that day. The complainant selected the defendant's photograph from the array. At trial, the complainant was asked whether "the individual that attacked [her] that [she] identified at Veteran's Beach" was present in the courtroom. She identified the defendant.

Police searching the area near where the attack took place discovered what appeared to be a campsite. At this site, they found various documents, including job applications, bearing the defendant's name. They also found a series of notes written on scraps of paper, which were similar to notes found in the defendant's possession when he was arrested. These notes were disjointed and sometimes incoherent, suffused with derogatory descriptions of women, and often took the form of lists of brief phrases or statements. Several notes suggested a plan to attack and rape a woman ("ice the bitch"; "crack the head and skull"; "I want to, I want to, sex with you in five minutes"), including notes on a woman's activities ("two o'clock, blond bitch from Yarmouth, other direction ... 12:00 to 1:30. Brown hair, tied back. Went to lunch. 1:35, returned. There at 2:30. Left at 3:30. Security guard?"), and notes about what to do after an attack ("take time, look around, one good around, take one good look around, cut bitch or slice, all less, specify, speak the English, get the fuck moving").

Police were not able to determine when the notes were written, but the notes appeared weathered at the time of the defendant's arrest. A handwriting expert called by the Commonwealth testified that the notes appeared to be in the same handwriting as job applications found at the campsite, which were filled out with the defendant's name.

2. Identification of defendant. After the motion judge decided the question of identification in favor of the Commonwealth, pursuant to a motion to suppress and a motion in limine, the defendant failed to renew his objection at trial. There is some question as to what standard of review should apply in this setting. A motion in limine, which seeks a pretrial evidentiary ruling, is not sufficient to preserve appellate rights, absent a further objection at trial. Commonwealth v. Whelton, 428 Mass. 24, 25, 696 N.E.2d 540 (1998). A motion to suppress, however, is reviewable even if no further objection is made at trial. Id. at 25-26, 696 N.E.2d 540. In the instant case, the defendant's argument was advanced by means of a motion to suppress, which rested on constitutional principles. There was no need for him to renew his objection after the pretrial motion hearing and the issue is properly before us in this appeal. Ibid.

The defendant argues that the one-on-one identification procedure was impermissibly suggestive and therefore violative of his due process rights guaranteed under the Federal and State Constitutions. One-on-one identification procedures, or showups as they are commonly known, raise serious questions of both constitutionality and reliability. See Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Commonwealth v. Botelho, 369 Mass. 860, 865-866, 343 N.E.2d 876 (1976). For this reason, they are generally disfavored. See Commonwealth v. Moffett, 383 Mass. 201, 213, 418 N.E.2d 585, (1981); Commonwealth v. Thompson, 427 Mass. 729, 735, 696 N.E.2d 105, cert. denied, 525 U.S. 1008, 119 S.Ct. 524, 142 L.Ed.2d 435 (1998). Nevertheless, courts over the years have carved out a significant class of cases in which showups, although suggestive, are not impermissibly suggestive. See Commonwealth v. Austin, 421 Mass. 357, 361, 657 N.E.2d 458 (1995). We can discern a certain set of judicial rules from these cases concerning the admissibility of showups: the defendant has the burden of proving, by a preponderance of the evidence, that the contested identification was unnecessarily suggestive. Commonwealth v. Santos, 402 Mass. 775, 781, 525 N.E.2d 388 (1988). Once the defendant has met this burden, the Commonwealth is barred from introducing the identification, notwithstanding other indicia of reliability. Commonwealth v. Johnson, 420 Mass. 458, 465, 650 N.E.2d 1257 (1995). Showups are acceptable when conducted in the immediate aftermath of a crime or in exigent circumstances, 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), but haste or pressing exigency need not be present, Commonwealth v. Connolly, 356 Mass. 617, 623-624, 255 N.E.2d 191, cert. denied, 400 U.S. 843, 91 S.Ct. 87, 93, 27 L.Ed.2d 79 (1970). Showups are evaluated in light of their general purpose, which is to clear...