Com. v. Payton

• Decision Date: 31 January 1994
• Docket Number: No. 91-P-502,91-P-502
• Citation: 35 Mass.App.Ct. 586,623 N.E.2d 1127
• Parties: COMMONWEALTH v. William C. PAYTON.
• Court: Appeals Court of Massachusetts

Page 1127

623 N.E.2d 1127

35 Mass.App.Ct. 586

COMMONWEALTH v. William C. PAYTON.

No. 91-P-502.

Appeals Court of Massachusetts Suffolk.

Argued Sept. 13, 1993.

Decided Dec. 6, 1993.

Review Denied Jan. 31, 1994.

Janis M. Berry, Boston, for defendant.

LaDonna J. Hatton, Asst. Atty. Gen., for Com.

Before SMITH, PORADA and LAURENCE, JJ.

SMITH, Justice.

A jury convicted the defendant of two crimes, armed assault with intent to murder Edward Studer and assault and battery on Studer by means of a dangerous weapon, a handgun. On appeal, the defendant has raised six issues. Several of the issues concern the admission in evidence of photographs and related testimony identifying the defendant as the person who assaulted Studer. The other issues include claims that the prosecutor made improper remarks in his closing argument and that the judge committed prejudicial error in his instructions on identification and reasonable doubt.

The Commonwealth presented the following evidence about the crimes and the subsequent identifications of the defendant as Studer's assailant. On the evening of November 4, 1988, an armed assailant pushed his way into an apartment in Boston. He grabbed an occupant of the apartment, one Wilkerson, and held a gun behind his head, and demanded money and drugs. The assailant then shot Studer, another occupant of the apartment, in the face. After he was shot, Studer jumped out of a window, ran to a telephone, and called the police. The assailant fled from the scene. Wilkerson, at the scene, and Studer, at a hospital, gave descriptions of the assailant to the police.

As a result of his wound, Studer was hospitalized in three different hospitals for a total of five weeks. After he was finally released, he was asked by the police to come to the police station and to view a photographic array. On December 16, 1988, a Detective McDonald showed him an array that contained eleven photographs including a photograph of the defendant. ¹ The photographs were double-pose photographs, "the 'classic full-face and profile type,' ... commonly known as a 'mug shot'." Commonwealth v. Blaney, 387 Mass. 628, 634, 442 N.E.2d 389 (1982) (citations omitted). Police placards were across the subjects' chests, and identification numbers, including dates, were on the placards. From the defendant's photograph in the array, Studer identified the defendant as the person who shot him. ²

Trial counsel attacked the photographic identification by filing a motion to suppress Studer's out-of-court identification on the ground that the identification was so impermissibly or unnecessarily suggestive and, consequently, conducive to irreparable misidentification as to deprive the defendant of his due process rights. See Commonwealth v. Thornley, 400 Mass. 355, 364, 509 N.E.2d 908 (1987). In particular, trial counsel claimed that the composition of the array was unfair. He argued that the description of the assailant, given at the time of the crime by Wilkerson and Studer, was of a heavyset man. The photographs in the array were all of thin-faced men except for the defendant who was heavyset. After an evidentiary hearing, the motion was denied. On appeal, the defendant does not raise the denial of his motion as an issue.

At the trial, the central issue was the identification of the defendant as the person who committed the crimes. Studer and Wilkerson testified in regard to their out-of-court identifications and also made in-court identifications of the defendant as the armed assailant. Both were vigorously cross-examined as to various discrepancies in their testimony.

Detective McDonald testified about the manner in which he assembled the photographic array and also corroborated Studer's and Wilkerson's testimony concerning their out-of-court identifications. During the course of his testimony, McDonald stated, without objection, that the photographs in the array had been taken from "our identification files." The judge interrupted the detective's testimony and instructed the jury in the following manner:

"Now, I want to caution the jury that at this point there are several witnesses who have testified that the police showed them photographs of this defendant, if you accept that testimony. You are not to draw any inference against this defendant because the police have his photograph. Police departments collect pictures of many people from many different sources and for many different reasons. You are not to speculate what the reason was in this case. The fact that the police may have this defendant's picture does not mean the defendant committed this or any crime."

The Commonwealth then made a motion to place the entire array in evidence. The judge marked the array not as an exhibit but rather for identification purposes. He did order the defendant's photograph to be marked as an exhibit. After the defendant finished his cross-examination of McDonald, the Commonwealth rested. At that point, defendant's trial counsel told the judge that he had no objection to the entire array being marked as an exhibit; the judge did so. Thereafter, the jury viewed the entire array, including the defendant's photograph. The front and profile photographs were not separated, and the photographs were not sanitized.

In his closing argument, trial counsel for the defendant stressed that the identifications by Studer and Wilkerson were so unreliable that the Commonwealth had failed to prove its case beyond a reasonable doubt. He specifically focused the jury's attention on the composition of the array, claiming that every person pictured in the array was a thin man while the defendant's photograph was of a heavyset man.

On appeal, the defendant has new counsel. He claims that the trial judge committed reversible error when he allowed in evidence the unsanitized mug shots and McDonald's testimony that the array was assembled from "our [Boston police department] files." He argues that he was prejudiced because that evidence indicated to the jury that he had a prior criminal record. The defendant also claims that he was denied effective assistance of counsel in violation of his rights under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights because trial counsel assented to the admission of the mug shots and related testimony. The defendant also contends that the judge misinstructed the jury on the proper use of identification evidence.

1. The introduction in evidence of the unsanitized mug shots and related testimony; ineffective assistance of counsel. At a trial, "the Commonwealth [cannot] show that a defendant has committed a crime on a prior occasion for the purpose of creating an inference of his guilt of the crime charged." Commonwealth v. Blaney, 387 Mass. at 637, 442 N.E.2d 389. "It is a matter of fairly common knowledge that the central photographic files maintained by police do not ... contain the likenesses of any save those who have had some contact with criminal law." Commonwealth v. Gibson, 357 Mass. 45, 48-49, 255 N.E.2d 742 (1970). Therefore, the courts have recognized, over the years, that there is a "risk that any use in evidence of photographs of the double type ordinarily used in police identification files will suggest to the jury that the defendant may have a prior criminal record." Commonwealth v. Gerald, 356 Mass. 386, 388, 252 N.E.2d 344 (1969). Given this risk of prejudice, a test has been fashioned in regard to the introduction of mug shots in evidence. That test includes the following: "the prosecution must show some need to introduce the mug shots; ... the mug shots, to the extent possible, should not indicate a prior record ... and ... should not call attention to their origins and implications." Commonwealth v. Smith, 29 Mass.App.Ct. 449, 451, 561 N.E.2d 520 (1990). Commonwealth v. Rodriguez, 378 Mass. 296, 309, 391 N.E.2d 889 (1979). United States v. Fosher, 568 F.2d 207, 214 (1st Cir.1978). We now turn to our analysis of the this test in connection with the evidence presented in this case.

a. The need of the Commonwealth to introduce mug shots. The inquiry into the Commonwealth's need to introduce mug shots should focus on "the evidence of record at the time the photograph was actually received in evidence and displayed to the jury." United States v. Fosher, 568 F.2d at 215 n. 23. If the defendant concedes his identification as the allegedly guilty person, there may be no justification for admitting mug shots in evidence. See Commonwealth v. Barrett, 386 Mass. 649, 652, 436 N.E.2d 1219 (1992) (victim knew his assailant before the incident occurred; identification was not an issue at trial); Commonwealth v. Smith, 21 Mass.App.Ct. 619, 622, 489 N.E.2d 203 (1986) (no "need for the introduction of the [mug shot], since the identification of the defendant as the alleged guilty person was conceded by the defense"). If, however, the identification of the perpetrator of the crime is a live issue at trial, "the introduction of mug shots used in a photographic identification often serves two probative purposes: first, it explains how the accusing finger came to be pointed at the defendant; and second, it assists the jury in evaluating the accuracy of the photographic identification." Commonwealth v. Smith, 29 Mass.App.Ct. at 451-452, 561 N.E.2d 520 and cases cited.

We deem it important to the resolution of this appeal to note that the circumstances of the admission in evidence of the mug shots in this case were quite different from other cases involving the introduction of similar evidence. ³ Here, it is clear from the record that part of the trial counsel's strategy was to attack the photographic identifications by showing that the array was so suggestive as to lead the identifying witnesses to make faulty identifications. This strategy required the jury to examine the array of mug shots, including the defendant's photograph. Therefore, it was the...