Com. v. Riley

• Decision Date: 29 December 1988
• Docket Number: No. 88-P-354,88-P-354
• Citation: 530 N.E.2d 181,26 Mass.App.Ct. 550
• Parties: COMMONWEALTH v. Richard J. RILEY.
• Court: Appeals Court of Massachusetts

Page 181

530 N.E.2d 181

26 Mass.App.Ct. 550

COMMONWEALTH v. Richard J. RILEY.

No. 88-P-354.

Appeals Court of Massachusetts,

Middlesex.

Argued Oct. 6, 1988.

Decided Nov. 15, 1988.

Further Appellate Review Denied Dec. 29, 1988.

Regina Zupan, Committee for Public Counsel Services, Springfield, for defendant.

Cheryl A. Jacques, Asst. Dist. Atty., for the Com.

Before GREANEY, C.J., and SMITH and FINE, JJ.

FINE, Justice.

The only real issue at the defendant's trial was whether he was the individual who broke into an apartment in Somerville in the early morning hours of July 7, 1981, and attacked the victim. Other than evidence that he glared at the victim when, unexpectedly, she entered a crowded courtroom some five weeks after the incident, the only evidence linking the defendant to the crime was the victim's in-court identification and testimony about her several out-of-court identifications. In November of 1982, a judge denied the defendant's motion to suppress the identification testimony. Following the motion hearing, the defendant was convicted of assault with intent to commit rape, indecent assault and battery, and armed burglary and assault on an occupant. In 1986, the judge who had decided the motion to suppress and presided over the trial allowed the defendant's motion for a new trial. Again, after a second jury trial, the defendant was convicted of all the charges. On appeal, the defendant contends, first, that the judge erred in denying his motion to suppress and, second, that, because the suggestions made by the police to the victim implicated the defendant in other crimes, he was effectively deprived of his right to cross-examine his accusers.

We recite the subsidiary facts found by the motion judge, supplemented by uncontroverted testimony. The victim, a thirty-year-old music teacher with a responsible administrative position, was awakened by noise while alone in her apartment in Somerville at 2:30 A.M. on July 7, 1981. She remained awake, reading and watching television, with a bright night-lamp on. Sometime after 3:30, she heard more noise and saw a man crouching by her bed and looking up at her. The man attacked her. As they struggled, for about two seconds she looked at his face, which was two inches away from hers. She watched his face again from an arm's length away for about six seconds as he was grabbing her chest. She screamed, and he started to leave. She watched him as he ran out.

Within three or four minutes the police arrived, and the victim described her assailant to them as follows: "about 5' 4"' ('about my height'); weight--120-130 pounds; age--18-25; color--white; hair--blond, kinky; clothes--blue jeans only; no facial hair; with his 'head too big for his body'; and a good tan." The police had brought books of photographs with them which they showed to the victim. She pointed out three photographs, identifying features in each resembling those of her assailant, but stated that none of the photographs depicted her assailant.

On August 7, 1981, the victim went to the police station to look at more pictures. As she began, the officer said only, "See if you can pick out the assailant." After viewing one book, she selected a photograph of the defendant. She said, "I think that's the man." She stated that the photograph varied from her recollection of the assailant in that in the photograph the person's hair was less kinky and shorter, the person depicted had a moustache, and his complexion was different from that of her assailant. After the victim selected the photograph, the officer said, "You picked out the same picture as Jan did." The victim did not know, and was not told, who "Jan" was. She was shown another book of photographs from which she did not make any selection. She was then shown a third group. She selected a photograph of the defendant from the third group and said, "This is definitely him." The photograph was a more recent one than the one she had selected earlier; in it the defendant had no moustache, his hair was longer and kinkier, and his complexion was darker. The victim was then told that the person whose picture she had selected had been charged with some other sex crimes. She was asked whether she would be willing to go to the Somerville District Court within a few days, as, she was told, he might be there on the other charges.

On August 11, 1981, the victim identified the defendant in a crowded courtroom after being told to look around the room. The defendant was one of six men in the prisoner's dock. The defendant appeared shocked when he made eye contact with the victim, reacting nervously and squirming in his seat. The victim, without reservation, identified the defendant again at a probable cause hearing on August 17, 1981.

After considering the reliability factors set forth both in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), and several Massachusetts cases, ¹ the judge ruled that the photographic identifications were "not unnecessarily suggestive and were, in fact, highly reliable." He found also that neither the in-person identification based on the confrontation on August 11, 1981, at the Somerville court nor the identification at the probable cause hearing, was tainted due to unnecessary suggestiveness. Implicitly, the judge decided that the suggestive factors in the victim's identifications of her assailant were outweighed by the reliability factors. The question for us to decide is whether, on the uncontroverted testimony and the subsidiary facts found by the judge, that conclusion is correct.

We agree with the defendant that the police officer's remark about "Jan" was both unnecessary and suggestive. It had a tendency to confirm in the victim's mind the correctness of her initial tentative choice of the defendant's photograph. So, too, was it unnecessarily suggestive for the officer to let the victim know, after she had selected the second photograph of the defendant and before the in-court confrontation, that the defendant was facing other sex-related charges. That information had a further tendency to confirm the identification of the defendant as her assailant in the victim's mind.

Unnecessarily suggestive identifications need not be excluded, however, where it is determined, based on the totality of the circumstances, that the suggestiveness has not caused the identifications to be unreliable. See Commonwealth v. Bernard, 6 Mass.App.Ct. 499, 505, 378 N.E.2d 696 (1978); Commonwealth v. Cincotta, 6 Mass.App.Ct. 812, 816-817, 384 N.E.2d 1244 (1979); Commonwealth v. Avery, 12 Mass.App.Ct. 97, 102-103, 421 N.E.2d 787 (1981); Commonwealth v. Hicks, 17 Mass.App.Ct. 574, 577-578, 460 N.E.2d 1053 (1984); Commonwealth v. Crowe, 21 Mass.App.Ct. 456, 467-468, 488 N.E.2d 780 (1986), cert. denied, 479 U.S. 838, 107 S.Ct. 138, 93 L.Ed.2d 81 (1986); Commonwealth v. Jones, 25 Mass.App.Ct. 55, 60, 514 N.E.2d 1337 (1987); Commonwealth v. Laaman, 25 Mass.App.Ct. 354, 362, 518 N.E.2d 861 (1988). The focus of the required analysis is on the initial identification, not the later repetitions, and of most importance are the victim's attentiveness and opportunity to observe the assailant during the commission of the crime. See Commonwealth v. Wheeler, 3 Mass.App.Ct. 387, 392, 331 N.E.2d 815 (1975); Commonwealth v. Hicks, 17 Mass.App.Ct. at 577, 460 N.E.2d 1053.

Although the victim may have seen her assailant's face for no more than eight seconds, the judge found that she had an adequate opportunity to observe him. See Commonwealth v. Correia, 381 Mass. 65, 75 & n. 2, 407 N.E.2d 1216 (1980); Commonwealth v. Melvin, 399 Mass. 201, 203, 503 N.E.2d 649 (1987). The lighting was good, the witness was alert and intelligent, and the terrifying circumstances of the assault were likely to fix her attention on the assailant and imprint his features in her mind. The victim's immediate...