Com. v. Sylvia

• Citation: 781 N.E.2d 46,57 Mass. App. Ct. 66
• Decision Date: 10 January 2003
• Docket Number: No. 01-P-1690.,01-P-1690.
• Parties: COMMONWEALTH v. Cory SYLVIA.
• Court: Appeals Court of Massachusetts

781 N.E.2d 46

57 Mass. App. Ct. 66

COMMONWEALTH v. Cory SYLVIA.

No. 01-P-1690.

Appeals Court of Massachusetts, Hampton.

Argued December 5, 2002.

Decided January 10, 2003.

Further Appellate Review Denied February 27, 2003.

Warren M. Yanoff, Worcester, for the defendant.

Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.

Present: GELINAS, MASON, & MILLS, JJ.

MASON, J.

Following a jury trial in Superior Court, the defendant was convicted of distributing cocaine and of violating a controlled substance law within one hundred feet of a public park. On appeal, the defendant claims that the judge erred in failing to suppress both a pretrial photographic identification made of him by the undercover police officer who had made the cocaine purchase that lead to his convictions, and also an in-court identification of him by the officer. We affirm the convictions.

Background. The judge did not make extensive findings of fact in ruling on the defendant's motion to suppress, which raised principally issues of law. We recite the undisputed facts elicited at the suppression hearing.

On the evening of May 5, 1999, Springfield police officer Marcus Lawrence was assigned to work in an undercover capacity to make purchases of illegal narcotics. At approximately 7:30 P.M., he drove to Hennessey Park where he observed two black males sitting on a bench in the middle of the park. At that time, the sun was "[i]n the process of" setting, but was bright enough so that the street lights were not yet activated.

Officer Lawrence walked up to the men and asked, "What's up," and if they "had anything." The man seated on the right side of the bench asked Officer Lawrence what he wanted, and Officer Lawrence responded that he wanted a "twenty." The man then spit several rocks of cocaine into his hand and, after selecting one of the pieces, stated, "This is a nice one." Officer Lawrence agreed and gave the man twenty dollars in exchange for the item. Approximately five minutes expired from the time Officer Lawrence first saw the men in the park until he had completed his purchase.

After leaving the park, Officer Lawrence drove away and reported to other officers who were monitoring his activities that he had completed a purchase from one of the individuals in the park. Officer Lawrence stated that the individual was wearing a blue and grey camouflage ensemble, including pants, a jacket and a cap, and also had a full beard and dreadlocks. He also reported that the other individual sitting on the bench was husky and was wearing a white football jersey with numbers on the back.

Officer Lawrence then drove to another section of Springfield and made a further purchase of illegal drugs from an individual he described to his monitoring officers as a light-skinned Hispanic male, approximately five feet, six inches to five feet, eight inches in height, having short black hair and a mustache, and wearing jean pants and a gold chain with a large gold medallion cross on it. Officer Lawrence returned to the police station, turned in the drugs he had obtained, and prepared written reports with respect to both the purchases.

After Officer Lawrence arrived at the police station some thirty to forty minutes after the first purchase of drugs, another police officer showed him two booking procedure photographs, one of a Hispanic male and another of the defendant. Officer Lawrence could not identify the Hispanic male depicted in the first photograph as the individual who had sold him drugs in the other section of Springfield, but indicated that the individual depicted in the second photograph was the individual who had earlier sold him drugs in Hennessey Park. At the time that Officer Lawrence made this identification, there were approximately eight other police officers present in the room with him, but none of them said anything to him with respect to either of the photographs.

More than ten months later, on March 29, 2000, when Officer Lawrence was on his way to the suppression hearing in the Springfield courthouse, he observed the defendant step out of a courthouse elevator in the company of another black male. Officer Lawrence immediately stated to the prosecutor he was with that he recognized the person stepping out of the elevator as the person he had purchased the drugs from in Hennessey Park.

Discussion. In denying the defendant's motion to suppress both the photographic identification and also an in-court identification of the defendant by Officer Lawrence, the judge ruled that the defendant had failed to satisfy his burden of demonstrating by a fair preponderance of the evidence that the showing of the defendant's booking photograph to Officer Lawrence was so unnecessarily suggestive as to violate due process. See Commonwealth v. Otsuki, 411 Mass. 218, 232, 581 N.E.2d 999 (1991), quoting from Commonwealth v. Venios, 378 Mass. 24, 26-27, 389 N.E.2d 395 (1979). The judge further ruled that, in any event, the Commonwealth had shown by clear and convincing evidence that Officer Lawrence's proposed in-court identification of the defendant as the person who had sold him drugs in Hennessey Park had a source independent of the photographic identification,...