Com. v. Watson

• Citation: 915 N.E.2d 1052,455 Mass. 246
• Decision Date: 29 October 2009
• Docket Number: SJC-10363
• Parties: COMMONWEALTH v. Brandon WATSON.
• Court: United States State Supreme Judicial Court of Massachusetts

915 N.E.2d 1052

455 Mass. 246

COMMONWEALTH v. Brandon WATSON.

SJC-10363

Supreme Judicial Court of Massachusetts, Hampden.

Argued September 9, 2009.

Decided October 29, 2009.

Richard L. Goldman for the defendant.

Dianne M. Dillon, Assistant District Attorney, for the Commonwealth.

David M. Siegel & Ambica Mohabir, Boston, for New England Innocence Project, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

SPINA, J.

On September 21, 2007, a Superior Court jury convicted the defendant, Brandon Watson, of armed kidnapping, assault and battery by means of a dangerous weapon, unlawful possession of a firearm, unlawful possession of ammunition without a firearm identification card, and armed robbery. The defendant filed a motion for a new trial, claiming that trial counsel provided ineffective assistance in violation of his rights under art. 12 of the Massachusetts Declaration of Rights and the Sixth and Fourteenth Amendments to the United States Constitution. He alleged that trial counsel should have retained an expert witness to challenge an eyewitness's identification of the defendant as one of the perpetrators of the crimes, and should have requested jury instructions specifically tailored to assist the jury in assessing the reliability of eyewitness identifications.¹ The same judge who presided over the trial denied the defendant's motion for a new trial. The defendant appealed from his convictions and from the denial of his motion for a new trial, and we granted his application for direct appellate review. He now contends that (1) the judge erred in denying his motion to suppress an identification that resulted from the administration of a photographic array that, in the defendant's view, was unnecessarily suggestive; (2) he was denied the effective assistance of trial counsel; and (3) expert testimony should be admissible at a defendant's request, and "cautionary" jury instructions should be required, where the reliability of eyewitness identifications is at issue. For the reasons that follow, we affirm the defendant's convictions and the denial of his motion for a new trial.²

1. Background. We summarize the facts found by the judge following the hearing on the motion to suppress, which we have supplemented with other uncontested testimony from that hearing. See Commonwealth v. Gomes, 453 Mass. 506, 507, 903 N.E.2d 567 (2009).

Sometime after midnight on May 12, 2006, Detective Misael Rodriguez of the Springfield police department responded to Baystate Medical Center to interview a gunshot victim, Donald Smith. Smith told Rodriguez that he had been assaulted, bound with duct tape, and shot. He further stated that there had been two assailants, one of whom he knew by the name "Troy." Rodriguez observed that Smith had bullet wounds in his forearm and buttocks, and he appeared to be in pain. Investigation of the incident led to Troy Clemmons as a suspect. At approximately 8:50 A.M. on the morning of May 12, Rodriguez returned to the hospital where he explained to Smith that the ongoing investigation had resulted in the recovery of vehicles and property, and that one person had been arrested. Rodriguez had with him a series of eight photographs, including one of Clemmons, which he then showed to Smith. Smith, who was alert and coherent at the time, identified the photograph of Clemmons as one of his assailants.

The investigation of the incident continued. Rodriguez learned that one of the vehicles used by the assailants during the course of the assault had been stopped for a traffic violation by Springfield police on the evening of May 11, shortly before the assault occurred. The vehicle, a sport utility vehicle (SUV), was distinctive because it had a North Carolina vanity registration plate. At the time of the traffic stop, the defendant was driving the SUV. Using this information, Rodriguez obtained a photograph of the defendant and included it among an array of eight color photographs of African-American males of similar age with facial hair. Rodriguez returned to Baystate Medical Center with this photographic array at approximately 2:05 P.M. on May 12.

Rodriguez, who was alone and in plain clothes, proceeded to Smith's room and awakened him for the purpose of showing him the photographs. Rodriguez explained to Smith that he had developed a second suspect and that this second suspect's photograph was among the eight in the array that he wanted to show Smith. He asked Smith if he felt up to viewing them, and Smith responded that he "wanted to go forward." Although a little "under the weather" from having been awakened and from the effects of medication, Smith did not seem confused and he felt comfortable enough to continue. Rodriguez told Smith that if he recognized someone, then he should let Rodriguez know. Rodriguez displayed each of the eight photographs to Smith, one at a time, holding each one in front of Smith for ten to fifteen seconds. Smith pointed to the eighth photograph and said, "I think that's the guy right there." When Rodriguez asked if he was certain, Smith stated that he was "[a]bout ninety-five percent sure." The photograph that Smith identified was of the defendant. After Smith made the identification, Rodriguez dated and initialed the photograph. Although Rodriguez could understand Smith and Smith appeared to understand him, Rodriguez was not "completely comfortable" with the identification, knowing that Smith had just been awakened and seemed to be medicated.

Smith was discharged from Baystate Medical Center on the evening of May 12. Based on his concerns about Smith's condition at the time of the first identification, Rodriguez made arrangements to visit him the following day. At approximately 7:15 A.M. on May 13, Rodriguez arrived at Smith's home. He showed Smith photographs of the vehicles and property that had been seized during the investigation. Rodriguez then showed Smith the same series of eight photographs of African-American males, one at a time, and asked Smith to tell him if he recognized anyone. Rodriguez did not mention that a photograph of the second suspect was included in the array.³ On this occasion, Rodriguez changed the location of the defendant's photograph from the eighth position to the fourth position in the series. After looking at all of the photographs, Smith positively identified the fourth one, that of the defendant, as the second assailant. During this meeting with Rodriguez, Smith appeared to be more alert, attentive, and in better spirits than he had been while in the hospital.

The motion judge concluded that the defendant's motion to suppress the photographic identification on the grounds that the procedure that Rodriguez used was impermissibly suggestive and conducive to a mistaken identification, thereby depriving the defendant of his rights under the Fourteenth Amendment and art. 12, should be denied. The judge stated that there was nothing about the photographic array itself or Rodriguez's display of the photographs that suggested which one Smith should select. Further, notwithstanding the fact that Smith was "lethargic" at the time of the initial array, he understood Rodriguez and agreed to review the photographs. After doing so, Smith identified the defendant and said that he was ninety-five per cent certain. The judge stated that while Smith's condition at the hospital and Rodriguez's lack of formal training specific to photographic identification procedures were fodder for cross-examination,⁴ they did not render Smith's identification of the defendant as one of his assailants impermissibly suggestive.

2. Suppression of identifications. When reviewing the denial of a motion to suppress, we accept the judge's findings of fact and will not disturb them absent clear error. See Commonwealth v. Gomes, 453 Mass. 506, 508-509, 903 N.E.2d 567 (2009); Commonwealth v. Jones, 375 Mass. 349, 354, 377 N.E.2d 903 (1978). We make an independent determination as to the correctness of the judge's application of constitutional principles to the facts as found. See Commonwealth v. Mercado, 422 Mass. 367, 369, 663 N.E.2d 243 (1996). Questions of credibility are the province of the motion judge who had the opportunity to observe the witnesses. See Commonwealth v. Martin, 447 Mass. 274, 280, 850 N.E.2d 555 (2006).

For a motion to suppress a photographic identification to succeed, "the defendant must show by a preponderance of the evidence that, in light of the totality of the circumstances, the procedures employed were so unnecessarily suggestive and conducive to irreparable misidentification as to deny the defendant due process of law." Commonwealth v. Miles, 420 Mass. 67, 77, 648 N.E.2d 719 (1995). See Commonwealth v. Johnson, 420 Mass. 458, 463-464, 650 N.E.2d 1257 (1995); Commonwealth v. Botelho, 369 Mass. 860, 867, 343 N.E.2d 876 (1976). The question raised by a motion to suppress identification testimony is not whether the witness might have been mistaken, but whether any possible mistake was the product of improper suggestions by the police. See Commonwealth v. Payne, 426 Mass. 692, 694 n. 3, 690 N.E.2d 443 (1998); Commonwealth v. Paszko, 391 Mass. 164, 172, 461 N.E.2d 222 (1984). Where an identification procedure is not impermissibly suggestive, a pretrial identification is admissible without any further showing. See Commonwealth v. Warren, 403 Mass. 137, 139, 526 N.E.2d 250 (1988). Conversely, if a defendant establishes that an identification procedure was unnecessarily suggestive, the prosecution may not offer that particular identification in evidence. See Commonwealth v. Odware, 429 Mass. 231, 235, 707 N.E.2d 347 (1999); Commonwealth v. Botelho, supra at 866, 343 N.E.2d 876.

The defendant here contends that the motion judge erred in refusing to suppress the evidence of Smith's pretrial identifications. He argues that Smith's identification of the defendant as a perpetrator of...