Commonwealth v. Arzola

• Decision Date: 04 March 2015
• Docket Number: SJC–11679.
• Parties: COMMONWEALTH v. Manuel ARZOLA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

470 Mass. 809
26 N.E.3d 185

COMMONWEALTH
v.
Manuel ARZOLA.

SJC–11679.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted Nov. 6, 2014.
Decided March 4, 2015.

26 N.E.3d 186

Katherine Essington for the defendant.

Donna Jalbert Patalano, Assistant District Attorney, for the Commonwealth.

Ian Stone, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Kirsten V. Mayer, John J. Reynolds III, Sara Perkins Jones, Boston, Matthew R. Segal, & Jessie J. Rossman, for American Civil Liberties Union Foundation of Massachusetts, amicus curiae, submitted a brief.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

26 N.E.3d 187

GANTS, C.J.

The defendant was convicted by a Superior Court jury of assault and battery by means of a dangerous weapon and assault and battery.¹ The defendant appealed, and we transferred the case here on our own motion. On appeal, the defendant contends that the motion judge erred in denying a motion to suppress the victim's out-of-court eyewitness identification of the defendant, where the victim had told the police that the assailant wore a gray shirt and the defendant was the only person shown wearing a gray shirt in the photographic array. The defendant also argues that deoxyribonucleic acid (DNA) evidence identifying the victim as the source of blood found on the defendant's shirt should have been suppressed, because the DNA analysis of the bloodstain constituted a search that could only be conducted lawfully with a warrant supported by probable cause, and no warrant had been obtained. We find no error and affirm the defendant's convictions.²

Background. In the early morning of August 23, 2010, the victim, Mauricio Arevalo, was walking to his home in Chelsea when a man seated on a bench asked him for money and cigarettes. The victim continued walking for another two or three blocks when someone came from behind him and held a knife to his back, demanding he give up his possessions. The victim surrendered his wallet and cellular telephone before the assailant shoved him to the ground and stabbed him in the neck and shoulder area. From the ground, the victim turned his head and observed the assailant, whom he recognized as the same person who had asked for money and cigarettes. The victim briefly followed the assailant but then stopped at a firehouse for assistance with his wounds.

Chelsea police Officer Robert Hammond met the victim at the firehouse before he was taken to the hospital. The victim described

the assailant as a heavy-set Hispanic male, approximately five feet, ten inches to six feet tall, wearing a gray shirt, dark-colored jeans, and possibly a hat. Shortly after an ambulance arrived, another officer alerted Officer Hammond that a man fitting the victim's description of the assailant had been stopped about two blocks away from the crime scene. Officer Hammond went to where the defendant had been stopped and observed that he matched the victim's general description.³ After learning that the defendant had an outstanding warrant, Officer Hammond arrested him on the warrant and transported him to the Chelsea police station.

During booking, the defendant was asked to empty his pockets and, as he reached into them, Officer Hammond observed that the defendant had a stain on the left sleeve of his gray shirt. Believing the stain to be blood, Officer Hammond asked the defendant if he had any injuries that might have caused the stain. The defendant responded that he was not injured, and no wounds were found on him. Before placing the defendant in a cell, Officer Hammond seized the shirt as evidence of the alleged armed robbery and

26 N.E.3d 188

assault of the victim, although the defendant was not yet under arrest for those crimes. Because the defendant would have access to a sink and a toilet with running water in his cell, Officer Hammond was concerned that the defendant might wash away the stain if the shirt were not seized.

The following day, the victim met with Detective Michael Noone and described the assailant as a Hispanic male, about five feet, ten inches tall, with a heavy build and short hair, and wearing a gray sweatshirt. Detective Noone created an array of eight photographs, including the defendant's booking photograph. When choosing fillers for the array, he used a computer program that searched a database of photographs that matched the defendant's race and ethnicity, gender, height, weight, and age group. Detective Noone then selected people who looked similar to the defendant. Each of the filler photographs depicted a Hispanic male in the defendant's age group, with a heavy build and a similar complexion to the defendant's. The photographs themselves showed only each person's face and a small portion of the upper torso.

Detective Noone asked Officer Jose Torres, Jr., who was not involved in the investigation, to conduct the eyewitness identification

procedure. Before Officer Torres took the victim into a separate room, Detective Noone read the victim the Chelsea police department form used to prepare eyewitnesses for viewing a photographic array.⁴ In the separate room, Officer Torres began showing each photograph one-by-one for five to ten seconds. When he displayed the fourth photograph, which depicted the defendant, the victim stopped him and stated, “That's the man; I'm one hundred percent sure.” The victim explained that he identified that person as his assailant based on the person's hair and complexion, and added that he could not forget the assailant's eyes.

After a grand jury indicted the defendant, the Commonwealth moved for an order requiring the defendant to produce a DNA sample by means of a buccal swab. The Commonwealth explained that the victim had submitted a DNA sample to compare with the DNA from the bloodstain on the defendant's shirt, and that it was necessary to obtain a DNA sample from the defendant in order to exclude the defendant as the source of the blood. The motion judge (who was not the trial judge) allowed the Commonwealth's motion, finding probable cause to believe that the defendant committed the crimes of armed robbery and assault and battery by means of a dangerous weapon, and that the sample would probably provide evidence relevant to the defendant's guilt. At trial, Kara Tremblay, the chemist who analyzed the defendant's shirt, testified to her opinion that the DNA profile obtained from the bloodstain on the shirt matched the victim and did not match the defendant.⁵

Discussion. 1. Eyewitness identification procedure. The motion judge conducted

26 N.E.3d 189

an evidentiary hearing on the defendant's motion to suppress eyewitness identification evidence. In denying the motion, the judge found that the computerized process by which the filler photographs were selected was intended to ensure

that no photograph stood out, and that, in fact, the seven other photographs showed men of a similar age, complexion, build, and hairline. Regarding the defendant's gray shirt, the judge found that (1) the gray shirt was only one of several descriptive features mentioned by the victim; (2) the photographs themselves showed a very small portion of the person's shirt; and (3) the victim explicitly stated that he made the identification based on the defendant's facial features, hair, complexion, and eyes.

“When reviewing the denial of a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error, but we conduct an independent review of [the] ultimate findings and conclusions of law.” Commonwealth v. Perkins, 450 Mass. 834, 841–842, 883 N.E.2d 230 (2008). To prevail on a motion to suppress an eyewitness identification, “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. Cavitt, 460 Mass. 617, 632, 953 N.E.2d 216 (2011), quoting Commonwealth v. Miles, 420 Mass. 67, 77, 648 N.E.2d 719 (1995). Here, as the motion judge found and as we confirmed from our own review of the photographic array, the men depicted were reasonably similar in their features and physical characteristics, including their hair length, skin complexion, age, and physical build. See Commonwealth v. Silva–Santiago, 453 Mass. 782, 795, 906 N.E.2d 299 (2009). Although the defendant was the only person shown wearing a gray shirt, the focal point of the photograph was the defendant's face, and the gray shirt was not distinctive apart from its color. See Commonwealth v. Montez, 450 Mass. 736, 755–756, 881 N.E.2d 753 (2008) (although defendant was only person shown wearing hooded sweatshirt, which was mentioned in witness's description of assailant, defendant's hooded sweatshirt was “a generic type” and “defendant's photograph [did] not stand out as distinctive in any unnecessarily suggestive way”).

“Although we disapprove of an array of photographs which distinguishes one suspect from all the others on the basis of some physical characteristic, we have sustained numerous such...