Opinion
13-P-1450
11-26-2014
COMMONWEALTH v. MICHAEL LEARY.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Michael Leary, was convicted of two counts of open and gross lewdness, in violation of G. L. c. 272, § 16. Before trial, he moved to suppress two witnesses' identifications of him, claiming such identifications were the result of impermissibly suggestive one-on-one identification procedures. After holding a hearing, a District Court judge denied the defendant's motion, finding the police had good reason for using the challenged procedures. The defendant appeals from this denial.
When challenging an identification "[i]t is the defendant's burden to prove by a preponderance of the evidence that the showup was so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny [him] due process of law." Commonwealth v. Martin, 447 Mass. 274, 279-280 (2006) (internal citations and quotation marks omitted). Although "[o]ne-on-one identifications are generally disfavored because they are viewed as inherently suggestive[,]" id. at 279, they are allowed if there is "good reason" for their use. Id. at 282. "In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law." Commonwealth v. Scott, 440 Mass. 642, 646 (2004) (internal citations and quotation marks omitted).
The defendant has not shown any subsidiary finding of fact to be clearly erroneous, so we accept the judge's subsidiary findings, and focus only on the application of law to these findings.
There are three separate identification procedures at issue: first, the witnesses each identified the defendant through a picture obtained from the Registry of Motor Vehicles (RMV) database, accessed on a computer in a police cruiser; second, one witness was driven to the defendant's home, where she identified him while police officers were standing on each side of him; and finally, the defendant was brought back to the parking lot where the crimes occurred and the second witness identified him, again with police officers near him.
The defendant invokes Commonwealth v. Austin, 421 Mass. 357, 361 (1995), to bolster his claim that such procedures are problematic -- there, the Supreme Judicial Court found that an "identification procedure using the surveillance videotape was similar to a one-on-one confrontation" and should thus be viewed with the same suspicion. The defendant is correct insofar as here the use of a RMV photo is functionally like a one-on-one viewing, as were the two subsequent identification procedures. However that does not end the inquiry. Such procedures "raise[] no due process concerns" so long as they are not "unnecessarily suggestive." Ibid. And they are not unnecessarily suggestive if the police have good reason for using them. Ibid.
While fact-specific, the Supreme Judicial Court has articulated some guidelines in evaluating whether proffered reasons are "good":
"Relevant to the good reason examination are the nature of the crime involved and corresponding concerns for public safety; the need for efficient police investigation in the immediate aftermath of a crime; and the usefulness of prompt confirmation of the accuracy of investigatory information, which, if in error, will release the police quickly to follow another track."Id. at 362. Here, the judge appropriately identified four distinct factors that each helped to establish the "good reason" for the procedures: "[1] the [compressed, within thirty and forty-three minutes,] time between the initial radio call and contact with two witnesses, [2] concern for public safety, [3] efficient police investigation in ruling in or out a suspect, [and] [4] the [again, compressed] time sequence with the identification procedures."
The defendant attempts to dismiss any concern for public safety in his case, reasoning that his crime was nonviolent. However, having someone driving around a crowded parking lot exposing himself masturbating, especially when such parking lot has children milling about, raises sufficient public safety concerns for that factor to apply, as the judge noted. The defendant next compares his case to Commonwealth v. Moon, 380 Mass. 751 (1980), but to no avail. In Moon, "the police suggested the name of the defendant to the victim, and . . . showed the victim a photograph taken from the defendant's car" and only then did the witness identify "the defendant as the assailant." Id. at 757. Here, in contrast, the witnesses had given the police the defendant's license plate number and had each already provided descriptions of the defendant as a white man in his late twenties or early thirties who was wearing a white ribbed tank top, before seeing the RMV photo. Additionally, before showing them the photo individually, the officer told each of them that it was just as important to free an innocent man as to identify a guilty one. Further, in light of these circumstances, we are not persuaded by the defendant's argument that the fact that the witnesses knew the photo "popped up" in response to entry into the computer of the license plate number the witnesses had given the police rendered the procedure unnecessarily suggestive.
The defendant's challenges to the subsequent identifications essentially amount to a protest that they were unnecessarily suggestive because the witnesses knew a suspect was in custody and the police officers were near him when the identifications happened. However, given the circumstances of this case, their presence does not render such identification unfair. See Commonwealth v. Meas, 467 Mass. 434, 442 (2014) (stating that "[t]he fact that the suspects were viewed under ample illumination and while they were in handcuffs and obviously in custody does not, in the circumstances, create a level of unfairness that violates due process").
To the extent the defendant argues that reversal or a remand is required because these subsequent identifications were tainted by the identifications of the RMV photos, that argument is foreclosed by our conclusion that the photo identifications carry no taint.
Judgment affirmed.
By the Court (Trainor, Rubin & Sullivan, JJ.),
Panel members appear in order of seniority.
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Clerk Entered: November 26, 2014.