Commonwealth v. Johnson

The issue presented in this case is whether

the motion judge, applying the common-law principles of fairness

in Commonwealth v. Jones, 423 Mass. 99, 109 (1996), committed an

abuse of discretion in allowing the defendant's motion to

suppress the victim's identifications of the defendant as the

intruder he had struggled with in his home. The judge found

that, through no fault of the police, the identifications were

"impermissibly tainted by the suggestive circumstances." We

provide guidance regarding the application of the Jones standard

and conclude that the judge did not abuse his discretion in

allowing the motion to suppress.1

Background. We summarize the facts found by the motion

judge, supplemented where necessary with undisputed evidence

that was implicitly credited by the judge. See Commonwealth v.

Jones-Pannell, 472 Mass. 429, 431 (2015), citing Commonwealth v.

Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818

(2008).

On September 21, 2012, Adebayo Talabi, the victim, received

a telephone call from a neighbor that the door to his apartment

1 We acknowledge the amicus brief submitted by the Committee for Public Counsel Services and the Massachusetts Association of Criminal Defense Lawyers and the amicus brief submitted by the Innocence Project and the Innocence Network.

3

was open. He returned to his home and encountered a stranger,

who was armed with a firearm, inside his apartment. They

struggled, and during the struggle the firearm went off,

striking no one. The intruder fled. The victim reported the

incident to the Brockton police department and described the

assailant as a light-skinned black male wearing a gray hooded

sweatshirt. Brockton police Detective Jacqueline Congdon asked

the victim to come to the police station to review booking

photographs to see if he could identify the intruder, but he did

not do so.

On September 27, 2012, the victim telephoned Brockton

police Officer Scott Besarick and told Besarick he now knew the

identity of the intruder. Officer Besarick transferred the

telephone call to Detective Congdon's line, and the victim

explained to her that he had recently spoken to his cousin, T.J.

Hendricks, who lived in the Roxbury section of Boston and whose

home had been broken into one day before the incident at the

victim's apartment. The victim then added Hendricks to the

telephone call so that it was a three-way call. Hendricks said

that the break-in at his Roxbury home had been captured in a

video recording by a neighbor's surveillance system that showed

the person who had broken into his home. By the "size and

shape" of the person in the surveillance footage, Hendricks

believed that the intruder "could possibly be" the defendant,

4

who was the boy friend of a cousin of both Hendricks and the

victim. Hendricks obtained a photograph of the defendant and

his girl friend taken by Hendricks's mother at a cookout, which

he forwarded to the victim. The victim viewed the photograph

and identified the defendant as the intruder he had discovered

in his home.

Using this information, Detective Congdon assembled an

eight-person photographic array containing the defendant's

photograph. Detective Thomas Hyland met with the victim to show

him the photographic array. The victim positively identified

the defendant's photograph in the array as the man he discovered

in his apartment.

The defendant was indicted on seven charges, including

armed assault in a dwelling, in violation of G. L. c. 265,

§ 18A, and breaking and entering in the daytime, in violation of

G. L. c. 266, § 17. The defendant moved to suppress all out-of

court and in-court identifications of the defendant by the

victim. The motion judge held an evidentiary hearing at which

Detectives Congdon and Hyland testified. The judge found that

the police did not violate the defendant's constitutional rights

in administering the photographic array but allowed the motion

to suppress the two out-of-court identifications under the

common-law principles of fairness recognized in Jones, 423 Mass.

at 109, concluding that they were "impermissibly tainted by the

5

suggestive circumstances." The motion judge also allowed the

motion to suppress any in-court identification, concluding that

the Commonwealth had failed to meet its burden of showing by

clear and convincing evidence that an in-court identification

would be based upon an independent source, citing Commonwealth

v. Botelho, 369 Mass. 860, 868 (1976). The Commonwealth moved

for reconsideration of the ruling, which was denied, and then

sought leave to appeal the motion judge's decision. A single

justice allowed the application for interlocutory appeal, and we

transferred the case to this court on our own motion.

Discussion. Before we address whether the judge was

correct to suppress the eyewitness identifications in this case,

we set forth our law regarding the admissibility of eyewitness

identifications.

1. Law of eyewitness identifications. a. Out-of-court

identifications made during a police identification procedure.

Where an out-of-court eyewitness identification arises from an

identification procedure that was conducted by the police, the

identification is not admissible under art. 12 of the

Massachusetts Declaration of Rights if the defendant proves by a

preponderance of the evidence that the identification was "so

unnecessarily suggestive and conducive to irreparable

misidentification that its admission would deprive the defendant

of his right to due process." Commonwealth v. Walker, 460 Mass.

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590, 599 (2011), and cases cited. "In considering whether

identification testimony should be suppressed, the judge must

examine 'the totality of the circumstances attending the

confrontation to determine whether it was unnecessarily

suggestive.'" Commonwealth v. Silva-Santiago, 453 Mass. 782,

795 (2009), quoting Commonwealth v. Odware, 429 Mass. 231, 235

(1999). "Where the defendant satisfies this burden, the out-of

court identification is per se excluded as a violation of the

defendant's right to due process under art. 12 . . . ." Walker,

supra at 599 n.13. See Commonwealth v. Johnson, 420 Mass. 458,

462-463 (1995).

Under our per se exclusion standard, a defendant must prove

not only that the out-of-court identification procedure

administered by the police was suggestive, but that it was

"unnecessarily suggestive" (emphasis in original). Commonwealth

v. Crayton, 470 Mass. 228, 235 (2014), quoting Commonwealth v.

Figueroa, 468 Mass. 204, 217 (2014). This inquiry focuses on

whether police had "good reason" to engage in a suggestive

identification procedure. Crayton, supra at 235-236. Figueroa,

supra. See Commonwealth v. Austin, 421 Mass. 357, 361-362

(1995) ("good reason" to conduct showup depends on "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

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confirmation of the accuracy of investigatory information,

which, if in error, will release the police quickly to follow

another track").

By adopting a rule of per se exclusion under art. 12, we

rejected the rule under the Fourteenth Amendment to the United

States Constitution in which a motion judge must apply a two

step analysis to the question of admissibility. Johnson, 420

Mass. at 464-465. Under the Federal two-step analysis, the

judge asks first whether the eyewitness identification was

obtained by a police procedure that was unnecessarily

suggestive. See Manson v. Brathwaite, 432 U.S. 98, 110 (1977).

See also Perry v. New Hampshire, 132 S. Ct. 716, 726 (2012) ("A

primary aim of excluding identification evidence obtained under

unnecessarily suggestive circumstances . . . is to deter law

enforcement use of improper lineups, showups, and photo[graphic]

arrays"). If it was, the judge then asks whether,

notwithstanding the unnecessarily suggestive procedure, the

eyewitness identification is reliable under "the totality of the

circumstances." See Manson, supra. Under Federal

constitutional law, because "reliability is the linchpin," the

out-of-court identification, if found reliable, is admissible

even where obtained through an unnecessarily suggestive

procedure. See id. at 110, 114.

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We rejected the Federal reliability test regarding out-of

court identifications in part because it "does little or nothing

to discourage police from using suggestive identification

procedures." Johnson, 420 Mass. at 468. We noted that, under

the Federal standard, "[a]lmost any suggestive lineup will still

meet reliability standards" and be admitted in evidence despite

the unnecessary suggestiveness of the identification procedure.

Id., quoting Note, Twenty-Years of Diminishing Protection: A

Proposal to Return to the Wade Trilogy's Standards, 15 Hofstra

L. Rev. 583, 606 (1987). We concluded that, if we were to adopt

the Federal reliability test under art. 12, it would send "a

message to police that, absent extremely aggravating

circumstances, suggestive showups will not result in

suppression." Johnson, supra.

Under our per se standard, the reliability of an out-of

court identification cannot save the admissibility of an

unnecessarily suggestive out-of-court identification. But we

declared in Johnson, supra at 467, that "the per se approach

does not keep relevant and reliable identification evidence from

the jury" because the Commonwealth may admit a subsequent

identification if it proves by clear and convincing evidence

that the identification came from a source independent of the

suggestive procedure.

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b. Out-of-court identifications made without police

wrongdoing. Where an out-of-court eyewitness identification is

suggestive through no fault of the police, suppression cannot

deter police misconduct because there is none. Yet, as we

recognized in Jones, 423 Mass. at 109, where a witness's

identification of a defendant arises from highly or especially

suggestive circumstances, its admissibility "should not turn on

whether government agents had a hand in causing the

confrontation" because "[t]he evidence would be equally

unreliable in each instance." A judge, applying "[c]ommon law

principles of fairness," may decline to admit an unreliable

eyewitness identification that resulted from a "highly" or

"especially" suggestive confrontation with the defendant. Id.2

Among our "common law principles of fairness" is the

evidentiary rule that a judge has discretion to exclude relevant

evidence "if its probative value is substantially outweighed by

the danger of unfair prejudice." Crayton, 470 Mass. at 249

2 In Commonwealth v. Jones, 423 Mass. 99, 108 (1996), we recognized that, even where the police did not cause a highly suggestive confrontation, a judge might find identification testimony to be so unreliable that it must be excluded "as a matter of fairness on due process grounds." We declared, however, that "[w]e need not base our decision on constitutional grounds," id. at 109, and ruled the eyewitness identification at issue in that case to be inadmissible on "[c]ommon law principles of fairness." Id. After our opinion in Jones, we limited our review of the admission of identification testimony where the police did nothing improper to common-law principles of fairness, see Commonwealth v. Odware, 429 Mass. 231, 236 (1999), and we do so here.

10

n.27, quoting Mass. G. Evid. § 403 (2014). A judge's authority

to exclude a suggestive and unreliable eyewitness identification

under Jones is an exercise of this broader authority articulated

in Mass. G. Evid. § 403. See Commonwealth v. Alcide, 472 Mass.

150, 166 (2015), quoting Jones, supra at 107 ("A judge's

authority to exclude severely unreliable identification

testimony is closely related to his or her more general

'discretion to exclude evidence that is more prejudicial than

probative'").3

A motion to suppress an identification under Jones is

similar to a motion to suppress an identification under art. 12

in that the defendant must timely file the motion before trial,

see Mass. R. Crim. P. 13 (d) (2), as appearing in 442 Mass. 1516

(2004), and bears the burden of proof by a preponderance of the

evidence. See Walker, 460 Mass. at 604-605. It is also similar

in that the evidentiary hearing on the motion should be

conducted and ruled on before trial, so that the Commonwealth

3 In Perry v. New Hampshire, 132 S. Ct. 716, 728 (2012), the United States Supreme Court declared that its "unwillingness to enlarge the domain of due process" to require exclusion of suggestive identifications that were not obtained through improper police conduct rested "in large part" on the presence of other safeguards in the adversary system that address the risk that juries will place "undue weight on eyewitness testimony of questionable reliability." Among the protections cited was the authority of trial judges under State and Federal rules of evidence "to exclude relevant evidence if its probative value is substantially outweighed by its prejudicial impact or potential for misleading the jury," citing Fed. R. Evid. 403. Id. at 729.

11

and the defendant have the opportunity to challenge the ruling

through an interlocutory appeal under Mass. R. Crim. P.

15 (a) (2), as appearing in 422 Mass. 1501 (1996). But a

suppression ruling under Jones differs in two fundamental ways

from the suppression ruling that a judge makes under art. 12

where the police are alleged to have obtained an eyewitness

identification through an unnecessarily suggestive

identification procedure.

First, the standard of admissibility is different;

admissibility is determined not by a rule of per se exclusion,

because there is no police misconduct to deter through

suppression, but by weighing the probative value of the

identification against the danger of unfair prejudice, and

determining whether the latter substantially outweighs the

former.

The danger of unfair prejudice arises because the accuracy

of an identification tainted by suggestive circumstances is more

difficult for a jury to evaluate. "Jurors . . . tend to be

unaware of . . . how susceptible witness certainty is to

manipulation by suggestive procedures or confirming feedback."

Commonwealth v. Gomes, 470 Mass. 352, 373 (2015), quoting State

v. Lawson, 352 Or. 724, 778 (Appendix) (2012). "Social science

research has shown that a witness's level of confidence in an

identification is not a reliable predictor of [its] accuracy

12

. . . , especially where the level of confidence is inflated by

its suggestiveness." Crayton, 470 Mass. at 239, citing Supreme

Judicial Court Study Group on Eyewitness Evidence: Report and

Recommendations to the Justices 19 (July 25, 2013) (Study Group

Report). See Crayton, supra at 239 n.15, quoting Wells &

Quinlivan, Suggestive Eyewitness Identification Procedures and

the Supreme Court's Reliability Test in Light of Eyewitness

Science: 30 Years Later, 33 Law & Hum. Behav. 1, 12 (2009)

("Studies have shown . . . that 'confirmatory suggestive remarks

from the lineup administrator [like 'Good, you identified the

actual suspect'] consistently inflate eyewitness certainty for

eyewitnesses who are in fact mistaken'"). Yet, studies have

shown that juries tend to give great weight to a witness's

confidence in an identification. See Perry, 132 S. Ct. at 739

(Sotomayor, J., dissenting) ("Study after study demonstrates

that . . . jurors place the greatest weight on eyewitness

confidence in assessing identifications even though confidence

is a poor gauge of accuracy" [footnotes omitted]). See also

Study Group Report, supra at 69-70, citing Leippe, Eisenstadt, &

Rauch, Cueing Confidence in Eyewitness Identifications:

Influence of Biased Lineup Instructions and Pre–Identification

Memory Feedback Under Varying Lineup Conditions, 33 Law & Hum.

Behav. 194, 194 (2009), and Wells, Lindsay, & Ferguson,

Accuracy, Confidence, and Juror Perceptions in Eyewitness

13

Identification, 64 J. Applied Psychol. 440, 446 (1979) ("Studies

show that eyewitness confidence is the single most influential

factor in juror determinations regarding the accuracy of an

eyewitness identification").

Suggestive identification procedures may also affect a

witness's memory regarding the quality of his or her observation

that led to the identification. See Gomes, 470 Mass. at 373

("Preidentification feedback may contaminate the witness's

memory"). In one study, witnesses who received confirmatory

feedback reported "'a better view of the culprit, a greater

ability to make out details of the face, greater attention to

the event, [and] a stronger basis for making an identification,'

compared to witnesses receiving no feedback." Id. at 374 n.35,

quoting Wells & Bradfield, "Good, You Identified the Suspect":

Feedback to Eyewitnesses Distorts Their Reports of the

Witnessing Experience, 83 J. Applied Psychol. 360, 366 (1998).

See Commonwealth v. Collins, 470 Mass. 255, 263 (2014).

In short, suggestiveness is likely to inflate an

eyewitness's certainty regarding an identification and to alter

the eyewitness's memory regarding the quality of his or her

observation of the offender to conform to the eyewitness's

inflated level of confidence in the identification. We

recognized this danger, and the effect it could have on a jury's

ability accurately to evaluate identification evidence, in

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Jones, where we declared that "cross-examination and a judge's

jury instruction concerning eyewitness identification testimony"

could not "fairly protect the defendant from the unreliability"

of the identification in that case. Jones, 423 Mass. at 110.

The probative value of the identification depends on the

strength of its source independent of the suggestive

circumstances of the identification. See Allen v. Moore, 453

F.2d 970, 975 (1st Cir.), cert. denied, 406 U.S. 969 (1972)

("the firmer the contemporaneous impression, the less is the

witness subject to be influenced by subsequent events"). In

determining the strength of an identification's independent

source, we consider such factors as the quality of the witness's

opportunity to observe the offender at the time of the crime,

the amount of time between the crime and the identification,

whether the witness's earlier description of the perpetrator

matches the defendant, and whether the witness earlier

identified another person as the perpetrator or failed to

identify the defendant as the perpetrator. See Johnson, 420

Mass. at 464; Botelho, 369 Mass. at 869. Another factor is the

witness's prior familiarity with the person identified, where

that person is a witness's family member, friend, or long-time

acquaintance. See Model Jury Instructions on Eyewitness

Identification, 473 Mass. 1051, 1054 (2015). After weighing the

risk of unfair prejudice arising from the suggestiveness of the

15

identification against the strength of its independent source,

the judge must determine whether the identification is so

unreliable that it would be unfair for a jury to give it any

weight in their evaluation of the evidence. If it is, the judge

must rule it inadmissible.

Second, the standard of appellate review under art. 12

differs from the standard of review under the common-law

principles of fairness articulated in Jones. Where an

identification arises from a police procedure, we apply the

standard appropriate for review of a decision implicating

constitutional rights: we review a judge's findings of fact to

determine whether they are clearly erroneous but review without

deference the judge's application of the law to the facts as

found. See Commonwealth v. Watson, 455 Mass. 246, 250 (2009).

Where an identification does not arise from a police procedure,

admissibility rests on an evidentiary judgment regarding the

reliability of the identification, so we review under the abuse

of discretion standard and ask "whether the judge's decision

resulted from 'a clear error of judgment in weighing the factors

relevant to the decision . . . such that the decision falls

outside the range of reasonable alternatives.'" Commonwealth v.

Kolenovic, 471 Mass. 664, 672 (2015), quoting L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

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c. In-court identifications. Where a judge excludes an

out-of-court identification arising from a suggestive police

procedure under our art. 12 standard of per se exclusion, the

judge must still consider whether to admit a subsequent out-of

court or in-court identification by the witness. Where a

witness's out-of-court identification is excluded, the

Commonwealth may offer a subsequent out-of-court or in-court

identification by the witness if the Commonwealth proves by

clear and convincing evidence that the subsequent identification

is reliable because it rests on a source independent of the

unnecessarily suggestive confrontation. Johnson, 420 Mass. at

463-464. Botelho, 369 Mass. at 867-868. We recognize that we

have recently declared that an "in-court identification is

comparable in its suggestiveness to a showup identification" and

have prohibited its admission in the absence of a showing of

"good reason" where there was no out-of-court identification of

the defendant by the witness before trial, Crayton, 470 Mass. at

236, 241, or where the out-of-court identification by the

witness was "something less than an unequivocal positive

identification of the defendant," Collins, 470 Mass. at 262. We

need not consider in this case whether the reasoning in Crayton

and Collins dictates that we eliminate or revise the independent

source doctrine as applied to in-court identifications because

the identifications here were not obtained through any fault of

17

the police. We will await an appropriate case to address that

issue.

But this is an appropriate case to consider whether the

independent source doctrine applies to an in-court

identification where both out-of-court identifications were

declared inadmissible under common-law principles of fairness.

We conclude that it does not apply. Where the suggestiveness

does not arise from police conduct, a suggestive identification

may be found inadmissible only where the judge concludes that it

is so unreliable that it should not be considered by the jury.

In such a case, a subsequent in-court identification cannot be

more reliable than the earlier out-of-court identification,

given the inherent suggestiveness of in-court identifications

and the passage of time. See Model Jury Instructions on

Eyewitness Identification, 473 Mass. at 1055 endnote j, quoting

Study Group Report, supra at 31-32 ("The more time that elapses

between an initial observation and a later identification

procedure . . . the less reliable the later recollection will

be"). In sum, because a judge declares an out-of-court

identification to be inadmissible under Jones only where it is

unreliable, the Commonwealth cannot prevail in proving by clear

and convincing evidence that the witness's in-court

identification would be reliable.

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2. Application of law to the facts of this case. We turn

now to the Commonwealth's arguments that the judge abused his

discretion in declining to admit in evidence the victim's out

of-court and anticipated in-court identifications of the

defendant. The Commonwealth contends that the identifications

may be excluded under Jones only if they were made under

"highly" or "especially" suggestive circumstances and that the

judge abused his discretion in finding that the circumstances

here met that standard. In Jones, we characterized the

witness's confrontation with the defendant as both "highly

suggestive" and "especially suggestive," but we did not define

either term or clarify whether they were two different

characterizations of the same standard. See Jones, 423 Mass. at

109. Nor have we done so in subsequent cases that applied the

Jones standard.

The Commonwealth contends that the "degree of

suggestiveness required for exclusion" under Jones's common-law

rule "is higher than that required for exclusion based on

improper law enforcement procedures, since no possible deterrent

effect is involved." We disagree. Where an identification is

obtained by law enforcement, our rule of per se exclusion means

that the out-of-court identification must be suppressed where it

derived from an unnecessarily suggestive procedure even if the

identification was reliable because of the strength of its

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independent source. Accordingly, we have set a high standard:

the identification must be "so unnecessarily suggestive and

conducive to irreparable misidentification that its admission

would deprive the defendant of his right to due process."

Walker, 460 Mass. at 599. Where, as here, there was no

misconduct by the police in obtaining the identification,

suggestiveness, by itself, does not mandate suppression.

Rather, the danger of unfair prejudice arising from the

suggestive circumstances will always be weighed against the

independent source of the identification, with reliability the

ultimate measure. Because suggestiveness simply triggers a

reliability analysis, the suggestiveness standard need not be

set so high. To trigger a Jones analysis, the circumstances

surrounding the identification need only be so suggestive that

there is a substantial risk that they influenced the witness's

identification of the defendant, inflated his or her level of

certainty in the identification, or altered his or her memory of

the circumstances of the operative event. Where the independent

source of an identification is slim, this level of

suggestiveness may be sufficient to support a finding of

inadmissibility; where the independent source is substantial, a

greater level of suggestiveness would be needed to support a

20

finding that the danger of unfair prejudice substantially

outweighs the probative value of the identification.4

We recognize that the victim's identification of the

defendant in this case was less suggestive than the

identification in Jones.5 But the judge did not err in

concluding that it was sufficiently suggestive to trigger a

reliability analysis. The judge reasonably found that Hendricks

suggested to the victim that the man who invaded the victim's

home on September 21, 2012, might have been the same man he

suspected broke into his own home the previous day -- a man who

was connected to both of them because he was the boy friend of

their cousin. The judge reasonably could have found a

substantial risk that these suggestive circumstances influenced

the victim when he examined the cookout photograph of the

4 We need not address here whether a judge may exclude an identification where there was no suggestiveness in the identification but where the identification might be unreliable because of the circumstances surrounding the witness's perception of the event, such as the distance between the witness and the perpetrator, the poor quality of the lighting, or the brevity of the observation.

5 In Jones, 423 Mass. at 101, a motel employee saw an African-American man come into the lobby of the motel, spend approximately one minute in the lobby, return to the lobby about ten minutes later, and drive away in a vehicle. The employee saw the African-American man for a total of only approximately three minutes and there was no event that caused her to pay particular attention to him. Id. at 101-102. However, at two pretrial hearings, the witness, having learned that the crime in that case had been committed by Vietnamese and African-American men, saw the defendant, who was African-American, shackled to a Vietnamese man. Id. at 102-103, 110.

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defendant and identified the defendant as the intruder from that

photograph and from the subsequent photographic array. The

judge also reasonably could have found a substantial risk that

this suggestion affected the witness's level of certainty in the

identification and his recollection of his observations of the

intruder during the incident.

The judge also did not err in giving little probative

weight to the independent source of the identification. The

judge noted that the victim's encounter with the intruder was

brief and his description meager: a light-skinned black male

wearing a gray hooded sweatshirt, with no information regarding

the intruder's height, weight, or facial hair, or the lighting

conditions in the apartment. The judge also noted from his own

observation that the defendant was not light-skinned. In view

of the substantial deference given to the motion judge under the

abuse of discretion standard, we conclude that the judge did not

abuse his discretion in allowing the motion to suppress the

identifications.

We therefore affirm the allowance of the defendant's motion to suppress the out-of-court and in-court identifications of the defendant by the victim.