Opinion
14-P-1994
02-22-2016
COMMONWEALTH v. FRANCIS COUGHLIN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted by a jury of breaking and entering a building in the nighttime and possession of burglarious tools. On appeal, he claims error in the denial of his pretrial motion to suppress an out-of-court photographic identification and the judge's instruction on reasonable doubt. We affirm.
Background. The jury could have found the following facts. After a night of drinking with the defendant in Beverly, Michael Vashon drove the defendant to Peabody and waited in his pick-up truck while the defendant broke into Foster Street Motors, a used car dealership and repair shop (dealership). Unbeknownst to the defendant, despite the late hour, the building was not empty. The service manager of the dealership, Lawrence Meuse, and his girl friend, Brandy Wilson, were spending the night at the dealership in Meuse's car. Meuse and Wilson heard glass shattering and saw a man dressed in dark clothing, later determined to be the defendant, go behind the front counter. The defendant was rummaging around when Meuse opened the garage door and backed his car out of the garage. Meuse honked his horn several times and then closed the garage door, thereby forcing the defendant to depart through the window. The defendant returned to Vashon's truck and told him to "hurry up, let's go." The defendant had cut his hand and Vashon noticed that he was bleeding from the injury. Vashon then drove the defendant back to Beverly. Meanwhile, Meuse followed Vashon's truck and provided its license plate number to the police. The police determined that the truck was registered to Vashon and subsequently directed Meuse and Wilson to Vashon's address where they identified the truck. In addition, they stated that Vashon was not the person they had seen inside the dealership.
Further investigation revealed a bloodstain on the passenger side dashboard of Vashon's truck. A sample taken from the stain was analyzed and found to contain deoxyribonucleic acid (DNA) consistent with the defendant's DNA.
Later that day, Vashon spoke with Peabody police Officer Joseph Gilroy and other officers at the police station. Initially, he denied any involvement with the break-in, but then realized he had been "caught," and confessed. Vashon told the officers he had driven "Frank" to the dealership and led the police to an apartment in Beverly, where the police later determined Frank lived. Vashon subsequently identified the defendant as Frank from a single photograph shown to him by the police at his house. He also made an in-court identification. No criminal charges were brought against Vashon.
The defense theory, developed through cross-examination and argument, was that Vashon was not a credible witness and had pointed the finger at the defendant to avoid criminal charges.
Discussion. The photographic identification. Vashon identified the defendant from a Facebook photograph shown to him by Officer Gilroy and another detective at his home on the day following the break-in. The defendant filed a motion to suppress Vashon's out-of-court photographic identification, claiming that showing Vashon a single photograph rather than a photographic array was inherently suggestive and conducive to irreparable mistaken identification. The defendant also moved to suppress any subsequent in-court identification, asserting that it would be tainted by the inadmissible out-of-court identification.
Following an evidentiary hearing, at which Officer Gilroy testified, the motion judge found that Vashon knew the defendant and, because the two of them had spent the night drinking together before Vashon drove the defendant to Peabody where the break-in occurred, Vashon had the opportunity to observe the defendant at the time of the crime. The judge also found that the police did not engage in any suggestive methods when they showed the photograph in question to Vashon. Thus, the judge concluded, under the totality of the circumstances, the identification procedure employed by the police was not conducive to the possibility of a mistaken identification and the suppression of the photographic identification was not warranted.
"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. Watson, 455 Mass. 246, 250 (2009) (quotation omitted).
The motion judge did not err. To begin with, the judge's finding that Vashon knew the defendant and was with him at the time of the break-in is amply supported by the record. Officer Gilroy testified that during the course of his interview with Vashon, he learned that Vashon and the defendant both frequented the Sports Page bar in Beverly and were "drinking acquaintances." On the evening of March 24, 2012, Vashon left the bar with the defendant and drove to an apartment in Beverly where the two continued to drink. Thereafter, Vashon drove the defendant to Peabody and then returned to the same apartment. Vashon provided a detailed physical description of the defendant and described the clothes the defendant was wearing that night. This testimony was more than sufficient to support the judge's findings regarding Vashon's familiarity with the defendant.
The judge's finding that the manner in which the police showed the defendant's photograph to Vashon was not suggestive is similarly supported by the evidence. Officer Gilroy testified that after obtaining a photograph of the defendant from Facebook, he went to Vashon's home and showed it to him. Officer Gilroy did not say anything to Vashon before handing him the photograph. Upon seeing it, Vashon said, "[T]his is Frank."
On the basis of these findings, the judge correctly concluded that where, as here, the witness and the defendant already know one another prior to the incident, there is little risk of misidentification. See Commonwealth v. Carr, 464 Mass. 855, 871 (2013) ("[T]he witnesses knew the defendant from the neighborhood and witnessed the shooting in broad daylight; it is unlikely that suggestiveness would have played much of a role in their identification"). See also Commonwealth v. Chamberlin, 86 Mass. App. Ct. 705, 713 (2014), S.C., 473 Mass. ___ (2016) ("Suggestiveness is typically an issue when the police are seeking an identification from a witness who has had a single, perhaps brief, exposure to a suspect"). Furthermore, contrary to the defendant's argument, there was nothing inherently suggestive about showing Vashon a single photograph. See Commonwealth v. Adams, 458 Mass. 766, 770-771 (2011) ("Traditional identification procedures such as photographic arrays, showups, and lineups were designed primarily for witnesses who had never before seen a particular individual, or who may have seen the individual previously but on a limited basis. They are not normally used, and are not required, for witnesses who know an individual well"). See also Commonwealth v. Bresilla, 470 Mass. 422, 434 (2015). Here, Vashon not only knew the defendant, but, arguably, he participated in the offense as a joint venturer.
Finally, we agree with the Commonwealth that because the defense was not based on a theory of misidentification, even if we were to assign error, which we do not, the admission of the photographic identification was harmless beyond a reasonable doubt.
As noted, the thrust of the defense was to attack Vashon's credibility. The defendant claimed he was not the perpetrator, but he did not argue that Vashon did not know him.
2. The reasonable doubt instruction. The trial judge instructed the jury on reasonable doubt, in relevant part, as follows:
"So, what is proof beyond a reasonable doubt? The term, ladies and gentlemen, is often used and is probably pretty well understood by jurors, but it is not easy for [j]udges to define it to jurors. Proof beyond a reasonable doubt does not mean proof beyond all possible doubt. For everything in the lives of human beings is open to some possible or imaginary doubt.
"On the other hand, it's not enough for the Commonwealth to establish a probability, even a strong probability that the defendant is more likely to be guilty than not guilty. That is not enough. So, what do we mean by the term 'beyond a reasonable doubt'?
"Well, ladies and gentlemen, proof beyond a reasonable doubt is proof that leaves you thoroughly convinced of the defendant's guilt. In other words, you have an abiding conviction that the charge is true. There are very few things in this world that we know [with] absolute certainty and, in criminal cases, the law does not require proof that overcomes every possible doubt.
"If, based on your consideration of the evidence, you are thoroughly convinced and have an abiding conviction that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, you think there was a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty. That is what we mean by proof beyond a reasonable doubt."
The defendant first argues that, instead of saying "based on your consideration of the evidence," the judge should have said, "after the entire comparison and consideration of all the evidence," which appears in the standard Webster instruction. Commonwealth v. Webster, 5 Cush. 295, 320 (1850). We agree with the Commonwealth that there is no discernible difference between the Webster instruction and what the judge said. Therefore, we are not persuaded that the language chosen by the judge lowered the Commonwealth's burden of proof.
The defendant objected to the judge's instructions prior to closing arguments and again after the jury were charged. The Commonwealth argues the issue was not preserved because the objections lacked specificity. Because we conclude there was no error, we need not resolve this issue.
We note that the new uniform instruction on reasonable doubt uses the phrase "after you have compared and considered all of the evidence." Commonwealth v. Russell, 470 Mass. 464, 477 (2015).
Next, the defendant faults the judge for not using the words "to a moral certainty" in connection with his statement to the jurors that they must "have an abiding conviction that the charge is true" and "an abiding conviction that the defendant is guilty of the crime charged." We agree with the defendant that the judge should have included the phrase "to a moral certainty." However, this omission does not require reversal of the conviction. Recently, in Commonwealth v. Russell, 470 Mass. 464, 477 (2015), the Supreme Judicial Court set forth a new uniform instruction on reasonable doubt to be used in all criminal trials following the court's decision. Although the new instruction contains the language "to a moral certainty," it previously was not required, even though the court repeatedly expressed its preference for the Webster definition. See Commonwealth v. Watkins, 433 Mass. 539, 546-547 (2001). Here, notwithstanding the omission, we are confident that a reasonable jury would not have misunderstood the Commonwealth's burden. Indeed, the reasonable doubt instruction, which prompted a revision by the Supreme Judicial Court in Russell, omitted the phrase "moral certainty" and the defendant's convictions in that case were affirmed. Commonwealth v. Russell, supra at 467, 479.
Judgments affirmed.
By the Court (Kafker, C.J., Vuono & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 22, 2016.