Opinion
21-P-253
01-28-2022
COMMONWEALTH v. Michael J. DRISCOLL.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was charged in District Court with open and gross lewdness and disturbing the peace after having been observed masturbating in a public park and recreation area on an early spring afternoon. Before trial, he moved to suppress eyewitness evidence identifying him as the perpetrator of the crime. The motion was denied, and he was subsequently convicted of both charges after a jury trial. On appeal, the defendant challenges the denial of the motion to suppress and argues that a statement made by the prosecutor in the Commonwealth's closing argument at trial was improper, requiring that his convictions be vacated. We affirm.
1. Motion to suppress. "In reviewing the grant or denial of a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error and accord ‘substantial deference’ to the judge's ultimate findings" (quotations and citations omitted). Commonwealth v. Carr, 458 Mass. 295, 298 (2010). "The ultimate legal conclusions to be drawn from the subsidiary findings of fact, however, are matters for review by this court." Commonwealth v. Santos, 465 Mass. 689, 694 (2013), quoting Commonwealth v. Robinson, 399 Mass. 209, 215 (1987).
"Although disfavored as inherently suggestive, a showup identification conducted in the immediate aftermath of a crime is not necessarily impermissible." Commonwealth v. German, 483 Mass. 553, 557 (2019). "It 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), quoting Commonwealth v. Odware, 429 Mass. 231, 235 (1999). Whether a given showup identification was unnecessarily, and thus impermissibly, suggestive depends on whether the totality of the circumstances demonstrates that "the police had good reason for using a one-on-one identification procedure." Commonwealth v. Chhoeut Chin, 97 Mass. App. Ct. 188, 198 (2020), quoting Commonwealth v. Wen Chao Ye, 52 Mass. App. Ct. 850, 855 (2001). Determining whether the facts of a given case make out the requisite "good reason" requires consideration of factors including "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." Commonwealth v. Dew, 478 Mass. 304, 307 (2017), quoting Commonwealth v. Austin, 421 Mass. 357, 362 (1995). " ‘Good reason’ exists where some combination of the factors collected in Austin is present." Commonwealth v. Carlson, 92 Mass. App. Ct. 710, 713 (2018).
On the findings the judge made (none of which the defendant challenges as erroneous), the defendant has failed to show that the identification procedure used here was "unnecessarily suggestive." German, 483 Mass. at 557. The judge found that a man was standing behind a tree in a public park and recreation area at approximately 4 P.M. , masturbating, when he was observed by another man who was walking with his wife and child back to a parking area. Confronted by this witness, the man, whom the reporting party described only as wearing shorts and a white T-shirt, shouted, "I'm not a pervert. I can't help it," then ran away through the woods in the direction of a Walmart. Within minutes, the police saw a man wearing shorts and carrying a T-shirt in his hands in the Walmart parking lot, less than one mile from the location in which the reporter had seen a man masturbating in public. The police read to the reporting party instructions concerning showup identification procedures, then drove him to the Walmart parking lot where the defendant was standing, unrestrained, with a police officer a few feet away and two other officers nearby. The reporting party immediately and without prompting told the police that he recognized the defendant "one hundred percent."
The officer read the warnings into the record at the hearing. They comported with the requirements set forth in German, 483 Mass. at 564.
Whether these facts provided "good reason" for the showup identification process is a close question, in no small part due to the minimal description of the perpetrator -- a man in shorts and a white T-shirt. Ultimately, however, we conclude that the identification procedure was not unnecessarily suggestive. The crime at issue, while not one of violence, was concerning because of its sexual nature; because it took place in the middle of the day in a public park with children in the area; and because the defendant's statement -- "I'm not a pervert. I can't help it" -- indicated an inability to control his inappropriate sexual behavior. The identification procedure was conducted promptly, see Commonwealth v. Figueroa, 468 Mass. 204, 217 (2014) ; served law enforcement interests in confirming or dispelling suspicion that the man in the Walmart parking lot was the same man who had fled through the trees before the police arrived at the park, see id.; and the identification was made with few, if any, indications that the defendant was in police custody at the time. Additionally, prior to the showup procedure, the police gave the witness proper warnings that the individual may or may not have been the perpetrator, and that the investigation would continue if the witness stated that the individual was not in fact the person who committed the crime. See Commonwealth v. Silva-Santiago, 453 Mass. 782, 797-798 (2009) (proper police procedure includes giving warnings that showup procedure may not necessarily reveal person who committed crime).
To the extent the defendant raised the question whether these facts provided reasonable suspicion justifying the police in stopping him, he did not raise this argument in the trial court, and the judge thus did not make any factual findings specific to the issue. See Commonwealth v. Santos, 95 Mass. App. Ct. 791, 797-798 (2019). Because the record is not adequately developed to address the existence of reasonable suspicion for the stop, and given the minimal attention given to the point in the defendant's briefing, we do not consider the argument. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
In support of its argument that the use of showup identification procedures are appropriate in investigating reports of lewd acts, the Commonwealth cites to a decision of another panel of this court, issued under our former Rule 1:28. As the Commonwealth acknowledges, however, that decision predated this court's decision in Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008). We are puzzled by the Commonwealth's citation to a source it acknowledges is not properly cited on appeal. In any event, we do not consider the Rule 1:28 decision in our analysis.
Because we discern no error in the denial of the defendant's motion to suppress evidence of the showup identification, we need not address the defendant's argument that the reporting party, who testified at trial, should not have been permitted under Commonwealth v. Crayton, 470 Mass. 228, 241-242 (2014), to identify him in court. We likewise need not address the defendant's argument that without the witness's identification of the defendant as the perpetrator of the crimes, the evidence would have been insufficient to convict him.
2. Prosecutor's closing argument. The defendant argues that the prosecutor created a substantial risk of a miscarriage of justice when, in her closing argument, she told the jury that the reporting witness had identified the defendant as the perpetrator during a showup identification, then recapped that "the officers testified that this show-up method [is] common and when there's a witness involved, it's preferred." Although the remark was literally accurate, in that it repeated the words used by a testifying Marlborough police officer, the defendant argues that the statement incorrectly suggested that showup procedures are a "preferred" method of identification under the law, when in fact, they are "disfavored as inherently suggestive," even if "not necessarily impermissible." German, 483 Mass. at 557. We agree that the argument was improper but conclude that it did not create a substantial risk of a miscarriage of justice here.
Officer Peter Richardson testified, "[I]f you have a witness and you're able to find the suspect, [using a showup identification process is] the preferred method [of establishing identity]." The statement was made in response to the prosecutor's question, "[H]ow frequently are showups used for identification procedures?"
Reviewing the statement in context, we are confident that in making it, the prosecutor was acting in good faith, focusing on the trial evidence, and was not attempting to mislead the jury on the state of the law.
"When determining whether error in a prosecutor's closing argument requires reversal, ‘[the court] consider[s] (1) whether the defendant seasonably objected; (2) whether the error was limited to collateral issues or went to the heart of the case; (3) what specific or general instructions the judge gave to the jury which may have mitigated the mistake; and (4) whether the error, in the circumstances, possibly made a difference in the jury's conclusion.’ " Commonwealth v. Lewis, 465 Mass. 119, 130-131 (2013), quoting Commonwealth v. Kater, 432 Mass. 404, 422-423 (2000). Here, we acknowledge that the issue of identity was critical to the case but note that the defendant did not object to the disputed statement when it was made, suggesting that its impact was not what the defendant now contends that it could have been. See Commonwealth v. Toro, 395 Mass. 354, 360 (1985). Additionally, we consider that the prosecutor did not return to this issue again after reiterating the officer's testimony as we have just recounted it. What blunted the risk of any miscarriage of justice here, however, was the judge's use of the model jury instruction on eyewitness identification, including specific instruction on showup identifications which emphasized the inherent suggestiveness of the showup procedure. In context, we conclude that the single sentence to which the defendant objects could not have made a difference to the jury's verdicts.
Judgments affirmed.