Opinion
19-P-405
11-09-2020
COMMONWEALTH v. JUNIOR GRAY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
After a jury trial in the Superior Court, the defendant, Junior Gray, was convicted of assault and battery by means of a dangerous weapon causing serious bodily injury and three firearm-related offenses. On appeal, he contends that the trial judge erred in denying his motion in limine to exclude the victim's out-of-court identification of his photograph, and that his motion to suppress evidence obtained pursuant to a search warrant should have been allowed. We affirm.
Discussion. 1. Motion in limine. The trial judge denied the defendant's motion in limine to exclude evidence that the victim selected the defendant's photograph from an array shown to him in the hospital. The defendant claims that the identification procedure was unnecessarily suggestive, in violation of his due process rights, because the victim only identified him the second time he was shown the array, the second showing was not audiotaped, and the procedure was not double-blind.
The Commonwealth argues in its brief that because the defendant's challenge to the photographic identification procedure was not raised in a motion to suppress and was based primarily on the absence of a recording, his present claims were not preserved for appellate review. For the purposes of this decision, we assume without deciding that the defendant's claims were adequately raised and preserved.
"Under art. 12 of the Massachusetts Declaration of Rights, an out-of-court eyewitness identification is not admissible where the defendant proves by a preponderance of the evidence, considering the totality of the circumstances, that the identification is 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. 590, 599 (2011). After a voir dire hearing, the judge concluded that the identification procedure was not unnecessarily suggestive, and that the defendant's objections went to the weight of the evidence rather than its admissibility. We agree.
Boston Police Detective Hubert Valmond put together the array, but it was administered by Detective Al Young. Although Young knew the defendant's name, and that the defendant was a suspect, he did not know what the defendant looked like or which photograph was his. The first time Young showed the photographs to the victim was during the victim's interview and was therefore audio recorded. The victim could not pick anyone out of the array the first time. After the interview had concluded and the police were leaving the hospital room, the victim asked to see the photographs a second time. The photographs were shuffled and shown to the victim again, but this time the procedure was not recorded. The victim selected the defendant's photograph and wrote "it looks like this guy" on it.
We are not persuaded that the procedure was unnecessarily suggestive just because the victim was shown the defendant's photograph twice. "It is not sufficient to render a photographic identification invalid to show simply that defendant appeared in each of two displays." Commonwealth v. LaPierre, 10 Mass. App. Ct. 641, 644 (1980), quoting United States v. Bowie, 515 F.2d 3, 7 (7th Cir. 1975). See Commonwealth v. Paszko, 391 Mass. 164, 169 (1984) ("duplication of defendant's photograph in one or more arrays has not been held sufficient by itself to compel exclusion of a resulting identification"). Moreover, because the second showing was only a shuffled version of the first, the victim was shown every photograph in the array twice -- the defendant was not emphasized in any way.
Although the second showing was not recorded, the Boston Police Department rules did not require the procedure to be recorded, and recording is not "a prerequisite to admissibility." Commonwealth v. Silva-Santiago, 453 Mass. 782, 799 (2009).
Finally, the record simply does not support the defendant's claim that the officers did not follow the preferred double-blind procedure. See Silva-Santiago, 453 Mass. at 797-799. Detectives Valmont and Young both testified on voir dire that Young did not know what the defendant looked like or which photograph was his, and the judge could properly credit their testimony. In any event, the absence of a double-blind identification procedure is relevant to the weight of the identification, not its admissibility. See Commonwealth v. Thomas, 476 Mass. 451, 454 n.2 (2017), citing Silva-Santiago, supra.
The evidence bearing on the reliability of the identification procedure was fully aired before the jury. The judge gave specific, relevant instructions on how the jury should evaluate the procedure, and defense counsel argued forcefully and at length in closing argument that the jury should discredit it. We discern no error.
2. Motion to suppress. The defendant also argues that the motion judge erred in denying his motion to suppress the evidence found during the search of his basement apartment because the police unconstitutionally entered the locked portion of the basement during their protective sweep of the building. The motion judge agreed with the defendant on this point. However, the judge denied the motion to suppress on other grounds, finding that, after excising the information obtained from the unconstitutional sweep, the search warrant application established the requisite probable cause to search. See Commonwealth v. DeJesus, 439 Mass. 616, 624-629 (2003) (illegal entry and protective sweep did not require suppression where, after striking observations made during illegal search, remaining information in search warrant application established probable cause). The defendant makes no argument in his brief that the judge's determination was erroneous, nor did the defendant include the search warrant application in the record appendix. Accordingly, we have no basis to review, let alone reverse, the denial of the motion to suppress.
Judgments affirmed.
By the Court (Massing, Singh & Wendlandt, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: November 9, 2020.