Opinion
19-P-254
08-05-2020
COMMONWEALTH v. ATIBA HOWARD.
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
A jury convicted the defendant, Atiba Howard, of assault by means of a dangerous weapon. G. L. c. 265, § 15B (b). The defendant primarily argues that a single photographic identification should have been suppressed, and that the trial judge erred in admitting the photographic identification and a subsequent in-court identification of the defendant. He also asserts that the admission of inadmissible hearsay created a substantial risk of a miscarriage of justice. We affirm.
Background. The victim of an armed attack reported that he recognized his assailant as someone who resided on the fourth floor of his apartment building but that he did not know this person's name or precise apartment number. However, the victim indicated that another resident, with whom the victim was friendly, would be able to supply him with the attacker's name and apartment number. As a result, police accompanied the victim to his apartment building, where the victim met with his friend. The two spoke outside the presence of the police. The victim subsequently provided police with the defendant's name and apartment number. The police then obtained and displayed a single photograph of the defendant to the victim, which the victim identified as his attacker.
There was no objection at trial to the testimony that the police received the defendant's name.
Discussion. Single-photo identifications are generally "disfavored because of their inherently suggestive nature." Commonwealth v. Johnson, 420 Mass. 458, 461 (1995). Where police have "good reason," however, such procedures may be used to quickly identify a suspect. Commonwealth v. Dew, 478 Mass. 304, 307 (2017). Here, the victim reported a recent and violent attack -- he had been assaulted with a weapon only moments earlier. Under such circumstances there can be no doubt that "good reason" existed for a show-up identification. See id.
"For constitutional purposes, a one-photograph identification is the equivalent of an in-person, one-on-one identification (often referred to as a 'showup')." Commonwealth v. Carlson, 92 Mass. App. Ct. 710, 712 (2018).
"Even where there is 'good reason' for a showup identification," the identification may still be suppressed if the procedure was so needlessly suggestive that it was "conducive to irreparable mistaken identification." Commonwealth v. Figueroa, 468 Mass. 204, 217 (2014), quoting Commonwealth v. Phillips, 452 Mass. 617, 628 (2008). That was not the case here.
Identification procedures "are not normally used, and are not required, for witnesses who know an individual well." Commonwealth v. Adams, 458 Mass. 766, 771 (2011). While the victim here was unfamiliar with his assailant's name, he knew him well enough to identify him. The victim's attacker resided in the victim's same residential building and the victim had seen him many times before. The victim also knew that his attacker resided on the fourth floor of that building, and that his friend (another resident) could supply him with that person's name and apartment number. Once the victim obtained this additional information, he provided it to the police and it was this information that led the police to the single photo of the defendant that the police displayed to the victim.
There is sufficient evidence to support the motion judge's finding that the victim immediately recognized the assailant and had seen the assailant many times. We therefore reject the defendant's argument that the victim cannot be said to know, or be familiar with, the assailant.
In determining whether an identification was unnecessarily suggestive, "[t]he pertinent question [is] not whether there may have been a mistaken identification, but whether any possible mistake in identifying the defendant was, or might have been, caused by improper suggestions made by the police." Commonwealth v. Andrews, 427 Mass. 434, 438 (1998). Here, the police did not suggest the defendant to the victim but, rather, it was the victim who suggested the defendant's name to the police. Accordingly, any possible suggestion originated from the victim and not from the police. See Commonwealth v. Otsuki, 411 Mass. 218, 235 (1991) (no improper police suggestion where witness viewed newspaper picture of defendant on her own).
We also are not persuaded by the defendant's additional assertion that reversal is required because the police failed to use the preidentification protocol outlined in Commonwealth v. Silva-Santiago, 453 Mass. 782, 797-798 (2009). To begin with, the Supreme Judicial Court mandated the use of that protocol only after the date of this photographic identification. See Commonwealth v. German, 483 Mass. 553, 562 (2019). Moreover, "where a witness believes he or she knows the perpetrator from prior interactions and knows the perpetrator's name, [as is the case here,] the risk of misidentification arising from the failure to follow the [Silva-Santiago] protocol is less than where the witness looks at an array in search of an unknown person he or she saw only during the commission of the crime." Commonwealth v. Thomas, 476 Mass. 451, 461 (2017).
Similarly, although it is best practice for identification procedures to be double-blind, "[t]he absence of such a procedure is properly a matter of the weight of the identification evidence, as it was here, rather than of admissibility." Silva-Santiago, 453 Mass. at 797.
We likewise see no merit to the defendant's final challenge that the use of his mug shot rendered the procedure unnecessarily suggestive. Practical considerations support the use of photographs that are readily available for prompt identification. The defendant has provided no authority, nor are we aware of any, to suggest otherwise. We see no harm in its use, and conclude that the out-of-court identification was properly admitted.
Seeing no impropriety with the admissibility of the out-of-court identification, we further conclude that the in-court identification was also proper. See Commonwealth v. Crayton, 470 Mass. 228, 238 (2014) ("In essence, we have excluded in-court identifications only where their inherent suggestiveness is magnified by the impermissible suggestiveness of an out-of-court identification").
Next, the defendant challenges the admission of the officer's hearsay testimony that, after speaking to his friend, the victim supplied the defendant's name. Because that testimony was cumulative of the properly admitted identification testimony, we conclude that, even if erroneously admitted, the defendant was not prejudiced. Its admission, therefore, posed no substantial risk of a miscarriage of justice. See Commonwealth v. AdonSoto, 475 Mass. 497, 507 (2016) ("this statement was not likely to affect the result at trial because it was merely cumulative of properly admitted evidence").
Judgment affirmed.
By the Court (Maldonado, Singh & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 5, 2020