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Commonwealth v. Nadeau

Appeals Court of Massachusetts.
Nov 14, 2012
978 N.E.2d 107 (Mass. App. Ct. 2012)

Opinion

No. 10–P–2112.

2012-11-14

COMMONWEALTH v. Richard NADEAU.


By the Court (CYPHER, KATZMANN & MILKEY, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On July 28, 2008, an intruder broke into Angela Venezia's home, assaulted her, and stole various items, including her laptop computer bag and jewelry. After a five-day jury trial in Superior Court, the defendant was convicted of breaking and entering, assault and battery, and larceny committed in a building. He now appeals. We affirm.

1. The defendant argues that the motion judge (who was also the trial judge) erred in failing to suppress a showup as “overly suggestive” in violation of the defendant's due process rights under both State and Federal law. He contends that there were various problems with Venezia's identification of the defendant as the culprit: (1) before the police arrived, the 911 operator relayed to Venezia that “we may even have him [i.e., the culprit],” (2) the police showed Venezia her stolen goods prior to the identification, and (3) the police conducted the showup in her neighborhood, close to the scene of the crime. If an out-of-court identification procedure is found to be “unnecessarily suggestive” it must be excluded from the trial. Commonwealth v. Botelho, 369 Mass. 860, 866 (1976). The defendant bears the burden of proving that an identification was unnecessarily suggestive. Ibid . Whether an identification is impermissibly suggestive involves a determination whether good reason exists for the police to use a one-on-one, or showup, procedure. Commonwealth v. Austin, 421 Mass. 357, 361 (1995). When determining “good reason,” the judge must examine “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.” Id. at 362. Here, the police were justified in administering a showup identification because their goal was to conduct an efficient investigation and obtain a prompt identification. If Venezia had not identified the defendant as the intruder, the police would have had to pursue other investigatory avenues.

Commonwealth v. Amaral, 81 Mass.App.Ct. 143 (2012), is largely dispositive of the defendant's claim that the showup's close proximity in time and space to the crime was unnecessarily suggestive. Amaral supports the proposition that the police in this case had good reason to administer the showup because Venezia, like the cashier in Amaral, was able “to view the suspect while recollection [was] fresh and before other images crowd[ed] in to distort the original picture.” Id. at 148, quoting from Commonwealth v. Walker, 421 Mass. 90, 95 (1995). Furthermore, the defendant's argument that the dispatcher's comments to Venezia infected the identification has been largely disposed of by Commonwealth v. Williams, 399 Mass. 60, 66–67 (1987) (denial of motion to suppress showup identification upheld even where officer stated to the witness, “I think we got the guys. Can you identify them?”).

Finally, by reviewing the showup identification form with Venezia, Officer Scott Whalen sufficiently mitigated any problems created by the 911 dispatcher or Venezia's examination of the stolen goods just prior to making the identification. The form, read aloud by Officer Whalen, cautioned Venezia to only make an identification if she were sure it was the same individual and noted that it was just as important to clear an innocent person as to identify a guilty one.

In sum, the defendant has not met his burden and shown that the identification was “ ‘so unnecessarily suggestive and conducive to irreparable mistaken identification’ as to deny the defendant due process of law.” Commonwealth v. Odware, 429 Mass. 231, 235 (1999), quoting from Commonwealth v. Otsuki, 411 Mass. 218, 232 (1991).

The defendant also points to a large volume of social science research, which he says should be considered in determining whether the judge erred in denying the motion to suppress. This contention fails because a judge cannot be found to have erroneously denied a motion to suppress based on evidence that was not presented to her. Commonwealth v. Rivera, 441 Mass. 358, 367 (2004). As the case cited by the defendant, State v. Henderson, 208 N.J. 208, 259 (2011), points out, “the risk of misidentification is not heightened if a showup is conducted immediately after the witnessed event ... because the benefits of fresh memory seem to balance the risks of undue suggestion.”

2. Prior to trial, the judge considered the Commonwealth's motion in limine to impeach the defendant with six prior convictions. The judge decided to allow the Commonwealth to introduce convictions of receiving a stolen vehicle, armed robbery, and assault by means of a dangerous weapon. However, the judge denied the Commonwealth's request to introduce two burglary convictions and a breaking and entering conviction because they were too similar to the charges faced by the defendant.

Claiming that the judge did not properly balance prejudicial impact and probative value, the defendant contends that the judge erred in determining that if the defendant chose to testify, the prosecution could impeach him with the prior convictions. We review under the abuse of discretion standard. Commonwealth v. Little, 453 Mass. 766, 772 (2009). The use of prior convictions to impeach the credibility of a witness is specifically authorized by G.L.c. 233, § 21. While judges should be careful when admitting “substantial[ly] similar[ ]” convictions, admission of a prior conviction is not per se error. Commonwealth v. Fano, 400 Mass. 296, 304 (1987). We conclude that the judge carefully weighed the probative value of allowing the use of prior convictions in order to impeach the defendant's credibility against the prejudicial effect that this evidence could have on the jury. From this balancing, she reasonably decided that three of the six charges would be allowed and three would be inadmissible because they were substantially similar to the charges facing the defendant.

Finally, we are unpersuaded by the defendant's contention that the Commonwealth should only have been allowed to use one crime implicating theft. In Commonwealth v. Brown, 451 Mass. 200, 204 (2008), the court upheld the admission of fourteen prior convictions and stated that “the Legislature has never seen fit to limit the number of convictions that may be admitted [under G.L.c. 233, § 21].” The court in Brown also rejected the defendant's policy arguments to exclude prior convictions for the purpose of impeachment, stating that they were matters for the Legislature and not a court. Id. at 205. Here, the defendant's policy arguments are similarly inapposite.

Judgments affirmed.




Summaries of

Commonwealth v. Nadeau

Appeals Court of Massachusetts.
Nov 14, 2012
978 N.E.2d 107 (Mass. App. Ct. 2012)
Case details for

Commonwealth v. Nadeau

Case Details

Full title:COMMONWEALTH v. Richard NADEAU.

Court:Appeals Court of Massachusetts.

Date published: Nov 14, 2012

Citations

978 N.E.2d 107 (Mass. App. Ct. 2012)
82 Mass. App. Ct. 1121