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Commonwealth v. Roeung

Appeals Court of Massachusetts.
Jun 18, 2012
969 N.E.2d 185 (Mass. App. Ct. 2012)

Opinion

No. 10–P–1210.

2012-06-18

COMMONWEALTH v. Soksoursdey ROEUNG.


By the Court (GRASSO, BERRY & WOLOHOJIAN, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant pleaded guilty on May 11, 2005, to five counts of an indictment, including aggravated assault and battery by means of a dangerous weapon, coercion of a child under eighteen to join a criminal conspiracy, and three counts of assault and battery by means of a dangerous weapon (ABDW). The sentencing structure imposed by the plea judge included concurrent sentences of three and one-half to five years' imprisonment to serve on two of the counts, and, on the three remaining counts, including coercion of a child to join a conspiracy, ABDW, and aggravated ABDW, five years of probation to run from and after the years of imprisonment.

Following his release from prison and while subject to probation, on October 21, 2008, the defendant was served with a probation violation notice, which cited four new offenses, which were alleged to have occurred on October 17, 2008, in Lowell-specifically one count of home invasion and three counts of armed robbery while masked. Hearings on the probation violations were held in January and February, 2009. Based on the evidence presented, the judge revoked the defendant's probation. On the three offenses formerly subject to probation, the judge ordered the defendant to serve concurrent terms of four to five years' imprisonment, with credit for time served.

The new offenses arose out of a robbery of a card game at the home of Mung Soun. The defense at the probation revocation hearing was misidentification, the defendant contesting that he was one of the four men who committed the masked home invasion. However, the defendant was positively identified by Mung Soun at a showup, in a police interview, and at the probation revocation hearing. The defendant contends that Mung Soun's identification should not have been considered by the probation revocation judge because all the identifications were tainted by undue suggestiveness in the initial showup identification procedure.

We are not persuaded by the defendant's contentions. The judge's findings at the revocation hearing not only expressly credited Soun's identification of the defendant as the robber with the shotgun and found the identification to be reliable, but also fully addressed, and rejected, as a factual matter, undue suggestiveness in the showup. We restate the judge's pertinent findings as follows.

“Mung Soun's home in Lowell was the location of an ongoing card and die game frequented by local men. On October 17, 2008, three men, two carrying guns, robbed the ‘pot’ and individual men of $700 to $800. I credit the identification made by Mung Soun of probationer Roeng as the person who entered his home, while masked and armed with a long shotgun, and by force and threat, stole considerable cash. Soun identified Roeng by his ‘Cambodian’ eyes and the braids visible beneath a hood.

“Soun was acquainted with Roeng's unmasked appearance because ... Roeng had been in the home earlier that day for the first time, and played cards and die with the men, losing about $100. Therefore, Soun had an opportunity to observe the probationer's eyes, body, height, voice, gesture and demeanor without stress and in the daytime; this supports the accuracy of the identification.

“The show-up identification was virtually immediate. The small black car in which Roeng was riding was observed to be driving, lights off, when the 911 call reporting the robbery was put out over the radio to police officers on the street. The small black car engaged in evasive maneuvers, likely ducking into a parking lot to avoid police vehicles. Only Roeng was identified. Lanh was not, which also supports the accuracy of the identification, and that Soun was not so suggestible. A suggestive procedure in which the identify witness relied on an assumption that the quick apprehension was tantamount to guilt, would have resulted in the identification of Lanh as well.

...

“I do not credit the alibi and description testimony of Bunthoen Seng; he is partisan because of the close personal and family association with defendant Roeng. I do not credit the testimony of Jackson Lanh; he is partisan because of his own close association with defendant Roeng, and he may be protecting his own interests. Lanh could be seen as an accomplice.”

With due deference to the judge's findings, but applying our independent appellate review, we conclude that the judge's findings are wholly supportable on the record.

First, as to the reliability of the identification, Mung Soun not only identified the defendant at the showup, but also told the officer who transported him to the showup that Mung Soun recognized the defendant as one of the men who had been playing cards at Soun's home for three hours earlier that morning, just before the robbery. Again, during an interview at the police station, Mung Soun reaffirmed that the defendant was the masked robber armed with a shotgun.

As to the lack of undue suggestiveness in the showup, “[t]he police had good reason to conduct the showup in this manner. They were investigating violent crimes in which three suspects had fled and had not been apprehended. The need for public safety was critical, and a prompt identification served to limit risk to the public and to avoid the escape of dangerous suspects.” Commonwealth v. Phillips, 452 Mass. 617, 629 (2008). “[S]howups of suspects to eyewitnesses of crimes have been regularly held permissible when conducted by the police promptly after the criminal event.” Commonwealth v. Bowden, 379 Mass. 472, 479 (1980), quoting from Commonwealth v. Barnett, 371 Mass. 87, 92 (1976), cert. denied, 429 U.S. 1049 (1977).

We also reject the defendant's claim of ineffective assistance of counsel at the probation hearing in not seeking to exclude the identification. On that point, an effective assistance of counsel claim would only be viable were there to be a likelihood that an exclusion or suppression motion would have been successful. Cf. Commonwealth v. Comita, 441 Mass. 86, 91 (2004). For the reasons stated above, for defense counsel to have sought exclusion or suppression would have been futile, as the showup was not unduly suggestive, and, thus, the identification was properly considered by the judge at the probation revocation hearing.

The defendant and the Commonwealth, citing Commonwealth v. Olsen, 405 Mass. 491 (1989), debate at length whether the exclusionary rule of suppression applies to a probation hearing. Given our determination that the showup identification of the defendant was not unduly suggestive, we need not reach that issue. “[A] one-on-one pretrial identification raises no due process concerns unless it is determined to be unnecessarily suggestive” (emphasis original). Commonwealth v. Martin, 447 Mass. 274, 279 (2006), quoting from Commonwealth v. Austin, 421 Mass. 357, 361 (1995). We would note only that the due process clause applies in probation hearings, see Commonwealth v. Durling, 407 Mass. 108, 112 (1990), and due process lies at the core of the constitutional determination whether an unduly suggestive identification procedure is subject to suppression or exclusion. Thus, were undue suggestiveness in the showup established, due process would be implicated. 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. at 279–280, quoting from Commonwealth v. Odware, 429 Mass. 231, 235 (1999). The defendant did not meet that burden in this case.

Order revoking probation and imposing sentence affirmed.




Summaries of

Commonwealth v. Roeung

Appeals Court of Massachusetts.
Jun 18, 2012
969 N.E.2d 185 (Mass. App. Ct. 2012)
Case details for

Commonwealth v. Roeung

Case Details

Full title:COMMONWEALTH v. Soksoursdey ROEUNG.

Court:Appeals Court of Massachusetts.

Date published: Jun 18, 2012

Citations

969 N.E.2d 185 (Mass. App. Ct. 2012)
82 Mass. App. Ct. 1101