Opinion
No. 14–P–1858.
10-13-2016
COMMONWEALTH v. Douglas SAVORY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Superior Court, the defendant, Douglas Savory, was convicted of armed robbery and assault by means of a dangerous weapon. On appeal, he contends that (1) the judge erred in admitting a witness's identification of the defendant from a surveillance videotape (video), (2) a detective's comparison of a booking photograph to the surveillance video created a substantial risk of a miscarriage of justice, and (3) the prosecutor's closing argument created a substantial risk of a miscarriage of justice. We affirm.
Background. We summarize the relevant facts, reserving more detailed discussion in some instances for our analysis. On January 29, 2013, shortly after 9:00 P.M., two men entered the Neighborhood Market in the Allston neighborhood of Boston. One man was tall, with a beard and mustache, and wore a winter hat with ear flaps. The other was shorter and wore a hood. The taller man approached the counter, purchased a lottery ticket from the store employee working behind the counter, pointed a gun at him, and said, “Wherever you have the money, take it all out.” The shorter man removed the money from the two cash registers, and the two exited the store together, taking approximately $2,000 to $3,000 with them. The store employee called the police who arrived within two minutes. The store employee described the taller robber as a black male, approximately six feet to six feet, two inches tall, with a heavy build, and wearing a heavy goose-down coat. Shortly after the incident, a different store employee went to the store at the direction of the store owner and showed a surveillance video of the robbery to the police.
In the ensuing days, the Boston police department used the video to create a “Wanted” poster, which was distributed to the media and shown on the police department's Web site. The video was also released to the news media. The police subsequently received tips identifying three persons, including the defendant, as the taller robber holding the gun. Boston police Detective Todd Hartgrove excluded one individual as a possible suspect because he was white and five feet, ten inches tall. Another suspect was excluded because he was five feet, eight inches tall, and a comparison of his height with the suspect depicted in the video revealed that he appeared to be too short to be the suspect holding the gun.
Two or three anonymous callers provided the name of the defendant to the police.
Two Boston police detectives went to an address on file for the defendant, and met with Ella Cowan who resided there. Cowan had known the defendant for fifteen years, dated him for a year or two between 2000 and 2002 and again between 2004 and 2013, and had lived with the defendant for several years. The detectives spoke with Cowan regarding her relationship to the defendant and the armed robbery at the Neighborhood Market. Detective Hartgrove met again with Cowan at the grand jury and was present when she was interviewed in preparation for her grand jury testimony. During that interview, Cowan viewed the surveillance video of the robbery and identified the defendant as the person holding the gun. At trial, Cowan viewed the video and testified that she was not sure if the man in the video was the defendant, but agreed that the man in the video looked like the defendant. After being impeached with her grand jury testimony, Cowan testified that she recognized the man in the video as the defendant. The jury returned guilty verdicts on both charges, and the defendant appealed therefrom.
Discussion. 1. Identification testimony. The defendant contends that the judge should not have allowed Cowan to opine, over objection, that the robber shown in the surveillance video and in still photographs was the defendant. He claims that this testimony usurped the jury's role and constituted prejudicial error. We disagree.
In determining whether a lay witness's identification of a person appearing in a photograph or video is admissible, courts consider a variety of factors including the quality of the images, the level of familiarity of the witness with the person depicted in the video, and whether the suspect was disguised in the video or has altered his appearance since the time of the crime. Commonwealth v. Pleas, 49 Mass.App.Ct. 321, 325–326 (2000). “These factors ... distill to the following: ‘A witness's opinion concerning the identity of a person depicted in a surveillance photograph is admissible if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury.’ “Id. at 326, quoting from United States v. Farnsworth, 729 F.2d 1158, 1160 (8th Cir.1984). “Put another way,'such testimony is admissible ... when the witness possesses sufficiently relevant familiarity with the defendant that the jury cannot also possess....' “ Pleas, supra at 326–327, quoting from United States v. Jackman, 48 F.3d 1, 4–5 (1st Cir.1995).
Here, the factors weighed in favor of admitting Cowan's identification. First, the surveillance video is somewhat grainy in quality. Moreover, throughout the robbery, the defendant wore a large winter hat pulled down close to his eyes. The hat, which had large ear flaps, covered his entire head, ears, and the side of his head. In addition, the defendant's face was partially obscured throughout much of the video by a time stamp. See Pleas, supra at 325, quoting from Jackman, supra at 5 (lay opinion testimony may be admitted if video is neither “so unmistakably clear or so hopelessly obscure that the witness is no better-suited than the jury to make the identification”). These factors-the video quality, the coverage of the head, forehead, and ears, the time stamp, and Cowan's high level of familiarity with the defendant-make it more likely that Cowan is in a better position than the jury to correctly identify the defendant from the video and photographs. See Pleas, supra at 325–326. Thus, the judge did not err in admitting Cowan's identification of the defendant.
This panel of the Appeals Court has viewed the videotape. See Commonwealth v. Hoyt, 461 Mass. 143, 148–149 (2011) (appellate court is in same position as trial court in reviewing video and will make independent review of documentary evidence).
2. Detective testimony. Citing Pleas, supra at 326, the defendant contends that Detective Hartgrove's comparison of the booking photograph to the photographic image from the surveillance video constituted “inadmissible opinion testimony.” Although the defendant did not object to this testimony at trial, he now claims that it created a substantial risk of a miscarriage of justice. The claim is unavailing.
The relevant exchange between the prosecutor and Detective Hartgrove was as follows:
Q. “And when you did have the chance to compare the booking photo to the image of the robber in the video, did anything stand out to you, Detective Hartgrove?”
A. “Yes, ma‘am.”
Q. “And what was that?”
A. “The shape of the mustache, the shape of the lips, the line on the side of his face near his nose and his mouth going down. On the right side of his face there's a line. It's almost like a crease or whatever. It goes down. It's under his right eye, alongside his nose and goes down to his mustache.”
Contrary to the defendant's argument, Detective Hartgrove did not opine that the person in the photographic image from the surveillance video was the defendant. To the contrary, he described the features in the photographs that drew his attention. This testimony was relevant to rebut the claim by the defense that the police ignored “tips” pointing to two other suspects, unfairly focused their investigation solely on the defendant, and did not fairly investigate the other suspects. See Commonwealth v. Avila, 454 Mass. 744, 753 (2009) (“Our cases make clear that if a defendant raises a Bowden defense, the Commonwealth has the right to rebut it”). In this regard, Detective Hartgrove's testimony explained why he focused the investigation on the defendant. It did not approach the realm of improper opinion testimony. See id. at 755–756. We discern no error and thus no substantial risk of a miscarriage of justice.
The defendant's appellate counsel acknowledged at oral argument that the defense at trial was essentially a “hybrid third-party culprit defense and Bowden defense rolled into one.” See Commonwealth v. Bowden, 379 Mass. 472 (1980). Defense counsel raised the issue in his opening statement, and pursued it throughout the trial.
3. Closing argument. In her closing argument, the prosecutor stated, inter alia, that “[n]ot one, but four different people called in about [the defendant].... So now you have one tip for [a second suspect] and one tip for [a third suspect], but the police investigate all of them.” The defendant contends that this argument, to which he did not object at trial, created a substantial risk of a miscarriage of justice. We disagree.
Contrary to the defendant's claim, the prosecutor properly commented on information that was admitted in evidence at trial. Indeed, the defendant introduced evidence over the prosecutor's objection of three tips provided to the police, including two that mentioned the defendant as a suspect in the armed robbery. Where the defense introduced the evidence for substantive purposes at trial, the prosecutor was free to comment substantively thereon. See Commonwealth v. Banville, 457 Mass. 530, 542 (2010). Moreover, a sidebar conversation revealed that defense counsel believed that evidence of the tips, particularly the “timing” thereof, was “important for [the defense]” because it demonstrated a delay in the police investigation and a failure to sufficiently investigate other suspects. Defense counsel had a reasonable, strategic basis to pursue this line of argument, and did so during trial and in closing argument. Having done so, the prosecutor was entitled to respond and explain why the police focused their investigation on the defendant. See Avila, supra at 753–755. In addition, the judge instructed the jury that closing arguments are not evidence. There was no error and thus no substantial risk of a miscarriage of justice.
The defendant did not request any limiting instruction.
Judgments affirmed.