Opinion
18-P-1133
09-26-2019
COMMONWEALTH v. Zaky SHABAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of indecent assault and battery on a person fourteen years of age or older. On appeal, the defendant claims error in the denial of his motion to suppress the victim's photographic identification of him as the perpetrator. We affirm.
It is the defendant's burden to prove "by a preponderance of the evidence that the [photographic] identification was ‘so unnecessarily suggestive and conducive to irreparable misidentification that its admission would deprive the defendant of his right to due process.’ " Commonwealth v. Johnson, 473 Mass. 594, 597, 45 N.E.3d 83 (2016), quoting Commonwealth v. Walker, 460 Mass. 590, 599, 953 N.E.2d 195 (2011). "In considering whether identification testimony should be suppressed, the judge must examine ‘the totality of the circumstances attending the confrontation to determine whether it was unnecessarily suggestive.’ " Johnson, supra, quoting Commonwealth v. Silva-Santiago, 453 Mass. 782, 795, 906 N.E.2d 299 (2009). Here, the defendant claims that the motion judge erred in declining to suppress the identification because the Lynn Police permitted the victim to record her level of certainty in terms of a percentage. We disagree.
After the victim identified the defendant as her assailant from his photograph, Detective Chadbourne asked her to write down "in her own words" how certain she was of the identification, which is consistent with both the Silva-Santiago protocol and the Lynn Police Department identification procedures (Lynn procedures). See Silva-Santiago, 453 Mass. at 798, 906 N.E.2d 299 (protocol "requires the administrator to ask the witness to state, in his or her own words, how certain he or she is of any identification"). See also Commonwealth v. Gomes, 470 Mass. 352, 370-371, 22 N.E.3d 897 (2015). When the victim's nervousness rendered her unable or unwilling to do so, Chadbourne asked her to state her level of certainty in terms of a percentage.
Prior to being shown the photographs, the victim was given the identification procedure instruction from Silva-Santiago, 453 Mass. at 797-798, 906 N.E.2d 299.
As the motion judge found, asking the victim in terms of a percentage to quantify her certainty of her identification was a violation of the Lynn procedures. Although the Lynn procedures permit departures from their explicit provisions when the circumstances may require, we need not determine if those circumstances were present here. See Silva-Santiago, 453 Mass. at 796-797, 906 N.E.2d 299 ("the exigencies of police work sometimes require police to employ less than perfect identification procedures"). As the motion judge properly determined, whether the identification procedure employed violated due process must be evaluated based on the totality of the circumstances. See Commonwealth v. Thomas, 476 Mass. 451, 460, 68 N.E.3d 1161 (2017).
In this case, the defendant has failed to demonstrate how asking the victim for her level of certainty as a percentage somehow suggested a preferred response favorable to the government. In fact, the victim could have had a very low level of certainty that would have proved valuable to the defense. Although there was a deviation from the Lynn procedures, the defendant has not shown the degree of suggestiveness required to mandate suppression.
As an aside, a witness's certainty is routinely expressed in terms of a percentage. See, e.g., Commonwealth v. Arzola, 470 Mass. 809, 812, 26 N.E.3d 185 (2015) ("That's the man; I'm one hundred percent sure"); Commonwealth v. Watson, 455 Mass. 246, 249, 915 N.E.2d 1052 (2009) (witness stated he was "[a]bout ninety-five percent sure"); Commonwealth v. Ashley, 427 Mass. 620, 622-623, 694 N.E.2d 862 (1998) (witness "was seventy [percent] certain of the defendant's photograph and fifty [percent] certain of the other photograph"); Commonwealth v. Pearson, 87 Mass. App. Ct. 720, 723, 34 N.E.3d 1257 (2015) (witness stated she was "one hundred percent sure").
The defendant also claims that his photographic identification should have been suppressed because the police did not use the double-blind method where it was not impracticable to do so. We disagree.
As an initial matter, and contrary to the defendant's argument, the Silva-Santiago protocol does not include a double-blind procedure, even if it is a better practice to use one whenever possible. See Commonwealth v. Navarro, 474 Mass. 247, 258-259 & n.11, 49 N.E.3d 665 (2016). "The absence of such a procedure is properly a matter of the weight of the identification evidence, ... rather than of admissibility." Silva-Santiago, 453 Mass. at 797, 906 N.E.2d 299.
Here, Detective Chadbourne was present during the procedure and intervened in the process. However, despite this, there was no evidence that Chadbourne in any way influenced the victim's selection of the defendant's photograph, and any failure to comply with double-blind procedures went solely to the weight of the identification. See Commonwealth v. McEvoy, 93 Mass. App. Ct. 308, 318, 100 N.E.3d 767 (2018). As the Commonwealth notes, the defendant has not pointed to anything, let alone something proven by a preponderance of the evidence, that would suggest that any conduct by Chadbourne rendered this procedure unduly suggestive.
Chadbourne first intervened to have Officer Gasca read, rather than recite from memory, the preidentification instructions. He again intervened to have the victim flip the photographs over after she looked at each one. As discussed above, his third intervention was to ask the victim to put in her own words the certainty of her identification.
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Finally, the defendant argues that the claimed suggestiveness was exacerbated because the victim "only briefly saw the individual in poor conditions and could not accurately describe him." Similarly, the defendant claims that the victim did not provide the police with an accurate description of her assailant. A fundamental flaw in these arguments -- and portions of the defendant's other arguments on appeal -- is that the defendant supports them with trial testimony and police reports that were not entered in evidence. This is improper. See Commonwealth v. Gouse, 461 Mass. 787, 793 n.9, 965 N.E.2d 774 (2012) (where evidence "was not presented to the motion judge ... we do not consider it in our present review"); Commonwealth v. Johnson, 461 Mass. 44, 48, 958 N.E.2d 25 (2011) ("Our review here is based on the facts as developed at the suppression hearing, not at trial"); Commonwealth v. Townsend, 453 Mass. 413, 419 n.7, 902 N.E.2d 388 (2009), quoting Commonwealth v. Ramos, 402 Mass. 209, 216, 521 N.E.2d 1002 (1988) ("evidence adduced at trial but not before the motion judge ... cannot be determinative of the propriety of the motion judge's decision").
The improperly supported claims are nonetheless without merit. "The question raised by a motion to suppress identification testimony [on due process grounds] is not whether the witness might have been mistaken, but whether any possible mistake was the product of improper suggestions by the police." Commonwealth v. Watson, 455 Mass. 246, 251, 915 N.E.2d 1052 (2009). Here, there is no indication that the photographic identification of the defendant resulted from "improper suggestions by the police." Id. The motion to suppress was properly denied.
Judgment affirmed.