Opinion
19-P-656
11-09-2020
COMMONWEALTH v. ANTHONY C. THOMAS.
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
The defendant, Anthony C. Thomas, appeals from his conviction after a District Court jury trial of one count of enticing a child under the age of sixteen. G. L. c. 265, § 26C (b). Concluding that the photographic array (array) was not impermissibly suggestive and that the trial judge acted within his discretion in admitting evidence of a traffic stop subsequent to the date of the crime, we affirm.
1. Motion to suppress. a. Standard of review. In reviewing the denial of a motion to suppress, we "accept[] the judge's subsidiary findings of fact absent clear error, give[] substantial deference to the judge's ultimate findings and conclusions of law, but independently review[] the correctness of the judge's application of constitutional principles to the facts found." Commonwealth v. Lujan, 93 Mass. App. Ct. 95, 100 (2018), quoting Commonwealth v. Magee, 423 Mass. 381, 384 (1996). Accord Commonwealth v. Martin, 467 Mass. 291, 301 (2014).
b. Array. "It is undeniable that a defendant has a due process right to identification procedures meeting a certain basic standard of fairness." Commonwealth v. Silva-Santiago, 453 Mass. 782, 794 (2009), quoting Commonwealth v. Dougan, 377 Mass. 303, 316 (1979). "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.'" Silva-Santiago, supra at 795, quoting Commonwealth v. Odware, 429 Mass. 231, 235 (1999).
Here, the defendant did not demonstrate that the array was "so unnecessarily suggestive and conducive to irreparable misidentification as to deny [him] due process of law." Commonwealth v. Arzola, 470 Mass. 809, 813 (2015), quoting Commonwealth v. Cavitt, 460 Mass. 617, 632 (2011). All of the individuals in the photographs were African-American, wore glasses, were bald (or had close-cropped hair), and had facial hair. The defendant does not appear significantly older than the other men in the array. That the defendant may have a longer, fuller beard than that of the other individuals in the photographs is of no moment, as neither the victim nor her friend described the length of the defendant's facial hair to the police, and the record contains no evidence of the defendant's beard length at the time of the crime. Contrast Commonwealth v. Thornley, 406 Mass. 96, 99-100 (1989) (finding impermissible suggestiveness where defendant's photograph was only one with glasses and witnesses relied on glasses in selecting defendant's picture).
We have looked at the array, and based on our review, we agree with the motion judge that the individuals "generally shared the described characteristics of the suspect, . . . [and] had similarities to the defendant." See Commonwealth v. Borgos, 464 Mass. 23, 31 n.12 (2012).
Regarding the preparation of the array, the victim described the defendant to the police as a "hispanic male with glasses, and facial hair." Her friend, who saw the defendant as she was walking with the victim after the crime, described him as "light, dark skin . . . [with] a black beard with a bald head with glasses on." "In the case of arrays and lineups, [officers] should select fillers based on their similarity to the witness's description of the offender, not to the appearance of the suspect. However, officers must also ensure that nothing about the suspect or his photo makes him stand out." Supreme Judicial Court Study Group on Eyewitness Evidence: Report and Recommendations to the Justices 87-88 (July 25, 2013) (Study Group Report). Here, the officers closely followed the description of both witnesses, searching for bald men with glasses and facial hair, straying only from the victim's description of the race of the defendant, which differed from the description given by her friend. The officers' decision to include photographs of African-American men ensured that the defendant would not stand out amongst the other individuals in the array. See Silva-Santiago, 453 Mass. at 795, quoting Commonwealth v. Melvin, 399 Mass. 201, 207 n.10 (1987) ("While we 'disapprove of an array of photographs which distinguishes one suspect from all the others on the basis of some physical characteristic,' . . . we conclude, based on our own review of the arrays shown to the three eyewitnesses, that the men depicted therein possessed reasonably similar features and characteristics"). Accordingly, we agree with the motion judge that this was not "an attempt to isolate the suspect as the favored choice of the investigating officer."
"If a suspect differs significantly from the witness's description, the lineup fillers should be matched to the suspect rather than the description in order to prevent the suspect from standing out." Study Group Report at 73-74.
Finally, the fact that the administration of the array was not conducted through a double-blind procedure did not render it impermissibly suggestive. The officer administering the array read the victim and her mother the photo array instruction form, which they both individually read and signed. Although administration of an identification procedure by an officer who does not know the identity of the suspect is undoubtedly the better practice, "it may not be practicable in all situations." Silva-Santiago, 453 Mass. at 797-798 (detailing best practices). See Commonwealth v. Marrero, 484 Mass. 341, 349-350 (2020). Similar to Silva-Santiago, here "there was no evidence that the [officer] who presented the photographic arrays signaled a particular response to, or otherwise attempted to influence" the witness where the officer otherwise followed best practices and instructed the witness appropriately. Silva-Santiago, supra at 797.
The photo array instruction form advised the witness, among other things, that "[y]ou should remember that it is just as important to clear innocent persons from suspicion as it is to identify guilty parties," "[t]he individuals in the photographs you view may not appear exactly as they did on the date of the incident because features such as head and facial hair are subject to change," "[t]he person who committed the crime may or may not be in the set of photographs you are about to view," and "[r]egardless of whether or not you select a photograph, the police department will continue to investigate the incident."
"Our conclusion makes it unnecessary for us to consider whether the Commonwealth sustained its burden of showing that [the witness's] . . . in-court identification[] had an independent source." Commonwealth v. Chin, 97 Mass. App. Ct. 188, 200 (2020).
2. Admission of subsequent traffic stop. "Evidence of a defendant's prior or subsequent bad acts is inadmissible for the purpose of demonstrating the defendant's bad character or propensity to commit the crimes charged." Commonwealth v. Childs, 94 Mass. App. Ct. 67, 71 (2018), quoting Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). "Nonetheless, '[s]uch evidence may be admitted "to show a common scheme or course of conduct, a pattern of operation, absence of accident or mistake, intent, or motive."'" Commonwealth v. Waterman, 98 Mass. App. Ct. 651, 659 (2020), quoting Commonwealth v. Beaulieu, 90 Mass. App. Ct. 773, 780 (2016). "[E]ven if the evidence is relevant to one of these other purposes, the evidence will not be admitted if its probative value is outweighed by the risk of unfair prejudice to the defendant." Commonwealth v. Bryant, 482 Mass. 731, 734 (2019). "These matters are 'entrusted to the trial judge's broad discretion and are not disturbed absent palpable error.'" Childs, supra, quoting Commonwealth v. Keown, 478 Mass. 232, 242 (2017), cert. denied, 138 S. Ct. 1038 (2018).
Here, the trial judge acted within his discretion in admitting testimony regarding the defendant's traffic stop approximately one year after the date of the crime. Although the Commonwealth introduced Registry of Motor Vehicles records demonstrating that the defendant was the registered owner of the minivan the witnesses observed on the date of the crime, the subsequent traffic stop remained relevant to show the defendant's access to and regular use of the vehicle. See Commonwealth v. McGee, 467 Mass. 141, 157 (2014) ("Such evidence may be admissible for purposes other than showing a defendant's bad character or criminal propensity, for example, to show that the defendant had access to or knowledge of firearms and bullets"); Commonwealth v. Otsuki, 411 Mass. 218, 236 (1991) (upholding admittance of prior bad act evidence where "the testimony speaks to the defendant's ability to possess the means to commit the crimes alleged").
Because of the limitations placed on the scope of the testimony by the trial judge, the jury were told that the vehicle was pulled over "for a minor motor vehicle infraction of not having a -- a taillight or an illumination issue." There is no serious concern that the jury may have improperly convicted the defendant on the basis of criminal propensity raised by the introduction of evidence regarding a subsequent motor vehicle stop for a broken taillight. See Commonwealth v. Kindell, 84 Mass. App. Ct. 183, 188 (2013), quoting Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir. 1980) ("Evidence is unfairly prejudicial only if it has 'an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one'"). Accordingly, the trial judge acted within his discretion in admitting this evidence.
Judgment affirmed.
By the Court (Green, C.J., Ditkoff & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: November 9, 2020.