COMMONWEALTH v. BARROS (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant is charged in the Boston Municipal Court with assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (a). The defendant filed a motion to suppress the victim's identification of the defendant in a photographic array. Following an evidentiary hearing, the judge allowed the defendant's motion, reasoning that the identification was tainted by the victim's earlier exposure to a Facebook photograph of the defendant “in a highly and especially suggestive manner.” ² The Commonwealth's principal claims on appeal are that the judge abused her discretion in permitting the defendant to make arguments not included in his pleadings, and that the judge's findings of fact lacked evidentiary support. We affirm.

Background. The following facts are drawn from the judge's findings and from undisputed facts in the record that were implicitly credited by her. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 436 (2015). On the night of October 29, 2016, Boston Police Detective Arthur Brewster responded to the report of an assault and battery at the Candy Bar night club on Tremont Street and spoke with the female victim. The victim described the perpetrator as a short, male Cape Verdean in his mid-twenties. The club manager reported that the perpetrator was a regular at the club and drove a blue Nissan.

Weeks later, the victim contacted Detective Brewster and gave him a Facebook photograph of the perpetrator dated November 19, 2016. She also provided Detective Brewster with the suspect's name, George Carrera. The victim later called Detective Brewster to inform him that she had learned that the perpetrator's name was actually Carlos Barros.

Using the Facebook photograph supplied as a guide, Detective Brewster located a recent photograph of the defendant in the police database and included it in an eight-photograph array of individuals similar in age, race, and appearance. On December 13, 2016, Boston Police Detective Thomas McDonough, who had no prior involvement in the investigation, administered the photographic array. He instructed the victim regarding the identification procedure and displayed the eight photographs to her. The victim selected the defendant's photograph and stated that she was one hundred percent certain he was the perpetrator.

Discussion. An out-of-court eyewitness identification resulting from a police procedure “is not admissible under art. 12 of the Massachusetts Declaration of Rights if the defendant proves by a preponderance of the evidence that the 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 (2016), quoting Commonwealth v. Walker, 460 Mass. 590, 599 (2011). Even where there is no wrongdoing by the police, an eyewitness identification may be inadmissible based on “[c]ommon law principles of fairness” where the identification resulted from “especially suggestive circumstances.” Commonwealth v. Jones, 423 Mass. 99, 109 (1996).

Here, the judge did not find that the police used an unnecessarily suggestive identification procedure. Rather, the judge concluded that the victim's independent investigation caused her to be exposed to the defendant's Facebook photograph before the identification procedure “in a highly and especially suggestive manner” that created “a substantial likelihood of irreparable misidentification.” In these circumstances, we review the judge's decision for abuse of discretion. See Johnson, 473 Mass. at 602.

The Commonwealth first argues that the judge abused her discretion by allowing the defendant to proceed on a motion to suppress that was not supported by an affidavit as required by Mass. R. Crim. P. 13 (a) (2), as appearing in 442 Mass. 1516 (2004). It is undisputed that the defendant failed to file “an affidavit detailing all facts relied upon in support of the motion,” as required by rule 13. Id. But the Commonwealth did not raise this deficiency before or during the suppression hearing. In these circumstances, the argument related to the defendant's failure to file an affidavit is waived. See Commonwealth v. Mubdi, 456 Mass. 385, 390-391 (2010).

The Commonwealth also contends that the defendant should not have been permitted to change the theory of his motion to suppress the identification from “undue suggestiveness in the creation or administering of the arrays by police to considering whether common law principles of fairness were violated in the victim's identification of the defendant as the perpetrator.” Rule 13 requires that all grounds for a motion to suppress be “set forth with particularity.” Mass. R. Crim. P. 13 (a) (2). Here the defendant's motion sought the suppression of “any in court or out of court identification testimony of [the victim].” The accompanying memorandum of law clarified that the defendant was seeking to suppress the victim's identification of the defendant in the photographic array because it was unduly suggestive such that the defendant was denied due process. The memorandum also stated that “[e]ven without a due process violation, the defendant may show that the identification is otherwise unreliable under a totality of the circumstances analysis.”

We conclude that where the defendant's memorandum raised generally the reliability of the victim's identification of the defendant based on the totality of circumstances, and the details of the victim's receipt of the defendant's Facebook photograph were revealed for the first time during the defendant's cross-examination of Detective Brewster at the suppression hearing, the judge did not abuse her discretion in considering the argument. See Mass. R. Crim. P. 13 (a) (2) (judge has discretion, for good cause shown, to consider grounds not raised in the pleadings).³

Next the Commonwealth argues that the judge abused her discretion by basing her legal conclusions on clearly erroneous factual findings. Specifically, the Commonwealth challenges the judge's finding that,

“On unknown dates after the incident, the alleged victim spoke with a manager and/or friend at the club. There was no evidence as to who or which manager she spoke with․ The manager and/or friend showed her a Facebook page of the defendant. The manager friend was apparently familiar with the defendant and provided a name to the alleged victim. From the evidence presented, the Court concludes that the manager/friend suggested that the photo depicted the perpetrator.”

The Commonwealth claims that, contrary to this finding, nothing in the testimony supported a conclusion that anyone suggested the perpetrator's identity to the victim. We disagree.

Detective Brewster testified that a third party, either the manager at the Candy Bar or a friend of the victim who knew the perpetrator, gave the victim the perpetrator's name. When the judge asked Detective Brewster how the victim got the Facebook photograph that she later provided to him, the detective responded, “[a]gain, she's been in communication with people down at the nightclub, which, you know, she's a regular and, according to witnesses, he's a regular.” From this evidence, the judge could reasonably have inferred that the defendant's Facebook photograph came into the victim's possession as a result of conversations with others at the Candy Bar. In short, we see nothing clearly erroneous in the judge's finding that the perpetrator's name and photograph were suggested to her by a third party. See Commonwealth v. Castillo, 89 Mass. App. Ct. 779, 781 (2016) (finding is clearly erroneous only when reviewing court left with definite and firm conviction that mistake has been made).

Finally, we agree with the Commonwealth that the evidence did not support the judge's finding that “the [victim's] opportunity to observe [her assailant] was brief and the lighting was low as it was after dark.” Detective Brewster was not present at the time of the assault and, based on the record before us, he had no information regarding the length of time the victim spent with the perpetrator or the lighting conditions at the time. Therefore these findings of fact were clearly erroneous. However, even eliminating these findings from the judge's decision, we discern no abuse of discretion in her ultimate conclusion. There was no evidence, one way or the other, regarding the victim's opportunity to observe the perpetrator. It was undisputed, however, that the victim did not know the perpetrator; that the victim provided only a limited description; and that the photographic array was presented to the victim forty-five days after the assault. See Johnson, 473 Mass. at 601-602 (listing factors to consider in balancing probative value and suggestiveness of identification). When considered together with the evidence that the perpetrator's name and Facebook photograph were provided to the victim before the identification procedure by a third party, as discussed supra, we discern no abuse of discretion in the judge's conclusion that the victim was exposed to the defendant's Facebook photo “in a highly and especially suggestive manner” that created “a substantial likelihood of irreparable misidentification.”

Order allowing motion to suppress affirmed.

FOOTNOTES

2.   The Commonwealth's request for leave to pursue an interlocutory appeal was allowed by the single justice of the Supreme Judicial Court.

3.   The Commonwealth argues that it might have chosen its witnesses differently had the motion to suppress specifically alleged that the identification was tainted by the victim's independent investigation. We are not persuaded by this argument where it is raised for the first time on appeal. The Commonwealth failed to seek a continuance to present additional evidence, even after the defendant's theory of suppression was clear.