Opinion
Criminal Action No. 2005-693.
May 10, 2006.
ORDER ON DEFENDANT'S MOTION TO SUPPRESS IDENTIFICATION INTRODUCTION
The Defendant, Jonathan Richardson, is charged with armed assault with intent to rob, assault and battery with a dangerous weapon, and possession of a firearm with a firearm identification card. The Defendant moves the court to suppress the evidence against him in all in-court and out-of-court identifications of him by witnesses whom the Commonwealth intends to call at trial. The Defendant contends that the circumstances of the identifications were impermissibly suggestive because the other photographs of men in the photographic array did not sufficiently resemble the Defendant. The Defendant states that the identification procedure and subsequent identification were made in violation of his rights guaranteed by the Fourth, Fifth, and Fourteen Amendments to the United States Constitution; Articles 12 and 14 of the Massachusetts Declaration of Rights; and common law principles of fairness. For the foregoing reasons, the Defendant's motion to suppress is DENIED.
DISCUSSION
1. Initial burden of proof is on the defendant. In order to suppress an identification, a defendant must show by a preponderance of the evidence that, in light of the totality of the circumstances, the procedures employed in the identification were so unnecessarily or impermissibly suggestive and conductive to irreparable misidentification, as to deny the defendant due process of law. Commonwealth v. Miles, 420 Mass. 67, 77 (1995); Commonwealth v. Wallace, 417 Mass. 126, 129 (1994);Commonwealth v. Holland, 410 Mass 248, 253 (1991);Commonwealth v. Thornley, 400 Mass. 355, 364 (1987) (Thornley I); Commonwealth v. Botelho, 369 Mass. 860, 865-866 (1976). The crucial question is whether any possible mistake was due to improperly suggestive procedures by the police. Commonwealth v. Colon-Cruz, 408 Mass. 533, 541 (1990). If the identification procedures are not suggestive, then the identification is admissible with the matter of its weight left for the jury to determine. Commonwealth v. Tanso, 411 Mass. 640, 653 (1992); Commonwealth v. Otsuki, 411 Mass. 218, 233 (1991).
2. Allegation of suggestiveness based on the composition of the array. A photographic array must be fair. A defendant may meet his initial burden of proof simply on the basis of a photographic array that does not meet court imposed and constitutionally based standards of fairness. The number of photographs in the array must be adequate. See Commonwealth v.Otsuki, 411 Mass. 218, 233 (1991) (nothing improper about eleven photographs in a photographic array); Commonwealth v.Downey, 407 Mass. 472, 478 (1990) (array of nine photographs is not too small); Commonwealth v. Allen, 22 Mass. App. Ct. 413, 416 (1986) (five photographs sufficiently similar in appearance constitutes a fair array, although larger array would have been better). The relative size, age, and appearance of persons shown in the array as compared to the defendant must not be unnecessarily suggestive. Thornley I, 400 Mass. at 362-364 (element of suggestiveness where defendant is the only one wearing glasses); Commonwealth v. Downey, 407 Mass. 472, 478 (1990) (not suggestive where all photographs depicted "white males in their late teens or early twenties with light complexions and no facial hair or other distinguishing characteristics noticeable" and all the men, "except perhaps two," had "medium to light" hair); Commonwealth v. Tanso, 411 Mass. 640, 652-653 (1992) (not unnecessarily suggestive where majority of lineup participants were "young white males all of whom had one or more dark features," "at least five other members of the lineup were similar in height to the defendant" and "at least two other members had hair of the same length as the defendant's").
Under the leadership of former Attorney General Janet Reno, the United States Department of Justice has developed a series of recommendations with respect to eyewitness identifications that are now in use by many police departments and that are consistent with the requirements of Massachusetts law. See United States Department of Justice Report, Eyewitness Evidence: A Guide for Law Enforcement (October, 1999) at 29-31. The Guide states that when police use photographic arrays they should compose them with persons who are not dissimilar to the defendant and who do not have any unique identifying characteristics. The Guide further provides that the photos of the fillers "should generally fit the witness's description of the perpetrator," or, absent such a description or when the description doesn't match the suspect, the description of the suspect; it also states that "complete uniformity" is not required, but recommends against using fillers who so closely resemble the suspect that even people who know the suspect might have difficulty in picking him or her out. The Guide suggests that the person compiling the array should "[c]reate a consistent appearance between the suspect and fillers with respect to any unique or unusual feature (e.g., scars, tattoos) used to describe the perpetrator by artificially adding or concealing that feature." It suggests that only one suspect should be included in each identification procedure along with at least four non-suspect fillers. The police should avoid using the same fillers in arrays shown to the same witness. Guide, Section V at 29.
In this case, the photographic array is consistent with the recommendations set forth in the Department of Justice Guide. It consists of eight males of similar appearance (one photo of the defendant which was reportedly picked out by the alleged victim and seven fillers) in which there is no evidence pointing to or distinguishing the defendant's photo from the others. Because the defendant has failed to meet his initial burden of demonstrating suggestiveness, there is no need for an evidentiary hearing to explore the details of the identification made by the alleged victim.
ORDER
For the above reasons, the Defendant's Motion to Suppress Identification is DENIED.