Commonwealth v. Austin

657 N.E.2d 458, 421 Mass. 357, 1995 Mass. LEXIS 451
Massachusetts Supreme Judicial Court·Decided November 15, 1995·Published·Cited by 74 cases

Opinions

Greaney, J.

A jury in the Superior Court convicted the defendant on an indictment charging him with armed assault with intent to rob. He was acquitted on an indictment charging him with armed assault with intent to murder. The defendant appealed. We granted his application for direct appellate review. He argues three claims of error. First, the defendant contends that his pretrial motion to suppress out-of-court identifications made by two eyewitnesses was improperly denied. Second, he argues that the trial judge erred in admitting in evidence a surveillance videotape of another robbery, allegedly committed by the defendant. Third, the defendant argues that the judge erred in permitting a Commonwealth witness, Hubert Paquette, a police officer in Rhode Island, to testify that he knew the defendant, and that he recognized the individual on the surveillance videotape as the defendant. We conclude that the out-of-court identifications were admitted properly, and that the surveillance videotape was admissible for the purpose of assisting the jury in evaluating the reliability of the challenged identifications. We further conclude that the testimony of Hubert Paquette should not have been admitted, but that its admission was not prejudicial. Accordingly, we affirm the defendant’s conviction.

1. Identification evidence. We recite the relevant facts found by the judge on the defendant’s motion to suppress, with minor additions from the transcript. On February 20, 1990, an armed man entered the First Federal Savings Bank in Somerset and attempted to rob it. Laurie Gervasio1 and Jeanie Mizher, employees of the bank, witnessed the attempted robbery. They described the gunman as approxi[359] mately six feet tall, slender, fair skinned, wearing a knit cap and a tan or gold overcoat. They described his face as long and thin and stated that he had an extremely large nose and very distinctive nervous mannerisms. The man fled the bank after seeing a police officer through the bank window. The officer pursued the robber, who fired shots at his pursuer at least twice. Several minutes later, while making his escape in a waiting vehicle, the robber also fired his gun at some bystanders.

Gervasio testified that the robber walked within three feet of her desk as he approached the teller. She had a clear view of him and observed him throughout the robbery. Mizher also had an unobstructed view of the robber. Her attention was drawn to him when he yelled instructions to the teller. Mizher watched him until he left the bank, approximately three minutes later.

After the robbery, Gervasio went to the East Providence police station to view two lineups of eight men each. She did not see the robber among these individuals. She then went to the Somerset police station and assisted an officer in making a composite drawing of the robber. The day following the attempted robbery, Mizher and Gervasio separately viewed about 200 color photographs. Neither witness selected a photograph from this array. Both women stated that they were positive they could identify the robber if they saw him again.

Two days later, on February 23, the two women were shown another photographic array consisting of eight photographs. Neither identified the robber from this array. However, Mizher selected a photograph from this array as a picture which might give the police some idea of the robber’s appearance. She was sure the person depicted in this photograph was not the robber.2

On February 23, there was an armed bank robbery in Rhode Island. The robber was not apprehended, but the robbery was recorded by the bank’s surveillance camera. The [360] police watched the videotape of the robbery and noticed that the individual on the videotape (Rhode Island robber) resembled Gervasio’s composite drawing of the Somerset robber. The mannerisms displayed by the Rhode Island robber, and the similar modus operand!, led the police to believe that the two banks had been robbed by the same individual. Also on February 23, a Somerset detective learned from a colleague of a recent armed bank robbery in Salem, New Hampshire, having characteristics similar to the Somerset and Rhode Island robberies.

On February 24, the police showed the videotape to Gervasio. She was warned to remain unbiased as she watched it. Within seconds of observing the man on the videotape, Gervasio stated that he was the man who robbed the Somerset bank. The police later showed the videotape to Mizher who also identified the man, without hesitation, as the Somerset bank robber.

On February 26, the East Providence police department began showing the surveillance videotape to its officers as they came on duty. Two police officers who were former correction officers recognized the man in the videotape as Thomas Austin, who had previously been incarcerated. The police obtained two photographs of the defendant and placed one of them in a photographic array consisting of twelve photographs. This array was shown to both witnesses. Mizher chose the defendant’s photograph immediately. Gervasio stated that the defendant’s photograph resembled the robber but that the man in the photograph had skin that was darker than the robber’s skin. An officer then showed the second photograph of the defendant to Gervasio. This photograph was of a better quality and depicted the defendant with a lighter complexion. Gervasio identified him as the Somerset robber.

The defendant was arrested, pursuant to a warrant, and placed in a lineup with four other men. Gervasio and Mizher [361] viewed the lineup separately and both immediately identified the defendant as the man who robbed the Somerset bank.3

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Commonwealth v. Austin, 657 N.E.2d 458, 421 Mass. 357, 1995 Mass. LEXIS 451 (Mass. 1995).

657 N.E.2d 458 (Commonwealth v. Austin) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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