Commonwealth v. Austin

657 N.E.2d 458, 421 Mass. 357, 1995 Mass. LEXIS 451
CourtMassachusetts Supreme Judicial Court
DecidedNovember 15, 1995
StatusPublished
Cited by74 cases

This text of 657 N.E.2d 458 (Commonwealth v. Austin) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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

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]*359mately 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]*360police 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]*361viewed the lineup separately and both immediately identified the defendant as the man who robbed the Somerset bank.3

2. The defendant argues that the judge erred in denying his motion to suppress the identifications made by Gervasio and Mizher when they viewed the videotape. He claims the identification procedure was unnecessarily suggestive in violation of his due process rights under art. 12 of the Declaration of Rights of the Massachusetts Constitution. See Commonwealth v. Johnson, 420 Mass. 458 (1995) (if defendant satisfies burden of demonstrating that witness was subjected to unnecessarily suggestive identification procedure, prosecution is barred from introducing that confrontation in evidence at trial). After a hearing, and based on the facts set forth above, the judge concluded that the out-of-court identifications were admissible because the witnesses were “reliable” and thus there was no “substantial likelihood of irreparable misidentification.” The identification procedure using the surveillance videotape was similar to a one-on-one confrontation between the suspect and witnesses Gervasio and Mizher. Such showup identifications are disfavored because they are viewed as inherently suggestive. See Commonwealth v. Johnson, supra at 461; Commonwealth v. Santos, 402 Mass. 775, 781 (1988). See also Stovall v. Denno, 388 U.S. 293, 301-302 (1967). Nonetheless, a one-on-one pretrial identification raises no due process concerns unless it is determined to be unnecessarily suggestive. Whether an identification procedure is “unnecessarily” or “impermissibly” suggestive, see Commonwealth v. Thornley, 406 Mass. 96, 98-99 (1989), involves inquiry whether good reason exists for the police to use a one-on-one identification procedure, see 1 W.R. LaFave & J.H.

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Bluebook (online)
657 N.E.2d 458, 421 Mass. 357, 1995 Mass. LEXIS 451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-austin-mass-1995.