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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1410
COMMONWEALTH
vs.
DARREN C. MORAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a bench trial in the District Court, the defendant
was found guilty of failure to stop for the police and negligent
operation of a motor vehicle. Because the defendant has not
persuaded us that the judge erred in allowing a percipient
witness to identify the defendant in court or that any
prejudicial error resulted from the trial judge's rulings about
the extent of another witness's privilege under the Fifth
Amendment to the United States Constitution, we affirm.
Background. We briefly summarize the trial evidence,
reserving certain facts for later discussion. At approximately
2 A.M. on November 1, 2020, Lakeville police Officer Emily Melo
was on patrol when she saw a grey Kia drive through a red light. Melo activated her emergency lights and followed the Kia; it
abruptly turned, such that it was driving in the wrong lane of
travel, and then slowly stopped. When Melo stopped her cruiser
and got out, the Kia "took off," making a U-turn and then
turning left and driving away. As the Kia turned left, Melo saw
the driver. Melo pursued the speeding Kia through Lakeville
into Middleboro, where the driver of the Kia abandoned the car
and fled on foot.
Melo conducted an inventory search of the Kia, which was
registered to a woman, E.R., and found an empty prescription
bottle bearing the name "Darren Moran" in the Kia's center
console and a sweatshirt with a company logo on it in the Kia's
back seat. Initially, Melo looked up the defendant using his
license number, which was radioed to her, but she did not
recognize the "one-by-one little picture" from the registry of
motor vehicles (RMV) that the search returned. Melo then
searched Facebook and found photographs of the defendant whom
she recognized "a hundred percent" as the driver of the Kia.
The defendant was arrested several days later; there was no
evidence that Melo was the arresting officer.
Discussion. 1. Identification procedures. a. In-court
identification. At trial, and without objection, Melo
identified the defendant as the person she saw driving the Kia.
On appeal, the defendant argues that the judge erred in allowing
2 Melo to make an in-court identification of the defendant because
(1) Melo did not make a constitutionally permissible out-of-
court identification of the defendant before being permitted to
identify him in court, and (2) the Commonwealth failed to
demonstrate a "good reason" for the in-court identification, as
required in the absence of a prior permissible out-of-court
identification. See Commonwealth v. Crayton, 470 Mass. 228,
241-242 (2014). The defendant did not object to the in-court
identification, so to the extent we discern error, our review is
for a substantial risk of a miscarriage of justice. See, e.g.,
Commonwealth v. Belnavis, 104 Mass. App. Ct. 798, 801 (2024).
The defendant argues that in Crayton, the Supreme Judicial
Court limited "[a]cceptable pre-trial identification procedures"
to "non-suggestive photo array[s], suspect lineup[s], or show-
up[s]," and that Melo's use of Facebook could not qualify. We
do not read Crayton so literally. Although the record provides
no detail about how many results Melo's Facebook search for
"Darren Moran" returned, for the purposes of our analysis we
assume without deciding that the search turned up only a single
photograph, and that it was therefore the equivalent of a one-
on-one showup identification. See Commonwealth v. Forte, 469
Mass. 469, 477 (2014); Commonwealth v. Nolin, 373 Mass. 45, 51
(1977). And as we have described, Melo was unequivocal about
her Facebook identification; the defendant does not argue
3 otherwise.1 See Commonwealth v. Dew, 478 Mass. 304, 315 (2017)
("unequivocal positive identification" occurs if witness
"identifies the defendant as the perpetrator, such that the
statement of identification is clear and free from doubt").
Accordingly, we do not address the defendant's argument that the
Commonwealth failed to demonstrate "good reason" justifying an
in-court identification in the absence of a prior out-of-court
identification. See Crayton, 470 Mass. at 241. See also
Commonwealth v. Collins, 470 Mass. 255, 265 (2014) (requiring
good reason for in-court identification where out-of-court
identification was less than unequivocal).
b. Out-of-court identification. To the extent that the
defendant challenges the admissibility of the out-of-court
identification, he has not demonstrated that the identification
was so unnecessarily suggestive as to be inadmissible. Although
showup identifications "are generally disfavored as inherently
suggestive," they are not "presumptively impermissible." Dew,
478 Mass. at 306. " Police are permitted to conduct a showup
identification if there is a 'good reason' to secure the prompt
identification of a suspect." Id. at 307. "In determining
1 The defendant only argues that Melo's in-court identification was less credible, in part due to her failure to identify the defendant from his RMV photograph and the suggestiveness of the Facebook search.
4 whether the police procedures rendered the identification
unnecessarily suggestive," and simultaneously, whether the
police had the requisite "good reason," a judge must "examine
'the totality of the circumstances attending the
confrontation.'" Commonwealth v. German, 483 Mass. 553, 558-559
(2019), quoting Commonwealth v. Odware, 429 Mass. 231, 235
(1999). The analysis includes consideration of
"the nature of the crime involved and corresponding concerns for public safety; the need for efficient police investigation in the immediate aftermath of a crime; and the usefulness of prompt confirmation of the accuracy of investigatory information, which, if in error, will release the police quickly to follow another track."
Commonwealth v. Austin, 421 Mass. 357, 362 (1995). "'Good
reason' exists where some combination of the factors collected
[above] is present." Commonwealth v. Carlson, 92 Mass. App Ct.
710, 713 (2018). "Even where there is a good reason to conduct
a one-on-one identification procedure, the evidence must be
excluded [i]f there are special elements of unfairness . . . ."
(quotation and citation omitted). Dew, supra at 307. "It is
the defendant's burden to prove by a preponderance of the
evidence that the showup was 'so unnecessarily suggestive and
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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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1410
COMMONWEALTH
vs.
DARREN C. MORAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a bench trial in the District Court, the defendant
was found guilty of failure to stop for the police and negligent
operation of a motor vehicle. Because the defendant has not
persuaded us that the judge erred in allowing a percipient
witness to identify the defendant in court or that any
prejudicial error resulted from the trial judge's rulings about
the extent of another witness's privilege under the Fifth
Amendment to the United States Constitution, we affirm.
Background. We briefly summarize the trial evidence,
reserving certain facts for later discussion. At approximately
2 A.M. on November 1, 2020, Lakeville police Officer Emily Melo
was on patrol when she saw a grey Kia drive through a red light. Melo activated her emergency lights and followed the Kia; it
abruptly turned, such that it was driving in the wrong lane of
travel, and then slowly stopped. When Melo stopped her cruiser
and got out, the Kia "took off," making a U-turn and then
turning left and driving away. As the Kia turned left, Melo saw
the driver. Melo pursued the speeding Kia through Lakeville
into Middleboro, where the driver of the Kia abandoned the car
and fled on foot.
Melo conducted an inventory search of the Kia, which was
registered to a woman, E.R., and found an empty prescription
bottle bearing the name "Darren Moran" in the Kia's center
console and a sweatshirt with a company logo on it in the Kia's
back seat. Initially, Melo looked up the defendant using his
license number, which was radioed to her, but she did not
recognize the "one-by-one little picture" from the registry of
motor vehicles (RMV) that the search returned. Melo then
searched Facebook and found photographs of the defendant whom
she recognized "a hundred percent" as the driver of the Kia.
The defendant was arrested several days later; there was no
evidence that Melo was the arresting officer.
Discussion. 1. Identification procedures. a. In-court
identification. At trial, and without objection, Melo
identified the defendant as the person she saw driving the Kia.
On appeal, the defendant argues that the judge erred in allowing
2 Melo to make an in-court identification of the defendant because
(1) Melo did not make a constitutionally permissible out-of-
court identification of the defendant before being permitted to
identify him in court, and (2) the Commonwealth failed to
demonstrate a "good reason" for the in-court identification, as
required in the absence of a prior permissible out-of-court
identification. See Commonwealth v. Crayton, 470 Mass. 228,
241-242 (2014). The defendant did not object to the in-court
identification, so to the extent we discern error, our review is
for a substantial risk of a miscarriage of justice. See, e.g.,
Commonwealth v. Belnavis, 104 Mass. App. Ct. 798, 801 (2024).
The defendant argues that in Crayton, the Supreme Judicial
Court limited "[a]cceptable pre-trial identification procedures"
to "non-suggestive photo array[s], suspect lineup[s], or show-
up[s]," and that Melo's use of Facebook could not qualify. We
do not read Crayton so literally. Although the record provides
no detail about how many results Melo's Facebook search for
"Darren Moran" returned, for the purposes of our analysis we
assume without deciding that the search turned up only a single
photograph, and that it was therefore the equivalent of a one-
on-one showup identification. See Commonwealth v. Forte, 469
Mass. 469, 477 (2014); Commonwealth v. Nolin, 373 Mass. 45, 51
(1977). And as we have described, Melo was unequivocal about
her Facebook identification; the defendant does not argue
3 otherwise.1 See Commonwealth v. Dew, 478 Mass. 304, 315 (2017)
("unequivocal positive identification" occurs if witness
"identifies the defendant as the perpetrator, such that the
statement of identification is clear and free from doubt").
Accordingly, we do not address the defendant's argument that the
Commonwealth failed to demonstrate "good reason" justifying an
in-court identification in the absence of a prior out-of-court
identification. See Crayton, 470 Mass. at 241. See also
Commonwealth v. Collins, 470 Mass. 255, 265 (2014) (requiring
good reason for in-court identification where out-of-court
identification was less than unequivocal).
b. Out-of-court identification. To the extent that the
defendant challenges the admissibility of the out-of-court
identification, he has not demonstrated that the identification
was so unnecessarily suggestive as to be inadmissible. Although
showup identifications "are generally disfavored as inherently
suggestive," they are not "presumptively impermissible." Dew,
478 Mass. at 306. " Police are permitted to conduct a showup
identification if there is a 'good reason' to secure the prompt
identification of a suspect." Id. at 307. "In determining
1 The defendant only argues that Melo's in-court identification was less credible, in part due to her failure to identify the defendant from his RMV photograph and the suggestiveness of the Facebook search.
4 whether the police procedures rendered the identification
unnecessarily suggestive," and simultaneously, whether the
police had the requisite "good reason," a judge must "examine
'the totality of the circumstances attending the
confrontation.'" Commonwealth v. German, 483 Mass. 553, 558-559
(2019), quoting Commonwealth v. Odware, 429 Mass. 231, 235
(1999). The analysis includes consideration of
"the nature of the crime involved and corresponding concerns for public safety; the need for efficient police investigation in the immediate aftermath of a crime; and the usefulness of prompt confirmation of the accuracy of investigatory information, which, if in error, will release the police quickly to follow another track."
Commonwealth v. Austin, 421 Mass. 357, 362 (1995). "'Good
reason' exists where some combination of the factors collected
[above] is present." Commonwealth v. Carlson, 92 Mass. App Ct.
710, 713 (2018). "Even where there is a good reason to conduct
a one-on-one identification procedure, the evidence must be
excluded [i]f there are special elements of unfairness . . . ."
(quotation and citation omitted). Dew, supra at 307. "It is
the defendant's burden to prove by a preponderance of the
evidence that the showup was 'so unnecessarily suggestive and
conducive to irreparable mistaken identification as to deny [the
defendant] due process of law.'" Commonwealth v. Martin, 447
Mass. 274, 279-280 (2006), quoting Odware, supra.
5 Our analysis of the defendant's argument is complicated by
his failure to develop a factual record about the Facebook
identification: he neither moved to suppress the evidence of
that identification, nor asked for a voir dire of Melo before
she identified the defendant in court, nor examined Melo about
what she saw when she used the defendant's name to search that
platform. Cf. Crayton, 470 Mass. at 233-234 (defendant moved
before trial to preclude in-court identification and requested
voir dire of identifying witnesses). We are not blind to the
risk that Melo's identification of the defendant on Facebook
could have been influenced by Melo's awareness that the search
was limited to the name on the pill bottle she found in the Kia
and by the appearance in the search results of the same company
logo as the one on the sweatshirt she found in the Kia.
However, on the limited record before us, we have no
particularized evidence -- much less any findings by the trial
court judge -- of how the Facebook search was conducted, the
scope of the search results, or the details about how Melo
recognized the defendant from the search results.
Nor can we say that the defendant carried his burden of
showing that Melo lacked "good reason," Dew, 478 Mass. at 306-
307, for the Facebook identification. Even if any immediate
concerns for public safety had abated once the defendant
abandoned the Kia and fled on foot, so far as the record
6 reveals, Melo's search was conducted shortly after she saw the
defendant speeding on the wrong side of the road and thus could
reasonably be viewed as part of an effort to rule "Darren Moran"
in or out as the Kia's driver. See Austin, 421 Mass. at 362.
Thus, because the defendant has not shown that Melo lacked good
reason for conducting the Facebook identification nor the
existence of "special elements of unfairness," Dew, supra at 307
(citation omitted), we cannot conclude that the out-of-court
identification was unnecessarily suggestive.
At bottom, the defendant has not persuaded us that the
judge erred in allowing Melo to identify the defendant in court,
or in admitting evidence of the out-of-court identification.
See Dew, 478 Mass. at 306-307, 315; Austin, 421 Mass. at 362.
Given our conclusion, we need not address whether any error
would have created a substantial risk of a miscarriage of
justice.
2. E.R.'s testimony. At trial, Lakeville police Officer
Weston Fazzino testified that on the afternoon of November 1,
2020, the defendant came into the police station with the Kia's
registered owner, E.R., to file a stolen vehicle report. As
relevant to our analysis, Fazzino testified that E.R. told him
who had been driving the Kia the night before, although he was
not permitted to repeat E.R.'s statement identifying the driver,
and that the defendant and E.R. left the police station without
7 filing a stolen motor vehicle report.2 After holding an in
camera hearing at which E.R. was represented by her own counsel,
the judge concluded that E.R. had a valid Fifth Amendment
privilege as to "some questions" she might be asked, but the
judge nonetheless permitted the prosecutor to call E.R. as a
witness and required E.R. to answer certain questions. See
Commonwealth v. Martin, 423 Mass. 496, 504-505 (1996). The
defendant objected to this procedure.
On appeal, the defendant argues that the judge erred in
requiring E.R. to answer certain questions because her answers
to those questions exposed her to the possibility of being
prosecuted under G. L. c. 269, § 13A, for making a false report
to the police, and G. L. c. 268, § 13B, for misleading
investigators. This argument is unavailing if for no other
reason than that there was no evidence to show that either E.R.
or the defendant actually reported the Kia stolen. General Laws
c. 269, § 13A, punishes one who "intentionally and knowingly
makes or causes to be made a false report of a crime to police
officers." See Commonwealth v. Gernrich, 476 Mass. 249, 252
(2017) ("The plain language of G. L. c. 269, § 13A, conveys a
2 Fazzino testified that he asked E.R. who was driving the car and based on her response to that question, determined that the defendant had been the driver. This determination was struck, however, after the defendant objected to it.
8 single statutory purpose: the prohibition of a false report of
a crime to 'police officers'"). As relevant here, G. L. c. 268,
§ 13B, punishes one who willfully misleads a police officer.
See Commonwealth v. Rateree, 495 Mass. 610, 626 (2025) (for
purposes of G. L. c. 268, § 13B, statutory violation requires
both "knowing or intentional conduct that is objectively
misleading" and "specific intent to 'impede, obstruct, delay,
harm, punish, or otherwise interfere thereby' with a criminal
investigation" [citation omitted]). Whatever E.R. or the
defendant intended to do when they went to the Lakeville police
station, Fazzino's uncontroverted testimony was that they left
the police station without filing a report, and nothing else in
the evidence at trial suggested that E.R. misled the police
about any fact or did anything intended to interfere with a
police investigation.
Because on this record there can be no doubt that the
answers E.R. gave at trial could not possibly tend to
incriminate her, see Commonwealth v. Borans, 388 Mass. 453, 456
(1983), the defendant has not demonstrated that the judge erred
by intruding on E.R.'s privilege against self-incrimination by
requiring her to provide the limited testimony she gave at
trial. Given our conclusion, we do not reach the question of
prejudice stemming from the judge's ruling on the scope of
9 E.R.'s Fifth Amendment privilege or the cumulative effect of the
errors the defendant argues in his brief.
Judgment affirmed.
By the Court (Henry, Hand & Allen, JJ.3),
Clerk
Entered: March 31, 2026.
3 The panelists are listed in order of seniority.