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
25-P-552
COMMONWEALTH
vs.
KRISTINA BLACKMORE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury found the defendant guilty of motor
vehicle homicide by negligent operation and leaving the scene of
a collision after causing injury resulting in death. The
defendant claims she is entitled to a new trial because her
motion to suppress evidence found inside the truck and her
motion to suppress identification should have been allowed. We
affirm.
Background. We accept the judge's subsidiary findings of
fact absent clear error, otherwise relying on his determination
of the weight and credibility given to the testimony. See
Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990), and cases
cited. "[W]e give substantial deference to the judge's ultimate findings and conclusions of law, 'but independently review[] the
correctness of the judge's application of constitutional
principles to the facts found.'" Commonwealth v. Eckert, 431
Mass. 591, 593 (2000), quoting Commonwealth v. Magee, 423 Mass.
381, 384 (1996).
For purposes of the defendant's challenge to the order
denying her motion to suppress, we recite the facts as found by
the motion judge, "supplemented by additional undisputed facts
where they do not detract from the judge's ultimate findings."
Commonwealth v. Kaplan, 97 Mass. App. Ct. 540, 541 n.3 (2020),
quoting Commonwealth v. Jessup, 471 Mass. 121, 127-128 (2015).
On June 9, 2019, the victim was struck and killed on
Washington Street in Duxbury when she was hit by a black pickup
truck. After hitting her, the driver of the truck continued
driving without stopping.
Prior to the incident, a driver (identifying witness)
entered the intersection of Bay Road and Washington Street.
When the identifying witness stopped at the stop sign and began
to proceed into the intersection, a black pickup truck entered
the intersection rapidly from his left, almost hitting his car.
The truck continued on Washington Street and then entered the
parking lot of a gasoline station. The identifying witness
followed the truck into the parking lot and pulled beside it to
admonish the driver. He walked to within ten feet of the truck
2 and saw that the driver was a white female, approximately 30 to
50 years old, with dark hair that was either short or medium
length or being worn up. Seeing that the driver was female, he
decided not to confront her and got back into his vehicle and
drove away.
At the scene of the fatal collision, police located broken
pieces of a right front headlight that came from a Dodge Ram
pickup truck. Police also learned from another witness that a
pickup truck with a female driver had passed that witness on
Washington Street on the wrong side of the road while traveling
at a high rate of speed shortly before the accident.
A day after the incident, the identifying witness informed
the Duxbury police that he had seen reference to the truck in a
Duxbury police news bulletin, and he believed he had seen the
truck in the area where the accident had occurred.
A police officer recalled that, the year prior to the hit
and run, the defendant had been charged with leaving the scene
of and accident with property damage while she had been driving
a black Dodge Ram pickup truck. Based on this information,
police went to the home of the defendant and there they saw a
black Dodge Ram pickup truck parked nose in on the driveway
approximately fifty feet from the street. At the time the
police arrived, the defendant and her mother were standing in
the driveway beyond the truck. While walking past the passenger
3 side of the truck, a Massachusetts State police trooper saw
damage to the front right headlight, hood, grille, and bumper of
the pickup truck.
The defendant asked the officers if they were there because
of the accident on Washington Street. The police acknowledged
that they were, and when one of the officers looked at the
damage to the truck, the defendant said she had damaged the
truck the previous evening when she collided with a boat trailer
in her driveway. The officer also noticed red-brown stains near
the hood of the truck.
Other officers arrived at the home, and one of the cruisers
parked behind the truck, blocking it in the driveway. After
speaking to the witnesses, the police told the defendant that
they intended to seize the truck and have it towed to the
Duxbury police station. The owner of the truck, who was the
defendant's partner, initially protested but eventually agreed
and provided the keys to the truck to the police.
The police did not search the interior of the truck or any
item in the truck until they obtained a search warrant. The
defendant was allowed to enter the truck and remove a child's
car seat. The truck was taken to the police station, and after
the warrant was issued, it was searched. This search of the
vehicle uncovered the defendant's wallet, containing her license
and debit card, remnants of a McDonald's meal in the back seat,
4 and receipts from McDonald's and the gasoline station dated June
9, 2019, and time stamped minutes before the hit and run.
After arresting the defendant, Duxbury police sent out
another news bulletin announcing that they had recovered the
truck they had been seeking and that the defendant had been
arrested. The bulletin included a picture of the defendant.
The identifying witness's daughter sent him this picture on his
cell phone. He immediately recognized the woman in the picture
as the same person he had seen driving the truck on June 9. He
never told police he had seen the photograph. He also never
told the police he had followed the truck into a parking lot.
Prior to testifying before the grand jury, the identifying
witness was shown a photographic array, and he chose the
defendant's picture as the person he saw on June 9.
The defendant's motions to suppress evidence of the wallet
and receipts and the identifying witness's identification were
denied.
Discussion. 1. Seizure of the wallet and papers from the
truck. The defendant argues that the police unlawfully seized
her wallet which was found inside the truck in the driveway. We
do not agree.1
1 The defendant does not challenge the police entry onto the property. Nor does she challenge the issuance of the warrant to search the truck or the search pursuant to it.
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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
25-P-552
COMMONWEALTH
vs.
KRISTINA BLACKMORE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury found the defendant guilty of motor
vehicle homicide by negligent operation and leaving the scene of
a collision after causing injury resulting in death. The
defendant claims she is entitled to a new trial because her
motion to suppress evidence found inside the truck and her
motion to suppress identification should have been allowed. We
affirm.
Background. We accept the judge's subsidiary findings of
fact absent clear error, otherwise relying on his determination
of the weight and credibility given to the testimony. See
Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990), and cases
cited. "[W]e give substantial deference to the judge's ultimate findings and conclusions of law, 'but independently review[] the
correctness of the judge's application of constitutional
principles to the facts found.'" Commonwealth v. Eckert, 431
Mass. 591, 593 (2000), quoting Commonwealth v. Magee, 423 Mass.
381, 384 (1996).
For purposes of the defendant's challenge to the order
denying her motion to suppress, we recite the facts as found by
the motion judge, "supplemented by additional undisputed facts
where they do not detract from the judge's ultimate findings."
Commonwealth v. Kaplan, 97 Mass. App. Ct. 540, 541 n.3 (2020),
quoting Commonwealth v. Jessup, 471 Mass. 121, 127-128 (2015).
On June 9, 2019, the victim was struck and killed on
Washington Street in Duxbury when she was hit by a black pickup
truck. After hitting her, the driver of the truck continued
driving without stopping.
Prior to the incident, a driver (identifying witness)
entered the intersection of Bay Road and Washington Street.
When the identifying witness stopped at the stop sign and began
to proceed into the intersection, a black pickup truck entered
the intersection rapidly from his left, almost hitting his car.
The truck continued on Washington Street and then entered the
parking lot of a gasoline station. The identifying witness
followed the truck into the parking lot and pulled beside it to
admonish the driver. He walked to within ten feet of the truck
2 and saw that the driver was a white female, approximately 30 to
50 years old, with dark hair that was either short or medium
length or being worn up. Seeing that the driver was female, he
decided not to confront her and got back into his vehicle and
drove away.
At the scene of the fatal collision, police located broken
pieces of a right front headlight that came from a Dodge Ram
pickup truck. Police also learned from another witness that a
pickup truck with a female driver had passed that witness on
Washington Street on the wrong side of the road while traveling
at a high rate of speed shortly before the accident.
A day after the incident, the identifying witness informed
the Duxbury police that he had seen reference to the truck in a
Duxbury police news bulletin, and he believed he had seen the
truck in the area where the accident had occurred.
A police officer recalled that, the year prior to the hit
and run, the defendant had been charged with leaving the scene
of and accident with property damage while she had been driving
a black Dodge Ram pickup truck. Based on this information,
police went to the home of the defendant and there they saw a
black Dodge Ram pickup truck parked nose in on the driveway
approximately fifty feet from the street. At the time the
police arrived, the defendant and her mother were standing in
the driveway beyond the truck. While walking past the passenger
3 side of the truck, a Massachusetts State police trooper saw
damage to the front right headlight, hood, grille, and bumper of
the pickup truck.
The defendant asked the officers if they were there because
of the accident on Washington Street. The police acknowledged
that they were, and when one of the officers looked at the
damage to the truck, the defendant said she had damaged the
truck the previous evening when she collided with a boat trailer
in her driveway. The officer also noticed red-brown stains near
the hood of the truck.
Other officers arrived at the home, and one of the cruisers
parked behind the truck, blocking it in the driveway. After
speaking to the witnesses, the police told the defendant that
they intended to seize the truck and have it towed to the
Duxbury police station. The owner of the truck, who was the
defendant's partner, initially protested but eventually agreed
and provided the keys to the truck to the police.
The police did not search the interior of the truck or any
item in the truck until they obtained a search warrant. The
defendant was allowed to enter the truck and remove a child's
car seat. The truck was taken to the police station, and after
the warrant was issued, it was searched. This search of the
vehicle uncovered the defendant's wallet, containing her license
and debit card, remnants of a McDonald's meal in the back seat,
4 and receipts from McDonald's and the gasoline station dated June
9, 2019, and time stamped minutes before the hit and run.
After arresting the defendant, Duxbury police sent out
another news bulletin announcing that they had recovered the
truck they had been seeking and that the defendant had been
arrested. The bulletin included a picture of the defendant.
The identifying witness's daughter sent him this picture on his
cell phone. He immediately recognized the woman in the picture
as the same person he had seen driving the truck on June 9. He
never told police he had seen the photograph. He also never
told the police he had followed the truck into a parking lot.
Prior to testifying before the grand jury, the identifying
witness was shown a photographic array, and he chose the
defendant's picture as the person he saw on June 9.
The defendant's motions to suppress evidence of the wallet
and receipts and the identifying witness's identification were
denied.
Discussion. 1. Seizure of the wallet and papers from the
truck. The defendant argues that the police unlawfully seized
her wallet which was found inside the truck in the driveway. We
do not agree.1
1 The defendant does not challenge the police entry onto the property. Nor does she challenge the issuance of the warrant to search the truck or the search pursuant to it.
5 The judge correctly concluded that the information the
police had at the time they encountered the truck provided
probable cause to seize the defendant's truck. See Commonwealth
v. Donahue, 430 Mass. 710, 711-712 (2000), quoting Commonwealth
v. Cinelli, 389 Mass. 197, 213 (1983), cert. denied, 464 U.S.
860 (1983) ("[T]he nexus between the items to be seized and the
place to be searched need not be based on direct observation
. . . [but] . . . may be found in 'the type of crime, the nature
of the missing items, the extent of the suspect's opportunity
for concealment, and normal inferences as to where a criminal
would be likely to hide [evidence of the crime]'").
The police acted properly in seizing the truck to avoid any
loss or destruction of evidence while they obtained the search
warrant. "With probable cause, the police may seize property
'to prevent destruction or removal of evidence during the
relatively short period of time needed . . . to obtain a search
warrant.'" Commonwealth v. Gentile, 437 Mass. 569, 573 (2002),
quoting Commonwealth v. Taylor, 426 Mass. 189, 195 (1997). Had
the police left the truck at the defendant's home, there was a
risk that the defendant or another person could have destroyed
the evidence contained within it. "The situation at the time of
detention is analogous to the securing of a place to be searched
to prevent destruction or removal of evidence during the
6 relatively short period of time needed by the police to obtain a
search warrant." Taylor, 426 Mass. at 195.
Before towing the truck to the police station, there was no
necessity for the police to "search" the truck and give the
wallet to the defendant. Once police lawfully seize a vehicle
based on probable cause, they may assert full control over that
vehicle and its contents in order to effectuate an investigative
search pursuant to a search warrant. See Commonwealth v.
Habarek, 402 Mass. 105, 109 (1988) (police do not have to
conduct "immediate inventory search" of seized car suspected of
involvement in shooting; "the better policy is to obtain a
warrant, when it is practical to do so, even where grounds exist
for a warrantless search"); Commonwealth v. Holness, 93 Mass.
App. Ct. 368, 372-374 (2018) (police properly denied defendant
access to vehicle to retrieve cell phone after they seized
vehicle pursuant to probable cause to believe it was involved in
shooting).
Here, there was no illegal seizure of the defendant's
wallet or the papers found in the truck2 because their temporary
detention by the police occurred while the police diligently
pursued a search warrant based on probable cause to search the
2 There was no evidence at the motion to suppress hearing to support the defendant's contention that the receipts were in the defendant's wallet.
7 truck. See Illinois v. McArthur, 531 U.S. 326, 334 (2001) ("We
have found no case in which this Court has held unlawful a
temporary seizure that was supported by probable cause and was
designed to prevent the loss of evidence while the police
diligently obtained a warrant in a reasonable period of time").
The motion to suppress the wallet and contents of the truck
was properly denied.
2. Identification evidence. Prior to trial, the defendant
filed a motion to suppress the identifying witness's pretrial
identification of her from the photographic array, which the
motion judge denied following an evidentiary hearing. The
defendant then objected at trial when the Commonwealth requested
that the identifying witness make an in-court identification.
The trial judge allowed the in-court identification. On appeal,
the defendant challenges both the motion judge's denial of her
motion to suppress the pretrial identifications and the trial
judge's allowance of the in-court identifications. We address
these in turn.
a. Pretrial identifications. "Out-of-court
identifications made without police wrongdoing are analyzed
under common law principles of fairness." Commonwealth v.
McCray, 93 Mass. App. Ct. 835, 841 (2018). "The defendant bears
the burden of proving suggestiveness by a preponderance of the
evidence." Id. If the defendant meets this burden, the judge
8 is "required to examine the probative value of the
identification testimony in light of 'the strength of its source
independent of the suggestive circumstances of the
identification.'" Commonwealth v. Dew, 478 Mass. 304, 316
(2017), quoting Commonwealth v. Carter, 475 Mass. 512, 518-519
(2016).
The defendant claims that the evidence regarding the
identifying witness picking the defendant's picture out of a
photographic array and his subsequent trial identification
should have been suppressed because the identification was
tainted by the police manipulation of social media. We
disagree.
Pretrial identifications relying on showups, lineups, and
photographic array identifications are somewhat suggestive by
their very nature. See, e.g., Commonwealth v. Austin, 421 Mass.
357, 361 (1995); Commonwealth v. Hill, 64 Mass. App. Ct. 131,
133 (2005). The question is whether the procedure was unduly
suggestive. See Commonwealth v. Santos, 402 Mass. 775, 781-782
(1988). "[(A)] photographic identification procedure is
constitutionally invalid if the procedure was 'so impermissibly
suggestive as to give rise to a very substantial likelihood of
irreparable misidentification.'" Commonwealth v. Alicea, 464
Mass. 837, 847-848 (2013), quoting Commonwealth v. Holland, 410
Mass. 248, 253 (1991). The burden is on the defendant to show,
9 by a preponderance of the evidence, that the identification was
so unnecessarily suggestive as to deny the defendant due
process. See Holland, supra.
There is nothing in the record to suggest that the police
deliberately tried to taint the identifying witness's
identification. "An accidental confrontation, when the police
make no attempt to elicit an improper identification, is
permissible." Commonwealth v. Otsuki, 411 Mass. 218, 234
(1991). The motion judge found that the police posted the
picture of the defendant on social media to keep the public
"apprised of the progress of that investigation." In that
context, this "simple exposure to the media is not sufficient
ground to suppress an identification." Commonwealth v. Colon-
Cruz, 408 Mass. 533, 542 (1990).
We acknowledge that "in some circumstances[,] an
identification that has been tainted, but not by the government,
may become so unreliable that its introduction in[] evidence is
unfair" (citation omitted) and that a judge may, in his
discretion, "exclude severely unreliable identification
testimony," similar to his authority to exclude evidence more
unfairly prejudicial than probative. Commonwealth v. Alcide,
472 Mass. 150, 166 (2015), and cases cited; Mass. G. Evid. § 403
(2026).
10 Here, the identifying witness saw the front and side of the
defendant's face from within about ten feet away after getting
out of his car to confront her. He then immediately recognized
the defendant from the picture his daughter sent him days later
and then again when he identified her in the photographic array.
We conclude that the motion judge properly exercised his
discretion in admitting the identification as reliable based on
the identifying witness's original viewing of the defendant at
the gasoline station. The witness had a good opportunity to see
the defendant from close range, in circumstances where he had
reason to remember her appearance. Contrast Commonwealth v.
Jones, 423 Mass. 99, 104 (1996) (witness's "attention was not
directed to [the defendant] in any focus[ed] or meaningful
fashion"). Nothing about the evidence of his intervening
exposure to the defendant's photograph in the bulletin was so
unduly suggestive as to taint his subsequent identification of
her in the photographic array.
b. In-court identification. Because the defendant
objected to the in-court identification, we review for
prejudicial error. See Dew, 478 Mass. at 305. "Even if
otherwise admissible, a judge may suppress identification
evidence if 'its probative value is substantially outweighed by
the danger of unfair prejudice.'" Id. at 315, quoting Carter,
475 Mass. at 518. "[T]he law has long been settled that an in-
11 court identification is excluded if it is tainted by an out-of-
court confrontation arranged by the Commonwealth that is so
impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification" (quotations and
citation omitted). Alcide, 472 Mass. at 165.
As mentioned supra, the identifying witness's
identification was based on a close encounter with the defendant
in the gasoline station parking lot. There was no equivocation
in the witness's certainty of recognizing the defendant as the
driver he saw at the gasoline station. We are satisfied that
the judge's decision to admit the witness's identification of
the defendant at trial did not "fall[] outside the range of
reasonable alternatives" and thus was not an abuse of his
discretion. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014).
Judgments affirmed.
By the Court (Massing, Singh & Grant, JJ.3),
Clerk
Entered: July 14, 2026.
3 The panelists are listed in order of seniority.