Commonwealth v. Jacquard

237 N.E.3d 1218

104 Mass.App.Ct. 351

COMMONWEALTH

v.Tyler JACQUARD.

No. 23-P-541

Appeals Court of Massachusetts, Essex.

Argued February 26, 2024

Decided June 28, 2024

Open and Gross Lewdness and Lascivious Behavior. Evidence, Photograph, Identification. Identification. Constitutional Law, Identification. Due Process of Law, Identification. Practice, Criminal, Motion to suppress.

Indictment found and returned in the Superior Court Department on August 26, 2020.

A pretrial motion to suppress evidence was heard by C. William Barrett, J., and the case was tried before Hélène Kazanjian, J.

Christopher DeMayo, for the defendant.

Kayla M. Burns, Assistant Distinct Attorney, for the Commonwealth.

Present: Vuono, Massing, & Toone, JJ.

MASSING, J.

₃₅₁In this appeal, we consider whether the police had good reason to use a single-photograph identification procedure in the immediate aftermath of a noncontact sex offense. A witness who happened to be parked beside the defendant’s car in a shopping₃₅₂ mall saw him expose his penis and masturbate. The witness used her cell phone to make a video recording, which captured, among other things, images of the defendant’s car and license plate. About one hour later, the police showed the witness the defendant’s driver’s license photograph, which they had obtained using the license plate number she had provided. She confirmed that the man in the photograph, the defendant, Tyler Jacquard, was the man she had seen. The defendant’s motion to suppress the identification was denied, and after a trial in the Superior Court in which the parties stipulated to the defendant’s identity, the jury found him guilty of open and gross lewdness in violation of G. L. c. 272, § 16. On appeal, the defendant claims that his motion to suppress was erroneously denied, and that the error requires reversal of his conviction and a new trial. We affirm.

Proceedings on motion to suppress. The defendant moved to suppress the identification of him from his driver’s license photograph as unnecessarily suggestive, violating his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights, as well as common-law principles of fairness. Two witnesses testified at the evidentiary hearing on the defendant’s motion: the principal witness, whom we will call Bridget, whose testimony the motion judge found to be "both credible and specific," and Lynnfield police Officer Marco DePalma, whose testimony the judge also found to be credible. We set forth the facts found by the judge, supplemented by undisputed record evidence consistent with the judge’s ultimate findings and conclusions. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431, 35 N.E.3d 357 (2015).

1. Facts. On a sunny afternoon in June 2020, Bridget was sitting in her sport utility vehicle (SUV), parked at an outdoor shopping mall in Lynnfield, waiting to pick up her lunch. A white Toyota sedan pulled into the space beside her on the left and its driver started masturbating. Three girls, between twelve and fourteen years old, were standing on the sidewalk "directly in front of’ him.¹ The man exposed and stroked his penis while looking at the girls, who appeared not to notice. Bridget, however, ₃₅₃had a clear view of the man from the vantage point of her SUV, and after watching for about fifteen seconds, she started recording a video with her cell phone as she got out of her vehicle and yelled at him to "get the fuck out of here." The twenty-two second video recording showed the license plate of the car, as well as images of the man’s profile and a tattoo on his arm, as he backed his car out of the parking space and drove away. Bridget called the police, told them what she had seen, and provided the license plate number she had recorded. She then picked up her lunch and left.

DePalma, who had recently joined the Lynnfield police after five years in the Melrose police department, was on patrol when he received a report of a man "inappropriately touching himself’ at the shopping mall. The report included a license plate number and the name of the owner of the vehicle associated with it -- the defendant. DePalma was familiar with the defendant because the defendant’s name had come up frequently at police department roll calls in the context of sex offenses when DePalma was working in Melrose. DePalma entered the license plate number in his cruiser’s mobile computer terminal, which displayed the defendant’s Registry of Motor Vehicles (RMV) driver’s license photograph. DePalma "immediately recognized" the person in the photograph and took a photograph of it using his cell phone.

DePalma and two other officers met with Bridget, who had promptly returned to the mall at the request of the police. She first provided a description of the man she had seen: "white sh[i]rt, blue shorts, medium build, dark curly hair, and a scruffy beard." DePalma then showed Bridget the defendant’s RMV photograph on his cell phone and asked, "Was this him?" Bridget said yes. Neither DePalma nor any of the other officers told Bridget anything about the photograph or the defendant before DePalma displayed the photograph to Bridget. However, after Bridget made the identification, DePalma and the other officers exchanged glances that led Bridget to believe that they knew who he was. Bridget did not tell the officers about her video recording.

DePalma actively continued the investigation because when "someone is looking at young girls, … it’s a heightened call and you want to try and find the guy." He drove around the shopping center looking for the defendant’s car. He contacted the shopping center’s security personnel to see if they had surveillance video footage, but he was told that they did not have a camera in the area where the defendant had been parked. He called the Melrose ₃₅₄Police and asked them to check if the defendant’s car was at his house. The Melrose police drove by the defendant’s residence that afternoon but did not see his car in the driveway. They did not stay and wait for him to return home.

The next day DePalma learned that Bridget, on her own initiative, had posted on social media information about the incident, including her video recording and information about the defendant that Bridget had obtained from the Sex Offender Registry Board’s publicly accessible website. Bridget suspected that a person who exposed himself in public might be listed as a sex offender, and she found the defendant’s information by doing a geographic search for sex offenders in the community.² DePalma contacted Bridget to get a copy of the video recording, which she provided.

2. Motion judge’s ruling. The motion judge denied the motion to suppress the identification. The judge found that there were "no special elements of unfairness" in the procedure. Bridget gave the police a detailed description of the defendant before the procedure, and the police did not give her any information about the defendant or say anything else to her before showing her the RMV photograph. Citing Commonwealth v. Austin, 421 Mass. 357, 657 N.E.2d 458 (1995), and Commonwealth v. Carlson, 92 Mass. App. Ct. 710, 93 N.E.3d 1198 (2018), the judge also found "good reason … for the police to use a one-on-one identification procedure." The crime was a sex offense committed in a public place in front of twelve to fourteen year old children, and the police had knowledge of the defendant’s prior sex offenses, warranting their concern for public safety. Confirming the defendant’s identification was also "an immediate concern" to enable the officers to pursue their investigation. Given that Bridget had provided the defendant’s license plate number, use of the single RMV photograph for "prompt confirmation of the accuracy of the investigation" was reasonable. Finally, the judge considered that the police did not follow the protocols established in Commonwealth v. Silva-Santiago, 453 Mass. 782, 797-798, 906 N.E.2d 299 (2009),³ but concluded that under the totality of the cir- cumstances, the procedure was not unnecessarily suggestive.

[1, 2] ₃₅₅Discussion. 1. Good reason for inherently suggestive procedure. "For constitutional purposes, a one-photograph identification is the equivalent of an inperson, one-on-one identification (often referred to as a ‘showup’)." Carlson, 92 Mass. App. Ct. at 712, 93 N.E.3d 1198. "Although disfavored as inherently suggestive, a showup identification conducted in the immediate aftermath of a crime is not necessarily impermissible." Commonwealth v. German, 483 Mass. 553, 557, 134 N.E.3d 542 (2019).

[3–5] To succeed on a motion to suppress a one-photograph identification, "the defendant must prove by a preponderance of the evidence that the police procedure was ‘so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny [the defendant] due process of law.’ " Carlson, 92 Mass. App. Ct. at 712, 93 N.E.3d 1198, quoting Commonwealth v. Dew, 478 Mass. 304, 306-307, 85 N.E.3d 22 (2017). The defendant may prevail by showing, as the defendant contends here, "that the police did not have a good reason to conduct this type of disfavored, inherently suggestive, one-on-one identification procedure." German, 483 Mass. at 558, 134 N.E.3d 542.⁴

[6–10] Whether good reason exists depends on at least three interrelated factors: "[1] the nature of the crime involved and corresponding concerns for public safety; [2] the need for efficient police investigation in the immediate aftermath of a crime; and [3] the usefulness of prompt confirmation of the accuracy of investigatory information, which, if in error, will release the police quickly to follow another track." Austin, 421 Mass. at 362, 657 N.E.2d 458. See Mass. G. Evid. § 1112(b)(1)(A) (2024). " ‘Good reason’ exists where some combination of the factors collected in Austin is present." Carlson, 92 Mass. App. Ct. at 713, 93 N.E.3d 1198. The totality...