Commonwealth v. Pearson

87 Mass.App.Ct. 720

34 N.E.3d 1257

COMMONWEALTH

v.Peter PEARSON.

No. 13–P–1649.

Appeals Court of Massachusetts, Plymouth.

Argued Nov. 3, 2014.

Decided Aug. 4, 2015.

R. Bradford Bailey, Boston, for the defendant.

Mary E. Lee, Assistant District Attorney, for the Commonwealth.

Present: GREEN, WOLOHOJIAN, & BLAKE, JJ.

Opinion

GREEN, J.

On appeal from his convictions of five counts of aggravated rape, and related charges,¹ the defendant claims error in (i) the denial of his motion to suppress out-of-court identifications made by one of his victims in a one-on-one showup, and by his other victims from photographic arrays; (ii) the denial of his motion to suppress evidence seized during a search of the trunk of his car; (iii) the admission of testimony regarding a first complaint made by one of his victims; and (iv) the denial of his motion to sever the various charges for trial. We affirm.

Background. We summarize the findings of fact made by the motion judge in his thorough written memorandum of decision on the defendant's motions to suppress.² On July 1, 2008, Brockton police arrested Stephanie Smith³ for being a common night walker. See G.L.c.272, § 53 ; Thomes v. Commonwealth, 355 Mass. 203, 207, 243 N.E.2d 821 (1969). The following day, Smith reported to Officer Amaral of the Brockton police department that she had been raped by a State Trooper. Later, in a statement she gave to Brockton police Detective Erin Cummings, she elaborated that about one week earlier she had gotten into a small silver four-door vehicle in the area of Haverhill Street, driven by a man who took her to D.W. Field Park and forced her at gunpoint to perform oral sex on him. The man (whom she described as approximately five feet, four inches tall, with bright blue eyes and grayish hair) told her he was a State Trooper, showed her a badge, and had a hand-held radio with an earpiece. The man also told Smith that he would be watching her.

On August 18, 2008, Brockton police Officer Michael Scanlon was on patrol in the area of North Main Street and Spring Street when he was flagged down by Smith's boyfriend, to whom we shall refer as Ronald. Ronald told Scanlon that his girlfriend previously had been raped at gunpoint, and had just seen the rapist

driving a gray Oldsmobile automobile; Ronald gave Scanlon the license plate number from the Oldsmobile. Scanlon ran the license plate number through his on-board computer and learned that the plate was registered to a gray Oldsmobile owned by the defendant. The registry of motor vehicles record Scanlon viewed also included a photograph of the defendant.

While Scanlon was running the license plate, the defendant drove past Scanlon's cruiser in the gray Oldsmobile, traveling in the opposite direction along North Main Street. Scanlon pursued the vehicle in his cruiser and pulled it over. Scanlon ordered the defendant out of the car, pat frisked him, and placed him in handcuffs. Scanlon thereafter called for back-up, and two plainclothes officers arrived in an unmarked car. Scanlon advised them that he had administered Miranda warnings to the defendant, and then left the defendant in the custody of the two officers while he went to retrieve Ronald and Smith. Shortly thereafter, the two plainclothes officers were joined by a uniformed officer, Richard Gaucher.

Gaucher asked the defendant if he had a gun, and the defendant responded “no.” The defendant then gestured and said the officers could “search his car if [they]'d like, including the trunk.” One of the officers looked in the trunk, where he found a new firearm trigger lock, still in its original packaging. Inside the passenger compartment, in a pocket on the back of the front passenger seat, Gaucher found a hand-held radio with the letters “BFD” on it, a wallet holding the defendant's Boston fire department identification card and badge, a mobile telephone, a five-dollar bill, and a brown wallet.

Scanlon radioed that he was returning with Smith for a showup identification. The officers holding the defendant uncuffed him and directed him to stand in front of a building directly across the street; the officers stood about ten to fifteen feet away, to the defendant's left and right. After reading instructions to Smith from a card,⁴ Scanlon drove her to the location where the defendant

was waiting with the other officers. Scanlon stopped his cruiser in a position facing the defendant, at a distance of about thirty feet. As he began again to give instructions to Smith, she blurted out, “that's him,” and identified the defendant as the man who had raped her. She told Scanlon that she was “one hundred percent sure.” She also identified the gray Oldsmobile as the vehicle the defendant was driving when he picked her up.

Following the defendant's arrest, after seeing televised news coverage including a photograph of the defendant, four other women (each of whom had been soliciting sexual activity for a fee at the time of their assaults) reported that the defendant had raped them. Each of these victims thereafter selected the defendant's photograph from a photographic array presented to them by the police.⁵

Discussion. 1. Showup identification. One-on-one showup identifications “are disfavored because they are viewed as inherently suggestive.” Commonwealth v. Austin, 421 Mass. 357, 361, 657 N.E.2d 458 (1995). See Commonwealth v. Johnson, 420 Mass. 458, 461, 650 N.E.2d 1257 (1995) ; Commonwealth v. Martin, 447 Mass. 274, 279, 850 N.E.2d 555 (2006). See generally Mass. G. Evid. § 1112(c) (2014). “Nonetheless, a one-on-one pretrial identification raises no due process concerns unless it is determined to be unnecessarily suggestive.” Commonwealth v. Austin, supra. Such an identification is permissible if good reason to support it exists in the circumstances in which it occurs. Ibid. “Relevant to the good reason examination are 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.” Id. at 362, 657 N.E.2d 458. “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 [him] due process of law.’ ” Commonwealth v. Martin, supra at 279–280, 850 N.E.2d 555, quoting from Commonwealth v. Odware, 429 Mass. 231, 235, 707 N.E.2d 347 (1999).

As the defendant observes, the showup procedure employed in the present case did not occur in the immediate aftermath of the crime; instead fifty-three days had elapsed between the rape and the showup identification. However, in that respect the circumstances of the present case are similar to those in Commonwealth v. Walker, 421 Mass. 90, 95, 653 N.E.2d 1080 (1995). In Walker, the victim of a robbery (a worker at a Dunkin' Donuts store) saw the defendant sixteen days after the robbery, in a different Dunkin' Donuts store at which she was working, and called police to report that she had just seen the man who previously had robbed her. Id. at 92–93, 653 N.E.2d 1080. Shortly thereafter, based on the description furnished by the victim to officers responding to the call, police apprehended the defendant and brought him back to the Dunkin' Donuts store, where the victim identified him in a one-on-one showup. Id. at 93, 653 N.E.2d 1080. In affirming the denial of the defendant's motion to suppress, the court observed that “ ‘[t]he confrontation took place ... within minutes of [the victim's] chance observation of the robber, while his appearance, on that occasion, at least, was still fresh in her mind and the procedure used, unlike a line-up, could have resulted in the defendant's immediate release. Moreover, the robbery was still fairly recent; [the victim] had had an excellent opportunity to observe the robber; and she had provided a detailed identification, which the defendant fit.’ We believe the policy reasons favoring a showup procedure in the wake of a crime mirror those favoring a quick identification of a recently spotted, at-large suspect.” Id. at 95, 653 N.E.2d 1080, quoting from the unpublished memorandum and order of the Appeals Court issued pursuant to rule 1:28 in the same case, 37 Mass.App.Ct. 1116, 641 N.E.2d 1365 (1994).⁶

The defendant in the present case makes much of the fact that the time elapsed between the crimes and subsequent identification was fifty-three days, rather than the sixteen days elapsed in Walker. As the foregoing discussion from Walker makes plain, however, it is the short time elapsed between the victim's report of a later chance encounter with the defendant and the showup identification that carries the greatest weight in assessing the

reasonableness of the procedure. It is important to note that in both Walker and the present case the encounter giving rise to the report, leading in turn to the apprehension and showup procedure, occurred spontaneously, and that the victim identified the defendant as her assailant out of the world at large; nothing about the circumstances in which the victim spontaneously recognized the defendant, and thereafter (with Ronald's assistance) reported her observation to police, was shown to be suggestive. In addition, the victim observed her assailant at close range and for an extended period at the time of the assault. Though the time elapsed between the crimes and the chance encounter was longer in the present case than in Walker, it was not so long as to cause undue concern over the victim's ability to recognize her rapist upon encountering him unexpectedly on the street.⁷ There was no error in the denial of the defendant's motion to suppress Smith's identification of him in the one-on-one showup procedure.

2. Photographic array identifications. As observed in the introduction,...