Commonwealth v. Ploude

101 Mass.App.Ct. 845

198 N.E.3d 1271

COMMONWEALTH

v.Kevin PLOUDE.

No. 20-P-1310

Appeals Court of Massachusetts, Bristol.

Argued February 18, 2022

Decided November 10, 2022

Nicholas Athanassiou, Committee for Public Counsel Services, for the defendant.

Daniel J. Walsh, Assistant District Attorney, for the Commonwealth.

Present: Rubin, Wolohojian, & Blake, JJ.

WOLOHOJIAN, J.

Frank Tavares saw a man he did not know break into his work truck. Tavares observed (among other things) that the man (who was shirtless) had several tattoos "all over his body," including on his back, shoulder, and neck. The police came to believe that the defendant might be the unknown man Tavares observed, and compiled a photographic array (photo array) consisting of eight photographs, including one of the defendant. Of the eight men in the photographs, only the defendant was shown with tattoos, which appeared on both sides of his neck. Tavares identified the defendant as the person who broke into his truck. What is before us in this interlocutory appeal is whether the defendant's motion to suppress Tavares's identification of the defendant from the photo array (as well as any future in-court identification Tavares might make) was properly denied.¹ We reverse the order denying the defendant's motion to suppress and remand the case for further proceedings.

Background.² While inside Lou's Bakery in Fall River, Tavares saw an unknown white man break into his work truck, which was parked right outside the door of the bakery. Tavares immediately left the bakery and confronted the man, who was hunched over the passenger's seat of the truck. Tavares grabbed the man and asked what he was doing. The man responded by saying that he thought it was his friend's truck, that he was "whacked out," and that he had taken a "bunch of pills" that morning. Tavares saw that the man was carrying a medium-sized bag with various items inside. A bystander observing the confrontation asked Tavares whether she should call the police. When Tavares answered affirmatively, the man reached into the bag, pulled out a box cutter, and threatened to stab Tavares. In order to avoid escalating the situation, Tavares let the man go.

When a police officer from the Fall River police department (department) arrived, Tavares described the unknown assailant as a light-skinned or white man, approximately five feet, five inches tall, weighing between 140 and 160 pounds, with black hair, scruffy facial hair, a skinny build, and several tattoos all over his arms and body, including on his neck. Tavares said that the man wore black sweatpants, black sneakers, and white shorts or underwear, and that he carried a black shirt in his right hand.

The man left behind the bag he had been carrying. It contained many random items, leading the officer to believe that the items had been stolen earlier. Among the items in the bag was a cell phone, which the officer was able to unlock using a random swiping gesture on the phone's lock screen. The phone contained several "selfie" photographs of a man matching the description provided by Tavares. After obtaining a search warrant later that same day, the police extracted information from the cell phone showing that it belonged to the defendant. A search of the department's internal database revealed the defendant's address and what appeared to be the same selfie photograph the officer had seen on the phone. The officer then called Tavares and said that the police thought they knew who the perpetrator was, based on the cell phone that had been left at the scene, and the officer asked Tavares to come to the station to look at a photo array.

The officer assembled an array of eight photographs: the defendant, and seven "fillers." The filler photographs were generated by entering the following search criteria into the department's computer system: unshaven white male, with medium body build, age between twenty-two and thirty, with a light complexion, weighing between 140 and 170 pounds, and having a height of between five feet, five inches, and five feet, nine inches. The search produced eleven photographs, from which the officer picked seven based on whether they matched the description Tavares had given him of the suspect.³

The defendant's photograph showed him with tattoos on both sides of his neck, with the one on the left side being more visible. That tattoo showed a filigree type pattern. The tattoo on the other side was not as large or visible, and its pattern could not be discerned. None of the men shown in the filler photographs had visible tattoos. Although Tavares had described the unknown man as having facial hair, the photograph of the defendant in the array showed him without facial hair. All of the men in the filler photographs had facial hair to some degree.

The officer knew that the department had a policy stating that if a suspect has a distinctive feature, the photographs in the array should be adjusted so that none stands out. Thus, for example, the distinctive feature could be added to each photograph or it could be concealed (with all photographs showing a similar redaction mark). The officer knew that Tavares had described the suspect as having neck tattoos, that the defendant's photograph showed neck tattoos, and that none of the filler photographs showed tattoos. The officer had concerns about this, and so he printed the photographs in black and white to try to "neutralize" the tattoos. Although the officer had the ability either to add similar tattoos to the filler photographs, or to conceal the tattoos on the defendant's photograph, the officer chose to do neither.

The photo array was conducted by a "blind" presenter, i.e., someone with no familiarity with the case. Before being shown the array, Tavares was read the department's standard "photo and live lineups witness preparation form," which included the following warnings and instructions:

"1. In a moment I am going to show you a group of photographs and/or individuals.

"2. This group of photographs ... may or may not contain a picture of the person who committed the crime now being investigated.

"3. Regardless of whether you make identification, the Fall River Police will continue to investigate the incident.

"4. It is just as important to clear innocent persons from suspicion, as it is to identify the guilty parties.

"5. Keep in mind that individuals may easily change hairstyles, beards and moustaches.

"6. Also, photographs may not always depict the true complexion of a person. The complexion may be lighter or darker than actually shown in the photograph.

"7. Photographs are in a random order. I will show you each photograph sequentially (i.e., one at a time).

"8. View all photos ... and take as much time on each as needed.

"9. If you recognize anyone as you look at the photographs ..., please tell me which photograph ... you recognize and how you recognize the individual.

"10. Please indicate in your own words how certain you are of the identification."

Tavares positively identified the defendant from the photo array, stating, "That's him! That's the guy!" Tavares gave no confidence level for the identification, nor did he say on which aspect(s) of the defendant's features he based his identification.

The defendant was arrested and photographed the following day.⁴ The defendant's booking photograph shows that his appearance on the day of the crime differed in some respects from his appearance in the array photograph. Specifically, the booking photograph shows the defendant with obvious facial hair, and with a highly visible large tattoo of an animal's face on the front of his throat.

The defendant moved to suppress Tavares's identification of him from the photo array on the ground that the process was "so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny him due process of law," in violation of the Fifth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. He also argued that Tavares's identification was unreliable and accordingly inadmissible under Massachusetts common-law fairness principles. Finally, he argued that any subsequent identification had no independent source apart from the tainted photographic array procedure and therefore should be suppressed. In response, the Commonwealth argued that the photographs were sufficiently similar that the array was not unnecessarily suggestive.

After an evidentiary hearing at which the Commonwealth presented the testimony only of the responding officer (who had constructed, but not administered, the array), the judge concluded that despite differences among the photographs in the array, the photographs were sufficiently similar that the procedure was not "so unnecessarily suggestive and conducive to irreparable misidentification as to deny the defendant due process of law" (quotation and citation omitted). Commonwealth v. Arzola, 470 Mass. 809, 813, 26 N.E.3d 185 (2015), cert. denied, 577 U.S. 1061, 136 S.Ct. 792, 193 L.Ed.2d 709 (2016). The judge pointed to the fact that the array was compiled by searching an in-house database based on criteria provided by Tavares of the suspect. The judge considered differences in build and height among the men depicted in the array to be slight. The judge found that the "defendant's tattoos are slightly visible, [and that] the black and white rendering minimized their visibility." The judge also noted that "the defendant's most prominent, front-facing neck tattoo was not in the photo." Although the judge determined that the officer's statement to Tavares that the police had identified a suspect because of the phone he had left behind was "better left unsaid," the judge concluded that the prearray advisement Tavares received from the blind presenter that the suspect "may or may not be in the array" decreased any suggestive impact. The judge accordingly concluded that the defendant had not shown that the...