Commonwealth v. Travis

180 N.E.3d 1023

COMMONWEALTH

v.Anthony TRAVIS.

No. 20-P-1020

Appeals Court of Massachusetts, Suffolk.

Argued September 9, 2021.

Decided January 14, 2022.

Darcy A. Jordan, Assistant District Attorney, for the Commonwealth.

Patrick Levin, Committee for Public Counsel Services, for the defendant.

Present: Vuono, Blake, & Englander, JJ.

VUONO, J.

A Suffolk County grand jury returned indictments charging the defendant with various offenses in connection with an armed assault and carjacking.¹ The victims were two women, both of whom identified the defendant as the assailant during separate one-on-one "showup" identification procedures. As we discuss in more detail below, the defendant was apprehended after he crashed into a telephone pole while driving the car that he allegedly stole from the victims at gunpoint. The showup was conducted at the scene of the accident in view of the damaged car while the defendant was receiving medical treatment. The defendant filed a motion to suppress the identifications, claiming that the identification procedures were unnecessarily suggestive. Following an evidentiary hearing, the motion was allowed by a judge of the Superior Court. The Commonwealth then sought leave to appeal the judge's decision. A single justice of the Supreme Judicial Court allowed the application for interlocutory appeal and transferred the case to this court. We conclude that although the identification procedures had elements of suggestiveness, they were not so unnecessarily or impermissibly suggestive such that their admission at trial would deprive the defendant of his right to due process. We therefore reverse the order allowing the motion to suppress.

Background. We recite the relevant facts found by the motion judge with some additions from the testimony presented at the hearing on the defendant's motion to suppress. In the early afternoon of October 23, 2018, Brenda Marquez and Nilza Santos were on Dix Street in the Dorchester section of Boston to inquire about a potential cleaning job. They arrived in separate cars. Marquez went to speak to Santos, who remained sitting in her car, a grey Toyota Venza. Marquez was standing by the open driver's side door of Santos's car when a man, later identified as the defendant, approached her from behind. The defendant pointed a small black gun at the women and said repeatedly, "get out." Santos did so and as the women moved to the side, the defendant got into the car and drove away.

Marquez immediately called 911 from a cellular telephone to report the crime. Marquez's native language is Spanish and although she used an interpreter when she testified at the hearing, the motion judge found that she "speaks and understands a fair amount of English." In fact, Marquez described the incident to the dispatcher in English, but needed an interpreter (secured by the dispatcher) to provide certain details. While Marquez was on the phone, Officer James Verderico arrived. Marquez spoke to him in English and gave a physical description of the assailant and described the clothes he was wearing.² Officer Verderico then relayed the information to the dispatcher.

A report with a description of the suspect and Santos's vehicle, including the license plate number, the suspect's direction of flight, and the fact that the suspect was armed, was broadcast over the police radio and was heard by State Police Trooper John Joyce, who was working a detail a few miles away. Within minutes of hearing the broadcast, Trooper Joyce saw a vehicle matching the description of the stolen car and followed it. The defendant accelerated and made a number of turns. The pursuit continued until the defendant ran a red light, lost control of the vehicle, and crashed into a telephone pole, which came loose from its foundation and leaned partially on the hood of the vehicle. Following the crash, the defendant left the car and attempted to run, but was apprehended quickly and arrested.

Meanwhile, Marquez and Santos were waiting at the scene of the carjacking with Officer Verderico. By this time, two additional officers, Detective James Harte and Sergeant Frederick MacDonald, had arrived. About sixteen minutes after Marquez had called 911, the officers received a report that the suspect had crashed the vehicle and was in custody at a location approximately four miles away. The motion judge found that the officers "told the women that they had a potential suspect in custody, and that they were going to take them to see if they could identify him." She further found that "[b]oth women understood that they were going to see the person whom the police believed was the carjacker. The victims were then separately driven to the location of the accident; Marquez was transported by Detective Harte and Santos by Sergeant MacDonald.

Detective Harte stopped along the way and read the following advisements to Marquez from a preprinted card used by the Boston police to explain showup procedures: "1. I am taking you to look at someone. 2. This person may or may not be the perpetrator, and the investigation will continue, whether or not an identification is made. 3. It is just as important to free the innocent from suspicion as it is to identify offenders. 4. I will be asking you to make a statement of certainty, in your own words, if you make an identification."³ Detective Harte spoke in English. Upon completing the advisements, he asked Marquez if she understood what he had just read, and she replied that she did. The judge found, however, that Marquez had only understood the first two advisements.⁴

Sergeant MacDonald read the same advisements, in English, to Santos from a similar card before they arrived at the scene. With respect to Santos, whose native language is Portuguese, the judge found that Santos did not understand any of the advisements because she "understands very little English."⁵

When the officers arrived at the scene of the accident with Marquez and Santos, ten police officers, some in uniform and some in plainclothes, firefighters, and emergency medical personnel were present. The judge found that "[s]everal police vehicles, at least one firetruck and an ambulance were also present, and a helicopter hovered overhead. The defendant was on the opposite side of the [two]-lane street from where the officers parked, either sitting or lying on the ground while receiving treatment from two [emergency medical technicians].... The defendant was ‘probably’ cuffed from behind, but the women could not see the cuffs. Between three and six police officers, more than one of whom was in uniform and all of whom displayed badges, were standing around the defendant in a semi-circle. Santos’[s] totaled vehicle was in the same location where it had crashed into the telephone pole," about thirty feet away.

Detective Harte walked Marquez toward the group and "[a]s soon as Marquez saw the defendant, she said ‘that was him.’ " In response to Detective Harte's questions, Marquez identified "the man on the floor" as "[t]he guy who took the car." Marquez testified that she recognized the defendant as the person who had "robbed" her by his face and the clothes he was wearing. The exchange was in English. Detective Harte did not ask Marquez how certain she was of her identification.⁶

Thereafter, Sergeant MacDonald arrived with Santos and directed her attention to the group standing around the defendant. Like Marquez, Santos saw the defendant and positively identified him without hesitation. Santos immediately stated, "That's him, the guy on the floor, the sidewalk. I remember his face and black jacket." Santos testified that she knew the man was the same person who took her car because she "recognized the beard, the color, and ... clothing." Sergeant MacDonald also did not ask Santos to make a statement of certainty.

At the motion hearing, the defendant argued that the identifications should be suppressed because the police did not have a good reason to conduct a showup and the procedures utilized were unduly suggestive. He claimed that the showup was unnecessary because the police knew that they had arrested the right person and that less suggestive alternative identification procedures were available. Next, he asserted that the procedures utilized by the police were unnecessarily suggestive because (1) the victims were told that they were being taken to view the suspect when they did not fully understand the advisements, (2) the defendant was surrounded by police officers and numerous police cars and safety vehicles were present, and (3) Santos's damaged car was in plain view.

In a detailed memorandum of decision and order, the motion judge rejected the defendant's first argument and agreed with his second one. She ruled that although good reason existed to conduct a showup,⁷ the procedures at issue, "considered in [their] totality, so needlessly added to the inherent suggestiveness of the showup that suppression is warranted." The judge reasoned that the presence of numerous police officers, public safety vehicles, and a helicopter did not render the showup unnecessarily suggestive, but that those factors in combination with "[t]he sight of Santos’[s] car, totaled, just feet away from the defendant as he was surrounded by law enforcement only [thirty] minutes after the carjacking, simply created too high a risk that the women would assume that the man they were looking at was the assailant based on the circumstances in which they observed him, rather than because they actually recognized him from the attack." The judge further noted that the risk of an irreparable mistaken identification was compounded by the fact that neither victim fully understood the instructions given to them by the officers prior to making their identifications.

Discussion. "When reviewing a motion to suppress evidence, we adopt the motion judge's subsidiary findings of fact absent clear error, but we independently determine the correctness of the judge's application...