Commonwealth v. Viera

89 Mass.App.Ct. 1136

55 N.E.3d 434 (Table)

COMMONWEALTH

v.Steven VIERA.

No. 14–P–1764.

Appeals Court of Massachusetts.

August 9, 2016.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant was convicted by a jury of unarmed robbery. On appeal, he contends it was error to deny his motion to suppress two out-of-court photographic identifications made by the victim of the robbery because the identification procedures were impermissibly suggestive. We affirm.

Background. We summarize the facts found by the motion judge, supplemented where necessary by uncontested testimony from the evidentiary hearing on the motion to suppress.² Commonwealth v. Komnenus, 87 Mass.App.Ct. 587, 588 n. 2 (2015).

On August 22, 2010, a man later identified as the defendant robbed the victim at a Getty gasoline station in Fairhaven. The victim provided the police with a description of the assailant and a partial license plate number of the vehicle she observed speeding away after the robbery. The detective investigating the case, Jareld Bettencourt, later testified that the victim described the robber as “white, but very tan, medium buil[d,] dressed very nicely, well-groomed and ... maybe 150 pounds.” On the basis of this information, Detective Bettencourt identified the defendant as a possible suspect and included his photograph in an array consisting of six photographs. All the photographs were obtained from the Registry of Motor Vehicles. The defendant's photograph was taken from an expired driver's license and was therefore not a recent photograph. All the individuals depicted in the photographs resembled the defendant and one another. The victim was shown the array on September 11, 2010, in accordance with the identification protocol adopted by the Supreme Judicial Court in Commonwealth v. Silva–Santiago, 453 Mass. 782, 795 (2009). She did not make a positive identification; however, she set aside the photograph of the defendant and one other individual. With respect to the defendant's photograph, Detective Bettencourt testified that the victim remarked: “if he was a little skinnier, that would be him.”

During the course of the investigation, Detective Bettencourt learned that the defendant had been living in Florida. Bettencourt contacted the appropriate authorities and a detective in the police department of Jacksonville, Florida, compiled a second array consisting of a new photograph of the defendant and photographs of five similar-looking men from Florida. Bettencourt did not include the photograph of the other individual that the victim had set aside from the first array because the photograph was markedly different in its composition and resolution. The second array was shown to the victim on September 28, 2010, at which time she selected the defendant's photograph. Bettencourt later testified that, upon selecting the defendant's photograph, the victim stated, “This is him one hundred percent.” The showing of this array likewise followed the protocol described in Silva–Santiago, supra.

In his ruling, which was given orally at the conclusion of the evidence, the judge noted the similarities and the differences between the photographs and concluded that none of the differences rendered the arrays conducive to irreparable misidentification. He further determined that the manner in which Detective Bettencourt presented the arrays to the victim was not suggestive. The judge also concluded that the omission of the photograph of the other individual that the victim had set aside from the first array was appropriate given that the photograph itself was not similar to the others included in the second array. As the judge explained, based on the resolution and the orientation of the photographs, the photograph in question would have “stuck out like a sore thumb.”

Discussion. In determining whether an identification procedure is impermissibly suggestive, we consider the totality of the circumstances, including the size of the array, the composition of its photographs, and the manner in which the array is presented. See Commonwealth v. Poggi, 53 Mass.App.Ct. 691–694 (2002). Here, both arrays contained an adequate number of photographs. See Commonwealth v. Walker, 460 Mass. 590, 604 (2011). In addition, the composition of both arrays was appropriate as each depicted white males generally similar in appearance. Like the judge, we are not persuaded by the defendant's claim that the photographic arrays were not fair because, regarding the first array, three of the six...