Commonwealth v. Johnson , 473 Mass. 594 ( 2016 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-11876
COMMONWEALTH vs. KYLE L. JOHNSON.
Plymouth. October 6, 2015. - February 12, 2016.
Present (Sitting at New Bedford): Gants, C.J., Spina, Cordy,
Botsford, Duffly, Lenk, & Hines, JJ.
Identification. Evidence, Identification. Practice, Criminal,
Identification of defendant in courtroom.
Indictments found and returned in the Superior Court
Department on March 11, 2013.
A pretrial motion to suppress evidence was heard by
Cornelius J. Moriarty, II, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Cordy, J., in the Supreme Judicial Court
for the county of Suffolk, and the appeal was reported by him to
the Appeals Court. The Supreme Judicial Court on its own
initiative transferred the case from the Appeals Court.
Carolyn A. Burbine, Assistant District Attorney, for the
Commonwealth.
Edward Crane for the defendant.
Karen A. Newirth, James L. Brochin, & Jennifer H. Wu, of
New York, & R.J. Cinquegrana, for The Innocence Project &
another, amici curiae, submitted a brief.
Lisa Kavanaugh, Benjamin H. Keehn, Patrick Levin, Radha
Natarajan, & Paul R. Rudof, Committee for Public Counsel
2
Services, & David Lewis, for Committee for Public Counsel
Services & another, amici curiae, submitted a brief.
GANTS, C.J. The issue presented in this case is whether
the motion judge, applying the common-law principles of fairness
in Commonwealth v. Jones, 423 Mass. 99, 109 (1996), committed an
abuse of discretion in allowing the defendant's motion to
suppress the victim's identifications of the defendant as the
intruder he had struggled with in his home. The judge found
that, through no fault of the police, the identifications were
"impermissibly tainted by the suggestive circumstances." We
provide guidance regarding the application of the Jones standard
and conclude that the judge did not abuse his discretion in
allowing the motion to suppress.1
Background. We summarize the facts found by the motion
judge, supplemented where necessary with undisputed evidence
that was implicitly credited by the judge. See Commonwealth v.
Jones-Pannell, 472 Mass. 429, 431 (2015), citing Commonwealth v.
Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818
(2008).
On September 21, 2012, Adebayo Talabi, the victim, received
a telephone call from a neighbor that the door to his apartment
1
We acknowledge the amicus brief submitted by the Committee
for Public Counsel Services and the Massachusetts Association of
Criminal Defense Lawyers and the amicus brief submitted by the
Innocence Project and the Innocence Network.
3
was open. He returned to his home and encountered a stranger,
who was armed with a firearm, inside his apartment. They
struggled, and during the struggle the firearm went off,
striking no one. The intruder fled. The victim reported the
incident to the Brockton police department and described the
assailant as a light-skinned black male wearing a gray hooded
sweatshirt. Brockton police Detective Jacqueline Congdon asked
the victim to come to the police station to review booking
photographs to see if he could identify the intruder, but he did
not do so.
On September 27, 2012, the victim telephoned Brockton
police Officer Scott Besarick and told Besarick he now knew the
identity of the intruder. Officer Besarick transferred the
telephone call to Detective Congdon's line, and the victim
explained to her that he had recently spoken to his cousin, T.J.
Hendricks, who lived in the Roxbury section of Boston and whose
home had been broken into one day before the incident at the
victim's apartment. The victim then added Hendricks to the
telephone call so that it was a three-way call. Hendricks said
that the break-in at his Roxbury home had been captured in a
video recording by a neighbor's surveillance system that showed
the person who had broken into his home. By the "size and
shape" of the person in the surveillance footage, Hendricks
believed that the intruder "could possibly be" the defendant,
4
who was the boy friend of a cousin of both Hendricks and the
victim. Hendricks obtained a photograph of the defendant and
his girl friend taken by Hendricks's mother at a cookout, which
he forwarded to the victim. The victim viewed the photograph
and identified the defendant as the intruder he had discovered
in his home.
Using this information, Detective Congdon assembled an
eight-person photographic array containing the defendant's
photograph. Detective Thomas Hyland met with the victim to show
him the photographic array. The victim positively identified
the defendant's photograph in the array as the man he discovered
in his apartment.
The defendant was indicted on seven charges, including
armed assault in a dwelling, in violation of G. L. c. 265,
§ 18A, and breaking and entering in the daytime, in violation of
G. L. c. 266, § 17. The defendant moved to suppress all out-of-
court and in-court identifications of the defendant by the
victim. The motion judge held an evidentiary hearing at which
Detectives Congdon and Hyland testified. The judge found that
the police did not violate the defendant's constitutional rights
in administering the photographic array but allowed the motion
to suppress the two out-of-court identifications under the
common-law principles of fairness recognized in Jones, 423 Mass.
at 109, concluding that they were "impermissibly tainted by the
5
suggestive circumstances." The motion judge also allowed the
motion to suppress any in-court identification, concluding that
the Commonwealth had failed to meet its burden of showing by
clear and convincing evidence that an in-court identification
would be based upon an independent source, citing Commonwealth
v. Botelho, 369 Mass. 860, 868 (1976). The Commonwealth moved
for reconsideration of the ruling, which was denied, and then
sought leave to appeal the motion judge's decision. A single
justice allowed the application for interlocutory appeal, and we
transferred the case to this court on our own motion.
Discussion. Before we address whether the judge was
correct to suppress the eyewitness identifications in this case,
we set forth our law regarding the admissibility of eyewitness
identifications.
1. Law of eyewitness identifications. a. Out-of-court
identifications made during a police identification procedure.
Where an out-of-court eyewitness identification arises from an
identification procedure that was conducted by the police, the
identification is not admissible under art. 12 of the
Massachusetts Declaration of Rights if the defendant proves by a
preponderance of the evidence that the identification was "so
unnecessarily suggestive and conducive to irreparable
misidentification that its admission would deprive the defendant
of his right to due process." Commonwealth v. Walker, 460 Mass.
6
590, 599 (2011), and cases cited. "In considering whether
identification testimony should be suppressed, the judge must
examine 'the totality of the circumstances attending the
confrontation to determine whether it was unnecessarily
suggestive.'" Commonwealth v. Silva-Santiago, 453 Mass. 782,
795 (2009), quoting Commonwealth v. Odware, 429 Mass. 231, 235
(1999). "Where the defendant satisfies this burden, the out-of-
court identification is per se excluded as a violation of the
defendant's right to due process under art. 12 . . . ." Walker,
supra at 599 n.13. See Commonwealth v. Johnson, 420 Mass. 458,
462-463 (1995).
Under our per se exclusion standard, a defendant must prove
not only that the out-of-court identification procedure
administered by the police was suggestive, but that it was
"unnecessarily suggestive" (emphasis in original). Commonwealth
v. Crayton, 470 Mass. 228, 235 (2014), quoting Commonwealth v.
Figueroa, 468 Mass. 204, 217 (2014). This inquiry focuses on
whether police had "good reason" to engage in a suggestive
identification procedure. Crayton, supra at 235-236. Figueroa,
supra. See Commonwealth v. Austin, 421 Mass. 357, 361-362
(1995) ("good reason" to conduct showup depends on "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
7
confirmation of the accuracy of investigatory information,
which, if in error, will release the police quickly to follow
another track").
By adopting a rule of per se exclusion under art. 12, we
rejected the rule under the Fourteenth Amendment to the United
States Constitution in which a motion judge must apply a two-
step analysis to the question of admissibility. Johnson, 420
Mass. at 464-465. Under the Federal two-step analysis, the
judge asks first whether the eyewitness identification was
obtained by a police procedure that was unnecessarily
suggestive. See Manson v. Brathwaite, 432 U.S. 98, 110 (1977).
See also Perry v. New Hampshire, 132 S. Ct. 716, 726 (2012) ("A
primary aim of excluding identification evidence obtained under
unnecessarily suggestive circumstances . . . is to deter law
enforcement use of improper lineups, showups, and photo[graphic]
arrays"). If it was, the judge then asks whether,
notwithstanding the unnecessarily suggestive procedure, the
eyewitness identification is reliable under "the totality of the
circumstances." See Manson, supra. Under Federal
constitutional law, because "reliability is the linchpin," the
out-of-court identification, if found reliable, is admissible
even where obtained through an unnecessarily suggestive
procedure. See id. at 110, 114.
8
We rejected the Federal reliability test regarding out-of-
court identifications in part because it "does little or nothing
to discourage police from using suggestive identification
procedures." Johnson, 420 Mass. at 468. We noted that, under
the Federal standard, "[a]lmost any suggestive lineup will still
meet reliability standards" and be admitted in evidence despite
the unnecessary suggestiveness of the identification procedure.
Id., quoting Note, Twenty-Years of Diminishing Protection: A
Proposal to Return to the Wade Trilogy's Standards, 15 Hofstra
L. Rev. 583, 606 (1987). We concluded that, if we were to adopt
the Federal reliability test under art. 12, it would send "a
message to police that, absent extremely aggravating
circumstances, suggestive showups will not result in
suppression." Johnson, supra.
Under our per se standard, the reliability of an out-of-
court identification cannot save the admissibility of an
unnecessarily suggestive out-of-court identification. But we
declared in Johnson, supra at 467, that "the per se approach
does not keep relevant and reliable identification evidence from
the jury" because the Commonwealth may admit a subsequent
identification if it proves by clear and convincing evidence
that the identification came from a source independent of the
suggestive procedure.
9
b. Out-of-court identifications made without police
wrongdoing. Where an out-of-court eyewitness identification is
suggestive through no fault of the police, suppression cannot
deter police misconduct because there is none. Yet, as we
recognized in Jones, 423 Mass. at 109, where a witness's
identification of a defendant arises from highly or especially
suggestive circumstances, its admissibility "should not turn on
whether government agents had a hand in causing the
confrontation" because "[t]he evidence would be equally
unreliable in each instance." A judge, applying "[c]ommon law
principles of fairness," may decline to admit an unreliable
eyewitness identification that resulted from a "highly" or
"especially" suggestive confrontation with the defendant. Id.2
Among our "common law principles of fairness" is the
evidentiary rule that a judge has discretion to exclude relevant
evidence "if its probative value is substantially outweighed by
the danger of unfair prejudice." Crayton, 470 Mass. at 249
2
In Commonwealth v. Jones, 423 Mass. 99, 108 (1996), we
recognized that, even where the police did not cause a highly
suggestive confrontation, a judge might find identification
testimony to be so unreliable that it must be excluded "as a
matter of fairness on due process grounds." We declared,
however, that "[w]e need not base our decision on constitutional
grounds," id. at 109, and ruled the eyewitness identification at
issue in that case to be inadmissible on "[c]ommon law
principles of fairness." Id. After our opinion in Jones, we
limited our review of the admission of identification testimony
where the police did nothing improper to common-law principles
of fairness, see Commonwealth v. Odware, 429 Mass. 231, 236
(1999), and we do so here.
10
n.27, quoting Mass. G. Evid. § 403 (2014). A judge's authority
to exclude a suggestive and unreliable eyewitness identification
under Jones is an exercise of this broader authority articulated
in Mass. G. Evid. § 403. See Commonwealth v. Alcide, 472 Mass.
150, 166 (2015), quoting Jones, supra at 107 ("A judge's
authority to exclude severely unreliable identification
testimony is closely related to his or her more general
'discretion to exclude evidence that is more prejudicial than
probative'").3
A motion to suppress an identification under Jones is
similar to a motion to suppress an identification under art. 12
in that the defendant must timely file the motion before trial,
see Mass. R. Crim. P. 13 (d) (2), as appearing in 442 Mass. 1516
(2004), and bears the burden of proof by a preponderance of the
evidence. See Walker, 460 Mass. at 604-605. It is also similar
in that the evidentiary hearing on the motion should be
conducted and ruled on before trial, so that the Commonwealth
3
In Perry v. New Hampshire, 132 S. Ct. 716, 728 (2012), the
United States Supreme Court declared that its "unwillingness to
enlarge the domain of due process" to require exclusion of
suggestive identifications that were not obtained through
improper police conduct rested "in large part" on the presence
of other safeguards in the adversary system that address the
risk that juries will place "undue weight on eyewitness
testimony of questionable reliability." Among the protections
cited was the authority of trial judges under State and Federal
rules of evidence "to exclude relevant evidence if its probative
value is substantially outweighed by its prejudicial impact or
potential for misleading the jury," citing Fed. R. Evid. 403.
Id. at 729.
 11
and the defendant have the opportunity to challenge the ruling
through an interlocutory appeal under Mass. R. Crim. P.
15 (a) (2), as appearing in 422 Mass. 1501 (1996). But a
suppression ruling under Jones differs in two fundamental ways
from the suppression ruling that a judge makes under art. 12
where the police are alleged to have obtained an eyewitness
identification through an unnecessarily suggestive
identification procedure.
First, the standard of admissibility is different;
admissibility is determined not by a rule of per se exclusion,
because there is no police misconduct to deter through
suppression, but by weighing the probative value of the
identification against the danger of unfair prejudice, and
determining whether the latter substantially outweighs the
former.
The danger of unfair prejudice arises because the accuracy
of an identification tainted by suggestive circumstances is more
difficult for a jury to evaluate. "Jurors . . . tend to be
unaware of . . . how susceptible witness certainty is to
manipulation by suggestive procedures or confirming feedback."
Commonwealth v. Gomes, 470 Mass. 352, 373 (2015), quoting State
v. Lawson, 352 Or. 724, 778 (Appendix) (2012). "Social science
research has shown that a witness's level of confidence in an
identification is not a reliable predictor of [its] accuracy
12
. . . , especially where the level of confidence is inflated by
its suggestiveness." Crayton, 470 Mass. at 239, citing Supreme
Judicial Court Study Group on Eyewitness Evidence: Report and
Recommendations to the Justices 19 (July 25, 2013) (Study Group
Report). See Crayton, supra at 239 n.15, quoting Wells &
Quinlivan, Suggestive Eyewitness Identification Procedures and
the Supreme Court's Reliability Test in Light of Eyewitness
Science: 30 Years Later, 33 Law & Hum. Behav. 1, 12 (2009)
("Studies have shown . . . that 'confirmatory suggestive remarks
from the lineup administrator [like 'Good, you identified the
actual suspect'] consistently inflate eyewitness certainty for
eyewitnesses who are in fact mistaken'"). Yet, studies have
shown that juries tend to give great weight to a witness's
confidence in an identification. See Perry, 132 S. Ct. at 739
(Sotomayor, J., dissenting) ("Study after study demonstrates
that . . . jurors place the greatest weight on eyewitness
confidence in assessing identifications even though confidence
is a poor gauge of accuracy" [footnotes omitted]). See also
Study Group Report, supra at 69-70, citing Leippe, Eisenstadt, &
Rauch, Cueing Confidence in Eyewitness Identifications:
Influence of Biased Lineup Instructions and Pre–Identification
Memory Feedback Under Varying Lineup Conditions, 33 Law & Hum.
Behav. 194, 194 (2009), and Wells, Lindsay, & Ferguson,
Accuracy, Confidence, and Juror Perceptions in Eyewitness
13
Identification, 64 J. Applied Psychol. 440, 446 (1979) ("Studies
show that eyewitness confidence is the single most influential
factor in juror determinations regarding the accuracy of an
eyewitness identification").
Suggestive identification procedures may also affect a
witness's memory regarding the quality of his or her observation
that led to the identification. See Gomes, 470 Mass. at 373
("Preidentification feedback may contaminate the witness's
memory"). In one study, witnesses who received confirmatory
feedback reported "'a better view of the culprit, a greater
ability to make out details of the face, greater attention to
the event, [and] a stronger basis for making an identification,'
compared to witnesses receiving no feedback." Id. at 374 n.35,
quoting Wells & Bradfield, "Good, You Identified the Suspect":
Feedback to Eyewitnesses Distorts Their Reports of the
Witnessing Experience, 83 J. Applied Psychol. 360, 366 (1998).
See Commonwealth v. Collins, 470 Mass. 255, 263 (2014).
In short, suggestiveness is likely to inflate an
eyewitness's certainty regarding an identification and to alter
the eyewitness's memory regarding the quality of his or her
observation of the offender to conform to the eyewitness's
inflated level of confidence in the identification. We
recognized this danger, and the effect it could have on a jury's
ability accurately to evaluate identification evidence, in
14
Jones, where we declared that "cross-examination and a judge's
jury instruction concerning eyewitness identification testimony"
could not "fairly protect the defendant from the unreliability"
of the identification in that case. Jones, 423 Mass. at 110.
The probative value of the identification depends on the
strength of its source independent of the suggestive
circumstances of the identification. See Allen v. Moore, 453
F.2d 970, 975 (1st Cir.), cert. denied, 406 U.S. 969 (1972)
("the firmer the contemporaneous impression, the less is the
witness subject to be influenced by subsequent events"). In
determining the strength of an identification's independent
source, we consider such factors as the quality of the witness's
opportunity to observe the offender at the time of the crime,
the amount of time between the crime and the identification,
whether the witness's earlier description of the perpetrator
matches the defendant, and whether the witness earlier
identified another person as the perpetrator or failed to
identify the defendant as the perpetrator. See Johnson, 420
Mass. at 464; Botelho, 369 Mass. at 869. Another factor is the
witness's prior familiarity with the person identified, where
that person is a witness's family member, friend, or long-time
acquaintance. See Model Jury Instructions on Eyewitness
Identification, 473 Mass. 1051, 1054 (2015). After weighing the
risk of unfair prejudice arising from the suggestiveness of the
15
identification against the strength of its independent source,
the judge must determine whether the identification is so
unreliable that it would be unfair for a jury to give it any
weight in their evaluation of the evidence. If it is, the judge
must rule it inadmissible.
Second, the standard of appellate review under art. 12
differs from the standard of review under the common-law
principles of fairness articulated in Jones. Where an
identification arises from a police procedure, we apply the
standard appropriate for review of a decision implicating
constitutional rights: we review a judge's findings of fact to
determine whether they are clearly erroneous but review without
deference the judge's application of the law to the facts as
found. See Commonwealth v. Watson, 455 Mass. 246, 250 (2009).
Where an identification does not arise from a police procedure,
admissibility rests on an evidentiary judgment regarding the
reliability of the identification, so we review under the abuse
of discretion standard and ask "whether the judge's decision
resulted from 'a clear error of judgment in weighing the factors
relevant to the decision . . . such that the decision falls
outside the range of reasonable alternatives.'" Commonwealth v.
Kolenovic, 471 Mass. 664, 672 (2015), quoting L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
16
c. In-court identifications. Where a judge excludes an
out-of-court identification arising from a suggestive police
procedure under our art. 12 standard of per se exclusion, the
judge must still consider whether to admit a subsequent out-of-
court or in-court identification by the witness. Where a
witness's out-of-court identification is excluded, the
Commonwealth may offer a subsequent out-of-court or in-court
identification by the witness if the Commonwealth proves by
clear and convincing evidence that the subsequent identification
is reliable because it rests on a source independent of the
unnecessarily suggestive confrontation. Johnson, 420 Mass. at
463-464. Botelho, 369 Mass. at 867-868. We recognize that we
have recently declared that an "in-court identification is
comparable in its suggestiveness to a showup identification" and
have prohibited its admission in the absence of a showing of
"good reason" where there was no out-of-court identification of
the defendant by the witness before trial, Crayton, 470 Mass. at
236, 241, or where the out-of-court identification by the
witness was "something less than an unequivocal positive
identification of the defendant," Collins, 470 Mass. at 262. We
need not consider in this case whether the reasoning in Crayton
and Collins dictates that we eliminate or revise the independent
source doctrine as applied to in-court identifications because
the identifications here were not obtained through any fault of
17
the police. We will await an appropriate case to address that
issue.
But this is an appropriate case to consider whether the
independent source doctrine applies to an in-court
identification where both out-of-court identifications were
declared inadmissible under common-law principles of fairness.
We conclude that it does not apply. Where the suggestiveness
does not arise from police conduct, a suggestive identification
may be found inadmissible only where the judge concludes that it
is so unreliable that it should not be considered by the jury.
In such a case, a subsequent in-court identification cannot be
more reliable than the earlier out-of-court identification,
given the inherent suggestiveness of in-court identifications
and the passage of time. See Model Jury Instructions on
Eyewitness Identification, 473 Mass. at 1055 endnote j, quoting
Study Group Report, supra at 31-32 ("The more time that elapses
between an initial observation and a later identification
procedure . . . the less reliable the later recollection will
be"). In sum, because a judge declares an out-of-court
identification to be inadmissible under Jones only where it is
unreliable, the Commonwealth cannot prevail in proving by clear
and convincing evidence that the witness's in-court
identification would be reliable.
18
2. Application of law to the facts of this case. We turn
now to the Commonwealth's arguments that the judge abused his
discretion in declining to admit in evidence the victim's out-
of-court and anticipated in-court identifications of the
defendant. The Commonwealth contends that the identifications
may be excluded under Jones only if they were made under
"highly" or "especially" suggestive circumstances and that the
judge abused his discretion in finding that the circumstances
here met that standard. In Jones, we characterized the
witness's confrontation with the defendant as both "highly
suggestive" and "especially suggestive," but we did not define
either term or clarify whether they were two different
characterizations of the same standard. See Jones, 423 Mass. at
109. Nor have we done so in subsequent cases that applied the
Jones standard.
The Commonwealth contends that the "degree of
suggestiveness required for exclusion" under Jones's common-law
rule "is higher than that required for exclusion based on
improper law enforcement procedures, since no possible deterrent
effect is involved." We disagree. Where an identification is
obtained by law enforcement, our rule of per se exclusion means
that the out-of-court identification must be suppressed where it
derived from an unnecessarily suggestive procedure even if the
identification was reliable because of the strength of its
19
independent source. Accordingly, we have set a high standard:
the identification must be "so unnecessarily suggestive and
conducive to irreparable misidentification that its admission
would deprive the defendant of his right to due process."
Walker, 460 Mass. at 599. Where, as here, there was no
misconduct by the police in obtaining the identification,
suggestiveness, by itself, does not mandate suppression.
Rather, the danger of unfair prejudice arising from the
suggestive circumstances will always be weighed against the
independent source of the identification, with reliability the
ultimate measure. Because suggestiveness simply triggers a
reliability analysis, the suggestiveness standard need not be
set so high. To trigger a Jones analysis, the circumstances
surrounding the identification need only be so suggestive that
there is a substantial risk that they influenced the witness's
identification of the defendant, inflated his or her level of
certainty in the identification, or altered his or her memory of
the circumstances of the operative event. Where the independent
source of an identification is slim, this level of
suggestiveness may be sufficient to support a finding of
inadmissibility; where the independent source is substantial, a
greater level of suggestiveness would be needed to support a
20
finding that the danger of unfair prejudice substantially
outweighs the probative value of the identification.4
We recognize that the victim's identification of the
defendant in this case was less suggestive than the
identification in Jones.5 But the judge did not err in
concluding that it was sufficiently suggestive to trigger a
reliability analysis. The judge reasonably found that Hendricks
suggested to the victim that the man who invaded the victim's
home on September 21, 2012, might have been the same man he
suspected broke into his own home the previous day -- a man who
was connected to both of them because he was the boy friend of
their cousin. The judge reasonably could have found a
substantial risk that these suggestive circumstances influenced
the victim when he examined the cookout photograph of the
4
We need not address here whether a judge may exclude an
identification where there was no suggestiveness in the
identification but where the identification might be unreliable
because of the circumstances surrounding the witness's
perception of the event, such as the distance between the
witness and the perpetrator, the poor quality of the lighting,
or the brevity of the observation.
5
In Jones, 423 Mass. at 101, a motel employee saw an
African-American man come into the lobby of the motel, spend
approximately one minute in the lobby, return to the lobby about
ten minutes later, and drive away in a vehicle. The employee
saw the African-American man for a total of only approximately
three minutes and there was no event that caused her to pay
particular attention to him. Id. at 101-102. However, at two
pretrial hearings, the witness, having learned that the crime in
that case had been committed by Vietnamese and African-American
men, saw the defendant, who was African-American, shackled to a
Vietnamese man. Id. at 102-103, 110.
21
defendant and identified the defendant as the intruder from that
photograph and from the subsequent photographic array. The
judge also reasonably could have found a substantial risk that
this suggestion affected the witness's level of certainty in the
identification and his recollection of his observations of the
intruder during the incident.
The judge also did not err in giving little probative
weight to the independent source of the identification. The
judge noted that the victim's encounter with the intruder was
brief and his description meager: a light-skinned black male
wearing a gray hooded sweatshirt, with no information regarding
the intruder's height, weight, or facial hair, or the lighting
conditions in the apartment. The judge also noted from his own
observation that the defendant was not light-skinned. In view
of the substantial deference given to the motion judge under the
abuse of discretion standard, we conclude that the judge did not
abuse his discretion in allowing the motion to suppress the
identifications. We therefore affirm the allowance of the
defendant's motion to suppress the out-of-court and in-court
identifications of the defendant by the victim.
So ordered.