Commonwealth v. Martin , 447 Mass. 274 ( 2006 )

Cowin, J.

This case requires the court to apply the principles applicable to one-on-one identifications to determine whether the defendant has proved that the showup here was “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to deny him due process of law. Commonwealth v. Venios, 378 Mass. 24, 27 (1979), quoting Stovall v. Denno, 388 U.S. 293, 301-302 (1967). We conclude that the defendant has not met this burden and that the admission in evidence of the showup identification procedure was therefore permissible. We further resolve the defendant’s other claims of error against him and therefore affirm the convictions.

The defendant was indicted for assault with intent to rape a child under the age of sixteen years, assault with intent to kidnap, assault with intent to murder, and assault and battery. All the charges arose from an alleged attack on a fifteen year old girl on July 20, 1994. The defendant filed two motions before trial that are pertinent to his appeal: a motion to suppress the victim’s identification of him and a motion to dismiss on speedy trial grounds, see Mass. R. Crim. P. 36, as amended, 422 Mass. 1503 (1996). Two different Superior Court judges denied these motions. Trial took place in August, 2001.¹ At the close of the Commonwealth’s case the defendant moved for required findings on all the indictments but the assault and battery charge. The motion was denied. The jury convicted the defendant of all the offenses except for that of assault with intent to murder. The defendant appealed and the Appeals Court reversed the convictions on the basis that the identification procedure was overly suggestive. See Commonwealth v. Martin, 63 Mass. App. Ct. 587 (2005). We granted the Commonwealth’s application for further appellate review.

1. Motion to suppress. The primary issue on appeal is the suggestiveness of the identification of the defendant and so we set forth the evidence at the motion to suppress hearing as summarized in the judge’s findings. Late morning on July 20, 1994, the fifteen year old victim left the beach in Yarmouth to return to her grandparents’ house. As she walked along a dirt road that leads from the beach, she saw a man about ten feet away from her. Shortly thereafter, she was grabbed from behind and thrown to the ground on her back. She screamed as the attacker hit her in the face numerous times. He told her to “shut up” and tried to drag her into a bog area that bordered the path. The approach of another person caused the assailant to flee into the bog. The attack lasted approximately three minutes, during which time the victim had a “full frontal view” of her attacker’s face.

Officer Richard White of the Yarmouth police department responded. He found a “shaken and upset” victim with an apparent injury below one eye. The victim informed Officer White and another officer of the attack and explained that she had a front view of the attacker during the assault. She described him as a white male, thirty to forty-five years old, tall and thin, wearing a light blue shirt with a green alligator on the chest. She also believed he must have been wearing shorts because she could see his legs. At a hospital, the victim repeated the same general description to another officer. She returned to the scene with the police, and amplified her original description by adding that the assailant wore a yellow hat, was tanned, “as if he had been out in the sun,” and had thinning brown hair with a little gray in it.

At the Yarmouth police station, the victim assisted an officer in creating a composite. The police prepared a bulletin with the description provided by the victim and the bulletin and the composite were distributed to patrol officers and local merchants.

The victim was shown a number of “mug” books at the police station, but did not identify anyone as her assailant. Later, the police learned that the defendant’s picture was among the photographs viewed by the victim, but it had been taken in 1992 and depicted a thinner man with a mustache and “scraggly” beard. The victim had described the assailant as having no facial hair.

The victim informed the police that she would be able to identify her attacker if she saw him again. The Yarmouth police took her to different areas in Yarmouth and later in Hyannis where “persons within the age group of the assailant tended to congregate.” During these rides along streets and beach areas, detectives and the victim stopped at least six times for the victim to view individuals who fit the general description. Twice, the person stopped was accompanied by uniformed police officers, although not in custody. The victim did not identify anyone during these viewings.

Early on the morning of July 25, the Yarmouth police were informed by the Barnstable police that they had stopped a person at Veterans’ Beach who had been called to their attention by the victim’s father. (The victim’s father had been searching the area on his own for a person who matched the description and composite.)

On that same morning, the victim was at the Yarmouth police station preparing for another round of viewing when she was informed by a detective that “there was a suspect on the beach.” The detective did not mention the victim’s father. Detectives took the victim to Veterans’ Beach where they drove through a “medium-sized” parking lot. They asked her to look “side to side” to see whether she recognized any of the many people in the parking lot. The defendant was at one end of the parking lot standing and talking with two uniformed Barnstable officers. He was not handcuffed or restrained. The victim saw her father a short distance from the three other men and realized at that point that her father must have alerted the police to this suspect. She had not known until then that her father would be present.

The detectives asked the victim to look at the man who was about fifteen feet away. She testified, “No one told me anything different than they had before and just asked me to look at this man.” She tried “to put his face to the image that she had in her head,” and asked to see him at closer view. When she did so, she recognized a mark on his head and told the police that he was the assailant. The showup lasted approximately seven minutes.

About seven hours after the showup, the victim was shown a photographic array at the police station. She was asked whether she recognized her assailant and she pointed out the photograph of the defendant that had been taken earlier that day.

The judge considered whether the victim was influenced by trying to please her father by “validating” his choice of a person he thought matched the description. The judge also considered whether a fifteen year old girl was “afraid” to contradict her father’s choice. In discussing these factors, the judge reviewed the conduct of the victim at the scene of the identification and her demeanor while testifying in court. The judge took into account the fact that the victim did not immediately identify the man she saw with her father and the police, but instead asked to see the man more closely before finally selecting him because of the mark on his forehead. The judge found the victim, sixteen years of age when she testified, to possess “poise and self-assurance beyond her years.” She was “reasonably composed” considering that she was testifying in the presence of the man she believed to be her attacker. When questioned by the judge, she responded with candor and apparently without “being influenced by the authority figure of a judge.” Despite pause for concern because of the victim’s youth, her demeanor, and “certitude” in testifying led the judge to conclude that the victim was not a young woman likely to be influenced by an authority figure.² The judge concluded that “the aura of suggestibility” from the one-on-one identification was “dissipated by the totality of the actions of the victim” during the four-day period prior to the identification and denied the motion to suppress. We review to determine whether there was error. See Commonwealth v. Whelton, 428 Mass. 24, 25-26 (1998); Commonwealth v. Acosta, 416 Mass. 279, 284 n.1 (1993).

2. Discussion relative to motion to suppress. The victim identified the defendant at trial as the man who had attacked her on July 20, 1994. The defendant contends that the due process clauses of the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights mandate the exclusion of the identification because of the impermissible suggestiveness of the identification procedure.

The Appeals Court noted that there is “some question” of the standard of review to be applied here; therefore, we shall address that issue. After the denial of the motion to suppress, the defendant did not object to the in-court identification at trial. Such an objection is not necessary to preserve appellate rights. A motion to suppress that rests on constitutional principles is reviewable without further objection at trial. See Commonwealth v. Whelton, supra. As the Commonwealth conceded at oral argument, the statement to the contrary in Commonwealth v. Hill, 38 Mass. App. Ct. 982, 982-983 (1995), is incorrect. We proceed to consider whether the motion judge erred in denying the motion to suppress. See Commonwealth v. Whelton, supra at 25.

One-on-one identifications are generally disfavored because they are viewed as inherently suggestive.³ Commonwealth v. Johnson, 420 Mass. 458, 461 (1995). See Stovall v. Denno, 388 U.S. 293, 301-302 (1967). Nevertheless, we stated in Commonwealth v. Austin, 421 Mass. 357, 361 (1995), quoting Commonwealth v. Harris, 395 Mass. 296, 299 (1985):

“[A] one-on-one pretrial identification raises no due process concerns unless it is determined to be unnecessarily suggestive. Whether an identification procedure is ‘unnecessarily’ or ‘impermissibly’ suggestive . . . involves inquiry whether good reason exists for the police to use a one-on-one identification procedure . . . bearing in mind that . . . ‘[ejxigent or special circumstances are not a prerequisite to such confrontations.’ ”

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. Odware, 429 Mass. 231, 235 (1999), quoting Commonwealth v. Otsuki, 411 Mass. 218, 232 (1991). “[B]ecause the issue before us is one of constitutional dimensions, the judge’s findings of fact and rulings of law are open for reexamination by this court .... We properly leave questions of credibility for determination by the motion judge, as [s]he had the witnesses before [her]” (citation omitted). Commonwealth v. Thinh Van Cao, 419 Mass. 383, 384, cert. denied, 515 U.S. 1146 (1995).

The defendant faults the police for not asking him to agree to participate in a lineup or consent to be photographed. Failure of the police to pursue alternate identification procedures does not in itself render an identification unduly suggestive. The question is whether the police acted permissibly. The answer is not governed by the availability of another approach. Even if it were, the police here were dealing with a man walking in a beach area on a summer day and no evidence was presented that the defendant would have agreed to an alternate procedure or that he would not have fled during the time necessary to arrange one.⁴ *(The police clearly did not have enough evidence to compel the defendant to accompany them to the police station.⁵)

“[S]howups of suspects to eyewitnesses of crimes have been regularly held permissible when conducted by the police promptly after the criminal event.” Commonwealth v. Bowden, 379 Mass. 472, 479 (1980), quoting Commonwealth v. Barnett, 371 Mass. 87, 92 (1976), cert, denied, 429 U.S. 1049 (1977). As the judge found, the routine followed by the police in this case ameliorated the suggestiveness of a one-on-one identification days after the incident. If the young victim had simply assisted the police on the day of the attack and not been contacted again until the day of the parking lot confrontation, the viewing would be considerably more suspect. However, the victim had been driving with the police during each of the intervening days and was continuously asked to look at persons who appeared to meet the description of her attacker. The police stopped with her at least six times to look at such people. In addition, at least two of these people were in the company of uniformed police officers. Given these facts, the confrontation with the defendant was one in a continuum of events, part of a “daily ritual of viewing” in the judge’s terms. It was the equivalent of a continuous nonsuggestive lineup.

The dissent states that the evidence does not support the judge’s finding of a continuous viewing; rather, the final confrontation was “different from most of the [previous] viewings.” Post at 297 (Cordy, J., dissenting). The dissent also posits that without further findings, such as whether they stopped for the earlier viewings at the suggestion of one of the detectives or the victim, there is insufficient support for concluding that the contested showup was similar to the past ones. The judge’s findings are adequate to determine that what occurred was permissible. The police drove the victim around a beach community for four days in July. She stopped at least six times to look at individuals and then rejected potential suspects each time. On two of these occasions, the “person stopped was in the company of uniformed police officers.” It is irrelevant whether the cruiser stopped at the suggestion of the victim or a detective. What is relevant is that the victim rejected all the suspects until she made a positive identification. Given this sequence of events, together with the judge’s opportunity to assess the credibility of the victim at the hearing, the judge could permissibly determine that the procedure was not unduly suggestive.

The defendant maintains, and the Appeals Court agreed, that the presence of the victim’s father “present[ed] a real risk of suggestiveness.” Commonwealth v. Martin, 63 Mass. App. Ct. 587, 593 (2005). The judge carefully considered this factor and concluded, on her assessment of the victim’s conduct at the scene (not identifying the defendant until she had a closer look at him and until she saw the mark on his forehead), and her “demeanor while testifying” (“candid and forthright” in responding to the judge’s questioning and unbowed by interrogation from an authority figure), that the presence of her father did not render the identification suggestive. We are bound by the judge’s determination of the credibility of the witness and, reexamining her conclusions of law, we agree with them. Commonwealth v. Thinh Van Cao, supra at 384. We conclude that, in these circumstances of a “daily ritual” of attempted identifications similar in nature to the final one, the identification was not unnecessarily suggestive.

There are two fundamental differences between the court’s position and that of the dissent. First, we differ as to the meaning of Commonwealth v. Austin, 421 Mass. 357, 361 (1995). The court agrees that the Austin case requires that there be good reason for the use of a showup for identifying a suspect. The dissent appears to read the Austin case to require more than good reason for a showup to be justifiable: specifically, that the showup must be necessary. In this regard, it is the dissent, not the court, that alters the plain meaning of Austin and creates new law. The dissenters’ position relies for much of its force on a mischaracterization of what the court has said. The dissent states that we have suggested a “multi-factorial test that might or might not take into account whether good reason for the particular showup existed.” Post at 304 (Cordy, J., dissenting). We have not adopted a “multi-factorial test . . . that might not” include good reason. The Austin good reason test remains the touchstone of our analysis. We simply do not adopt the dissent’s newly discovered requirement that showups take place only if necessary. Second, given our different approaches to what constitutes good reason, we inevitably reach opposite results on the facts of the case. While we conclude that the circumstances here established good reason for the procedure used, the dissent’s conclusion that the showup here was impermissible is informed by its restrictive alteration of the Austin case, a view that we reject.

The dissent would have us alter the rules regarding showups so that a showup is not permissible unless the police have “attempted to pursue, or even considered pursuing, readily available alternatives.” Post at 307 (Cordy, J., dissenting). Only if such alternatives are unavailable would a showup be necessary. Although the dissenting justices imagine that such a rule was set forth in the Austin case, that case states simply that “[wjhether an identification procedure is ‘unnecessarily’ or ‘impermissibly’ suggestive . . . involves inquiry whether good reason exists for the police to use a one-on-one identification procedure.” Commonwealth v. Austin, supra at 361. The dissent’s narrowing of the concept of “good reason” so that a showup is permissible only if absolutely necessary, i.e., a means of last resort, alters the nature of the test and would impose a heightened requirement that has never been our rule.

The dissent concludes that the necessity of a showup is “linked to” police attempts to pursue other alternatives, such as the possibility that a suspect “will agree to a less flawed form of identification.” Post at 307 (Cordy, J., dissenting). Yet, no case is cited where the court has required, as a precondition to a showup, that the police first explore the suspect’s willingness to cooperate with some other method of identification. Whether the suspect will agree to some other investigatory technique has no role in an analysis whether a showup is unnecessarily suggestive.⁶

The dissent’s desire that the court require a precondition of attempting other identification methods would impose on the process a best evidence rule that we have never demanded. The question is whether the procedure used was permissible, not whether an alternative would have been better. The precondition the dissent posits would constitute a restraint on the police that neither the Federal nor State Constitution requires. It would also impose on judges an obligation to determine in each case the best method of police investigation, a task for which few of us are suited by training, experience, or sources of information, and one that our legal system generally assigns to the executive branch of government. Likewise, were we to undertake such a responsibility, it would involve the court in a highly complicated process of fact finding likely to produce unreliable results. Such an eccentric vesting of unnatural and unnecessary authority in the judicial branch was never the intent of the Austin case, and we should not attempt to bring it about now.

Pursuant to the dictate of the Austin case, we have determined that good reason for the showup existed in this case. The procedure of having the victim, whom the police viewed as “a very good witness [who] . . . felt she could [identify the defendant],” drive with them to view all men in a geographically reasonable area was a sensible approach to a difficult investigative problem. The police could not bring into the station or photograph each man in the entire area who met the victim’s description of her assailant. The police did the equivalent in a more efficient manner by canvassing the area in the company of the victim.

3. Speedy trial. The defendant contends that his right to a speedy trial was denied and claims violations of the Federal and State Constitutions and rule 36. The defendant raised these claims in a pretrial motion to dismiss that was denied. In reviewing the rulings on such motions, we give deference to the findings of the motion judge, but may reach our own conclusions. Barry v. Commonwealth, 390 Mass. 285, 289-290 (1983). The law governing such claims is clear. See, e.g., Barker v. Wingo, 407 U.S. 514, 530-533 (1972); Commonwealth v. Lauria, 411 Mass. 63, 67 (1991); Commonwealth v. Edgerly, 390 Mass. 103, 104 (1983); Commonwealth v. Vasquez, 55 Mass. App. Ct. 523, 529 (2002).

We agree with the Appeals Court that there was an “inordinately long period of pretrial detention,” Commonwealth v. Martin, 63 Mass. App. Ct. 587, 598 (2005), and with its conclusion that “the majority of that period is [excluded for purposes of] rule 36, either because the defendant was responsible for [the] delays, because he consented to continuances, or because [the time was consumed during periods in which] he had been found incompetent to stand trial.” Id. The judge did not err in denying the defendant’s motion to dismiss.

4. Mugshot. The defendant claims that the form in which a mugshot of him was admitted at trial was erroneous. Specifically, he claims that the mugshot should have been severed (side and front views separated) and sanitized (to exclude from a label on the photograph his identifying information and the June, 1992, date). He also argues that the erroneous admission of the photograph was compounded by the lack of an instruction from the judge about the many reasons why the police may possess photographs of individuals. Acknowledging that there was no objection at trial, he contends that the jury’s “struggle[] with identification” indicates that there is a substantial risk of a miscarriage of justice. We review to determine whether there was error, and, if so, whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Whitman, 430 Mass. 746, 750 (2000).

The following evidence was relevant to the issue. A photograph of the defendant taken by the Yarmouth police two years before the incident was included in a photographic array shown to the victim the day following the attack.⁷ The victim did not select the defendant’s photograph. An unsevered mugshot, i.e., front and side views, identical to the one shown the victim, was introduced at trial. A label on the bottom of the page containing the mugshot states “Yarmouth Police Department” and contains identifying information about the defendant as well as a date two years before the incident.

During jury deliberations, the jurors sent a question about the identification testimony, a later note indicating they were unable to agree whether the defendant was the right person, a request for the definition of each charge, and finally, a report that they were deadlocked. After a charge in accordance with Commonwealth v. Rodriquez, 364 Mass. 87, 101-102 (1973) (Appendix A)⁸ (which the jury later obtained in transcript form), the jury returned their verdicts.

Mugshots may be admitted in evidence where “[1] the prosecution shows some need for their introduction, [2] they are offered in a form that does not imply a prior criminal record, and [3] the manner of their introduction does not call attention to their source.” Commonwealth v. McAfee, 430 Mass. 483, 493 (1999). The photograph here was probative evidence. Identification was the key issue at trial. The jury needed to see the photograph to understand why the young woman had failed to select it as a depiction of the defendant. The unsevered mugshot was necessary so that the jury could see the same photograph the victim had passed over. See Commonwealth v. Richardson, 425 Mass. 765, 766 (1997).

As to the second factor, avoiding implication of a prior record, the jury were already aware from the testimony that the police possessed a photograph of the defendant. The mugshot itself is only cumulative and adds nothing to that testimony. See Commonwealth v. Murphy, 426 Mass. 395, 403 (1998); Commonwealth v. Capalbo, 308 Mass. 376, 383 (1941). Any prejudice to the defendant arose from the existence of the mugshot, not from the information on the label. The photograph obviously was taken before July 20, 1994. In addition, the fact that the label on the reverse of the mugshot contains a date two years earlier indicates no more than that the photograph was taken at that time. There is nothing to suggest that it was taken in connection with an arrest rather than in relation to an application for a firearm, a taxicab license, or any other police business. While a limiting instruction to this effect could have been given, none was requested, and we do not require such an instruction without a request. Commonwealth v. Richardson, supra at 766-767. There was no error. Even had there been error, there was no substantial risk of a miscarriage of justice. Given the powerful quality of the evidence (the victim’s identification at trial of the defendant as her attacker; testimony of a number of witnesses placing the defendant at or near the scene in the days before the crime; the fact that the defendant appeared to have been living in the area adjacent to the scene of the attack; and his written notes of a violent, sexual nature), any error in the admission of the mugshot (and we have discerned none), did not create a substantial risk that justice was not done.

5. Motion for required findings. The defendant’s final claim is that the evidence was insufficient to support the offense of assault with intent to rape.⁹ The defendant had filed a motion for required findings as to several of the offenses, including assault with intent to rape. In considering such a contention, we examine the evidence in its light most favorable to the Commonwealth to determine whether any rational jury could have found the essential elements of the crime beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The Commonwealth may rely wholly on circumstantial evidence to establish the defendant’s guilt. Commonwealth v. Degro, 432 Mass. 319, 325 (2000).

We summarize the evidence at trial with the above principles in mind. The testimony as to identification was essentially the same as that at the motion to suppress, see Part 1, supra. In addition, at trial the victim testified that, during the attack, the assailant tried to cover her mouth with his left hand which was wrapped in a white cloth and that during the attack his hat slipped back a little to reveal a “mark on his forehead.” The victim testified that she was carrying a small pocketbook at the time of the assault, the attacker told her to “come with him” and, crying, she ran back to her family on the beach after the attack.

Eric Piasta was the person who approached when the defendant attacked the victim and caused the defendant to flee. Piasta and his wife had been walking down the path in front of the victim when Piasta heard the victim screaming and saw a man grab her from behind and “swing[] at her.” Piasta saw the man drag the victim to the adjacent cranberry bog. Piasta ran toward them, yelling at the man to let her go. As Piasta got closer to the attack, he saw the assailant let go of the victim and mn into the bog. He could see the man’s face from the side and described him as wearing a yellow hat with “long straggly hair,” blue shirt, shorts, and Nike sneakers. Piasta observed that the victim’s bathing suit strap “was down on the side a little” and there was blood on her face. Piasta and another bystander ran into the bog area looking for the attacker but were unable to find him.

Two days after the attack, a Yarmouth police detective returned to the bog area to search for evidence. He walked through an opening off the path where the attack occurred and down a road along the bog to an old sand pit. In the pit area, the detective saw a pair of blue cutoff shorts hanging from a tree, food items, a newspaper dated July 19, a plastic bag with blankets, a camouflage rain poncho, blue gloves, camouflage gloves, sunglasses, a novel, and plastic supermarket shopping bags. Photographs were taken and a few items were seized for fingerprinting, but most were left to see if anyone returned. A cloth diaper similar to the white cloth the victim had described as wrapped around her assailant’s hand was also found near the victim’s grandparents’ house.

The defendant was arrested after he was identified by the victim at the Veterans’ Beach showup. He gave the police a false name when he was arrested, and the police seized from him several items, including job applications, plastic shopping bags, clothing, camouflage gloves, a hat, a metal pipe, knives, duct tape, and handwritten notes containing violent sexual innuendos. The notes appeared frayed when they were found. On the day of the defendant’s arrest, the police returned to the campsite at the sand pit and seized several things, including job applications with the defendant’s name on them and a notebook. A witness trained in handwriting identification testified that it was “highly probable” that the job applications and notebook from the sand pit and the job applications and notes taken from the defendant at his arrest all were in the same handwriting. The notes seized from the defendant at his arrest and the contents of the notebook were read to the jury.¹⁰

Several witnesses identified the defendant at trial as the same man they had seen in the vicinity of the bog and beach area where the attack occurred. One such witness, Ann Azarian, was staying at her cottage across the street from the cranberry bog during the week of July 20, 1994. She was on the beach when the victim ran back to the beach after the attack. Azarian is a nurse and went to assist the victim. About one week later, Azarian saw an article in a local newspaper that contained a photograph of the defendant and stated that someone had been “captured that had done this.” Azarian recognized the defendant as a person she had seen near the gate that leads into the cranberry bog and on the beach near the attack site.

Dennis Keeley, who owned a home in the beach area, saw the defendant’s photograph in the local newspaper and identified the defendant in court as a person he had seen in the beach area prior to the attack. Another witness, Allen Thoresen, saw the defendant in a television report and identified the defendant as the same man he had seen in the vicinity of the beach in July, 1994.

Elias Patoucheas was yet another witness who lived near the beach. He moored a boat off that beach. On July 12, he was walking to his boat when he saw a man behind his dinghy wearing shorts, T-shirt, and sneakers. The man was holding plastic bags containing clothes and other items. Patoucheas spoke briefly with the man and saw the man again on July 19 (the day before the attack) emerging from the dirt path along the cranberry bog. After the attack, Patoucheas described the man he had seen to the police and picked a photograph of the defendant from an array. At trial, Patoucheas identified the defendant as the man he had seen on the beach and along the path.

Sarah Perry, a sixteen year old young woman testified to an encounter with the defendant on July 19. She was walking to the beach at about 5:30 p.m. on a road leading to a dirt road that goes to the beach. She saw a man in dark shorts, sneakers, and a yellow baseball cap run by her. One-half hour later, she again saw this man on the beach and he jogged away. About one hour later, when Perry was walking on the road home, she saw the same man approach her. At this time, he was wearing a T-shirt. He asked if she “had been getting any sun . . . enjoyed sports . . . [and her] name.” He told her his name was “Ted or Ed.” When they neared a dirt path, he asked if she “wanted to take the path.” She refused; they continued walking along the road and he asked if she wanted “to go out with him to have a drink.” When she declined and said she had to go, the man jogged away. Perry described the incident to the police, but could not pick the defendant from a photographic array shown her on July 25. She could not decide between two photographs, one of whom was the defendant. After leaving the police station, she saw the man who had approached her on a television report. She identified the defendant at trial as the same man she had met on July 19.

At the time of the above-described encounter, Lynne Duff was walking home from the beach area involved in this case with her two young daughters. One girl was about twenty-five feet ahead of her mother and sister on the path by the cranberry bog when a man came running toward her from a nearby road. Duff yelled to her daughter to stop and wait and the man ran by the mother into the bog. Duff described the man to the police as about five feet, eight inches tall with a thin build, wearing a T-shirt, jogging shorts, and a yellow baseball cap.

The defendant contends that there was insufficient evidence of his intent to rape the victim. His argument centers on the fact that nothing was said indicating a sexual intent, and that there was no evidence that the victim was touched “in a sexual manner,” and no evidence of an attempt by the assailant to disrobe himself or the victim. While the defendant is correct in that regard, the violent and sexual content of the notes, found on his person at the time of his arrest, are a powerful indication that the attack was sexual in nature. The sexual material in the notes is specific as to the defendant’s intent and includes details of how to accomplish such a crime. Although there was no evidence when the notes were written, there was evidence that the notes appeared frayed, with the comers “ripped off” four days after the attack. The defendant argues that the “incoherent, disjointed nature” of the writings rendered them insufficient for the jury to infer any rational intent. The notes are sufficient to support a finding of an intent to rape, and the jury would be warranted in deeming them a shorthand expression of a plan.

The defendant also argues that in other cases we have suggested that the absence of evidence of larcenous intent has sufficed as a basis to permit an inference of intent to rape. He states that here there is no evidence of the absence of a larcenous intent. To the extent he suggests that this is an element of the offense or that its absence renders the evidence insufficient, that is incorrect. The jury may simply consider the absence of evidence of a larcenous intent. Even so, the victim testified that she was carrying a small purse and there was no evidence that it was taken or that the defendant made any attempt to remove it. Moreover, the victim was returning from the beach at the time she was attacked and it was unlikely that she would be carrying much of value in a small purse on the beach. In addition, the defendant attempted to drag the victim off the path into the bog area and told her to “come with him.” The evidence was sufficient for submission of the offense in question to the jury.¹¹

Judgments affirmed.

1 The case was first reached for trial in June, 1996, but a mistrial was declared because of the defendant’s disruptive behavior. The defendant was then committed to Bridgewater State Hospital, and he was not found competent to stand trial until August 8, 2001.

2 The judge’s observation as to the victim’s “certitude” does not contravene the holding in Commonwealth v. Johnson, 420 Mass. 458, 465-472 (1995) (art. 12 of the Massachusetts Declaration of Rights requires per se exclusion of unnecessarily suggestive identification procedures without recourse to a secondary analysis of witness certainty or reliability). The observation about the victim’s “certitude” is relevant only as a factor in the judge’s analysis whether the young woman was susceptible to pressure from the presence of her father and his belief that this was a person who resembled the attacker.

3 The dissent devotes several pages to establishing this principle as if there is dispute about it. Post at 291-295 (Cordy, J., dissenting). There is no disagreement that suggestiveness is inherent in a one-on-one procedure. But that suggestiveness does not result in per se exclusion of identifications made during such showups. The suggestiveness merely means that we must proceed to the next step and consider whether the identification was unnecessarily or impermissibly suggestive. See Commonwealth v. Austin, 421 Mass. 357, 361 (1995).

4 There was evidence at the hearing that the defendant asked the police to allow him to leave the beach area where they had been detaining him.

5 The defendant states that the police had previously photographed persons who resembled the description of the attacker and then showed the victim the photographs. Evidence of the use of such a procedure with other persons was admitted only at trial, however, and not at the motion to suppress. “Evidence adduced at trial but not before the motion judge . . . cannot be determinative of the propriety of the motion judge’s decision.” Commonwealth v. Rivera, 441 Mass. 358, 367 (2004), quoting Commonwealth v. Ramos, 402 Mass. 209, 216 (1988). Even had this evidence been timely presented, it would not have affected the outcome.

6 The dissent also ignores the fact that it is the defendant’s burden to demonstrate that the showup was unnecessarily suggestive. Commonwealth v. Odware, 429 Mass. 231, 235 (1999). The defendant here made no showing that he was willing to accompany the police in order to participate in a lineup or to be photographed. Indeed, the only evidence on the issue was to the contrary: that the defendant asked the police to permit him to leave the beach area.

7 At trial, the victim testified that she looked through photographs the day of the attack. Two Yarmouth detectives testified that the victim first looked through photographs to see whether she could recognize her attacker among them the morning after the attack.

8 The charge “is intended to be used when because of the lapse of time or otherwise the judge apprehends that the jury is deadlocked.” Commonwealth v. Rodriquez, 364 Mass. 87, 98 (1973).

9 The two elements of assault with intent to rape are an assault on the victim and a specific intent by the defendant at the time of the assault to rape the victim. See Commonwealth v. Nickerson, 388 Mass. 246, 253 (1983).

10 The notes stated the following at various points: “Yarmouth beach, keep going, away down, stay out,” “two blades, cut bitch, rope and blades, broken skull. . . crack the head and skull. Crack the head. . . . You C whore, you C whore, on back, or whatever. You will be a whore. Kiss, kiss on lips or mouth. Kiss on mouth. Great tongue. Yank out tongue. . . . Sex in five minutes. I want to ■ — I want to — sex with you in five minutes. Tongue in mouth. Borrow tongue.” “Rope to girl, rape. Both rape and date. Betsy ran. I track. I know you, but you don’t know why. . . . Try me . . . Punch in face . . . Suck my dick.” “[Cjylinder blocks, jump rope, grease the bitch. Ice the bitch. Grease the pretty bitch. Either one or any. . . . Karen what? Knew last name. Address? . . . .” “Rape sister . . . force, attempt.” “One hammer or crowbar; one shovel, camouflage or bury cover; two, gloves, maybe prints; three, book any direction, wait five to ten minutes. Book any direction, towards school. Rural or woods. . . . Look for wood. Grab everything. Get everything. Need shovel, camouflage.” “Gas can, rags, lighters, trash bag, gloves. Shovel, brush, cover up, camouflage. Check neighborhood. Best direction, book.” Some entries in the notebook are as follows: “Two o’clock, blond bitch from Yarmouth, other direction. . . . 12:00 to 1:30. Brown hair, tied back. Went to lunch. 1:35, returned. There at 2:30. Left at 3:30. Security guard? 12 o’clock check, 1:00 o’clock check, red car, antenna, four-door, check out, back, side entrance, low two-door.” “Know the area. Take time. Look around. . . . Take one good look around. Cut bitch or slice. . . . Get the fuck moving.” “Big kiss, grab hair, tongue, neck, toes, naval [sic].”

11 Although the defendant contended before the Appeals Court that there was insufficient evidence to warrant a finding of intent to kidnap and although the Commonwealth refers in its brief to such an argument, the defendant’s brief to this court contains no reference to such an issue.