Commonwealth v. Johnson

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revision and are superseded by the advance sheets and bound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-11567
COMMONWEALTH vs. KENNETH JOHNSON.
Suffolk. September 2, 2014. - January 12, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Identification. Evidence, Identification. Practice, Criminal,
Request for jury instructions, Instructions to jury.
Indictments found and returned in the Superior Court
Department on June 11, 2001.
Following review by the Appeals Court, 74 Mass. App. Ct.
1129 (2009), the cases were tried before Patrick F. Brady, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Brad P. Bennion for the defendant.
Cailin M. Campbell, Assistant District Attorney (David S.
Bradley, Assistant District Attorney, with her) for the
Commonwealth.
David W. Ogden, Daniel S. Volchok, Francesco Valentini, &
Natalie F.P. Gilfoyle, of the District of Columbia, & John C.
Polley, for American Psychological Association & another, amici
curiae, submitted a brief.
M. Chris Fabricant & Karen Newirth, of New York, Joshua D.
Rogaczewski & Johnny H. Walker, of the District of Columbia, &
Kevin M. Bolan, for the Innocence Network, amicus curiae,
submitted a brief.
2
GANTS, C.J. In Commonwealth v. Franklin, 465 Mass. 895,
912 (2013), we recognized "that eyewitness identification may be
an important issue at trial even where no eyewitness made a
positive identification of the defendant as the perpetrator, but
where eyewitnesses have provided a physical description of the
perpetrator or his clothing, or have identified a photograph in
an array as someone who looks like the perpetrator," and we
declared that, "where requested by the defendant, a judge should
provide specific guidance to the jury regarding the evaluation
of such eyewitness testimony through some variation of the
approved identification instruction." Here, the eyewitnesses
described only the defendant's gender and race, and the color of
his shorts; identified other individuals as the perpetrator when
shown a live lineup; and made no in-court identification. The
trial judge declined the defendant's request to give a variant
of the approved identification instruction that included the
directive, "You may take into account whether a witness ever
participated in an identification procedure and failed to
identify the defendant as the perpetrator." We conclude that
the judge did not abuse his discretion in declining to give the
proposed instruction where there was no positive identification
and no other eyewitness testimony that significantly
3
incriminated the defendant. Therefore, we affirm the
defendant's convictions.1
Background. On December 10, 2004, the defendant was
convicted by a Superior Court jury of (1) assault by means of a
dangerous weapon, in violation of G. L. c. 265, § 15B (b); (2)
possession of a firearm without a license, in violation of G. L.
c. 269, § 10 (a); (3) possession of ammunition without a firearm
identification card, in violation of G. L. c. 269, §§ 10 (h);
(4) armed carjacking, in violation of G. L. c. 265, § 21A; and
(5) armed robbery, in violation of G. L. c. 265, §17. On August
11, 2009, in an unpublished memorandum and order pursuant to its
rule 1:28, the Appeals Court vacated the judgments against the
defendant due to an erroneous joint venture instruction and
ordered a new trial. See Commonwealth v. Johnson, 74 Mass. App.
Ct. 1129 (2009). At the conclusion of a new trial, on April 12,
2011, the jury convicted the defendant of all charges. The
defendant filed a timely notice of appeal, and we transferred
the case to this court on our own motion.
We summarize the evidence at trial. On April 22, 2001, at
approximately 6 P.M., Nerys Ramirez drove his girl friend, Erica
Jusino, and their two year old son to a park in the Roxbury
section of Boston. At the park, Ramirez noticed that a gray or
1
We acknowledge the amicus briefs submitted by the
Innocence Network and by the American Psychological Association
and the Center for Law, Brain & Behavior.
4
tan colored2 Jeep Grand Cherokee automobile was parked very close
to his green Jeep Grand Cherokee, on which he had installed tire
rims and other accessories. Ramirez testified that two people
got out of the gray Jeep and looked at his green Jeep over the
course of twenty to twenty-five minutes.
Ramirez and his family remained in the park for
approximately one and one-half hours. On leaving and beginning
the drive home, Ramirez noticed that the gray Jeep and a
motorcycle were following him, even after he had stopped at a
convenience store. The motorcycle eventually passed Ramirez,
but the gray Jeep continued to follow. Ramirez then pulled into
the driveway of his house located in the Hyde Park section of
Boston and parked his vehicle approximately twenty feet from the
front door of his house. The gray Jeep remained on the street.
After Ramirez reached the front door of his house, two
black men went up to him and asked for someone's name, but
Ramirez did not speak English at the time and did not understand
the question. The defendant, who was wearing blue shorts,
pulled out a black revolver, pointed it at Ramirez, and asked
him to give up whatever he had. Ramirez gave his watch,
bracelet, rings, and wallet to the other man (who was not
holding the gun), later identified as Raymond Sledge. Sledge
2
At trial, witnesses described the color of this Jeep
automobile as gray, grayish, tan, tannish, grayish-tannish,
gold, and brown. We will refer to this Jeep as the gray Jeep.
5
then took Ramirez's automobile keys, cellular telephone, and
pager.
Jusino, who had been inside the green Jeep with her son,
started walking toward the house. As she approached, Ramirez
told her that he was being robbed, but she continued walking
toward him until the defendant pointed the gun at her stomach.3
Ramirez testified that the defendant then got into the gray Jeep
and Sledge got into Ramirez's green Jeep.4 Jusino, however,
testified that Sledge got into the gray Jeep while the defendant
kept the weapon pointed at Ramirez and her, and later drove off
in Ramirez's green Jeep. The assailants departed the scene in
the two Jeeps, driving in the same direction.
Jusino used her set of keys to enter the house and called
the police. Officer Robert Lawler5 arrived at Ramirez's house
3
Erica Jusino was eight and one-half months pregnant at the
time.
4
At the previous trial, Nerys Ramirez had testified that
the gunman got into the green Jeep and the man without the gun
got into the gray Jeep. However, after Ramirez was cross-
examined with this inconsistency, the jury learned on redirect
examination that, at the grand jury proceeding in 2001, Ramirez
had explained that the gunman kept pointing the weapon at him
while the other man got into the green Jeep.
5
Officer Robert Lawler was retired and unavailable at the
time of trial, so his prior testimony from the 2004 trial was
read aloud to the jury.
6
approximately five minutes later, around 9 P.M.6 After speaking
briefly with Jusino, Officer Lawler broadcast on the police
radio that the robbers were two black males, one driving a green
Jeep that belonged to the victims, and one wearing blue shorts,
armed with a handgun, and driving a gray Jeep.
Officer Brian Foley was parked nearby when he heard Officer
Lawler's broadcast, and saw two Jeeps matching Officer Lawler's
description driving toward him. He followed the Jeeps and, with
the assistance of other officers, succeeded in stopping them a
few miles from the scene of the crime.7 Officer James Thompson
and Officer Foley approached the gray Jeep, and Officer Thompson
removed the defendant from the vehicle and frisked him,
recovering a black revolver loaded with five bullets. The
defendant was wearing blue shorts when arrested. Meanwhile,
Officer Kevin Doogan secured Sledge, who was driving the green
Jeep. Officer Doogan frisked Sledge and found a cache of gold
jewelry. However, he left the jewelry in Sledge's pocket to be
searched at the police station. Officer Foley searched Sledge
at the station and recovered three gold rings, one heavyweight
6
The telephone call to the police was placed approximately
seven minutes after the robbery. Jusino testified that
Ramirez's set of house keys was stolen along with the car keys,
so she had to find another set of house keys.
7
Officer Lawler testified that it took less than five
minutes to drive from Ramirez's residence to where the stop was
made.
7
chain necklace, one bracelet, an autographed fifty dollar bill,
and an autographed twenty dollar bill. Ramirez later identified
these items as his own.
Officer Thompson searched the green Jeep and recovered
Ramirez's wallet. Officer James Martin searched the gray Jeep
at the scene and at the station. At the scene, he recovered a
Motorola cellular telephone and a pager. At the station, he
recovered a compact disc holder, a gold watch, a leather or
vinyl card holder, and a jacket with a wallet holding a
Massachusetts driver's license that belonged to Sledge. At the
station, Ramirez identified his automobile keys, cellular
telephone, and pager.
No showup identification was attempted on the night of the
arrest. The first identification procedure was conducted on May
10, 2001, when Ramirez and Jusino went to Boston police
headquarters to view a live lineup.8 During the eighteen days
between the night of the robbery and the lineup, the defendant's
hair style changed; his hair was styled in a "medium Afro" on
April 22 but was fashioned into twists or braids on May 10. The
defendant was included in the eight-person lineup as participant
no. 4; Sledge was not included. When viewing the lineup,
Ramirez asked three people to step forward, including the
8
The lineup procedure was audio and video recorded, but the
tape was lost before the 2004 trial and not found at the time of
the 2011 trial.
8
defendant. He then selected participant no. 6, not the
defendant. Jusino separately viewed the same lineup, and she
selected a different individual than Ramirez did, but not the
defendant.9
Discussion. Although neither eyewitness identified the
defendant at the live lineup, the defendant requested a modified
identification instruction providing that the jury may consider
that the witnesses had an opportunity to view the defendant but
did not identify him.10 The judge inquired, "There was no I.D.,
9
Ramirez and Jusino each identified Raymond Sledge in a
separate lineup.
10
The defendant's requested instruction, in full, stated:
"One of the most important issues in this case is the
identification of the defendant as the perpetrator of the
crime. The Commonwealth has the burden of proving the
identity of the perpetrator beyond a reasonable doubt.
"It is not essential that any witnesses themselves are free
from doubt as to the correctness of their identification of
the perpetrator.
"However, you the jury, must be satisfied beyond a
reasonable doubt as to the identity of the defendant as the
perpetrator of the crimes with which he stands charged
before you may convict him. If you are not convinced
beyond a reasonable doubt that the defendant was the person
who committed the crime, you must find the defendant not
guilty.
"You may take into account that any identification that was
made by picking the perpetrator out of a group of similar
individuals is generally more reliable than one which
results from the presentation of a suspect alone to a
witness.
9
so why should I give an I.D. charge?" Defense counsel said, "I
just want the jury to be able to consider the fact that they had
an opportunity to view this defendant . . . ." The judge
reasoned that "[t]he model I.D. instruction only applies if
somebody's identified." The judge denied the request, stating
that the failure to identify the defendant was a matter for the
attorneys to address to the jury in closing argument, and
requires no special instruction. The defendant objected to the
denial of the instruction at the conclusion of the judge's
charge.
The issue on appeal is not whether a judge may instruct a
jury regarding a witness's failure to identify the defendant; it
is certainly within a judge's discretion to do so. Rather, the
issue is whether the judge abused his discretion in declining to
give the instruction requested here by the defendant, where
there was no positive eyewitness identification, only a physical
description of the suspect limited to his race, his gender, and
"You may take into account whether a witness ever
participated in an identification procedure and failed to
identify the defendant as the perpetrator.
"I again emphasize that the Commonwealth has the burden of
proof on every element of the crime charged, and this
specifically includes the burden of proving beyond a
reasonable doubt the identity of the defendant as the
perpetrator of the crimes with which he stands charged.
If, after examining the testimony, you have a reasonable
doubt as to the identity of the defendant as the
perpetrator of the crimes with which he stands charged, you
must find the defendant not guilty."
10
the color of his shorts. Because the defendant properly
objected to the judge's denial of the modified instruction, we
review the judge's decision for prejudicial error. See
Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).
"We have long recognized that '[e]yewitness identification
of a person whom the witness had never seen before the crime or
other incident presents a substantial risk of misidentification
and increases the chance of a conviction of an innocent
defendant.'" Commonwealth v. Silva-Santiago, 453 Mass. 782, 796
(2009), quoting Commonwealth v. Jones, 423 Mass. 99, 109 (1996).
See Commonwealth v. Johnson, 420 Mass. 458, 465 (1995) ("There
is no question that the danger of mistaken identification by a
victim or a witness poses a real threat to the truth-finding
process of criminal trials"). "We have also long recognized
that, where the reliability of a positive eyewitness
identification is an important issue at trial, a judge should
instruct the jury regarding the evaluation of eyewitness
identification testimony . . . ." Franklin, 465 Mass. at 910.
See Commonwealth v. Williams, 54 Mass. App. Ct. 236, 239 (2002)
("The cases make plain that judges should furnish jurors with a
set of practical criteria by which they can assess the quality
of an asserted identification . . ."). More recently, in
Franklin, supra at 912, we recognized that, where requested by
the defendant, a judge should also provide a modified
11
instruction regarding the evaluation of eyewitness
identification testimony where "no eyewitness made a positive
identification of the defendant as the perpetrator, but where
eyewitnesses have provided a physical description of the
perpetrator or his clothing, or have identified a photograph in
an array as someone who looks like the perpetrator."
Here, the two eyewitnesses to the crime, Ramirez and
Jusino, identified lineup "fillers," persons who had nothing to
do with the case, rather than the defendant at a live lineup and
provided only the most general description of the suspect's
race, gender, and blue shorts. The defendant does not contend
that this description is so singular as to serve as a partial
identification. Nor would the modified instruction proposed by
the defendant have invited the jury to evaluate the witnesses'
description of the gunman as a black man wearing blue shorts.
In fact, the defendant does not contend that there was a risk of
misidentification arising from any of the identifying
information presented at trial.11
11
We acknowledge that Commonwealth v. Franklin, 465 Mass.
895 (2013), had not been decided at the time of the defendant's
trial. However, even if the defendant had requested a modified
instruction to caution the jury regarding the witnesses'
description of him, the description was too generic to require a
modified instruction under Franklin. The description of a
defendant's race, gender, and blue shorts are not details so
specific to the defendant that they essentially serve as a
partial eyewitness identification. Contrast with id. at 900-
901, 903 (one eyewitness saw defendant and victim from
12
Rather, the defendant essentially contends that, even where
there was no positive or partial identification of the
defendant, he was entitled to a jury instruction that would have
informed the jury, first, that the Commonwealth bears the burden
of proving beyond a reasonable doubt the identity of the
defendant as the perpetrator of the crime, and, second, that
they may take into account the failure of the witnesses at the
lineup to identify the perpetrator. We conclude that the jury
were already told the first proposition through the reasonable
doubt instruction, and needed no instruction to understand the
second proposition.
The purpose of the identification instruction "is to
emphasize the importance of eyewitness identifications, [to]
inform the jury of the Commonwealth's heavy burden of proof as
to the accuracy of the identification, and to furnish the
criteria by which the jury can assess the quality of the
identification." Commonwealth v. Walker, 421 Mass. 90, 99
(1995). Here, there was no incriminating eyewitness
identification testimony of consequence that the jury needed to
evaluate as to accuracy, importance, or quality. Where there is
incriminating eyewitness identification testimony offered by a
"shoulders up" running prior to shooting, and another eyewitness
who saw shooting declared during photographic array that shooter
"looked like" defendant but had hair like another person
depicted in array).
13
witness, our new provisional model instruction, like our earlier
model instruction, allows the jury to consider any failure of
the witness to identify the defendant in a prior identification
procedure when evaluating the accuracy and weight of the
incriminating identification evidence. See Commonwealth v.
Gomes, ante , (Appendix) (2014) (provisional model
instruction allowing jury to consider witness's failure to
identify defendant); Commonwealth v. Rodriguez, 378 Mass. 296,
310-311 (Appendix) (1979) (former model instruction providing
same guidance). Where there is no incriminating eyewitness
identification testimony, a witness's failure to identify the
defendant is not part of the jury's evaluation of identification
evidence but simply exculpatory evidence indicating that the
defendant was not the perpetrator, which the jury may weigh in
light of the totality of the evidence. Because, here, there was
no identification testimony that significantly incriminated the
defendant, the judge did not abuse his discretion in declining
to give the modified identification instruction.
Of course, the jury are entitled to consider the witnesses'
failure to identify the defendant, and they did so in this case.
Officer Doogan testified on both direct and cross-examination
that Ramirez and Jusino did not identify the defendant but
identified another lineup participant. During opening statement
and closing argument, defense counsel reiterated several times
14
that the defendant had appeared before both Ramirez and Jusino
and neither had picked him as the culprit. The judge instructed
the jury that they could take into account the witnesses'
testimony and the exhibits, which included photographs of the
defendant's live lineup. The judge also instructed the jury to
weigh the witnesses' credibility, any inconsistencies, and the
over-all plausibility of the testimony. The judge even
instructed the jury to consider the failure to preserve the
recording of the lineup procedure in evaluating the reliability
of the evidence. Where there was no danger of eyewitness
misidentification, the judge's "charge, as a whole, adequately
cover[ed] the issue." Commonwealth v. Watson, 455 Mass. 246,
259 (2009), quoting Cruz, 445 Mass. at 597.
In Gomes, supra at , we concluded that scientific
principles that would assist juries in their evaluation of
eyewitness identifications may be included in a model jury
instruction where they are so generally accepted that there is a
"near consensus in the relevant scientific community," and we
identified various principles that met this standard. We have
reviewed the scholarly research to determine whether there are
generally accepted scientific principles that would meaningfully
assist juries in their evaluation of the weight to give an
eyewitness's failure to identify a defendant, where there is no
positive or partial identification. We discovered from our
15
review that the breadth of research on eyewitness identification
is not similarly found in the area of eyewitness
nonidentification.12 See Charman & Wells, Applied Lineup Theory,
in 2 Handbook of Eyewitness Psychology 251 (2007) (Charman &
Wells); Wells & Olson, Eyewitness Identification: Information
Gain from Incriminating and Exonerating Behaviors, 8 J.
Experimental Psychol.: Applied 155, 164 (2002) (Wells & Olson).
And we also discovered that what little has been established
would not be of material assistance to a jury.
There is some agreement that, generally, a witness's
failure to identify a defendant is at least somewhat indicative
of innocence. See Charman & Wells, supra at 225-226; Wells &
Lindsay, On Estimating the Diagnosticity of Eyewitness
Nonidentifications, 88 Psychol. Bull. 776, 778-779 (1980) (if
witness's identification of suspect increases probability that
suspect is perpetrator, then witness's declaration that
perpetrator is not in lineup or witness's identification of
filler as perpetrator must decrease probability that suspect is
perpetrator). But reasonable jurors would already know this
based on their common sense. What they might not know is what
12
We characterize an eyewitness's "failure to identify" or
"nonidentification" to include (1) a witness's assertion that
the perpetrator is not among the persons shown in the lineup;
(2) a witness's identification of a person other than the
suspect in the photographic array or lineup; or (3) a witness's
inability either to identify or to exclude the suspect as the
perpetrator.
16
weight to give a failure to identify where there is neither a
positive nor a partial identification. The research provides
little help in this regard, because there is no near consensus
as to how much information is gained from a failure to identify.
See Wells & Olson, supra ("[T]here has been virtually no
dialogue in the eyewitness identification literature" concerning
appropriate weight that should be given to witness's assertion
that perpetrator is not in lineup, or to witness's
identification of filler as perpetrator). This is not a simple
area of inquiry, because a failure to identify may be weighed
differently depending on whether the eyewitness got a good,
long, frontal look at close range of a perpetrator who was
wearing no mask, or whether the eyewitness got only a momentary
glance at a masked perpetrator fleeing the scene of the crime.
See, e.g., Commonwealth v. Bourgeois, 404 Mass. 61, 63 (1989)
(witness's nonidentification not shown to be exculpatory because
"there [was] no evidence on the record . . . that the victim had
such an opportunity to view the defendant as would have
permitted the victim to identify the defendant"). In addition,
an eyewitness's identification of a filler in a lineup as the
culprit may be weighed differently from an assertion that no one
in the lineup is the culprit, or that he or she does not know
enough to choose or reject anyone. See Charman & Wells, supra
at 226; Clark, Howell, & Davey, Regularities in Eyewitness
17
Identification, 32 Law & Hum. Behav. 187, 207-208 (2008) (filler
identifications "may be viewed as an indication of the witness's
desire to make an identification despite having a weak memory of
the target"); id. at 206 (witness inability either to identify
or exclude suspect as perpetrator was shown to have "little or
no probative value"). Until we are confident that we can
materially aid the jury in their evaluation of a failure to
identify based on principles that have attained near consensus
in the relevant scientific community, we will not offer even a
provisional model jury instruction regarding an eyewitness's
failure to identify a defendant, where there is no positive or
partial identification. We therefore leave the question whether
a jury instruction shall be given in these circumstances, and
what it should say, to the sound discretion of the trial judge.
Conclusion. The judge did not abuse his discretion by
declining to give an identification instruction where there was
no positive eyewitness identification or other eyewitness
testimony that significantly incriminated the defendant. Having
found no error, we affirm the defendant's convictions.
So ordered.