Commonwealth v. Fielding

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18-P-342 Appeals Court
COMMONWEALTH vs. SCOTT E. FIELDING.
No. 18-P-342.
Dukes. November 13, 2018. - January 29, 2019.
Present: Milkey, Henry, & Englander, JJ.
Open and Gross Lewdness and Lascivious Behavior.
Identification. Social Media. Evidence, Photograph,
Authentication, Identification. Due Process of Law,
Identification. Practice, Criminal, Identification of
defendant in courtroom.
Complaint received and sworn to in the Edgartown Division
of the District Court Department on May 16, 2016.
The case was tried before J. Thomas Kirkman, J.
Darla J. Mondou for the defendant.
Elizabeth M. Carey, Assistant District Attorney, for the
Commonwealth.
MILKEY, J. A District Court jury convicted the defendant
of open and gross lewdness based on testimony that he had
masturbated in front of a woman (victim) in a health club sauna
in Tisbury. The principal defense at trial was
2
misidentification. On appeal, the defendant challenges the
admission at trial of a photograph of a man that the victim
identified as the perpetrator the day after the incident, as
well as the victim's in-court identification of the defendant.
Discerning no error, we affirm.
Background.1 1. The incident. On May 2, 2016, at
approximately 6:00 P.M., the victim was swimming laps at the
health club's pool. A man whom she had not before met appeared
at the shallow end of the pool and began talking to her. The
victim continued her workout but would pause to converse with
him in between her laps. The man introduced himself to the
victim as "Scott," and the two interacted in the pool for
approximately fifteen minutes.
After the victim completed her swimming, she and the man
she knew as "Scott" went into the hot tub, where they sat close
to each other and chatted some more. They then each expressed
1 Some of the evidentiary issues were resolved based on the
defendant's motion to suppress, on which the judge held an
evidentiary hearing. Given that what happened during the
victim's reporting of the incident lay at the heart of the
motion to suppress, the victim provided far more detail about
that issue during the motion hearing than she did at trial. Her
testimony about the events otherwise was consistent. The
description of the victim's reporting of the incident is drawn
from the oral findings that the judge made from the bench at the
conclusion of the motion hearing, supplemented slightly by
testimony at that hearing that the judge "explicitly or
implicitly credited." Commonwealth v. Jones-Pannell, 472 Mass.
429, 431 (2015), quoting Commonwealth v. Isaiah I., 448 Mass.
334, 337 (2007), S.C., 450 Mass. 818 (2008).
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an interest in going into the sauna. When the victim arrived at
the sauna, "Scott" was already inside with the light off. The
victim turned on the light and entered the sauna, and the two
conversed some more, bringing their total interaction to about
thirty minutes long. The victim testified that she was "[o]ne
hundred percent certain" the person inside the sauna was the
same man from the pool and hot tub. After chatting with "Scott"
for several minutes, the victim heard a "scratching" sound from
where he was sitting, and as she got up to leave the sauna, he
asked her, "[D]o you want to look?" She turned and observed the
man stroking his genitalia, which shocked and angered her.
2. The reporting of the incident. The following day, the
victim went to a sexual assault crisis center to report what had
happened. She then reported it to the police. That same day,
she returned to the health club for a yoga class, where she told
her instructor that something had occurred the day before that
might make it difficult to get through class. The yoga
instructor convinced her to report whatever had happened to club
personnel, and the victim did so after class. While the victim
was relaying the incident to the receptionist, the yoga
instructor came up to the victim and listened to her description
of the man. According to the victim, the yoga instructor then
interjected "that she thought she knew him because [a man of
similar description] had approached her and her daughter."
4
Then, on the club's computer, the yoga instructor located a
photograph of the man she was thinking of on the social media
Web site known as "Facebook." She showed that photograph to the
victim, who identified the man depicted there as the one who
first had approached her in the pool and later had masturbated
in front of her in the sauna.
3. The video surveillance evidence. Some areas of the
building in which the health club was located were monitored by
a video surveillance system.2 A still image from footage
recorded on the evening of the incident, time stamped at 6:35
P.M., showed someone apparently resembling the defendant exiting
the health club.3
2 The judge held a voir dire prior to trial with the club
manager who maintained the video system, as well as the police
officer who went to the club to review the surveillance footage.
The purpose of the voir dire was to assess the defendant's
argument that the Commonwealth could not authenticate the video
still taken from the surveillance footage that it wanted to
introduce at trial. We need not review the facts relevant to
the authentication of the video still, because the defendant no
longer presses that claim on appeal.
3 A police witness testified at trial that when the
defendant was arrested, he was wearing "very bright orange head
phones" and carrying a black backpack. Photographs of these
items were admitted without objection. In closing, the
Commonwealth pointed to the still image from the video
surveillance, which was entered as exhibit two at trial, and
highlighted that the man in the photograph was "wearing the
orange headphones with the black backpack." The Commonwealth
noted that the jurors would be able to examine the still image
during their deliberations and see that the man was wearing "the
very two things [the defendant] was wearing when he was
5
4. The photographic array.4 Nine months after the
incident, the police showed the victim a photographic array,
which consisted of five photographs they showed to her serially.
She identified the photograph of the defendant as the person who
had masturbated in front of her.
5. Pretrial motions. Prior to trial, the defendant filed
a motion to suppress the photograph that the yoga instructor had
found on Facebook (Facebook photo), the photographic array, and
any in-court identification. Following an evidentiary hearing,
the judge made findings from the bench. Subsequently, he
allowed the motion to suppress the photographic array on the
grounds that it was done so long after the incident and did not
comply with approved photographic array procedures in various
respects. However, the judge denied the motion to suppress with
respect to the Facebook photo and any in-court identification.
Immediately prior to trial, the defendant moved in limine
to exclude the Facebook photo on the ground that the
Commonwealth could not authenticate it. The judge tabled a
ruling on that motion until he had a chance to review the case
apprehended by the police."
4 As noted infra, the photographic array was suppressed and
therefore was not admitted or referenced at trial. The facts
about it are drawn from the findings the judge made at the
motion to suppress hearing. The propriety of the order
suppressing the photographic array is not before us.
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law and hear the trial evidence. The defendant also moved --
again -- to preclude the victim from making an in-court
identification. The judge announced that he was "going to deny
[that] motion at this point based on [his] earlier ruling."5
6. The use of the identification evidence at trial.
During the trial, the Facebook photo -- scrubbed of any text or
other potential indicator of its provenance -- and one of the
surveillance stills were admitted over the defendant's
objection. The victim testified that the Facebook photo was
shown to her the day after the incident and that she at that
time identified the person shown there as the perpetrator. The
victim also was allowed to identify the defendant as the
perpetrator in court, again over the defendant's objection. She
testified that she was "[o]ne hundred percent certain" of that
identification. After being given a jury instruction on
identification that closely hued to the one set forth in
Commonwealth v. Gomes, 470 Mass. 352, 379-388 (2015) (Appendix),
the jury convicted the defendant.
5 In addition, the defendant moved in limine to exclude any
still photograph from the surveillance video because the
Commonwealth would be unable to authenticate it, and because of
the result of an alleged discovery violation. After holding a
voir dire of two witnesses with regard to the surveillance
still, the judge appeared to indicate that he was inclined to
allow such an exhibit in evidence, and in any event, he did so
at trial. On appeal, the defendant has not renewed his argument
that the surveillance still was inadequately authenticated.
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Discussion. 1. The Facebook photo. The defendant argues
that the judge abused his discretion in concluding that the
Commonwealth had authenticated the Facebook photo adequately.
We disagree. To establish authentication, the Commonwealth was
required to show "that the item in question is what the
proponent claims it to be." Commonwealth v. Purdy, 459 Mass.
442, 447 (2011). See Mass. G. Evid. § 901(a) (2018). Notably,
the Commonwealth offered the Facebook photo only as a photograph
that the yoga instructor had shown the victim, not as a
photograph that had been displayed on the defendant's Facebook
page. In addition, neither the victim nor any other witness
identified the person shown in the Facebook photo as the
defendant (leaving that issue instead to the jury). With the
victim having testified that the Facebook photo was the one
shown to her, nothing more was required to authenticate it.
The defendant also argues that the victim's being shown the
Facebook photo by the yoga instructor was so suggestive an
identification procedure that the judge erred in denying the
motion to suppress it. The defendant points out that even
though the victim's exposure to the Facebook photo involved no
State action, the case law recognizes that it still could be
excluded under common-law principles of fairness. See
Commonwealth v. Jones, 423 Mass. 99, 109 (1996). As the Supreme
Judicial Court recently clarified, appellate review in this
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context is limited to whether the judge abused his discretion in
determining whether the probative value of the relevant evidence
was substantially outweighed by unfair prejudice. Commonwealth
v. Johnson, 473 Mass. 594, 600-602 (2016).
Applying that standard of review, we have little trouble
affirming the judge's decision. This is not a case where the
eyewitness and the defendant had only fleeting contact.
Although their total time of interaction was only approximately
thirty minutes, the nature of their interaction provided the
victim with a solid basis for focusing on, and remembering, the
appearance of the person with whom she had been conversing one-
on-one in the pool, hot tub, and sauna. Furthermore, the yoga
instructor's presenting the Facebook photo as an individual with
the same description who recently had approached her and her
daughter was not particularly conducive to misidentification.
Unlike a situation in which an eyewitness is presented with a
showup of someone already taken into police custody, the yoga
instructor's showing the victim the Facebook photo was not
particularly suggestive. We are confident that the judge's
decision to allow the victim to testify about her pretrial
identification of the perpetrator in the Facebook photo did not
constitute "'a clear error of judgment in weighing' the factors
relevant to the decision such that the decision [fell] outside
the range of reasonable alternatives" (citation omitted). L.L.
9
v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (defining abuse
of discretion standard).
2. The in-court identification. The defendant also argues
that the judge erred in allowing the victim to identify him in
court. The primary ground on which he presses this argument is
that any in-court identification was unduly tainted by the yoga
instructor's having shown the victim the Facebook photo.6
However, for the reasons set forth above, we have rejected the
defendant's claim that the victim's being shown the Facebook
photo had to be excluded as unduly suggestive. In addition, it
is uncontested that the victim looked at the Facebook photo only
briefly because she "didn't want to keep looking at it." We are
confident that the victim's in-court identification was not
based on her passing exposure to the Facebook photo many months
before.
Although the defendant's brief includes multiple citations
to Commonwealth v. Crayton, 470 Mass. 228 (2014), it does not
squarely rely on the key holding there that an eyewitness's in-
court identification should be precluded unless there was "good
6 The defendant contends, albeit in passing, that the
surveillance still also should have been excluded because it was
tainted by the victim's exposure to the Facebook photo. His
theory seems to be that during their investigation, the police
themselves identified the defendant in the surveillance still
based on his resemblance to the Facebook photo. The defendant's
argument that this investigative procedure somehow tainted the
surveillance still lacks any merit.
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reason" for the eyewitness not having participated in a pretrial
identification procedure. Id. at 241-242.7 In any event, such
an argument would be unavailing for two reasons. First, given
that the victim here had such an extensive and intensive
opportunity to observe the defendant, we view this as being a
good reason to justify not having a pretrial identification.
See id. at 242 ("there may be 'good reason' for the first
identification procedure to be an in-court showup where the
eyewitness was familiar with the defendant before the commission
of the crime"). Second, the day after the incident, the victim
did identify the person in the Facebook photo as the
perpetrator, and the judge who heard the evidence taken at the
motion to suppress hearing specifically found that the person
shown in that photograph was the defendant. Thus, even if a
pretrial identification had been required here before an in-
court identification properly could be allowed, that requirement
was satisfied.8
7 The court in Crayton, 470 Mass. at 243, stated that "the
burden [is] on the prosecutor to move in limine to admit [an]
in-court identification of the defendant by a witness where
there has been no out-of-court identification." Here, the
defendant himself moved to exclude an in-court identification,
first through his motion to suppress and then through his motion
in limine. On appeal, he raises no issue regarding which party
moved first, and in any event, as explained below, we conclude
that there was an out-of-court identification here.
8 We need not consider whether -- in assessing if Crayton
was satisfied -- we could take into account the victim's
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Judgment affirmed.
identification of the defendant in the photographic array
procedure that was excluded at trial.