Commonwealth v. McEvoy

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16-P-1681 Appeals Court
COMMONWEALTH vs. BRADLEY McEVOY.
No. 16-P-1681.
Essex. November 13, 2017. - June 4, 2018.
Present: Kinder, Desmond, & Sacks, JJ.
Motor Vehicle, Leaving scene of accident, License to operate.
Registrar of Motor Vehicles, Records, Revocation of license
to operate. License. Notice. Constitutional Law,
Confrontation of witnesses, Identification. Evidence,
Photograph, Identification. Identification. Practice,
Criminal, Confrontation of witnesses, Instructions to jury.
Complaints received and sworn to in the Lynn Division of
the District Court Department on July 15 and September 6, 2013.
A pretrial motion to suppress evidence was heard by Michael
C. Laurenzano, J., and the cases were tried before Ellen
Flatley, J.
Kevin P. DeMello for the defendant.
Ronald DeRosa, Assistant District Attorney, for the
Commonwealth.
SACKS, J. After a District Court jury trial, the defendant
was convicted of leaving the scene of an accident causing both
personal injury and property damage and of operating a motor
2
vehicle with a suspended license.1 On appeal, the defendant
claims that (1) admission in evidence of the registry of motor
vehicles' (registry) "mailing confirmation" document related to
his notice of license suspension violated the confrontation
clause and was erroneous on other grounds, (2) the Commonwealth
offered insufficient evidence to prove that he had notice of his
license suspension, (3) his motion to suppress the victim's
pretrial identification of him from a photographic array was
erroneously denied, and (4) the judge improperly omitted a
portion of the Gomes jury instruction addressing eyewitness
identification under high stress. See Commonwealth v. Gomes,
470 Mass. 352, 381-382 & n.9 (2015) (Appendix). We affirm.
Background. The jury could have found that on July 3,
2013, Andres Santana was operating his motorcycle in Lynn, when
a sport utility vehicle (SUV) pulled out from a side street to
make a turn. Unexpectedly, however, a green sedan pulled out
immediately behind the SUV and then stopped in Santana's travel
lane, forcing him to brake. Santana saw the driver of the sedan
for about a second and observed that he was wearing a white tank
top and that his left arm was tattooed. Anticipating that the
1 He was also convicted of operating a motor vehicle that
was uninsured and had a suspended registration, but those
charges were placed on file with his consent, and his claims of
error regarding those charges are not before us. Absent
exceptional circumstances, convictions of charges placed on file
with the defendant's consent cannot be appealed. See
Commonwealth v. Delgado, 367 Mass. 432, 438 (1975).
3
sedan might proceed forward, Santana tried to steer to the right
and rear of the sedan to avoid a collision. The driver,
however, stared directly at Santana, "ma[king] perfect eye
contact," and momentarily froze.
Santana's motorcycle struck the sedan's driver's side rear
quarter panel, propelling him into the air and over the sedan.
He hit the road and rolled underneath a stopped vehicle, and by
the time he stood up, he could not see the sedan. He received
medical treatment and his motorcycle was later declared a total
loss.
A Lynn police officer arrived and spoke with Santana. The
officer also found a bumper, with the license plate attached, in
the intersection. A few hours later, the officer was dispatched
to a street less than a mile away where a 1997 green Geo Prism
sedan was found parked. The Prism had damage to the rear
driver's side and matched the license plate left in the
intersection. The defendant was the registered owner of the
Prism.
Two days later, on July 5, the defendant reported to the
Lynn police that his Prism had been stolen. He stated that the
theft occurred sometime between July 3 and 5, from a street
corner in Lynn, and that the keys were in the vehicle and the
doors locked. Further police investigation showed that, prior
to the date of the collision, the defendant's operator license
4
had been suspended and the insurance and registration for the
Prism had been revoked.
Lynn police Officer John Meaney attempted to locate the
defendant. On July 11, he went to the address in Peabody listed
for the defendant in the registry's records. There was no
answer at the door, but the Prism was in the driveway.2 Officer
Meaney noticed damage to the rear quarter panel but saw no
damage to the windows, ignition, or steering column.
Several days later, the defendant telephoned Officer Meaney
and said that he had brought the sedan to Lynn and parked it
there sometime on July 3. The defendant explained that he
always left a key under the mat and denied any involvement in
the collision.
The police prepared a photographic array that included a
picture of the defendant, and on August 15, Officer Meaney
showed Santana the array. Santana identified the defendant's
photograph as that of the driver. Santana also told Officer
Meaney that the driver had tattoos, although they were not
visible in the photograph.3 Santana later identified the
2 Nothing in the record explains how or when the Prism,
after being found on a street in Lynn the day of the collision
and being reported stolen two days later, was returned to the
defendant's driveway.
3 The photographs in the array showed only the upper
shoulders and head of each individual. The defendant's
memorandum in support of his motion to suppress asserted that
5
defendant in court as the driver. The defense theory, advanced
through cross-examination and argument, was misidentification.
Discussion. 1. Registry mailing confirmation. The
defendant raises three challenges to the Commonwealth's use at
trial of a registry mailing confirmation document to prove that
he received notice of his license suspension. He argues that
use of the document violated the confrontation clause -- both
because it was created for use at trial and because it was used
to prove an element of the crime -- and that it was not properly
authenticated.
To prove the charge, the Commonwealth was required to show,
among other things, that the defendant had been notified that
his license was suspended or revoked. See G. L. c. 90, § 23;
Commonwealth v. Deramo, 436 Mass. 40, 50 (2002); Commonwealth v.
Parenteau, 460 Mass. 1, 5-6 (2011) "Pursuant to G. L. c. 90,
§ 22(d),[4] the Commonwealth can satisfy this burden by showing
the tattoos "do not in fact exist exactly as described" by
Santana to Officer Meaney. There was no testimony at the motion
hearing or trial regarding whether or how the defendant was
tattooed.
4 The relevant portion of G. L. c. 90, § 22(d), as amended
by St. 1969, c. 637, provides:
"Notice to any person whose license or registration
certificate or right to operate is suspended or revoked
under this section or notice to any person of intention to
revoke or suspend his license or registration certificate
under this section shall be in writing, shall be mailed by
the registrar or any person authorized by him . . . and a
6
that the registry properly mailed the notice of suspension or
revocation, which constitutes 'prima facie evidence of receipt
by the addressee.'" Id. at 6, quoting from Commonwealth v.
Koney, 421 Mass. 295, 303-304 (1995). See Commonwealth v.
Royal, 89 Mass. App. Ct. 168, 174 n.9 (2016).
To meet this burden, the Commonwealth introduced a copy of
a May 10, 2013, notice addressed to the defendant, informing him
that his license would be suspended effective June 9, 2013
(about one month before the July 3 collision). The notice bore
the designation: "USPS ID: 370853." The Commonwealth also
introduced a registry document entitled "USPS MAILING
CONFIRMATION." The mailing confirmation also bore the
designation "USPS ID: 370853,"5 and included the statements,
"CREATED BY RMV ON: 05/10/2013" (the same date as the notice),
and "RECEIVED BY USPS: 05/13/2013 20:09, AT POST OFFICE:
02205." The documents were certified by the registrar of motor
vehicles (registrar) under G. L. c. 90, § 22.
certificate of the registrar that such notice has been
mailed in accordance with this section shall be deemed
prima facie evidence and shall be admissible in any court
of the commonwealth as to the facts contained therein."
5 This "USPS ID" number was different from the one appearing
on the notice that the Prism's registration had been suspended
and its corresponding mailing confirmation, permitting the
inference that each notice and corresponding mailing
confirmation are assigned a different USPS ID number.
7
a. Confrontation clause: purpose for record's creation.
The defendant first argues that the mailing confirmation was
inadmissible under Parenteau, 460 Mass. 1, because it was
created for the purpose of use at trial. In Parenteau, the
Commonwealth had introduced a copy of the notice of license
revocation together with the registrar's attested statement that
the notice had been mailed on the date shown on the notice. See
id. at 4. The attestation was dated two months after the
related criminal complaint had issued. See id. at 8. The court
held that the attestation document was testimonial because the
date showed that it had been produced specifically for use at
the defendant's trial. See id. at 8-9. The court concluded
that the document's "admission at trial in the absence of
testimony from a registry witness" violated the defendant's
confrontation rights. Id. at 9.
In reaching this conclusion, the Parenteau court relied on
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), as
outlining the particular characteristics that render business
records, if admitted without live testimony, violative of the
confrontation clause. Under Melendez-Diaz, "business records
are not admissible at trial 'if the regularly conducted business
activity is the production of evidence for use at trial.'"
Parenteau, 460 Mass. at 9, quoting from Melendez-Diaz, 557 U.S.
at 321. As an illustration, in Melendez-Diaz, the Court quoted
8
from Palmer v. Hoffman, which held that "an accident report
provided by an employee of a railroad company did not qualify as
a business record because, although kept in the regular course
of the railroad's operations, it was 'calculated for use
essentially in the court, not in the business.'" Melendez-Diaz,
557 U.S. at 321, quoting from Palmer v. Hoffman, 318 U.S. 109,
114 (1943). "[B]usiness and public records are generally
admissible absent confrontation not because they qualify under
an exception to the hearsay rules, but because -- having been
created for the administration of an entity's affairs and not
for the purpose of establishing or proving some fact at trial --
they are not testimonial." Parenteau, 460 Mass. at 9, quoting
from Melendez-Diaz, 557 U.S. at 322-324.
Applying these principles, the Parenteau court held that
the registrar's attestation of mailing, created for use at
trial, was inadmissible because it was not "a contemporaneous
business record." Id. at 10. Importantly, however, the court
explained that, "If such a record had been created at the time
the notice was mailed and preserved by the registry as part of
the administration of its regular business affairs, then it
would have been admissible at trial." Ibid.
In response to Parenteau, the registry implemented a system
to create such contemporaneous records, and we upheld their
9
admissibility against a confrontation clause challenge in Royal,
89 Mass. App. Ct. at 174. We concluded:
"The mailing confirmation records introduced in this case
appear to be such contemporaneous business records, now
maintained by the registry in response to the Parenteau
decision. They were properly admitted as evidence that the
registry mailed, and prima facie evidence that the
defendant received, the notices of intent to suspend his
license."
The defendant here nevertheless presses the claim that the
mailing confirmations are testimonial because they were not
created for any business purpose but instead "were created in
the wake of the Parenteau case for the sole purpose of allowing
the Commonwealth to prove notice of suspensions and revocations
at trial without the use of live testimony." Our decision in
Royal already rejected this argument, concluding that the
mailing confirmations, created in response to the roadmap in
Parenteau for avoiding a confrontation clause problem, did in
fact avoid that problem. See ibid. The court would not have
laid out such a roadmap if it led only to a dead end.
In assessing the purpose for the creation of the mailing
confirmations, we are guided by Commonwealth v. Zeininger, 459
Mass. 775, cert. denied, 565 U.S. 967 (2011) -- a decision
issued shortly before Parenteau -- in which the court held
admissible certain State office of alcohol testing (OAT) records
annually certifying the proper functioning of breathalyzer
machines used to test operating under the influence (OUI)
10
suspects' blood alcohol content. By statute, the results of a
breathalyzer test are inadmissible in a prosecution for OUI
unless the breathalyzer has received an annual certification
from OAT that it meets certain accuracy criteria. See id. at
779-780, citing G. L. c. 90, § 24K. And, because a "notation of
[such annual] certification appears on the same report as the
results of the breathalyzer test, as a matter of practice, it is
admitted in evidence and published to the jury in an OUI
prosecution." Id. at 780-781.
The defendant in Zeininger argued that the OAT
certification was inadmissible because "even if a record is
prepared in the regular course of business, it does not qualify
as a business or official record . . . if it was 'calculated for
use essentially in the court, not in business.'" Id. at 784,
quoting from Melendez-Diaz, 557 U.S. at 321. The Supreme
Judicial Court concluded that "the OAT certification records are
not 'calculated for use essentially in the court.'" Id. at 784,
quoting from Palmer, 318 U.S. at 114.
"Rather, OAT prepares the certification records in concert
with its statutory charge to administer an internal
regulatory program that standardizes 'satisfactory methods,
techniques and criteria for the conduct of [breathalyzer]
tests.' G. L. c. 90, § 24K. In this sense the records are
'typical of entries made systematically or as a matter of
routine to . . . provide internal controls,' which are
admissible under the Federal rules and the common law."
11
Ibid., quoting from Palmer, 318 U.S. at 113. The OAT records
were thus admissible as business records.
In Zeininger, the court then turned to, and rejected, the
confrontation clause challenge to the OAT certification records.
Notwithstanding that the obvious purpose of breathalyzers is to
accurately test the blood alcohol levels of OUI suspects, and to
provide accurate evidence against those charged with OUI, the
court reasoned that "the OAT certification records were made
'for the administration of an entity's affairs and not for the
purpose of establishing or proving some fact at trial,'" and
thus were nontestimonial. Id. at 787, quoting from Melendez-
Diaz, 557 U.S. at 324. See Michigan v. Bryant, 562 U.S. 344,
358 (2011).
Much of what the court said in Zeininger applies equally to
the registry's mailing confirmations. The registry has a
statutory duty to notify persons that their operators' licenses
have been suspended or revoked. See, e.g., G. L. c. 90,
§ 22(d); G. L. c. 90C, § 3(A)(6)(a). The registry must preserve
records of such notices, as well as other documents "maintained
in the normal course of business." G. L. c. 90, § 30, as
amended by St. 2010, c. 409, § 14. The primary purpose of
registry mailing confirmations is to "guarantee, internally, as
a matter of course, and when necessary, in court," that the
registry has performed its statutory duty of giving notice of
12
license suspensions and revocations. Zeininger, 459 Mass. at
788.
In Zeininger, the court stated that "[a]t the time of
[OAT's] certification, the hypothetical use of that record in an
as-yet-unknown criminal proceeding [was] merely an ancillary
purpose, subordinate in importance to the 'administration of the
entity's affairs.'" Id. at 788, quoting from Melendez-Diaz, 557
U.S. at 324. Here, likewise, the hypothetical use of the
registry's mailing confirmation in an as-yet-unknown prosecution
for operating under suspension is equally ancillary to the
registry's statutory duty, regulatory in character, to suspend
or revoke operators' licenses in order to protect public safety.
See Luk v. Commonwealth, 421 Mass. 415, 423-430 (1995)
(registry's license suspension or revocation serves primarily
regulatory, not punitive function).
Further, in Zeininger, 459 Mass. at 788, the court
distinguished OAT technicians from chemists (like those in
Melendez-Diaz), who create certificates of drug analysis, on the
ground that OAT technicians act with no particular prosecutorial
purpose. The court adopted the reasoning of the Oregon Court of
Appeals on this point:
"Although [breathalyzer machines] produce evidence that is
used only in criminal prosecutions or administrative
hearings, the person who performs the test of a machine's
accuracy does so with no particular prosecutorial use in
13
mind, and, indeed, there is no guarantee that the machine
will ever, in fact, be used."
Zeininger, 459 Mass. at 788 n.18, quoting from State v. Bergin,
231 Or. App. 36, 41 (2009). Likewise, the registry employees
who cause mailing confirmations to be created have no particular
prosecutorial use in mind, and there is no guarantee that any
given mailing confirmation will ever be used in court.
We acknowledge that the court's ruling in Zeininger rested
in part on its conclusion that OAT certification records were
not "offered as direct proof of an element of the offense
charged," but instead "bear only on the admissibility or
credibility of the [breathalyzer] evidence." Zeininger, 459
Mass. at 786. OAT certification records "bear a more attenuated
relationship to conviction: They support one fact (the accuracy
of the machine) that, in turn, supports another fact that can
establish guilt (blood alcohol level)." Id. at 787, quoting
from Bergin, 231 Or. App. at 41. Here, although a registry
mailing confirmation may constitute more direct proof of an
element of the offense,6 we cannot say that Zeininger therefore
6 The mailing of notice by the registry is not itself an
element of the offense; rather, such mailing is ordinarily
offered as prima facie proof of the element that the defendant
received notice of the license suspension or revocation. See
Commonwealth v. Crosscup, 369 Mass. 228, 231, 239-242 (1975);
Deramo, 436 Mass. at 50-51; Parenteau, 460 Mass. at 6.
Moreover, proof of mailing by the registry is not essential;
proof of "the defendant's actual knowledge that his license was
revoked" will suffice, even without proof of "precisely how that
14
precludes its use. This is because after the decision in
Zeininger, the court in Parenteau, despite expressly recognizing
that a mailing confirmation could be used as "prima facie
evidence . . . [of] an essential element of the charged crime,"
Parenteau, 460 Mass. at 8, indicated that a contemporaneously
created mailing confirmation would be admissible. See id. at
10. In short, Zeininger and Parenteau, read together, require
the conclusion that the use at trial of the registry's
contemporaneously produced mailing confirmation did not violate
the confrontation clause.
b. Confrontation clause: use of record to prove element
of offense. The defendant next argues that the confrontation
clause bars the use of an otherwise admissible business record
to prove an element of an offense -- here, that he had notice
that his operator's license had been suspended.7 As just noted,
the Parenteau court implicitly rejected this argument; we
explicitly rejected it in Commonwealth v. Weeks, 77 Mass. App.
Ct. 1 (2010). There, a defendant was charged with carrying a
actual knowledge was acquired." Deramo, 436 Mass. at 51-52.
See Commonwealth v. Oyewole, 470 Mass. 1015, 1016 (2014)
(suggesting that notice element could be satisfied by proof that
suspension was communicated to defendant by judge in open court
or that docket sheet reflecting suspension was shown to
defendant).
7For purposes of this argument we assume that the defendant
is correct in characterizing the registry's mailing of notice as
proving an element of the offense. But see note 6, supra.
15
firearm without a license, subsequent offense; we held that
certified copies of the docket sheets showing the prior
convictions were nontestimonial and admissible to prove those
convictions, which were plainly an element of the subsequent-
offense charge at issue. Id. at 1, 5-8. See Commonwealth v.
Ellis, 79 Mass. App. Ct. 330, 331-333 (2011) (same in OUI
subsequent-offense prosecution). Similarly, in Kirby v. United
States, 174 U.S. 47 (1899), the Court recognized that it does
not violate the confrontation clause to use a docket sheet to
prove the fact of a prior conviction, where that fact is
necessary to a subsequent prosecution. Id. at 54-55.
c. Authentication. Equally unavailing is the defendant's
argument that the mailing confirmation was not properly
authenticated. The suspension notice and mailing confirmation
were attached to an attestation from the registrar, which were
signed by her, stating that the "annexed instrument(s) are true
copy(s) of the . . . notice(s) of suspension/revocation as
appearing in the registrar's records." This was sufficient.
That the attestation did not specifically mention the
mailing confirmation is not dispositive. Neither of the
statutes making attested copies of registry records admissible -
- G. L. c. 233, § 76, and G. L. c. 90, § 30 -- specifies the
precise form an attestation must take. See Commonwealth v.
Martinez-Guzman, 76 Mass. App. 167, 170, 172 n.4 (2010). See
16
also G. L. c. 233, § 78. The defendant does not dispute that
the attestation was physically attached to the notice and
mailing confirmation, and the mailing confirmation can
reasonably be viewed as a component of the notice as appearing
in the registrar's records, even if the mailing confirmation
itself is not mailed to the operator along with the notice. Cf.
Commonwealth v. Dias, 14 Mass. App. Ct. 560, 563-564 (1982).
The requirement that, "to qualify as an 'attested' copy, there
must be 'a written and signed certification that [the document]
is a correct copy,'" was satisfied. Deramo, 436 Mass. at 47,
quoting from Henderson v. United States, 778 F. Supp. 274, 277
(D.S.C. 1991).
2. Sufficiency of evidence that notice was sent. Contrary
to the defendant's argument, the mailing confirmation contained
sufficient details, as outlined supra, from which a jury could
reasonably infer that the registry mailed the suspension notice
to the defendant. See Royal, 89 Mass. App. Ct. at 174. This
constituted prima facie evidence that the defendant received the
notice. See Parenteau, 460 Mass. at 6. This case is thus
nothing like Commonwealth v. Oyewole, 470 Mass. 1015 (2014),
relied upon by the defendant, where there was no evidence that
the defendant had been notified, in writing or orally, of his
license suspension. See id. at 1016-1017.
 17
3. Motion to suppress photographic array identification.
The defendant argues that the motion judge erred in denying,
after an evidentiary hearing, the motion to suppress Santana's
identification of the defendant in the photographic array. The
defendant maintains that the identification was so unnecessarily
suggestive as to violate constitutional principles and was
unreliable under common-law fairness principles. We disagree.8
a. Constitutional principles. In moving to suppress, the
defendant had the burden to prove "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. Johnson, 473 Mass. 594, 597 (2016),
quoting from Commonwealth v. Walker, 460 Mass. 590, 599 (2011).
"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.'" Ibid., quoting from
Commonwealth v. Silva-Santiago, 453 Mass. 782, 795 (2009).
8 The defendant further argues that, because Santana's
identification based on the photographic array should have been
suppressed, his in-court identification should also have been
excluded, because it did not meet the independent-source
standard as reiterated in Commonwealth v. Johnson, 473 Mass.
594, 602 (2016). Because we conclude that the suppression
motion was properly denied, we need not reach the latter issue.
18
The defendant asserts six separate flaws in the
photographic array identification process. As the relevant
facts are undisputed, we review, without deference to the motion
judge, the application of the law to those facts. See id. at
602.
First, Officer Meaney, because he knew which photograph was
that of the suspect (i.e., the defendant) and also presented the
array to Santana, did not follow the "double-blind procedure"
recognized as the "better practice" in Silva-Santiago, 453 Mass.
at 797. But here, as in Silva-Santiago, "there was no evidence
that the [officer] who presented the photographic arrays
signaled a particular response to, or otherwise attempted to
influence," the witness. Ibid. In these circumstances, the
absence of a double-blind procedure went to weight, not
admissibility. See ibid.
Second, the defendant asserts that Officer Meaney failed to
follow the Lynn police department's eyewitness identification
procedures, in that he did not obtain a description of the
suspect before presenting the photographic array to Santana.
But the procedures do not require such a step. They assume, but
do not require, that a witness description will be used in order
to select "fillers" for the array; they do not make a suspect's
resemblance to a previously-obtained description the only
permissible basis for including that suspect's photograph in an
19
array. Here, the bumper and license plate left at the scene
pointed to the defendant (the Prism's owner) as a logical
suspect,9 and once his photograph was obtained from the registry,
photographs of similar-looking persons, from the same source,
were used to fill out the array. We see nothing unnecessarily
suggestive in this process.
Third, the defendant's claim that the other photographs in
the array depicted persons with significantly lighter skin than
his is not borne out by the color copy of the array in the
record. See id. at 795 (array not unnecessarily suggestive
where it included photographs of individuals with "reasonably
similar features and characteristics").
Fourth, that the photographs were shown simultaneously
rather than sequentially10 goes to weight rather than
admissibility, because there is no near consensus in the
scientific community regarding which method is more reliable.
See Commonwealth v. Thomas, 476 Mass. 451, 463-464 (2017). The
9 This suspicion was bolstered by the defendant's report
that his locked Prism had been stolen, combined with Officer
Meaney's observations that the Prism parked in the defendant's
driveway eight days after the collision had no damage to the
windows, ignition, or steering column, although its rear quarter
panel was damaged.
10Santana actually described a hybrid procedure in which he
looked at each photograph as Officer Meaney placed it in front
of him on a table, until there were six photographs in front of
him; after looking at all of them for another thirty seconds, he
chose the defendant's photograph.
20
defendant points out that Lynn police department procedures call
for the array to be shown sequentially, "one at a time." As the
Thomas court said, however,
"[The] model jury instructions on eyewitness identification
direct juries to 'evaluate the identification with
particular care' where the police fail to follow a protocol
that is established or recommended by the law enforcement
agency conducting the identification procedure. . . . A
defendant may request such an instruction where a police
department that has chosen the sequential method fails to
employ it in an identification procedure.
Thomas, 476 Mass. at 464 n.10, quoting the Model Jury
Instructions on Eyewitness Identification, 473 Mass. 1051, 1056-
1057 (2015) (model instructions). Here, the judge gave that
"particular care" instruction twice in her final charge.11
Fifth, the defendant argues that Officer Meaney, by telling
Santana that the photograph he had chosen was that of "the
registered owner of the car," gave "confirmatory feedback [that]
artificially inflate[d] [the] eyewitness's level of confidence
in his . . . identification." Commonwealth v. Collins, 470
Mass. 255, 263 (2014). But Officer Meaney's testimony that he
made this statement was elicited not at the suppression hearing,
but only later, at trial. "Evidence adduced at trial but not
before the motion judge . . . cannot be determinative of the
11We cite Thomas and the model instructions for
convenience, while recognizing that the judge at the trial here,
in June, 2015, did not yet have the benefit of the model
instructions and was working instead from the provisional
instructions appended to the decision in Gomes, 470 Mass. 352,
385-386 (Appendix).
21
propriety of the motion judge's decision." Commonwealth v.
Ramos, 402 Mass. 209, 216 (1988). In any event, it is far from
clear that the statement inflated Santana's confidence in his
identification. Officer Meaney testified at the hearing that
after Santana chose the defendant's photograph and said "that's
the person who was driving the car," the officer asked Santana
"how sure he was, and he replied that he was positive." And
Santana testified at the hearing that he was "sure" of his
identification from the photograph.
Sixth and finally, the defendant notes that, contrary to
Lynn police procedures, Officer Meaney did not preserve the
photographs from the array or make high quality copies of them;
instead, he took a color photograph of the entire array, and
that photograph was admitted in evidence at the suppression
hearing and at trial. The defendant has not argued, however,
that this departure from procedure diminished the accuracy of
Santana's identification or furnished any other ground for
suppression. Moreover, as noted, the jury were instructed to
evaluate "with particular care" an identification not made in
accordance with established procedures.
b. Common-law fairness principles. The defendant also
argues that the identification should have been excluded under
common-law fairness principles, because various factors made it
so minimally probative that its value was substantially
22
outweighed by the danger of unfair prejudice arising from the
assertedly suggestive circumstances in which it was made. See
Johnson, 473 Mass. at 598-602; Commonwealth v. Dew, 478 Mass.
304, 315-316 (2017). The defendant notes that Santana had never
seen the Prism's driver before the collision, Santana saw him
only very briefly,12 and some time elapsed between the collision
and Santana's photographic array identification.13 See id. at
316 (listing witness's prior familiarity with person identified,
opportunity to observe offender at time of crime, and amount of
time between crime and identification as factors to be
considered). The defendant bears the burden of proof by a
preponderance of the evidence, and we review the judge's ruling
for abuse of discretion. See Johnson, 473 Mass. at 599, 602.
12The defendant also argues, for the first time on appeal,
that Santana's opportunity to observe the driver was diminished,
and thus his identification was less reliable, because Santana
was under high stress just before the collision. See Gomes, 470
Mass. at 372, 380. Even if such high stress was present here
and is a factor to be considered in the common-law test, but see
Dew, 478 Mass. at 316, it did not, even in combination with the
other factors the defendant cites, render the identification so
unreliable as to make its admission an abuse of discretion.
13The defendant also argues, for the first time on appeal,
that his dark skin created a risk of cross-racial or cross-
ethnic misidentification. See Commonwealth v. Bastaldo, 472
Mass. 16, 27-30 (2015), decided after the trial in this case,
announcing a prospective rule regarding an instruction on cross-
racial identifications. Here, the sole indication of race in
the record is a report created by Officer Meaney, within a week
after Santana was shown the photographic array, listing the
defendant's race as "white" and Santana's as "unknown."
23
Here, Santana was able to directly observe the driver
during daylight, for long enough to observe what he was wearing,
that his left arm was tattooed, and the expression on his face.
Santana was sufficiently collected to attempt to steer around
the Prism. Although Santana had never seen the driver before,
and did not identify him from the photographic array until some
weeks after the collision, against these factors detracting from
the identification's probative value must be balanced the
minimal evidence, discussed supra, that the identification was
suggestive. The motion judge was not required to conclude that
the identification's probative value was substantially
outweighed by the danger of unfair prejudice. He did not abuse
his discretion in denying the motion to suppress on this basis.
4. Jury instruction. The defendant argues that it was
error to omit that portion of the provisional identification
instruction appended to Gomes, 470 Mass. at 381-382 (Appendix),
relating to high stress, and providing as follows:
"You should also consider characteristics of the
witness when the observation was made, such as the
quality of the witness's eyesight, whether the witness
knew the offender, and, if so, how well, and whether
the witness was under a high degree of stress -- high
levels of stress, compared to low to medium levels,
can reduce an eyewitness's ability to accurately
perceive an event" (emphasis added; footnotes
omitted).
Because the defendant did not object to this omission, we
review to determine whether any error created a substantial risk
24
of a miscarriage of justice.14 See Commonwealth v. Keevan, 400
Mass. 557, 564 (1987). As the record does not disclose the
reason for the judge's omission, we assume without deciding that
it was error, but we conclude that it did not create a
substantial risk of a miscarriage of justice.
The omitted language informs the jury that a high degree of
stress can reduce accurate observations, but it does not require
the jury to conclude that high stress does so, and the jury
could have concluded otherwise here.15 Nor does the language
instruct the jury on how to distinguish between "high" levels of
stress and "medium" levels, which may actually enhance
perception, see Gomes, 470 Mass. at 382 n.9 (Appendix), or "low"
levels of stress. Defense counsel forcefully pointed out how
14Before closing arguments, the defendant requested the
Gomes instruction; the judge replied that she would give it, but
that parts of it were not required, and she would give those
parts she thought relevant. After her charge, the judge asked
if the parties had "requests for additions, corrections, or
objections"; defense counsel replied that she had none. "[W]hen
a judge agrees to give a requested instruction . . . any claim
of error in the adequacy of the instruction must be preserved
for appellate review by a postcharge objection." Commonwealth
v. Arias, 84 Mass. App. Ct. 454, 463 (2013).
15The jury could have determined from Santana's testimony
describing the defendant's arm position, clothing, facial
expression, and tattoos, as well as Santana's detailed
description of the various measures he considered and took to
avoid the collision and injury to himself, that whatever level
of stress Santana was experiencing did not appear to have
impaired his ability to accurately perceive the events.
25
stressful the incident must have been in her closing, arguing
that Santana had:
"One second to observe. . . . Mr. Santana's life flashed
before his eyes . . . . He was downshifting to a different
gear. He knows a crash is imminent. He's approaching
quickly to the car. He's trying to swerve his bike out of
the way. He hits the rear quarter panel and is ejected
from his motorcycle. . . . He [re]lied on a one-second
observation? . . . I would suggest to you that you could
not."
In addition, another portion of the judge's instruction
correctly conveyed a closely related principle to the jury:
"You the jury must decide whether the witness'
identification is accurate. Consider the witness'
opportunity to observe the offender at the time of the
offense; how good a look the witness had of the
offender, the degree of attention the witness was
paying to the offender at the time, the distance
between the witness and the offender . . . and the
length of time the witness had to observe the
offender."16
That the defendant, despite having requested the Gomes
instruction, did not object when invited to do so at the
conclusion of the charge, see note 14, supra, further suggests
that the omission was not prejudicial. See Commonwealth v.
Lucien, 440 Mass. 658, 664-665 (2004) (absence of objection
weighs against defendant's claim of prejudice). For all of
these reasons, "we conclude that there is no substantial risk
16 We do not mean to suggest that this portion of the
instruction, which was also drawn from the Gomes provisional
instruction, 470 Mass. at 380, and appears in different form in
the Model Jury Instructions, 473 Mass. at 1054, is a substitute
for the high-stress instruction.
26
that [any error in] the judge's instruction . . . may have
materially influenced the verdict in this case, and therefore no
substantial risk of a miscarriage of justice." Commonwealth v.
Shea, 467 Mass. 788, 797 (2014).
Judgments affirmed.