Commonwealth v. Galipeau

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16-P-754 Appeals Court
COMMONWEALTH vs. ROBERT GALIPEAU.
No. 16-P-754.
Norfolk. October 4, 2017. - May 16, 2018.
Present: Green, Hanlon, & Neyman, JJ.
Robbery. Constitutional Law, Identification. Due Process of
Law, Identification. Evidence, Identification, Photograph.
Identification. Practice, Criminal, Motion to suppress,
Identification of defendant in courtroom.
Indictments found and returned in the Superior Court
Department on May 23, 2013.
A pretrial motion to suppress evidence was heard by Kenneth
J. Fishman, J., and the cases were tried before Thomas A.
Connors, J.
Barbara A. Munro for the defendant.
Stephanie Martin Glennon, Assistant Attorney General, for
the Commonwealth.
HANLON, J. After a jury trial, the defendant, Robert
Galipeau, was convicted of armed robbery arising from the
gunpoint theft of cash from three men at approximately 1 A.M. on
April 18, 2013, immediately after the victims left the Assembly
2
Bar in Quincy. The sole issue at trial was the identification
of the robber. The defendant argues on appeal that his motion
to suppress a photographic identification should have been
allowed and that the trial judge improperly allowed an in-court
identification. We affirm.
1. Motion to suppress photographic identification. "We
recite the facts as found by the motion judge, supplemented by
uncontroverted testimony" submitted during the evidentiary
hearing on the motion to suppress. Commonwealth v. Cordero, 477
Mass. 237, 238 (2017). We accept all of the judge's factual
findings, none of which is clearly erroneous. See Commonwealth
v. Borgos, 464 Mass. 23, 32 (2012).
After the robbery, Leo Tang, one of the victims, told the
police that the robber had followed him and his two friends from
the Assembly Bar to his car across the street. Tang described
the robber as a white male, approximately five feet, ten inches
tall, scruffy looking, with facial hair, and wearing a hooded
sweatshirt, gray shirt, and jeans. Tang had seen the man in the
bar earlier that night, with a Budweiser beer next to him.
After the police received this information from Tang, an officer
met with Robert Sylva, the bar manager, to view surveillance
videotape. The videotape depicted a white man drinking a
Budweiser at a table; he fit the description Tang had given.
3
Sylva told the officer that the person drinking a Budweiser in
the video was the defendant.
Once the police had the defendant's name, two officers went
to his home and knocked on his front door but received no
answer. They went toward the rear door, and, while walking
along the right side of the house, they saw the defendant
standing at the sink in the kitchen of the ground floor
apartment. The officers then went back to the front door and
knocked again. They knocked on the door without response for a
lengthy period of time before the defendant finally answered.
He was wearing only a pair of jeans and sneakers, and his face
appeared to be freshly shaved, with cuts on his upper and lower
lip that were actively bleeding.
At approximately 3 A.M., police officers brought Tang, in a
police cruiser, to the street outside the defendant's house for
a showup identification procedure. Tang viewed the defendant,
who was standing on the sidewalk, for five to ten minutes. Tang
did not identify the defendant as the robber at that time,
saying that he could not be sure of an identification because
the robber had been scruffier, with facial hair.
Later that day, Quincy Police Detective Ricky Wash created
a computer-generated photo array, including the defendant's
photo and six other photos of men with similar physical
4
characteristics.1 The photo identification procedure was
administered by Detective Michael Ward, who was otherwise
uninvolved in the investigation.
Tang viewed the photos one at a time, and, when he came to
the second photo, he said it looked similar2 to the robber, but
he was having trouble making a positive identification because
the robber had been wearing a hat and a hooded sweatshirt. At
Ward's instruction, Tang went through the remaining photos.
When he returned to the second photo, Ward put a piece of paper
over the upper head of the person depicted and Tang covered the
person's ears with his hands. Tang then wrote on the photo, at
Ward's request, "I believe this is the suspect because he seems
like an average white male. The chin structure with a little
1 One of the photos was of a man with a darker complexion
than the others. Wash also used an old booking photo of the
defendant in the array, rather than a newer photo from the
Registry of Motor Vehicles. The motion judge determined that
the array was fairly composed and we defer to his judgment. See
Commonwealth v. Forte, 469 Mass. 469, 478 (2014).
2 The defendant attempts to make much of the fact that
Detective Ward used the word "familiar" instead of "similar" in
his testimony. Specifically, Ward testified, "When I turned
over photo number 2, Mr. Tang looked at it and said that looks
familiar and then, starting tapping his finger on the photo for
several minutes." Tang's own testimony, however, was that
photograph number 2 "looked like the guy." This testimony was
sufficient to support the judge's finding.
5
facial hair look similar. I couldn't see his head or ears
because he wore a hat and hoodie at the time."
a. Multiple identification procedures. "For a motion to
suppress a photographic identification to succeed, the defendant
must show by a preponderance of the evidence that, in light of
the totality of the circumstances, the procedures employed were
so unnecessarily suggestive and conducive to irreparable
misidentification as to deny the defendant due process of law."3
Commonwealth v. Borgos, 464 Mass. 23, 32 (2012), quoting from
Commonwealth v. Watson, 455 Mass. 246, 250 (2009). See Mass. G.
Evid. § 1112(b)(1)(2017). In reviewing a decision on such a
motion, we "review without deference the judge's application of
the law to the facts as found." Commonwealth v. Johnson, 473
Mass. 594, 602 (2016).
The defendant's primary argument is that the unsuccessful
showup tainted the subsequent photo array procedure, rendering
it impermissibly suggestive. The motion judge addressed this
issue squarely and concluded that conducting a photo array
3 "Where the defendant satisfies this burden, the out-of-
court identification is per se excluded as a violation of the
defendant's right to due process under art. 12 of the
Massachusetts Declaration of Rights." Commonwealth v. Walker,
460 Mass. 590, 599, n.13 (2011). "Because the standard for
admissibility of an identification under the Massachusetts
Constitution is more favorable to a defendant than the standard
under the United States Constitution," we need not consider any
Federal constitutional claims here. Ibid.
6
procedure that included the defendant, after Tang had failed to
identify him at the showup, "may not be ideal, but was warranted
where the defendant had apparently altered his appearance since
the time of the crime."
We agree with the motion judge. The evidence before him at
the suppression hearing strongly suggested that the defendant
had shaved immediately before he answered the door to his home
in the early morning hours of April 18, 2013. In addition, Tang
indicated at the showup that the reason he could not identify
the defendant as the robber was the difference in the very
feature that the defendant had apparently altered. Under these
circumstances, it was appropriate for the police to conduct a
second identification procedure.
Moreover, Massachusetts courts have "declined to adopt 'a
per se exclusionary rule condemning as constitutionally infirm
all subsequent identifications of a defendant by any witness who
had previously failed to select the defendant.'" Commonwealth
v. Paszko, 391 Mass. 164, 171 (1984), quoting from Commonwealth
v. Lacy, 371 Mass. 363, 369 (1976). Even where the defendant's
photograph is the only one duplicated in multiple arrays, the
resulting out-of-court identification is not necessarily
inadmissible. See Commonwealth v. Carter, 475 Mass. 512, 518
7
(2016).4 See also Paszko, supra at 168-169; Commonwealth v.
Holland, 410 Mass. 248, 254 (1991). Moreover, the Supreme
Judicial Court has upheld the admission of identification
evidence in circumstances similar to those presented here.5 See
Commonwealth v. Forte, 469 Mass. 469, 476 (2014) (witness made
identification from photo array after failing to identify
defendant at showup and then being shown videotape footage from
security camera).6 Here, the fact that Tang participated in
4 In Carter, decided a few months after the defendant's
trial, the Supreme Judicial Court stated, "We discourage the use
of repeated arrays containing a suspect's photograph, . . . and
the use of repeated arrays could make identification procedures
unnecessarily suggestive if the police do not have good cause
for the use of such procedure." 475 Mass. at 518. Even though
the defendant in Carter was the only person depicted in two
arrays, the court concluded there was good cause for the
procedure because the second array was shown to each of two
witnesses only after each one "commented that the perpetrator's
hair was shorter than was depicted in the photographs used in
the first array." Ibid.
5 At oral argument, the defendant's attorney suggested that
a photo array excluding the defendant's photo should have been
shown to Tang in between the showup and the array containing the
defendant's photo, in order to insulate the array procedure from
the risk that Tang would remember the defendant from the showup
and not from the crime. The motion judge considered this
argument, but correctly stated that such a procedure was not
constitutionally required. See Commonwealth v. Martin, 447
Mass. 274, 280 (2006) ("Failure of the police to pursue
alternate identification procedures does not in itself render an
identification unduly suggestive"). See also Commonwealth v.
Dew, 478 Mass. 304, 308 (2017).
6 In Forte, 469 Mass. at 476, the court stated that the
failed showup "actually could assist the defendant by casting
8
multiple identification procedures did not render the
identification "unnecessarily suggestive and conducive to
irreparable misidentification." Borgos, 464 Mass. at 32
(quotation omitted).
b. "Cropping" of the photo. Next, the defendant contends
that the photo array was impermissibly suggestive because Ward
and Tang covered the upper head and ears of the defendant's
photograph only -- and not the other six. The defendant's
reliance on Borgos, supra, is, however, misplaced. There, in
showing the same photographic array to three out of four
witnesses, the administering officer covered the defendant's
hair with a paper after an initial identification by the
witness. Id. at 32-33. The Supreme Judicial Court rejected the
argument that covering a part of the photograph was
unnecessarily suggestive, noting that this procedure did not
occur "until after a positive identification had been made by
the witness." Id. at 34.
The defendant argues that the initial identifications in
Borgos, supra, were unequivocal, as compared to Tang's less
certain initial selection of the defendant's photo -- and,
therefore, we should read Borgos as supporting his position.
doubt on the defendant's identity as the perpetrator." The same
could be said here.
9
However, even if the defendant is correct that the witnesses in
Borgos were somewhat less equivocal in their initial selection
of the suspect's photo than Tang, that does not mean that the
procedure used here was impermissibly suggestive. Nothing in
Borgos is to the contrary. Tang testified at the suppression
hearing that, after he picked out the defendant's photograph on
his own, he told Ward he was having trouble making an
identification because the robber had been wearing a hat and a
hooded sweatshirt.7 Ward's use of the paper to cover the upper
head in the defendant's photograph was a direct response to
Tang's statement.8 Tang then, independently, covered the ears in
the photo with his own hands. This procedure was not
unnecessarily suggestive, and any equivocation in Tang's initial
identification went to the weight of the evidence, not its
admissibility. See Commonwealth v. Sullivan, 436 Mass. 799,
806-807 (2002) ("The tentative nature of an identification does
not disqualify it from admission, but goes to its weight").
7 Tang also testified that he singled out the defendant's
photo "[b]ecause it looked closest to it . . . [t]he facial hair
and the jaw structure."
8 In addition, the photo array was administered by a police
officer who had no prior involvement in the case. See
Commonwealth v. Silva-Santiago, 453 Mass. 782, 797 (2009)
("double-blind" procedure, where administering officer does not
know identity of suspect, "is the better practice"). See also
Mass. G. Evid. § 1112(b)(1) (enumerating factors judge should
consider regarding photo array).
10
c. Reliability. Finally, the defendant urges that, even
if police procedures were not unnecessarily suggestive, Tang's
out-of-court identification of the defendant should have been
excluded as unreliable pursuant to Johnson, 473 Mass. at 604
n.4. Johnson, however, does not assist the defendant for two
reasons.
First, the better view of the law existing at the time of
the hearing on the motion to suppress is correctly reflected in
the judge's ruling that he was not authorized to consider the
reliability of Tang's identification once he had determined that
police procedures were not unnecessarily suggestive. See
Commonwealth v. Cavitt, 460 Mass. 617, 632 (2011), quoting from
Watson, 455 Mass. at 251 ("Where an identification procedure is
not impermissibly suggestive, a pretrial identification is
admissible without any further showing"). See also Paszko, 391
Mass. at 172; Commonwealth v. Warren, 403 Mass. 137, 140 (1988);
Commonwealth v. Ross, 426 Mass. 555, 560 (1998). Johnson was
decided nearly two years after the judge issued his decision on
the defendant's motion to suppress, and a few weeks after his
trial. See Commonwealth v. Crayton, 470 Mass. 228, 245 (2014)
(judge did not abuse discretion where admission of in-court
identification was in accord with then-existing case law);
Commonwealth v. Bastaldo, 472 Mass. 16, 21-23 (2016) (trial
judge did not err in giving jury instruction based on law at
11
time of trial). In any event, Johnson did not alter
longstanding authority holding that assessment of an eyewitness
identification is for the jury where the police procedures did
not violate the defendant's constitutional rights.9
Second, to the extent that the motion judge in this case
was authorized to consider reliability, any exercise of that
authority is reviewable only for abuse of discretion and is not
subject to the independent appellate review afforded a legal
conclusion regarding constitutional rights. See Johnson, 473
Mass. at 602. See also Commonwealth v. Thomas, 476 Mass. 451,
465 (2017).10 Here, in an abundance of caution, the motion judge
9 In Johnson, the court was not concerned with police
procedures that might render an identification unnecessarily
suggestive. There, relying on Commonwealth v. Jones, 423 Mass.
99, 107 (1996), the court explained that, where the police had
no involvement in a suggestive confrontation between a witness
and a defendant, the identification could be suppressed
nonetheless in an exercise of the court's broad authority, to
exclude evidence where its probative value is substantially
outweighed by the danger of unfair prejudice. See Johnson,
supra at 599; Mass. G. Evid. § 403 (2017). The authority
described in Johnson is based on "common law principles of
fairness," and not the art. 12 considerations undergirding the
"unnecessarily suggestive" criterion. Id. at 599-600. The
Johnson decision did not, as the defendant argues, alter the
existing constitutional analysis applicable to identification
procedures conducted by the police, as had been contemplated
five years earlier in Walker, 460 Mass. at 606.
10In Dew, 478 Mass. at 307, the Supreme Judicial Court
reinforced this distinction. There, the court wrote that
whether there was "good reason" for an inherently suggestive
showup procedure (a question not in issue here because the
defendant does not challenge the original, unsuccessful showup)
12
considered reliability and found that, even if a reliability
analysis were legally available, "the identification would not
be considered so unreliable as to require exclusion where
suppression was not constitutionally compelled."11 Having
reviewed the record thoroughly, we see no abuse of discretion in
the judge's finding.
2. Trial identification. The defendant argues that Sylva,
the bar manager, should not have been permitted to identify the
defendant in court at the trial because he had not previously
participated in an out-of-court identification procedure. The
suggestion that the police should have subjected Sylva to an
out-of-court identification procedure is unreasonable,
is "a question of law to be decided by an appellate court, based
on facts found by the motion judge." Ibid. In considering the
judge's discretionary determination under "common law principles
of fairness" to allow an in-court identification, however, the
court reviewed that evidentiary ruling for an abuse of
discretion. Id. at 315 (quotation omitted). See id. at 322 &
n.5 (Gants, J., concurring).
11The judge's decision to reach the issue was prescient.
Just a few months after the defendant's trial, in a case
involving multiple photographic arrays administered by police,
the Supreme Judicial Court wrote: "Our conclusion that the
identifications were not 'unnecessarily suggestive' does not end
the inquiry. Even if otherwise admissible, a judge may suppress
identification evidence if 'its probative value is substantially
outweighed by the danger of unfair prejudice.'" Carter, 475
Mass. at 518, quoting from Johnson, 473 Mass. at 599. More
recently, in considering an in-court eyewitness identification,
the Supreme Judicial Court cited Carter, and stated broadly that
"[a] judge applying common law principles of fairness has the
discretion to exclude unreliable eyewitness identification
testimony." Dew, 478 Mass. at 315 (quotation omitted).
13
considering that Sylva's prior familiarity with the defendant
was the source of the police officers' original identification
of the defendant as a person of interest in the investigation.
The defendant is correct that the "good reason" requirement
announced in Crayton, 470 Mass. at 241-242, did not apply to
Sylva's testimony because this requirement explicitly applies
only to in-court identifications by eyewitnesses who were
present during the commission of the crime. See Commonwealth v.
Collins, 470 Mass. 255, 265 (2014). There was, however, no harm
in the prosecutor's bringing a motion in limine pursuant to
Crayton and Collins concerning Sylva's proposed testimony. This
could only have benefited the defendant. Moreover, to the
extent the "good reason" standard was properly applied to
Sylva's proposed testimony, his familiarity with the defendant
before the crime satisfied that requirement. See Crayton, supra
at 242.
For all of these reasons, we are satisfied that, the
Commonwealth's identification evidence was properly admitted and
was sufficient to support the jury's verdicts.
Judgments affirmed.