Commonwealth v. Pearson

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13-P-1649 Appeals Court

COMMONWEALTH vs. PETER PEARSON.

No. 13-P-1649.

Plymouth. November 3, 2014. - August 4, 2015.

Present: Green, Wolohojian, & Blake, JJ.

Rape. Practice, Criminal, Motion to suppress, Severance.
Identification. Constitutional Law, Identification, Search
and seizure. Due Process of Law, Identification.
Evidence, Identification, First complaint. Search and
Seizure, Automobile, Consent, Inevitable discovery,
Inventory.

Indictments found and returned in the Superior Court
Department on November 21, 2008.

A motion to sever was heard by Joseph M. Walker, III, J.,
motions to suppress evidence were heard by Richard J. Chin, J.,
and the cases were tried before Frank M. Gaziano, J.

R. Bradford Bailey for the defendant.
Mary E. Lee, Assistant District Attorney, for the
Commonwealth.
 2

GREEN, J. On appeal from his convictions of five counts of

aggravated rape, and related charges,1 the defendant claims error

in (i) the denial of his motion to suppress out-of-court

identifications made by one of his victims in a one-on-one

showup, and by his other victims from photographic arrays; (ii)

the denial of his motion to suppress evidence seized during a

search of the trunk of his car; (iii) the admission of testimony

regarding a first complaint made by one of his victims; and (iv)

the denial of his motion to sever the various charges for trial.

We affirm.

Background. We summarize the findings of fact made by the

motion judge in his thorough written memorandum of decision on

the defendant's motions to suppress.2 On July 1, 2008, Brockton

police arrested Stephanie Smith3 for being a common night walker.

See G. L. c. 272, § 53; Thomes v. Commonwealth, 355 Mass. 203,

207 (1969). The following day, Smith reported to Officer Amaral

of the Brockton police department that she had been raped by a

1
The defendant was also convicted of four counts of
kidnapping (two as lesser included offenses of aggravated
kidnapping), four counts of impersonating a police officer, two
counts of indecent assault and battery, and one count of armed
assault with intent to rape. He was acquitted of two counts of
assault by means of a dangerous weapon.
2
We shall set out additional evidence later during our
discussion of the defendant's other claims of error.
3
A pseudonym.
 3

State Trooper. Later, in a statement she gave to Brockton

police Detective Erin Cummings, she elaborated that about one

week earlier she had gotten into a small silver four-door

vehicle in the area of Haverhill Street, driven by a man who

took her to D.W. Field Park and forced her at gunpoint to

perform oral sex on him. The man (whom she described as

approximately five feet, four inches tall, with bright blue eyes

and grayish hair) told her he was a State Trooper, showed her a

badge, and had a hand-held radio with an earpiece. The man also

told Smith that he would be watching her.

On August 18, 2008, Brockton police Officer Michael Scanlon

was on patrol in the area of North Main Street and Spring Street

when he was flagged down by Smith's boyfriend, to whom we shall

refer as Ronald. Ronald told Scanlon that his girlfriend

previously had been raped at gunpoint, and had just seen the

rapist driving a gray Oldsmobile automobile; Ronald gave Scanlon

the license plate number from the Oldsmobile. Scanlon ran the

license plate number through his on-board computer and learned

that the plate was registered to a gray Oldsmobile owned by the

defendant. The registry of motor vehicles record Scanlon viewed

also included a photograph of the defendant.

While Scanlon was running the license plate, the defendant

drove past Scanlon's cruiser in the gray Oldsmobile, traveling

in the opposite direction along North Main Street. Scanlon
 4

pursued the vehicle in his cruiser and pulled it over. Scanlon

ordered the defendant out of the car, pat frisked him, and

placed him in handcuffs. Scanlon thereafter called for back-up,

and two plainclothes officers arrived in an unmarked car.

Scanlon advised them that he had administered Miranda warnings

to the defendant, and then left the defendant in the custody of

the two officers while he went to retrieve Ronald and Smith.

Shortly thereafter, the two plainclothes officers were joined by

a uniformed officer, Richard Gaucher.

Gaucher asked the defendant if he had a gun, and the

defendant responded "no." The defendant then gestured and said

the officers could "search his car if [they]'d like, including

the trunk." One of the officers looked in the trunk, where he

found a new firearm trigger lock, still in its original

packaging. Inside the passenger compartment, in a pocket on the

back of the front passenger seat, Gaucher found a hand-held

radio with the letters "BFD" on it, a wallet holding the

defendant's Boston fire department identification card and

badge, a mobile telephone, a five-dollar bill, and a brown

wallet.

Scanlon radioed that he was returning with Smith for a

showup identification. The officers holding the defendant

uncuffed him and directed him to stand in front of a building

directly across the street; the officers stood about ten to
 5

fifteen feet away, to the defendant's left and right. After

reading instructions to Smith from a card,4 Scanlon drove her to

the location where the defendant was waiting with the other

officers. Scanlon stopped his cruiser in a position facing the

defendant, at a distance of about thirty feet. As he began

again to give instructions to Smith, she blurted out, "that's

him," and identified the defendant as the man who had raped her.

She told Scanlon that she was "one hundred percent sure." She

also identified the gray Oldsmobile as the vehicle the defendant

was driving when he picked her up.

Following the defendant's arrest, after seeing televised

news coverage including a photograph of the defendant, four

4
In his testimony at the motion hearing, Scanlon read from
the same card, as follows:

"'You're going to be shown an individual, this may or may
not be the person who committed the crime, so you should
not feel compelled to make an identification. It is just
as important to clear innocent people as it is to identify
possible perpetrators. Whether or not you identify
someone, the police will continue to investigate. After
you're done, I will not be able to provide you with any
feedback or comment on the result of the process. Please
do not discuss the identification procedure or the results
with other witnesses in the case or with the media. I want
you to think back to the time of the event, place, your
view, lightning -- lighting, your frame of mind. Take as
much time as you need. People may not appear exactly as
they did at the time of the event because features such as
clothing, facial hair, are subject to change. And as you
look at this person, tell me if you recognize him or her --
him.' I'm sorry. 'If you do, please tell me how you know
the person in -- in your own words and how sure you are."
 6

other women (each of whom had been soliciting sexual activity

for a fee at the time of their assaults) reported that the

defendant had raped them. Each of these victims thereafter

selected the defendant's photograph from a photographic array

presented to them by the police.5

Discussion. 1. Showup identification. One-on-one showup

identifications "are disfavored because they are viewed as

inherently suggestive." Commonwealth v. Austin, 421 Mass. 357,

361 (1995). See Commonwealth v. Johnson, 420 Mass. 458, 461

(1995); Commonwealth v. Martin, 447 Mass. 274, 279 (2006). See

generally Mass. G. Evid. § 1112(c) (2014). "Nonetheless, a one-

on-one pretrial identification raises no due process concerns

unless it is determined to be unnecessarily suggestive."

Commonwealth v. Austin, supra. Such an identification is

permissible if good reason to support it exists in the

circumstances in which it occurs. Ibid. "Relevant to the good

reason examination are the nature of the crime involved and

corresponding concerns for public safety; the need for efficient

police investigation in the immediate aftermath of a crime; and

the usefulness of prompt confirmation of the accuracy of

investigatory information, which, if in error, will release the

police quickly to follow another track." Id. at 362. "It is

5
The four victims first were given instructions
substantially similar to those Scanlon gave to Smith.
 7

the defendant's burden to prove by a preponderance of the

evidence that the showup was 'so unnecessarily suggestive and

conducive to irreparable mistaken identification as to deny

[him] due process of law.'" Commonwealth v. Martin, supra at

279-280, quoting from Commonwealth v. Odware, 429 Mass. 231, 235

(1999).

As the defendant observes, the showup procedure employed in

the present case did not occur in the immediate aftermath of the

crime; instead fifty-three days had elapsed between the rape and

the showup identification. However, in that respect the

circumstances of the present case are similar to those in

Commonwealth v. Walker, 421 Mass. 90, 95 (1995). In Walker, the

victim of a robbery (a worker at a Dunkin' Donuts store) saw the

defendant sixteen days after the robbery, in a different Dunkin'

Donuts store at which she was working, and called police to

report that she had just seen the man who previously had robbed

her. Id. at 92-93. Shortly thereafter, based on the

description furnished by the victim to officers responding to

the call, police apprehended the defendant and brought him back

to the Dunkin' Donuts store, where the victim identified him in

a one-on-one showup. Id. at 93. In affirming the denial of the

defendant's motion to suppress, the court observed that "'[t]he

confrontation took place . . . within minutes of [the victim's]

chance observation of the robber, while his appearance, on that
 8

occasion, at least, was still fresh in her mind and the

procedure used, unlike a line-up, could have resulted in the

defendant's immediate release. Moreover, the robbery was still

fairly recent; [the victim] had had an excellent opportunity to

observe the robber; and she had provided a detailed

identification, which the defendant fit.' We believe the policy

reasons favoring a showup procedure in the wake of a crime

mirror those favoring a quick identification of a recently

spotted, at-large suspect." Id. at 95, quoting from the

unpublished memorandum and order of the Appeals Court issued

pursuant to rule 1:28 in the same case, 37 Mass. App. Ct. 1116

(1994).6

The defendant in the present case makes much of the fact

that the time elapsed between the crimes and subsequent

identification was fifty-three days, rather than the sixteen

days elapsed in Walker. As the foregoing discussion from Walker

makes plain, however, it is the short time elapsed between the

victim's report of a later chance encounter with the defendant

and the showup identification that carries the greatest weight

in assessing the reasonableness of the procedure. It is

important to note that in both Walker and the present case the

encounter giving rise to the report, leading in turn to the

6
To the same effect is Commonwealth v. Mattias, 8 Mass.
App. Ct. 786, 788-789 (1979).
 9

apprehension and showup procedure, occurred spontaneously, and

that the victim identified the defendant as her assailant out of

the world at large; nothing about the circumstances in which the

victim spontaneously recognized the defendant, and thereafter

(with Ronald's assistance) reported her observation to police,

was shown to be suggestive. In addition, the victim observed

her assailant at close range and for an extended period at the

time of the assault. Though the time elapsed between the crimes

and the chance encounter was longer in the present case than in

Walker, it was not so long as to cause undue concern over the

victim's ability to recognize her rapist upon encountering him

unexpectedly on the street.7 There was no error in the denial of

the defendant's motion to suppress Smith's identification of him

in the one-on-one showup procedure.

2. Photographic array identifications. As observed in the

introduction, following the defendant's arrest, television news

coverage of the arrest, which included the defendant's

photograph, prompted four other victims to report to police that

7
We also note that, though the identifications in the
present case preceded the opinion of the Supreme Judicial Court
in Commonwealth v. Silva-Santiago, 453 Mass. 782, 797-798
(2009), the instructions Officer Scanlon administered to Smith
before she identified the defendant, see note 4, supra, were
consistent with the protocol announced in that case. Compare
Commonwealth v. Meas, 467 Mass. 434, 443 (2014); Commonwealth v.
Gomes, 470 Mass. 352, 385-387 & n.20 (2015); Commonwealth v.
Bresilla, 470 Mass. 422, 435 (2015).
 10

he also had raped them. Following their reports, each of these

victims selected the defendant's photograph from an array of

photographs of generally similar-looking men (photo array).

Absent evidence of manipulation by police of press reports,

"simple exposure to the media is not sufficient ground to

suppress an identification [on constitutional grounds]."

Commonwealth v. Jules, 464 Mass. 478, 489 (2013), quoting from

Commonwealth v. Horton, 434 Mass. 823, 835 (2001).8 The

defendant's criticisms that the photographs in the arrays were

presented simultaneously, rather than sequentially, and that

"double blind" procedures were not employed, furnish no cause,

without more, for suppression under current Massachusetts law.9

See Commonwealth v. Silva-Santiago, 453 Mass. 782, 797-799

8
The defendant offered no evidence at the motion hearing
about the television news reporting the other victims saw;
accordingly, the record furnishes no basis to support a claim by
the defendant that the news reporting itself was so
unnecessarily suggestive that common law principles of fairness
might require suppression. See Commonwealth v. Jones, 423 Mass.
99, 108-109 (1996). Similarly, the defendant has presented no
evidence to support his assertion that the photograph of the
defendant appearing in the arrays used for identification was
the same as the photograph appearing in the television news
coverage.
9
There is also no merit to the defendant's claim that the
trial judge erred in allowing the victims to testify regarding
their certainty in their identifications of the defendant. See
Commonwealth v. Cruz, 445 Mass. 589, 595-596 (2005).
 11

(2009); Commonwealth v. Walker, 460 Mass. 590, 602-603 (2011).10

The motion judge correctly denied the motion to suppress the

other victims' identifications of the defendant from photo

arrays.11

3. Search of the defendant's car. The motion judge denied

the defendant's motion to suppress evidence seized from his car

on several independent grounds (including consent). We need not

address them separately, as we agree with the judge that the

items recovered from the defendant's car would inevitably have

been discovered pursuant to an inventory search (conducted

following the defendant's arrest based on the victim's

identification of him as the man who had raped her), pursuant to

the written inventory policy admitted in evidence at the motion

hearing. See Commonwealth v. O'Connor, 406 Mass. 112, 115-119

(1989).12

10
As we have observed, the photo array identifications in
the present case occurred before adoption of the identification
protocol announced in Silva-Santiago. See note 7, supra.
11
Because there was no error in the showup or photo array
identifications, those procedures did not taint the victims' in-
court identifications of the defendant.
12
Though the search was investigatory at the time it
occurred, that does not derogate from the fact that, in the
circumstances of this case, the items inevitably would have been
discovered pursuant to a permissible inventory search upon the
defendant's arrest. Contrast Commonwealth v. Benoit, 382 Mass.
210, 219 (1981).
 12

4. First complaint. The defendant contends that, because

the only issue at trial was identification, the trial judge

improperly admitted first complaint testimony in evidence.13 See

Commonwealth v. King, 445 Mass. 217, 219 (2005), cert. denied,

546 U.S. 1216 (2006) ("First complaint testimony is not relevant

and therefore not admissible under the doctrine where neither

the fact of the sexual assault nor the complainant's consent is

at issue, as in cases where the identity of the assailant is the

only contested issue"). Assuming, without deciding, that the

defendant's general objection at trial sufficiently preserved

the issue for appeal, there is no merit to the argument because

its foundational premise -- that the identity of the rapist was

the sole issue before the jury -- is false. Beginning with the

defendant's opening statement and continuing throughout the

trial, defense counsel sought to challenge the victims'

credibility, suggesting that the alleged rapes did not occur and

that the victims instead fabricated the allegations against the

defendant in an effort to bring attention to a common risk in

their profession.

5. Joinder. Finally, there is no merit in the defendant's

contention that the motion judge erred in denying his motion to

sever the charges involving the several victims. "Joinder is a

13
The only such evidence was that given by Smith's
boyfriend Ronald.
 13

matter committed to the sound discretion of the trial judge,

Commonwealth v. Sullivan, 436 Mass. 799, 803 (2002), and 'will

not be reversed unless there has been "a clear abuse of

discretion."'" Commonwealth v. Aguiar, 78 Mass. App. Ct. 193,

198 (2010), quoting from Commonwealth v. Pillai, 445 Mass. 175,

180 (2005). "[T]o prevail on a claim of misjoinder, the

defendant 'bears the burden of demonstrating that the offenses

were unrelated, and that prejudice from joinder was so

compelling that it prevented him from obtaining a fair trial."

Commonwealth v. Pillai, supra, quoting from Commonwealth v.

Gaynor, 443 Mass. 245, 260 (2005). For purposes of joinder,

"[o]ffenses are related if 'the evidence in its totality shows a

common scheme and pattern of operation that tends to prove' each

of the complaints." Commonwealth v. Pillai, supra, quoting from

Commonwealth v. Feijoo, 419 Mass. 486, 494-495 (1995). In

addition, "the propriety of joining offenses for a single trial

often turns on whether evidence of the other offenses would be

admissible in separate trials on each offense." Commonwealth v.

Pillai, supra.

The evidence in the present case supported the motion

judge's conclusion that the defendant's conduct with each victim

displayed a common scheme or modus operandi. In each case, the

victims were prostitutes. The defendant told at least four of

the victims that he was a police officer. He either forced or
 14

attempted to force each victim to perform oral sex on him. Each

act occurred in the defendant's car, while parked in a public

place. Each victim met the defendant in Brockton, and the

assaults occurred either in Brockton or in the neighboring town

of Avon. The defendant approached three of the victims after

the sexual assaults to tell them he had been watching them. In

addition, he demonstrated to two of the victims that he knew

personal information about them. In these circumstances, the

fact that the assaults occurred over an eleven-year span does

not negate a conclusion that they were part of a common scheme

or displayed a modus operandi. We discern no abuse of the

motion judge's considerable discretion in his conclusion that

the assaults were sufficiently related to justify joinder.14

Judgments affirmed.

14
Our conclusion that the judge permissibly found the
assaults sufficiently related to justify joinder obviates the
need to assess prejudice from the joinder. However, as
described in note 1, supra, the jury acquitted the defendant of
two of the charges and in two instances found guilt of a lesser
offense. See, e.g., Commonwealth v. Ramos, 63 Mass. App. Ct.
379, 382 (2005).