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17-P-35 Appeals Court
COMMONWEALTH vs. JASON C. CARLSON.
No. 17-P-35.
Worcester. November 15, 2017. - February 6, 2018.
Present: Wolohojian, Massing, & Wendlandt, JJ.
Larceny. Identification. Constitutional Law, Identification.
Due Process of Law, Identification. Evidence,
Identification. Practice, Criminal, Motion to suppress.
Indictment found and returned in the Superior Court
Department on January 21, 2014.
A pretrial motion to suppress evidence was heard by Daniel
M. Wrenn, J., and the case was tried before Richard T. Tucker,
J.
Geraldine C. Griffin for the defendant.
Donna-Marie Haran, Assistant District Attorney, for the
Commonwealth.
WOLOHOJIAN, J. A pawnbroker, after a single-photograph
identification procedure, identified the defendant as the man
who had some days earlier pawned certain items of stolen
jewelry. The pawnbroker's identification was an important part
2
of the evidence at the defendant's jury trial, which resulted in
his conviction of larceny over $250.1 The central issue on
appeal is whether the defendant's motion to suppress the
pawnbroker's identification should have been allowed because the
single-photograph identification procedure violated the
defendant's rights under art. 12 of the Massachusetts
Declaration of Rights. Concluding that the motion should have
been allowed, we reverse the judgment.
We summarize the facts found by the motion judge,
supplemented by undisputed evidence introduced at the
evidentiary motion hearing. See Commonwealth v. Dew, 478 Mass.
304, 305 (2017). Pauline and Emile Daigle, a couple in their
seventies, hired a professional moving company to move from
their single-family home in Templeton to a condominium unit in
Hubbardston on August 31, 2013. The next day, Pauline Daigle
reported to police that seventeen pieces of jewelry valued at
approximately $30,000 were missing; only empty boxes remained in
the dresser drawers where she had stored the jewelry.
Templeton police Detective Derek Hall opened an
investigation into the theft. He learned that two moving men
had handled the move: Ronny Norton and the defendant. Norton
1
The defendant was indicted for larceny over $250, G. L.
c. 266, § 30, as a common and notorious thief, G. L. c. 266,
§ 40. After trial, but before sentencing, the Commonwealth
dismissed the latter portion of the charge.
3
was a long-time employee of the moving company; the defendant,
by contrast, had been employed for the day. Norton told Hall
that the defendant had been alone in the Templeton bedroom where
the jewelry had been stored and also when he (the defendant) had
unpacked the bedroom dresser drawers at the end of the move in
Hubbardston. Norton also said that when he gave the defendant a
ride home after the move, the defendant asked to be dropped off
instead at a pawn shop named Sam and Friends. This request
struck Norton as odd for two reasons. First, the pawn shop was
only two doors away from the defendant's home. Second, when
Norton asked why the defendant was going to the pawn shop, he
stated that he was going to pay for a car radio. Norton,
though, knew the defendant did not have a car. In any event,
Norton dropped the defendant at the pawn shop as he requested.
On September 2, 2013, Hall continued his investigation by
going to the pawn shop, where he spoke with its owner, Euidong
Do, and asked whether anyone had come into the store on the day
of the move in order to pawn or sell anything. Do said that a
man, with whom Do had previously dealt at a different store,2 had
come in to the shop around 3:00 P.M. wanting to sell jewelry.
Do was unwilling to buy the jewelry because the man did not have
2
The defendant, as the Commonwealth concedes, is correct
that the motion judge's finding that Do told Hall that the man
was "an individual fitting the description of the defendant" was
not supported by the evidence and is clearly erroneous.
4
photographic identification; therefore, Do only agreed to hold
the jewelry as collateral for a three-week loan, i.e., the
jewelry was pawned.
Do asked whether Hall had a picture of the suspect. Hall
produced a photograph of the defendant and showed it to Do. At
that point, Do positively identified the defendant as the person
who had come into the shop and pawned jewelry on the day of the
move. Do then gave Hall an envelope containing the pawned
jewelry. Hall took the jewelry and later showed it to Pauline
Daigle, who identified the pieces as among those taken during
the move.
The defendant argues that the judge erred in denying his
motion to suppress Do's identification, which was made as a
result of the single-photograph display conducted two days after
the theft and in response Do's request to see a photo of the
"suspect." For constitutional purposes, a one-photograph
identification is the equivalent of an in-person, one-on-one
identification (often referred to as a "showup"). See
Commonwealth v. Nolin, 373 Mass. 45, 51 (1977); Commonwealth v.
Forte, 469 Mass. 469, 477 (2014). One-on-one identification
procedures are generally disfavored as inherently suggestive.
See Dew, 478 Mass. at 306. To succeed in suppressing evidence
of such an identification, however, the defendant must prove by
a preponderance of the evidence that the police procedure was
5
"so unnecessarily suggestive and conducive to irreparable
mistaken identification as to deny [the defendant] due process
of law." Id. at 306-307 (quotation omitted).
"In assessing the suggestiveness of an identification, we
consider 'whether good reason exists for the police to use a
one-on-one identification procedure." Forte, 469 Mass. at 477,
quoting from Commonwealth v. Austin, 421 Mass. 357, 361 (1995).
"The existence of 'good reason' for a showup identification is a
question of law to be decided by an appellate court, based on
facts found by the motion judge." Dew, 478 Mass. at 307. The
"good reason" analysis "cannot be generalized," and "[e]ach case
must be resolved on its own peculiar facts." Austin, supra at
362. See Commonwealth v. Odware, 429 Mass. 231, 235 (1999)
(judge must examine "totality of the circumstances" to determine
whether identification procedure is unnecessarily suggestive
[quotation omitted]). "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." Austin, supra. "Good reason" exists
where some combination of the factors collected in Austin is
present. See ibid. See also Commonwealth v. Harris, 395 Mass.
6
296, 299 (1985); Commonwealth v. Thompson, 427 Mass. 729, 735-
736, cert. denied, 525 U.S. 1008 (1998); Commonwealth v. Martin,
447 Mass. 274, 279-281 (2006); Commonwealth v. Meas, 467 Mass.
434, 441-442, cert. denied, 135 S. Ct. 150 (2014); Commonwealth
v. Figueroa, 468 Mass. 204, 217-218 (2014); Forte, supra at 477-
478; Commonwealth v. Thomas, 476 Mass. 451, 460 (2017); Dew,
supra at 307-308; Commonwealth v. Wen Chao Ye, 52 Mass. App. Ct.
850, 854-855 (2001); Commonwealth v. Sylvia, 57 Mass. App. Ct.
66, 69 (2003); Commonwealth v. Hill, 64 Mass. App. Ct. 131, 133-
134 (2005); Commonwealth v. Martinez, 67 Mass. App. Ct. 788,
791-793 (2006); but have concluded otherwise where none are
present, see Commonwealth v. Moon, 380 Mass. 751, 757-759
(1980); Commonwealth v. A Juvenile, 402 Mass. 275, 280 (1988).
None of the Austin factors are present here. This was a
property crime, not one of violence; there were no immediate
safety concerns; the identification was not made in the
immediate aftermath of the crime; and there is no suggestion
that the detective would be thrown off track unless he used the
single-photograph display. The Commonwealth contends, however,
that the detective's knowledge that stolen jewelry is often
quickly melted down was good reason enough to use an inherently
suggestive identification procedure. The detective's concern of
a general risk, however, is not enough absent some connection to
7
the facts of this particular case.3 See Martin, 447 Mass. at 308
(Cordy, J., dissenting) ("[T]he challenge is to one specific
showup. The 'good reason' required of the police must be
correspondingly specific"). The jewelry had not been sold but
was instead being held as collateral for a three-week loan of
which only two days had passed; the detective had already
located the person who held the jewelry; and the detective could
prevent destruction or alteration of the jewelry simply by
asking for it (as he ultimately did).4
Because we conclude that there was no good reason to
conduct the single-photograph identification procedure in the
circumstances presented, we need not reach the separate question
of the effect, if any, of the procedure on Do. See Figueroa,
468 Mass. at 217 ("Even where there is 'good reason' for a
showup identification, it may still be suppressed if the
identification procedure so needlessly adds to the
suggestiveness inherent in such an identification that it is
'conducive to irreparable mistaken identification'" [quotation
omitted]). If there is no good reason to use an inherently
3
Whether that general knowledge might, in conjunction with
facts not presented here, be sufficient good reason to conduct a
one-on-one identification procedure is a question we need not
answer.
4
We are sympathetic that the detective appears to have had
no impermissible aim or purpose in displaying the single
photograph as he did. But for purposes of this analysis, good
reason is what is required, not good faith.
8
suggestive identification procedure, its actual suggestive
impact on the witness is beside the point.5
For these reasons, the defendant's motion to suppress Do's
identification should have been allowed.
Judgment reversed.
Verdict set aside.
5
The Commonwealth does not argue that, even if erroneous,
the admission of the out-of-court identification was harmless
beyond a reasonable doubt. See Commonwealth v. Jones, 423 Mass.
99, 106 (1996). We note in this regard that Do did not identify
the defendant in court, nor did he confirm his out-of-court
identification.