Commonwealth v. Austin

O’Connor, J.

(dissenting, with whom Liacos, C.J., joins). The judge erred by denying the defendant’s motion to suppress the identifications made by Gervasio and Mizher when they viewed the videotape. The court states, “The identification procedure using the surveillance videotape was similar to a one-on-one confrontation between the suspect and witnesses Gervasio and Mizher. Such showup identifications are disfavored because they are viewed as inherently suggestive.” Ante at 361. Indeed, as the court says, one-on-one confrontations are inherently suggestive, but their suggestiveness pales in comparison to the suggestiveness in this case in which the police showed the witnesses to a bank robbery a videotape of the suspect in the act of robbing a bank. The message to the witnesses was not only the usual message presented by a one-on-one showup, which is that the police had reason to believe that the man being shown to the witnesses was the man who had committed the crime they had witnessed. Here, the additional powerful message to the witnesses to a recent bank robbery was that the police were undoubtedly right because the man being shown to them was unquestionably a bank robber; if he would rob one bank, he would rob other banks. It is impossible to imagine a more suggestive “confrontation” than the one that occurred in this case, and that suggestiveness was not diminished one iota by the witnesses’ opportunities to observe the robber of the Somerset bank. Commonwealth v. Thornley, 406 Mass. 96, 98-99 n.3 (1989) (“the judge examines only the totality of the circumstances of the particular confrontation or identification itself and does not consider ‘the witness’s entire connection with the case to determine whether the confrontation, although . . . unnecessarily suggestive, was nevertheless reliable, and therefore usable. . . .’ [Commonwealth v. Botello, 369 Mass. 860, 867 (1976)]. Here, for example, that the three witnesses had ample opportunity to view the two men at the bar on the night in question has no bearing on the suggestiveness of the photographic array. See id”).

Basic fairness requires that, in considering the admissibility in this case of the videotape identification, the court rec*368ognize not only that the procedure was suggestive but also that the suggestiveness was enormous. “[T]he dangers present whenever eyewitness evidence is introduced against an accused require the utmost protection against mistaken identifications. There is no question that the danger of mistaken identification by a victim or a witness poses a real threat to the truth-finding process of criminal trials. Indeed, mistaken identification is believed widely to be the primary cause of erroneous convictions. ... We have stated that ‘[t]he law has not taken the position that a jury can be relied on to discount the value of an identification by a proper appraisal of the unsatisfactory circumstances in which it may have been made. On the contrary, this court, like others, has read the Constitution to require that where the conditions are shown to have been highly and unnecessarily suggestive, the identification should not be brought to the attention of the jury.’ Commonwealth v. Marini, 375 Mass. 510, 519 (1978).” (Citations omitted.) Commonwealth v. Johnson, 420 Mass. 458, 465 (1995).

The question before the court, I suggest, is not “whether good reason exists for the police to use a one-on-one identification procedure” as the court, without citation of case authority, suggests. Ante at 361. The question is whether the videotape identification procedure was “so impermissibly or unnecessarily suggestive and conducive to irreparable misidentification as to deprive the defendant of his due process rights.” Commonwealth v. Thornley, supra at 98-99. If it was, evidence of the identification such procedure produced was not admissible. The identification procedure in question here was suggestive to a far greater degree than the usual one-on-one showup procedure. The procedure was infinitely more suggestive than in any case on which the court relies or of which I am aware. It cannot be said with confidence that the procedure was not “conducive to irreparable misidentification.” To the contrary, the procedure invited irreparable misidentification. Therefore, the videotape identification evidence should have been excluded. It should have been ex-*369eluded even if one were to concede, which I do not,1 that the procedure, which apparently was designed only to determine whether the police should look for one bank robber or two, qualifies as having been “necessary” or based on “good reason.” The admission of the videotape identification evidence was erroneous and the error cannot properly be viewed as harmless. Therefore, the conviction should be reversed.

The conviction also should be reversed because, over the defendant’s objection, the videotape itself was admitted in evidence. The jury not only heard that a few days after the Somerset robbery Gervasio and Mizher identified as the Somerset bank robber the individual shown on the Rhode Island videotape, but also the jury were allowed to view the videotape. The videotape that was conducive to irreparable misidentification by the witnesses also was made available for reasonably likely misuse by the jury as I shall discuss below. Admission of the videotape was therefore improper and cannot be characterized as harmless error.

“The general rule is that evidence that the defendant committed similar but unconnected crimes against different victims is inadmissible. Commonwealth v. Welcome, 348 Mass. 68, 70 (1964). Commonwealth v. Stone, 321 Mass. 471, 473-474 (1947). . . . Although this court may have been more willing recently than in prior years to allow evidence of bad acts to be admitted to prove an element of a crime (see, e.g., Commonwealth v. Helfant, 398 Mass. 214, 226-228 [1986]; Commonwealth v. King, 387 Mass. 464, 472 [1982]), we have not relaxed our standards where the Commonwealth offers evidence of [other] bad acts to prove the identity of the person who committed the crime. We have held that evidence of [other] bad acts is not admissible to prove identity unless there is a special mark or distinctiveness in the way the acts were committed (i.e., in the modus operand!). See Commonwealth v. Lacy, 371 Mass. 363, 366 (1976). See also *370Commonwealth v. Helfant, supra at 235 (O’Connor, J., dissenting). . . .

“The admission of evidence that the defendant had previously [or subsequently] committed the same kind of crime obviously could have an improper influence on the jury’s fact-finding function. Thus, it is most important that the Commonwealth demonstrate that the prior events and the circumstances of the crime charged have such similarities as to be meaningfully distinctive. See Commonwealth v. Lacy, 371 Mass. 363, 366 (1976); Commonwealth v. Madyun, 17 Mass. App. Ct. 965, 966 (1983). See also Commonwealth v. Helfant, 398 Mass. 214, 235 (1986) (O’Connor, J., dissenting) (‘Modus operandi evidence is designed to identify the perpetrator of a crime proven by other evidence’). There must be a uniqueness of technique, a distinctiveness, or a particularly distinguishing pattern of conduct common to the current and [subsequent] incidents to warrant the admission of evidence of prior bad acts as tending to prove that the defendant was the person who committed the crime charged.” Commonwealth v. Brusgulis, 406 Mass. 501, 504-506 (1990). See also Commonwealth v. Jackson, 417 Mass. 830, 835-837 (1994).

The court, entirely correctly, does not suggest that the videotape depicting the defendant robbing the Rhode Island bank was admissible to prove that the defendant was the Somerset bank robber because the evidence demonstrated a uniqueness — a special mark of distinctiveness — in the way the robberies were committed (modus operandi). In this case, the Commonwealth has not shown a “uniqueness of technique, a distinctiveness, or a particularly distinguishing pattern of conduct common to the [two] incidents.” Commonwealth v. Brusgulis, supra at 506.

The court offers two justifications for its conclusion that “admission of the videotape was within the scope of the judge’s discretion.” Ante at 364. The first asserted justification is that “[t]he videotape was admitted for the limited purpose of assisting the jury in assessing the reliability of the witnesses’ identification of the defendant as the person de*371picted in the videotape. Thus, it was admitted on the same basis and for precisely the same purpose as were the photograph of the defendant in the lineup and the photographic arrays shown to the witnesses at the various stages of the police investigation.” Ante at 364. I reject that reasoning because I do not agree that the witnesses’ videotape identification evidence was properly admitted. It follows that I do not agree that the videotape was admissible to assist the jury in assessing evidence that was improperly before them.

I have one further comment on the court’s first asserted justification for its acceptance of the admission of the videotape as being within the scope of the judge’s discretion. It is true that when a witness makes an out-of-court identification of a defendant from a fair, nonsuggestive array of photographs or from a lineup, the array or a photograph of the lineup is frequently offered by the Commonwealth and admitted in evidence to prove the reliability of the identification as the product of a fair, nonsuggestive, procedure. It is very difficult to believe, however, that in this case the extraordinarily suggestive videotape was offered in evidence to demonstrate that Gervasio and Mizher’s videotape identification was reliable because it was the product of a nonsuggestive procedure. I shall not speculate on what the prosecutor’s motive was in offering the videotape. It is only important that its admission was unfair and inconsistent with our case law.

The court’s second explanation of its conclusion that admission of the videotape in evidence was not erroneous is that the videotape was “analogous to the newspaper articles admitted for explanatory or foundation purposes in the case of Commonwealth v. Jackson, 384 Mass. 572, 578-579 & n.2 (1981).” Ante at 365.1 respectfully demur to the equating of the present case with Jackson. In Jackson, which was a murder case, the defendant’s longtime friend testified over the defendant’s objection that he had visited the defendant in jail and discussed with the defendant “two newspaper articles concerning an investigation into the murders of six young women, one of whom was the victim, Reich. Those articles referred to a murder in New Hampshire, and [the witness] *372testified that the defendant voluntarily told him that ‘the one in New Hampshire was not [the defendant’s].’ The two newspaper articles, with some portions excised, were admitted in evidence.” Id. at 577.

In Jackson, the defendant argued that the evidence described above was erroneously admitted because, as other crime evidence, it created “a serious danger that the jury’s decision was based on the defendant’s criminal propensity rather than on the evidence.” Id. In rejecting the defendant’s argument, the court reasoned that “because the defendant, in his admission of the crime charged, admitted to other, unrelated crimes in a manner that rendered the admission unintelligible if references to the unrelated crimes were omitted, the entire admission was properly admitted in evidence.” Id. at 578. The other crime evidence in Jackson was admissible because it was critical to an understanding of the defendant’s statement that “the one in New Hampshire was not [the defendant’s].” The newspaper articles provided the context in which the defendant’s words were uttered and made clear that, by those words, he was admitting the crime with which he was charged.

In contrast to Jackson, the other crime evidence in this case explained nothing significant or appropriate to the jury’s verdict. It brought nothing to the case that was relevant. Instead, the dramatic presentation to the jury of the videotape depicting the defendant carrying out the bank robbery in Rhode Island three days after the Somerset bank robbery occurred could have done nothing more nor less than leave the jury with the impression that the defendant was a bad man with a propensity to rob banks and therefore was likely to have committed the robbery with which he was charged. The danger, of course, is that, while such evidence may be marginally probative (much less so than legitimate modus operandi evidence), the jury were “led to dispense with proof beyond a reasonable doubt that [the defendant] did actually commit the crime charged.” Commonwealth v. Stone, 321 Mass. 471, 473 (1947). See McCormick, Evidence § 188 (3d ed. 1984).

*373I would reverse the conviction and order a new trial for two reasons: (1) The trial judge erred in admitting in evidence the two videotape identifications of the defendant as the robber of the Somerset bank; (2) the judge erred in admitting the videotape itself contrary to the salutary rule of fairness declared in Commonwealth v. Stone, supra.

The need for such information falls far short of the circumstances referenced in our cases as demonstrating necessity. See Commonwealth v. Harris, 395 Mass. 296, 299 (1985); Commonwealth v. Barnett, 371 Mass. 87, 92-93 (1976), cert, denied, 429 U.S. 1049 (1977).