Commonwealth v. Thomas

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SJC-12055

COMMONWEALTH vs. MARCUS THOMAS.

Hampden. October 7, 2016. - February 13, 2017.

Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
Budd, JJ.

Constitutional Law, Identification. Due Process of Law,
Identification, Identification of inanimate object.
Evidence, Identification, Identification of inanimate
object. Identification. Practice, Criminal, Motion to
suppress.

Indictments found and returned in the Superior Court
Department on April 3, 2015.

Pretrial motions to suppress evidence were considered by
Edward J. McDonough, Jr., J.

Applications for leave to prosecute interlocutory appeals
were allowed by Spina, J., in the Supreme Judicial Court for the
county of Suffolk, and the appeals were reported by him to the
Appeals Court. The Supreme Judicial Court granted an
application for direct appellate review.

Heidi M. Ohrt-Gaskill, Assistant District Attorney, for the
Commonwealth.
Paul R. Rudof, Committee for Public Counsel Services, for
the defendant.
The following submitted briefs for amici curiae:
 2

David Zhang, of China, Karen A. Newirth, of New York,
Joshua Asher, of Illinois, & Radha Natarajan & Kirsten Mayer for
The Innocence Project, Inc. & another.
Anthony D. Mirenda, Michael J. Licker, Melissa A. Stewart,
& Chauncey Wood for Massachusetts Association of Criminal
Defense Lawyers.

GANTS, C.J. These interlocutory appeals from two rulings

on motions to suppress raise three substantial issues regarding

eyewitness identification. First, we consider what consequence,

if any, is appropriate where a police officer who is showing a

photographic array to an eyewitness fails to use the protocol

that we outlined in Commonwealth v. Silva-Santiago, 453 Mass.

782, 797-798 (2009), despite our declaration in that opinion

that we "expect" police to use the protocol in the future.

Second, we examine whether, based on subsequent research, we

should revisit the conclusion we reached in Silva-Santiago,

supra at 798-799, and confirmed in Commonwealth v. Walker, 460

Mass. 590, 602-603 (2011), that the choice of a simultaneous

rather than a sequential display of photographs in an array may

be relevant to the weight to be given to an identification but

does not affect its admissibility. The third issue concerns the

identification of an inanimate object -- a firearm. We

determine whether suggestive police questioning and subsequent

police confirmation appropriately may result in suppression of

the identification of a firearm as the firearm used by the

defendant during the commission of the crime.
 3

These issues arise in the context of cross interlocutory

appeals: the defendant's appeal of the denial of his motion to

suppress the identification of him by an eyewitness, Brianna

Johnson, who was familiar with the defendant and knew his first

name; and the Commonwealth's appeal of the allowance of the

defendant's motion to suppress the identification of a firearm

by Johnson as the one used by the defendant in the commission of

the crime. We affirm the judge's ruling on both motions.1

Background. There was no evidentiary hearing conducted

regarding the two motions to suppress. The Commonwealth and the

defendant instead submitted to the motion judge various

exhibits, including a joint stipulation of facts and videotaped

recordings of two interviews with Johnson, the first conducted

on the evening of the incident and the second conducted four

days later, after the defendant had been arrested and a firearm

that had allegedly been in his possession had been found.

Because we are in the same position as the motion judge to make

findings, we do not limit the facts recited below to the facts

found by the motion judge. See Commonwealth v. Neves, 474 Mass.

355, 360 (2016), quoting Commonwealth v. Novo, 442 Mass. 262,

266 (2004) (where decision is based on recorded rather than live

1
We acknowledge the amicus briefs submitted by The
Innocence Project, Inc., and the New England Innocence Project;
and by the Massachusetts Association of Criminal Defense
Lawyers.
 4

testimony, "we will 'take an independent view' of recorded

confessions and make judgments with respect to their contents

without deference to the fact finder, who 'is in no better

position to evaluate the[ir] content and significance'").

In Springfield early in the evening of September 21, 2014,

the defendant was in the rear passenger seat of a vehicle driven

by Tavis Humphrey-Frazer; Johnson sat in the front passenger

seat. According to Johnson, the defendant stated that he saw a

particular individual among a crowd of people standing in front

of a house on Smith Street. Humphrey-Frazer turned the vehicle

onto Smith Street and drove towards the group of people. The

defendant leaned out of the rear driver's side window and fired

one or two shots at the group before his firearm jammed, and

then was able to fire one or two more rounds in the direction of

the group. The defendant's gunshots were met by return fire; a

bullet penetrated a window of the vehicle and struck Humphrey-

Frazer in the head, killing him.

Later that night, Springfield police Detectives Kevin Lee

and Anthony Pioggia interviewed Johnson at the Springfield

police station. Johnson said that her cousin, Humphrey-Frazer,

received a telephone call from "Marcus," who was a member of the

same gang as was Humphrey-Frazer. Humphrey-Frazer asked Johnson

if she wanted to join him while he drove to pick up Marcus, and

she agreed. When asked to tell the detectives about Marcus,
 5

Johnson said, "I don't know that much about him." She explained

that he was Humphrey-Frazer's friend, not her friend. She said

she did not see Marcus that often "because . . . [they] don't

associate with the same people." After saying that she had seen

Marcus at a party, she added, "I just know it's him because he's

known up here." She said that Marcus "look[s] like he's

[nineteen] or something," and is "kind of chunky." She assured

the detectives that she would recognize him if she saw him.

The detectives then stopped the interview in order to

perform an identification procedure.2 They presented Johnson

with a computer screen that simultaneously displayed photographs

of eleven individuals. No cautionary warnings were given to

Johnson; the detectives simply asked her to sit down, "[l]ook at

the pictures . . . [a]nd if [she saw] somebody [she]

recognize[d] in relation to [the] incident, to identify them if

2
The identification procedure occurred in a separate room
in the police station and was not recorded. Immediately
afterward, the detectives asked Brianna Johnson to confirm the
details and results of the procedure on the videotaped recording
and to sign the photograph she had identified. This recording
suggests that the same detectives who conducted the interview
with Johnson also administered the identification procedure.
The defendant does not argue that the failure to use a double-
blind identification procedure requires suppression of the
identification. See Commonwealth v. Silva-Santiago, 453 Mass.
782, 797-799 (2009) (absence of double-blind identification
procedure, where administering officer does not know which
photograph depicts suspect, is relevant to weight of
identification, not admissibility).
 6

[she] could."3 Johnson picked a photograph of the defendant and

signed a copy of that photograph.

After the interview, an arrest warrant issued against the

defendant. On September 23, Detectives Lee and Pioggia saw the

defendant in Springfield riding a motorized scooter and pursued

him, using their lights and sirens in an attempt to cause him to

stop. The defendant drove the scooter to a grassy area and then

drove back into the street, where he lost control of the scooter

and was apprehended.4 The next morning, a canine unit from the

State police searched the grassy area and found a nine

3
Later during the interview on September 21, 2014, the
detectives asked Johnson to examine a separate photographic
array in search of anyone whom she recognized to be among the
group of persons on Smith Street in Springfield. Before showing
her these photographs, Detective Anthony Pioggia told her, "I
have to go through . . . what's called an identification
protocol . . . . It's something that the courts ask that we ask
people to read and hopefully understand before looking at pages
of photographs like this."
4
After the defendant had been arrested, he agreed to be
interviewed and confirmed that he had been in the vehicle with
Tavis Humphrey-Frazer at the time of the shooting. The
defendant argues that, because the arrest was based on Johnson's
unconstitutional identification procedure, his statements should
be excluded as "fruit of the poisonous tree."
4
After the defendant had been arrested, he agreed to be
interviewed and confirmed that he had been in the vehicle with
Tavis Humphrey-Frazer at the time of the shooting. The
defendant argues that, because the arrest was based on Johnson's
unconstitutional identification procedure, his statements should
be excluded as "fruit of the poisonous tree."
 7

millimeter handgun, loaded with a magazine containing twelve

rounds of ammunition.5

The next day, September 25, Detectives Lee and Pioggia

brought Johnson back to the police station for a second

interview. At the first interview, Johnson had told the

detectives that the firearm used by the defendant was "big" and

"black" and looked like the gun carried by the detectives. At

the second interview, conducted by Detective Lee and Detective

Timothy Kenney, Detective Lee started to question Johnson again

about the gun when Detective Kenney interrupted and asked, "Can

I go after something here at this juncture?" Detective Kenney

then placed a photograph of a gun onto the table in front of

Johnson. "That's probably it, yup," Johnson responded.

Detective Kenney: "That's probably it?"

Detective Lee: "Brianna, did you see him with this type of
gun before?"

Johnson: "Wow."

Detective Lee: "Brianna?"

Johnson: "Hold on. I'm thinking."

Detective Lee: "Okay. I mean, the picture is the picture,
right? It's a photograph."

Johnson: "Yeah."

5
The record does not reflect whether this weapon was tested
for the defendant's fingerprints or whether ballistics tests
were conducted to determine if the gun fired any of the shots at
the group on Smith Street.
 8

. . .

Detective Lee: [Grabs photograph away] "Let me show the
camera what we're showing you, okay? [Turning back to
Johnson] Black, right? Black?"

Johnson: "Hold on."

Detective Lee: "All right."

Johnson: "I've got to look at it. Yeah. Is this the
gun?"

Detective Lee: "You tell us. Does it look like the gun he
had?"

Johnson: "I think so, yeah. Because I remember this
part."

Detective Lee: "What do you remember? What are you
pointing to?"

Johnson: "This, this, this whole right here [pointing].
It's like little scratches on it just like this."

Detective Lee: "And you remember those scratches?"

Johnson: "Yeah because I looked back when he was going
like this, like that." [Simulating a person trying to
unjam a gun]6

The conversation turned briefly to discuss the angle from which

Johnson saw the defendant holding the weapon and struggling with

it after it jammed. Detective Kenney then asked Johnson to sign

the photograph, and the discussion continued.

Detective Lee: "That's what you described even the night
of the murder."

Johnson: "Wow."

6
The record does not include a photograph of the firearm,
and the so-called "scratches" cannot easily be identified or
seen on the videotape.
 9

Detective Lee: "You said a big black handgun."

Johnson: "Wow. This is crazy."

Detective Lee: "Looks just like it, huh?"

Johnson: "It looks just like it."

Detective Lee: "Good."

Johnson: "Wow. That's crazy."

Detective Lee: "We're smarter than you think, aren't we?"

Johnson: "Yeah."

After a Hampden County grand jury returned indictments

against the defendant on various charges, including three counts

of armed assault with intent to murder, illegal possession of a

firearm, and murder in the second degree,7 the defendant moved to

suppress Johnson's identification of him and her identification

of the firearm. In denying the defendant's motion to suppress

Johnson's identification of him, the judge concluded that it was

"advisable" for the police to use the Silva-Santiago protocol

before showing an eyewitness a photographic array because we had

declared that we expected police to use the protocol. But the

judge declared that "this expectation is not black letter law

7
The Commonwealth does not allege that the defendant fired
the bullet that killed Humphrey-Frazer. Rather, it alleges that
he is legally responsible for Humphrey-Frazer's death because he
initiated the gunfight, and the "natural and probable
consequence" of that conduct was that someone would shoot back.
We do not address whether this theory is a legally valid basis
to support a conviction of murder in the second degree.
 10

that requires mandatory adherence." He also concluded that the

defendant did not show "that the absence of a protocol begets a

finding of undue suggestiveness." The judge also found that the

police use of a simultaneous rather than a sequential display of

photographs was not unnecessarily suggestive. Where the

defendant offered no evidence to suggest that the photographs in

the array impermissibly distinguished the defendant or were

otherwise suggestive, the judge concluded, based on the totality

of the circumstances, that "the identification procedure

employed by the police, though less than ideal, was not unduly

suggestive."

In allowing the defendant's motion to suppress Johnson's

identification of the firearm, the judge found that the use of a

single photograph in the identification procedure was unduly

suggestive in the absence of exigent circumstances, and that

this was "an extreme case" that "rises to the level of a denial

of due process," rendering the identification of the firearm

inadmissible on that ground alone. The judge also found that

the detectives made "repeated affirmative and confirmatory

statements" that likely "hindered Johnson's ability to make an

uninfluenced identification," and rendered the identification

inadmissible under the common law of evidence as "unreliable,

unfair, and prejudicial."
 11

The defendant and the Commonwealth each applied for

interlocutory review of the adverse ruling. The single justice

allowed both applications, and we granted the defendant's

application for direct appellate review.

Discussion. 1. Motion to suppress Johnson's

identification of defendant. a. Failure to follow protocol.

In Silva-Santiago, 453 Mass. at 797-798, we set forth a protocol

to be used before a photographic array is provided to an

eyewitness. Under the protocol, police must make clear to an

eyewitness that "he [or she] will be asked to view a set of

photographs; the alleged wrongdoer may or may not be in the

photographs depicted in the array; it is just as important to

clear a person from suspicion as to identify a person as the

wrongdoer; individuals depicted in the photographs may not

appear exactly as they did on the date of the incident because

features such as weight and head and facial hair are subject to

change; regardless of whether an identification is made, the

investigation will continue." The protocol also "requires the

administrator to ask the witness to state, in his or her own

words, how certain he or she is of any identification." Id. at

798. We declined to hold that the absence of such a protocol or

comparable warnings in the identifications made in the Silva-

Santiago case required that they be found inadmissible, but we
 12

declared that "we expect" such a protocol "to be used in the

future." Id.

That expectation has largely been met. A joint survey

conducted in 2013 by the Massachusetts Chiefs of Police

Association and the New England Innocence Project identified 253

police departments that had policies regarding identification

procedures, and eighty-five per cent of these policies

"incorporated reform protocols." Massachusetts Chiefs of Police

Association & Massachusetts Major City Chiefs, A Response to the

Final Report of the President's Task Force on 21st Century

Policing 13 (Sept. 2015), available at http://www.masschiefs.

org/files-downloads/news-1/866-mcopa-mmcc-response-to-the-final-

report-of-the-president-s-task-force-on-21st-century-police/file

[https://perma.cc/D4K5-EALZ]. See Supreme Judicial Court Study

Group on Eyewitness Evidence: Report and Recommendations to the

Justices 103-104 (July 25, 2013), available at

http://www.mass.gov/courts/docs/sjc/docs/eyewitness–evidence–

report–2013.pdf [https://perma.cc/WY4M-YNZN]. In fact, this is

the first case where the identification procedure was conducted

after we announced the protocol in Silva-Santiago in which we

have been asked to consider what consequence, if any, should

arise from the failure to follow the protocol. And, even here,

the detectives followed the protocol where they showed Johnson

photographs and asked her to identify anyone she recognized who
 13

was among the group of people that were the apparent target of

the defendant's gunfire; they failed to follow the protocol only

where they showed her the array that included the defendant.

The expectation we declared in Silva-Santiago was not

intended as a prediction of future police conduct; it was meant

as a warning that the failure to follow such a protocol may have

consequence where the prosecution intends to offer an

identification at trial that is procured without the benefit of

such a protocol. See Silva-Santiago, 453 Mass. at 798, citing

Commonwealth v. Diaz, 422 Mass. 269, 273 (1996) ("warning 'that

the time may come when recording in places of detention . . .

will be mandatory if a statement obtained during custodial

interrogation is to be admissible'"). The superintendence

authority of this court does not extend to law enforcement

agencies; we cannot mandate what they must or must not do, but

we can mandate what the consequence will be in a court of law

where they fail to follow our guidance. See Commonwealth v.

DiGiambattista, 442 Mass. 423, 444-445 (2004) ("The issue . . .

is not what we 'require' of law enforcement, but how and on what

conditions evidence will be admitted in our courts. We retain

as part of our superintendence power the authority to regulate

the presentation of evidence in court proceedings").

We have recognized "that the failure to provide warnings

comparable to the protocol we adopted in Silva-Santiago . . .
 14

'substantially increases risk of misidentification.'"

Commonwealth v. Walker, 460 Mass. 590, 602 (2011), quoting

Report of Special Master at 22 (June 18, 2010), State vs.

Henderson, N.J. Supreme Court, No. A-8-08. Moreover, as part of

our model jury instructions on eyewitness identification, 473

Mass. 1051, 1056-1057 (2015), we instruct juries to evaluate an

identification "with particular care" where the police failed to

follow the Silva-Santiago protocol during the identification

procedure, which reflects our recognition that there is a near

consensus in the relevant scientific community that the failure

to follow such a protocol increases the risk of

misidentification. See Commonwealth v. Gomes, 470 Mass. 352,

366-367 (2015) ("a principle is 'so generally accepted' that it

is appropriate to include in a model eyewitness identification

instruction where there is a near consensus in the relevant

scientific community adopting that principle"). See also id. at

367 n.24.

Therefore, the consequence of a failure to follow the

Silva-Santiago protocol is twofold: it affects a judge's

evaluation of the admissibility of the identification; and,

where it is found admissible, it affects the judge's

instructions to the jury regarding their evaluation of the

accuracy of the identification.
 15

As to admissibility, under art. 12 of the Massachusetts

Declaration of Rights, an identification of a defendant must be

suppressed where the defendant proves by a preponderance of the

evidence that "the witness was subjected by the State to a

pretrial confrontation . . . 'so unnecessarily suggestive and

conducive to irreparable mistaken identification' as to deny the

defendant due process of law." Commonwealth v. Odware, 429

Mass. 231, 235 (1999), quoting Commonwealth v. Otsuki, 411 Mass.

218, 232 (1991). In making this determination, the judge must

examine the totality of the circumstances regarding the

interaction between the witness and the police. Odware, supra,

quoting Otsuki, supra at 232-233. Because the failure to follow

the protocol needlessly increases the risk of a

misidentification, an identification procedure without such a

protocol is unnecessarily suggestive. See Commonwealth v.

Figueroa, 468 Mass. 204, 217 (2014), quoting Commonwealth v.

Phillips, 452 Mass. 617, 628 (2008) ("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'"); Walker,

460 Mass. at 604 ("all-suspect array significantly and

needlessly increases the potentially unjust consequences that

may arise from a false positive identification"). But that
 16

alone does not mandate its suppression, because the standard, to

be judged based on the totality of the evidence of the police

interaction with the witness, is whether the identification

procedure was "'so unnecessarily suggestive and conducive to

irreparable mistaken identification' as to deny the defendant

due process of law" (emphasis added). Odware, supra, quoting

Otsuki, supra at 232.

In considering the degree of suggestiveness arising from

the failure to follow the protocol, a judge may consider the

witness's familiarity with the alleged wrongdoer. The level of

familiarity between a witness and the suspect is measured by

factors such as the number of times the witness viewed the

suspect previously; the duration, nature, and setting of those

encounters; and the period of time over which the encounters

occurred. People v. Rodriguez, 79 N.Y.2d 445, 450-451 (1992).

Where a witness saw the wrongdoer for the first time during the

commission of the crime, the witness will examine a photographic

array in search of the unknown person he or she saw during that

incident. But where, as here, the witness was familiar with the

alleged wrongdoer from prior interactions and knew his first

name, the witness will look at a photographic array in search of

that person. We cannot reasonably expect the witness to ignore

her memory of what the person looked like based on prior

interactions and focus only on what the person looked like
 17

during the commission of the crime. Cf. Commonwealth v.

Crayton, 470 Mass. 228, 242 (2014) ("there may be 'good reason'

for the first identification procedure to be an in-court showup

where the eyewitness was familiar with the defendant before the

commission of the crime"; in this circumstance, "the in-court

showup is understood by the jury as confirmation that the

defendant sitting in the court room is the person whose conduct

is at issue rather than as identification evidence").

To be sure, the witness might have been mistaken in

thinking that the person she saw committing the crime was the

person she knew; research has shown that the perception of

familiarity is often unreliable. See Model Jury Instructions on

Eyewitness Identification, 473 Mass. at 1054 endnote h, citing

Pezdek & Stolzenberg, Are Individuals' Familiarity Judgments

Diagnostic of Prior Contact?, 20 Psychol. Crime & L. 302, 306

(2014) ("twenty-three per cent of study participants

misidentified subjects with unfamiliar faces as familiar, and

only forty-two per cent correctly identified familiar face as

familiar"). And we do not agree with the Commonwealth that the

use of the protocol here "would not have provided any additional

safeguards" because of Johnson's familiarity with "Marcus." The

photographic array potentially could have revealed that the

"Marcus" she knew was a different "Marcus" from the person the

police included in the array, or that her actual familiarity
 18

with "Marcus" was less than the modest familiarity she

described. But we conclude that, where a witness believes he or

she knows the perpetrator from prior interactions and knows the

perpetrator's name, the risk of misidentification arising from

the failure to follow the protocol is less than where the

witness looks at an array in search of an unknown person he or

she saw only during the commission of the crime. Although the

motion judge here did not do so, a judge properly may consider

this familiarity in determining, based on the totality of the

circumstances, whether the failure to follow the protocol was so

unnecessarily suggestive as to deprive the defendant of due

process. We conclude that, in these circumstances, the

detectives' failure to follow the protocol, standing alone, did

not warrant suppression of Johnson's identification of the

defendant.

b. Simultaneous versus sequential photographic array. The

defendant contends that the detectives' failure to adhere to the

Silva-Santiago protocol was not the only source of needless

suggestiveness, and that the identification procedure was

unnecessarily suggestive because the eleven photographs in the

array were shown to Johnson simultaneously rather than

sequentially.

We have twice examined the scientific arguments in support

of sequential arrays. In Silva-Santiago, 453 Mass. at 798-799,
 19

we acknowledged the debate among scholars and practitioners

whether the sequential showing of photographs yields more

accurate identification, and concluded that, "[w]hile that

debate evolves, the choice of a simultaneous rather than a

sequential display of photographs shall go solely to the weight

of the identification, not to its admissibility." In Walker,

460 Mass. at 601, we revisited that conclusion and noted that

the empirical research suggests that the rate of both accurate

and inaccurate (i.e., true and false positive) identification is

higher where eyewitnesses are shown a simultaneous array rather

than an sequential array. We declared:

"What is not clear from the studies is whether, and in what
circumstances, the use of the protocol in a simultaneous
photographic lineup diminishes the risk of false positive
identification to a rate comparable to or less than that in
a sequential lineup. We cannot determine whether a
sequential display is superior to a simultaneous display
and that the use of the latter is unnecessarily suggestive
until we learn, at a minimum, whether the rate of false
positive identification with the use of the protocol is
significantly higher in simultaneous displays than in
sequential displays."

Id. at 602. We therefore concluded that "it is still too soon

to conclude that sequential display is so plainly superior that

any identification arising from a simultaneous display is

unnecessarily suggestive and therefore must be suppressed." Id.

at 602-603. See State v. Henderson, 208 N.J. 208, 257-258

(2011) ("For now, there is insufficient, authoritative evidence
 20

accepted by scientific experts for a court to make a finding in

favor of either [simultaneous or sequential lineup] procedure").

A recent study was the first of its kind to compare the

accuracy of identifications arising from the display of

simultaneous and sequential arrays during identification

procedures conducted by police officers in the field where the

witnesses received a warnings protocol and the administering

officer did not know which photograph depicted the suspect.

Wells, Steblay, & Dysart, Double-Blind Photo Lineups Using

Actual Eyewitnesses: An Experimental Test of a Sequential

Versus Simultaneous Lineup Procedure, 39 Law & Hum. Behav. 1, 10

(2015).8 The study's findings were consistent with findings in

comparable nonfield studies in that eyewitnesses were more

likely to identify the suspect in a simultaneous array than in a

sequential array, but they were also more likely to identify

someone who was known to be innocent.9 Although this study

8
The data set for this study consisted of 494
identification procedures conducted in actual criminal cases by
police departments in Charlotte-Mecklenburg, North Carolina;
Tucson, Arizona; San Diego, California; and Austin, Texas.
Wells, Steblay, & Dysart, Double-Blind Photo Lineups Using
Actual Eyewitnesses: An Experimental Test of a Sequential
Versus Simultaneous Lineup Procedure, 39 Law & Hum. Behav. 1, 4
(2015) (Wells, Steblay, & Dysart). The witnesses were presented
with six photographs, including one suspect and five "known-
innocent fillers," in either a simultaneous or sequential array.
Id. at 2, 11.
9
Witnesses identified a suspect 1.5 per cent more often
after viewing a simultaneous rather than a sequential array
 21

suggests the modest superiority of sequential arrays to

simultaneous arrays, other researchers have argued in favor of

the simultaneous array based on a form of statistical analysis

traditionally used in medical diagnostics. See Amendola &

Wixted, Comparing the Diagnostic Accuracy of Suspect

Identifications Made by Actual Eyewitnesses from Simultaneous

and Sequential Lineups in a Randomized Field Trial, 11 J.

Experimental Criminology 263, 263 (2015); Carlson & Carlson, An

Evaluation of Lineup Presentation, Weapon Presence, and a

Distinctive Feature Using ROC Analysis, 3 J. Applied Res. in

Memory & Cognition 45, 45 (2014); Mickes, Flowe, & Wixted,

Receiver Operating Characteristic Analysis of Eyewitness Memory:

Comparing the Diagnostic Accuracy of Simultaneous Versus

Sequential Lineups, 18 J. Experimental Psychol.: Applied 361,

361 (2012).

(27.5 per cent versus 26.0 per cent), a difference that is not
statistically significant. Wells, Steblay, & Dysart, supra at
8. Over-all, witnesses selected photographs of known-innocent
fillers more often in simultaneous displays than in sequential
displays (17.8 per cent to 12.3 per cent), but this difference
was not statistically significant. Id. However, if we look
only at those witnesses who made an identification, 42 per cent
chose a known-innocent filler with the simultaneous array
procedure and 31 per cent chose a known-innocent filler with the
sequential array procedure, and this difference is statistically
significant. Id. at 10, 12. The authors noted the high error
rate of identification in their study and "found the performance
of these witnesses to be quite poor regardless of the procedure
used." Id. at 12.
 22

In 2014, the National Academy of Sciences, based on its

review of the scientific research, speaking of sequential versus

simultaneous display, concluded that "the relative superiority

of competing identification procedures . . . is unresolved," and

recommended that "caution and care be used when considering

changes to any lineup procedure, until such time as there is

clear evidence for the advantages of doing so." National

Research Council of the National Academies, Identifying the

Culprit: Assessing Eyewitness Identification 3, 104, 118

(2014). The Department of Justice, in a memorandum dated

January 6, 2017, from Deputy Attorney General Sally Q. Yates,

entitled "Eyewitness Identification: Procedures for Conducting

Photo Arrays," at 8, reviewed the relevant research and

concluded that, until additional research is conducted, "it is

not possible to say conclusively whether one identification

method [simultaneous or sequential] is better than the other."

We would not conclude that sequential display is the better

procedure and that the use of a simultaneous display is

unnecessarily suggestive unless there were a near consensus in

the relevant scientific community to support such a conclusion.

Gomes, 470 Mass. at 366-367. Where there is not, the decision

whether to use a simultaneous or a sequential procedure is best
 23

left to law enforcement, and the choice will continue to bear on

the weight of the identification, but not on its admissibility.10

Because the failure to follow the Silva-Santiago protocol

in these circumstances was not sufficient alone to warrant a

finding that the identification procedure was so unnecessarily

suggestive and conducive to irreparable mistaken identification

as to deny the defendant due process of law, and because the use

of the simultaneous display was not unnecessarily suggestive, we

affirm the judge's denial of the defendant's motion to suppress

Johnson's identification of the defendant.

2. Motion to suppress Johnson's identification of firearm.

The Commonwealth contends that the judge erred in suppressing

Johnson's identification of the firearm after finding that the

showing of a single photograph of a firearm to Johnson in the

absence of exigent circumstances constituted a denial of due

process. Before evaluating this claim of error, we offer some

perspective regarding the judge's decision.

The judge suppressed Johnson's identification of the

firearm as the firearm the defendant used to fire at the

10
Our 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. 473 Mass. 1051, 1056-
1057 (2015). 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.
 24

bystanders from the back seat of the vehicle where Johnson was a

front seat passenger. We do not understand the judge's decision

to bar her from testifying at trial to the description of the

firearm she provided to the detectives before they showed her

the photograph: that the firearm was big and black and looked

like the firearm carried by the detectives. Moreover, the judge

provided an alternative ground for finding Johnson's

identification to be inadmissible based on our common law of

evidence: that the probative value of her identification was

substantially outweighed by the unfair prejudice arising from

the detectives' questioning, which suggested that the firearm in

the photograph was the firearm she had seen, and their

subsequent statements, which confirmed her belief that it was

the same firearm after she responded to their suggestions. See

Commonwealth v. Simmons, 383 Mass. 46, 51-52 (1981), S.C., 392

Mass. 45, cert. denied, 469 U.S. 861 (1984) ("Even if

constitutional considerations did not apply, an appropriate rule

of evidence might require that an identification of an inanimate

object not be admitted in evidence where the government used a

highly suggestive identification procedure because the unfair,

prejudicial, and unreliable quality of the identification would

outweigh its probative value"). See also Commonwealth v.

Carter, 475 Mass. 512, 518 (2016), quoting Commonwealth v.

Johnson, 473 Mass. 594, 599 (2016) ("Even if otherwise
 25

admissible, a judge may suppress identification evidence if 'its

probative value is substantially outweighed by the danger of

unfair prejudice'"). The judge's evidentiary decision is

reviewed under an abuse of discretion standard, where we ask

"whether the judge's decision resulted from 'a clear error of

judgment in weighing the factors relevant to the decision . . .

such that the decision falls outside the range of reasonable

alternatives.'" Commonwealth v. Kolenovic, 471 Mass. 664, 672

(2015), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014).

The judge did not abuse his discretion in ruling the

identification inadmissible under the common law of evidence.

During the first interview, Johnson told the detectives that she

did not see the firearm until the defendant leaned out the rear

driver's side window and began firing, that she ducked when the

shooting started, and that she did not know whether the gun was

in the defendant's hand when he left the vehicle immediately

after the shooting. As noted, her description of the firearm

provided no detail that would suggest that she could identify

anything more than its type. During the second interview, she

was shown the photograph of the firearm immediately after she

was again asked to describe the gun. She initially said,

"That's probably it," but moments later asked, "Is this the

gun?" The only identifying detail she noted on the firearm were
 26

"little scratches," but she had said nothing earlier about

seeing any scratches and the judge reasonably could have doubted

that she could have seen them while the defendant was firing the

weapon or clearing its jam.11 Where the identification of the

firearm was unreliable, and where the witness's confidence in

the identification was inflated by the detectives' confirmatory

statements, the judge acted well within the bounds of discretion

in ruling the identification inadmissible. See Johnson, 473

Mass. at 600 ("The danger of unfair prejudice arises because the

accuracy of an identification tainted by suggestive

circumstances is more difficult for a jury to evaluate");

Simmons, 383 Mass. at 51-52.

Having affirmed the judge's ruling on evidentiary grounds,

we now address the judge's due process analysis. In Simmons,

383 Mass. at 51, we recognized that, "in an extreme case, the

degree of suggestiveness of an identification procedure

concerning an inanimate object might rise to the level of a

denial of due process." We also recognized that there are three

differences between the out-of-court identification of a

defendant and an out-of-court identification of an inanimate

object. Id. at 52. First, the "chances of fundamental

11
The photograph was briefly displayed for the video camera
but we were unable to discern "little scratches" on the firearm
from the videotaped recording, and the Commonwealth did not
offer the photograph in evidence or include it in the record on
appeal.
 27

unfairness" are greater where a defendant is identified because

that "directly tends to prove the case against him," but

"[i]dentification of tangible property is only indirect proof of

the defendant's guilt, even though its force may be most

persuasive in certain instances." Id. Second, most tangible

objects "are not unique," but "[t]here is only one person with

the physical characteristics of the defendant." Id. Third,

"[a] lineup of people is practical," but "[a] lineup of property

may not be." Id. We therefore rejected "the notion that a

lineup of inanimate objects is required in circumstances where a

lineup of people would be required." Id. See Commonwealth v.

Bresilla, 470 Mass. 422, 427, 431 (2015) (although

identification of jacket worn by shooter was strong evidence

that defendant was shooter, "Commonwealth was not required to

create a photographic array of jackets").

Due process may be denied by admitting in evidence an

identification of an inanimate object where, first, the police

knew or reasonably should have known that identification of the

object effectively identifies the defendant as the perpetrator

of the crime and where, second, the police needlessly and

strongly suggested to the witness that the object is the object

at issue. See Simmons, 383 Mass. at 51-52. Cf. Commonwealth v.

Spann, 383 Mass. 142, 148 (1981) ("Barring an extreme case of

suggestiveness, perhaps involving improper statements by the
 28

police in the course of such a procedure, a motion to suppress

the photographic identification of a victim need not be

allowed"). By recognizing that the identification procedure

used to identify an inanimate object may implicate due process,

we do not suggest that the identification procedure need be the

same as the procedure used to identify a suspect; we have

already made clear that a lineup of similar objects is not

required even in the absence of a showing of exigency, and the

judge erred in ruling otherwise. See Bresilla, 470 Mass. at

431; Simmons, supra at 52. Where the judge rested his finding

of a denial of due process solely on the failure of the police

to use a photographic array of similar firearms, that finding

cannot be sustained.

However, because the identification of an inanimate object

potentially may implicate due process, and because under our

common law of evidence the probative value of any such

identification must not be substantially outweighed by unfair

prejudice, the police should take reasonable steps to avoid

unnecessary suggestiveness in what will generally be a showup

procedure, that is, the showing of the object alone or a single

photograph of the object. A police protocol would be valuable

in guarding against needless suggestiveness in identification

procedures involving an inanimate object and in ensuring that

the fact finder learns with precision the nature of any
 29

identification by the witness. We urge police departments to

devise such a protocol for the identification of inanimate

objects where such an identification would persuasively

inculpate a defendant.

The identification protocol we adopted in our opinion in

Silva-Santiago had been recommended to law enforcement

authorities by the United States Department of Justice. 453

Mass. at 798, citing United States Department of Justice,

Eyewitness Evidence: A Guide for Law Enforcement 19, 31-32, 33-

34 (1999). But that protocol was created for the identification

of a suspect in a lineup or a photographic array; it was not

designed for a showup identification of an inanimate object. To

our knowledge, no protocol for the identification of inanimate

objects has yet been devised by the Department of Justice or by

any Federal, State, or local law enforcement agency, so it is

prudent for us to tread carefully here. We invite police

departments to consider, in devising such a protocol, whether it

should include the following elements: (1) the witness should

be asked to provide a verbal description of the object before

the object or a photograph of the object is shown to the

witness; (2) the officer should tell the witness that the object

that will be shown to the witness may or may not be the object

the witness described; (3) where any identification is made, the

officer should ask the witness to state, in his or her own
 30

words, how certain he or she is of the identification; and (4)

the officer should obtain clarification from the witness as to

whether the object is the actual object he or she saw, or

whether it simply looks like the object he or she saw. The

identification procedure should be memorialized, preferably by a

contemporaneous videotape or audio recording but alternatively

by an interview report timely prepared.

Conclusion. For the reasons stated above, we affirm the

denial of the defendant's motion to suppress Johnson's

identification of him, and the allowance of the defendant's

motion to suppress Johnson's identification of the firearm.

So ordered.