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SJC-11567

                 COMMONWEALTH   vs.   KENNETH JOHNSON.



      Suffolk.       September 2, 2014. - January 12, 2015.

  Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
                           & Hines, JJ.


Identification. Evidence, Identification. Practice, Criminal,
     Request for jury instructions, Instructions to jury.



     Indictments found and returned in the Superior Court
Department on June 11, 2001.

     Following review by the Appeals Court, 74 Mass. App. Ct.
1129 (2009), the cases were tried before Patrick F. Brady, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Brad P. Bennion for the defendant.
     Cailin M. Campbell, Assistant District Attorney (David S.
Bradley, Assistant District Attorney, with her) for the
Commonwealth.
     David W. Ogden, Daniel S. Volchok, Francesco Valentini, &
Natalie F.P. Gilfoyle, of the District of Columbia, & John C.
Polley, for American Psychological Association & another, amici
curiae, submitted a brief.
     M. Chris Fabricant & Karen Newirth, of New York, Joshua D.
Rogaczewski & Johnny H. Walker, of the District of Columbia, &
Kevin M. Bolan, for the Innocence Network, amicus curiae,
submitted a brief.
                                                                    2




    GANTS, C.J.   In Commonwealth v. Franklin, 465 Mass. 895,

912 (2013), we recognized "that eyewitness identification may be

an important issue at trial even where no eyewitness made a

positive identification of the defendant as the perpetrator, but

where eyewitnesses have provided a physical description of the

perpetrator or his clothing, or have identified a photograph in

an array as someone who looks like the perpetrator," and we

declared that, "where requested by the defendant, a judge should

provide specific guidance to the jury regarding the evaluation

of such eyewitness testimony through some variation of the

approved identification instruction."   Here, the eyewitnesses

described only the defendant's gender and race, and the color of

his shorts; identified other individuals as the perpetrator when

shown a live lineup; and made no in-court identification.     The

trial judge declined the defendant's request to give a variant

of the approved identification instruction that included the

directive, "You may take into account whether a witness ever

participated in an identification procedure and failed to

identify the defendant as the perpetrator."   We conclude that

the judge did not abuse his discretion in declining to give the

proposed instruction where there was no positive identification

and no other eyewitness testimony that significantly
                                                                      3


incriminated the defendant.     Therefore, we affirm the

defendant's convictions.1

     Background.     On December 10, 2004, the defendant was

convicted by a Superior Court jury of (1) assault by means of a

dangerous weapon, in violation of G. L. c. 265, § 15B (b); (2)

possession of a firearm without a license, in violation of G. L.

c. 269, § 10 (a); (3) possession of ammunition without a firearm

identification card, in violation of G. L. c. 269, §§ 10 (h);

(4) armed carjacking, in violation of G. L. c. 265, § 21A; and

(5) armed robbery, in violation of G. L. c. 265, §17.      On August

11, 2009, in an unpublished memorandum and order pursuant to its

rule 1:28, the Appeals Court vacated the judgments against the

defendant due to an erroneous joint venture instruction and

ordered a new trial.     See Commonwealth v. Johnson, 74 Mass. App.

Ct. 1129 (2009).   At the conclusion of a new trial, on April 12,

2011, the jury convicted the defendant of all charges.     The

defendant filed a timely notice of appeal, and we transferred

the case to this court on our own motion.

     We summarize the evidence at trial.     On April 22, 2001, at

approximately 6 P.M., Nerys Ramirez drove his girl friend, Erica

Jusino, and their two year old son to a park in the Roxbury

section of Boston.     At the park, Ramirez noticed that a gray or

     1
       We acknowledge the amicus briefs submitted by the
Innocence Network and by the American Psychological Association
and the Center for Law, Brain & Behavior.
                                                                      4


tan colored2 Jeep Grand Cherokee automobile was parked very close

to his green Jeep Grand Cherokee, on which he had installed tire

rims and other accessories.   Ramirez testified that two people

got out of the gray Jeep and looked at his green Jeep over the

course of twenty to twenty-five minutes.

     Ramirez and his family remained in the park for

approximately one and one-half hours.    On leaving and beginning

the drive home, Ramirez noticed that the gray Jeep and a

motorcycle were following him, even after he had stopped at a

convenience store.   The motorcycle eventually passed Ramirez,

but the gray Jeep continued to follow.     Ramirez then pulled into

the driveway of his house located in the Hyde Park section of

Boston and parked his vehicle approximately twenty feet from the

front door of his house.   The gray Jeep remained on the street.

     After Ramirez reached the front door of his house, two

black men went up to him and asked for someone's name, but

Ramirez did not speak English at the time and did not understand

the question.   The defendant, who was wearing blue shorts,

pulled out a black revolver, pointed it at Ramirez, and asked

him to give up whatever he had.   Ramirez gave his watch,

bracelet, rings, and wallet to the other man (who was not

holding the gun), later identified as Raymond Sledge.     Sledge

     2
       At trial, witnesses described the color of this Jeep
automobile as gray, grayish, tan, tannish, grayish-tannish,
gold, and brown. We will refer to this Jeep as the gray Jeep.
                                                                   5


then took Ramirez's automobile keys, cellular telephone, and

pager.

     Jusino, who had been inside the green Jeep with her son,

started walking toward the house.    As she approached, Ramirez

told her that he was being robbed, but she continued walking

toward him until the defendant pointed the gun at her stomach.3

Ramirez testified that the defendant then got into the gray Jeep

and Sledge got into Ramirez's green Jeep.4    Jusino, however,

testified that Sledge got into the gray Jeep while the defendant

kept the weapon pointed at Ramirez and her, and later drove off

in Ramirez's green Jeep.    The assailants departed the scene in

the two Jeeps, driving in the same direction.

     Jusino used her set of keys to enter the house and called

the police.    Officer Robert Lawler5 arrived at Ramirez's house




     3
         Erica Jusino was eight and one-half months pregnant at the
time.
     4
       At the previous trial, Nerys Ramirez had testified that
the gunman got into the green Jeep and the man without the gun
got into the gray Jeep. However, after Ramirez was cross-
examined with this inconsistency, the jury learned on redirect
examination that, at the grand jury proceeding in 2001, Ramirez
had explained that the gunman kept pointing the weapon at him
while the other man got into the green Jeep.
     5
       Officer Robert Lawler was retired and unavailable at the
time of trial, so his prior testimony from the 2004 trial was
read aloud to the jury.
                                                                    6


approximately five minutes later, around 9 P.M.6   After speaking

briefly with Jusino, Officer Lawler broadcast on the police

radio that the robbers were two black males, one driving a green

Jeep that belonged to the victims, and one wearing blue shorts,

armed with a handgun, and driving a gray Jeep.

     Officer Brian Foley was parked nearby when he heard Officer

Lawler's broadcast, and saw two Jeeps matching Officer Lawler's

description driving toward him.    He followed the Jeeps and, with

the assistance of other officers, succeeded in stopping them a

few miles from the scene of the crime.7   Officer James Thompson

and Officer Foley approached the gray Jeep, and Officer Thompson

removed the defendant from the vehicle and frisked him,

recovering a black revolver loaded with five bullets.     The

defendant was wearing blue shorts when arrested.    Meanwhile,

Officer Kevin Doogan secured Sledge, who was driving the green

Jeep.    Officer Doogan frisked Sledge and found a cache of gold

jewelry.    However, he left the jewelry in Sledge's pocket to be

searched at the police station.    Officer Foley searched Sledge

at the station and recovered three gold rings, one heavyweight


     6
       The telephone call to the police was placed approximately
seven minutes after the robbery. Jusino testified that
Ramirez's set of house keys was stolen along with the car keys,
so she had to find another set of house keys.
     7
       Officer Lawler testified that it took less than five
minutes to drive from Ramirez's residence to where the stop was
made.
                                                                       7


chain necklace, one bracelet, an autographed fifty dollar bill,

and an autographed twenty dollar bill.   Ramirez later identified

these items as his own.

     Officer Thompson searched the green Jeep and recovered

Ramirez's wallet.   Officer James Martin searched the gray Jeep

at the scene and at the station.   At the scene, he recovered a

Motorola cellular telephone and a pager.   At the station, he

recovered a compact disc holder, a gold watch, a leather or

vinyl card holder, and a jacket with a wallet holding a

Massachusetts driver's license that belonged to Sledge.       At the

station, Ramirez identified his automobile keys, cellular

telephone, and pager.

     No showup identification was attempted on the night of the

arrest.   The first identification procedure was conducted on May

10, 2001, when Ramirez and Jusino went to Boston police

headquarters to view a live lineup.8   During the eighteen days

between the night of the robbery and the lineup, the defendant's

hair style changed; his hair was styled in a "medium Afro" on

April 22 but was fashioned into twists or braids on May 10.      The

defendant was included in the eight-person lineup as participant

no. 4; Sledge was not included.    When viewing the lineup,

Ramirez asked three people to step forward, including the

     8
       The lineup procedure was audio and video recorded, but the
tape was lost before the 2004 trial and not found at the time of
the 2011 trial.
                                                                     8


defendant.    He then selected participant no. 6, not the

defendant.    Jusino separately viewed the same lineup, and she

selected a different individual than Ramirez did, but not the

defendant.9

     Discussion.    Although neither eyewitness identified the

defendant at the live lineup, the defendant requested a modified

identification instruction providing that the jury may consider

that the witnesses had an opportunity to view the defendant but

did not identify him.10    The judge inquired, "There was no I.D.,


     9
       Ramirez and Jusino each identified Raymond Sledge in a
separate lineup.
     10
          The defendant's requested instruction, in full, stated:

     "One of the most important issues in this case is the
     identification of the defendant as the perpetrator of the
     crime. The Commonwealth has the burden of proving the
     identity of the perpetrator beyond a reasonable doubt.

     "It is not essential that any witnesses themselves are free
     from doubt as to the correctness of their identification of
     the perpetrator.

     "However, you the jury, must be satisfied beyond a
     reasonable doubt as to the identity of the defendant as the
     perpetrator of the crimes with which he stands charged
     before you may convict him. If you are not convinced
     beyond a reasonable doubt that the defendant was the person
     who committed the crime, you must find the defendant not
     guilty.

     "You may take into account that any identification that was
     made by picking the perpetrator out of a group of similar
     individuals is generally more reliable than one which
     results from the presentation of a suspect alone to a
     witness.
                                                                   9


so why should I give an I.D. charge?"   Defense counsel said, "I

just want the jury to be able to consider the fact that they had

an opportunity to view this defendant . . . ."   The judge

reasoned that "[t]he model I.D. instruction only applies if

somebody's identified."   The judge denied the request, stating

that the failure to identify the defendant was a matter for the

attorneys to address to the jury in closing argument, and

requires no special instruction.   The defendant objected to the

denial of the instruction at the conclusion of the judge's

charge.

    The issue on appeal is not whether a judge may instruct a

jury regarding a witness's failure to identify the defendant; it

is certainly within a judge's discretion to do so.   Rather, the

issue is whether the judge abused his discretion in declining to

give the instruction requested here by the defendant, where

there was no positive eyewitness identification, only a physical

description of the suspect limited to his race, his gender, and


    "You may take into account whether a witness ever
    participated in an identification procedure and failed to
    identify the defendant as the perpetrator.

    "I again emphasize that the Commonwealth has the burden of
    proof on every element of the crime charged, and this
    specifically includes the burden of proving beyond a
    reasonable doubt the identity of the defendant as the
    perpetrator of the crimes with which he stands charged.
    If, after examining the testimony, you have a reasonable
    doubt as to the identity of the defendant as the
    perpetrator of the crimes with which he stands charged, you
    must find the defendant not guilty."
                                                                  10


the color of his shorts.   Because the defendant properly

objected to the judge's denial of the modified instruction, we

review the judge's decision for prejudicial error.   See

Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).

    "We have long recognized that '[e]yewitness identification

of a person whom the witness had never seen before the crime or

other incident presents a substantial risk of misidentification

and increases the chance of a conviction of an innocent

defendant.'"   Commonwealth v. Silva-Santiago, 453 Mass. 782, 796

(2009), quoting Commonwealth v. Jones, 423 Mass. 99, 109 (1996).

See Commonwealth v. Johnson, 420 Mass. 458, 465 (1995) ("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").   "We have also long recognized

that, where the reliability of a positive eyewitness

identification is an important issue at trial, a judge should

instruct the jury regarding the evaluation of eyewitness

identification testimony . . . ."   Franklin, 465 Mass. at 910.

See Commonwealth v. Williams, 54 Mass. App. Ct. 236, 239 (2002)

("The cases make plain that judges should furnish jurors with a

set of practical criteria by which they can assess the quality

of an asserted identification . . .").   More recently, in

Franklin, supra at 912, we recognized that, where requested by

the defendant, a judge should also provide a modified
                                                                   11


instruction regarding the evaluation of eyewitness

identification testimony where "no eyewitness made a positive

identification of the defendant as the perpetrator, but where

eyewitnesses have provided a physical description of the

perpetrator or his clothing, or have identified a photograph in

an array as someone who looks like the perpetrator."

     Here, the two eyewitnesses to the crime, Ramirez and

Jusino, identified lineup "fillers," persons who had nothing to

do with the case, rather than the defendant at a live lineup and

provided only the most general description of the suspect's

race, gender, and blue shorts.   The defendant does not contend

that this description is so singular as to serve as a partial

identification.   Nor would the modified instruction proposed by

the defendant have invited the jury to evaluate the witnesses'

description of the gunman as a black man wearing blue shorts.

In fact, the defendant does not contend that there was a risk of

misidentification arising from any of the identifying

information presented at trial.11


     11
       We acknowledge that Commonwealth v. Franklin, 465 Mass.
895 (2013), had not been decided at the time of the defendant's
trial. However, even if the defendant had requested a modified
instruction to caution the jury regarding the witnesses'
description of him, the description was too generic to require a
modified instruction under Franklin. The description of a
defendant's race, gender, and blue shorts are not details so
specific to the defendant that they essentially serve as a
partial eyewitness identification. Contrast with id. at 900-
901, 903 (one eyewitness saw defendant and victim from
                                                                  12


    Rather, the defendant essentially contends that, even where

there was no positive or partial identification of the

defendant, he was entitled to a jury instruction that would have

informed the jury, first, that the Commonwealth bears the burden

of proving beyond a reasonable doubt the identity of the

defendant as the perpetrator of the crime, and, second, that

they may take into account the failure of the witnesses at the

lineup to identify the perpetrator.   We conclude that the jury

were already told the first proposition through the reasonable

doubt instruction, and needed no instruction to understand the

second proposition.

    The purpose of the identification instruction "is to

emphasize the importance of eyewitness identifications, [to]

inform the jury of the Commonwealth's heavy burden of proof as

to the accuracy of the identification, and to furnish the

criteria by which the jury can assess the quality of the

identification."   Commonwealth v. Walker, 421 Mass. 90, 99

(1995).   Here, there was no incriminating eyewitness

identification testimony of consequence that the jury needed to

evaluate as to accuracy, importance, or quality.   Where there is

incriminating eyewitness identification testimony offered by a



"shoulders up" running prior to shooting, and another eyewitness
who saw shooting declared during photographic array that shooter
"looked like" defendant but had hair like another person
depicted in array).
                                                                  13


witness, our new provisional model instruction, like our earlier

model instruction, allows the jury to consider any failure of

the witness to identify the defendant in a prior identification

procedure when evaluating the accuracy and weight of the

incriminating identification evidence.    See Commonwealth v.

Gomes, ante    ,       (Appendix) (2014) (provisional model

instruction allowing jury to consider witness's failure to

identify defendant); Commonwealth v. Rodriguez, 378 Mass. 296,

310-311 (Appendix) (1979) (former model instruction providing

same guidance).    Where there is no incriminating eyewitness

identification testimony, a witness's failure to identify the

defendant is not part of the jury's evaluation of identification

evidence but simply exculpatory evidence indicating that the

defendant was not the perpetrator, which the jury may weigh in

light of the totality of the evidence.    Because, here, there was

no identification testimony that significantly incriminated the

defendant, the judge did not abuse his discretion in declining

to give the modified identification instruction.

    Of course, the jury are entitled to consider the witnesses'

failure to identify the defendant, and they did so in this case.

Officer Doogan testified on both direct and cross-examination

that Ramirez and Jusino did not identify the defendant but

identified another lineup participant.    During opening statement

and closing argument, defense counsel reiterated several times
                                                                      14


that the defendant had appeared before both Ramirez and Jusino

and neither had picked him as the culprit.    The judge instructed

the jury that they could take into account the witnesses'

testimony and the exhibits, which included photographs of the

defendant's live lineup.   The judge also instructed the jury to

weigh the witnesses' credibility, any inconsistencies, and the

over-all plausibility of the testimony.    The judge even

instructed the jury to consider the failure to preserve the

recording of the lineup procedure in evaluating the reliability

of the evidence.   Where there was no danger of eyewitness

misidentification, the judge's "charge, as a whole, adequately

cover[ed] the issue."    Commonwealth v. Watson, 455 Mass. 246,

259 (2009), quoting Cruz, 445 Mass. at 597.

    In Gomes, supra at      , we concluded that scientific

principles that would assist juries in their evaluation of

eyewitness identifications may be included in a model jury

instruction where they are so generally accepted that there is a

"near consensus in the relevant scientific community," and we

identified various principles that met this standard.       We have

reviewed the scholarly research to determine whether there are

generally accepted scientific principles that would meaningfully

assist juries in their evaluation of the weight to give an

eyewitness's failure to identify a defendant, where there is no

positive or partial identification.    We discovered from our
                                                                  15


review that the breadth of research on eyewitness identification

is not similarly found in the area of eyewitness

nonidentification.12   See Charman & Wells, Applied Lineup Theory,

in 2 Handbook of Eyewitness Psychology 251 (2007) (Charman &

Wells); Wells & Olson, Eyewitness Identification:   Information

Gain from Incriminating and Exonerating Behaviors, 8 J.

Experimental Psychol.:   Applied 155, 164 (2002) (Wells & Olson).

And we also discovered that what little has been established

would not be of material assistance to a jury.

     There is some agreement that, generally, a witness's

failure to identify a defendant is at least somewhat indicative

of innocence.   See Charman & Wells, supra at 225-226; Wells &

Lindsay, On Estimating the Diagnosticity of Eyewitness

Nonidentifications, 88 Psychol. Bull. 776, 778-779 (1980) (if

witness's identification of suspect increases probability that

suspect is perpetrator, then witness's declaration that

perpetrator is not in lineup or witness's identification of

filler as perpetrator must decrease probability that suspect is

perpetrator).   But reasonable jurors would already know this

based on their common sense.   What they might not know is what

     12
       We characterize an eyewitness's "failure to identify" or
"nonidentification" to include (1) a witness's assertion that
the perpetrator is not among the persons shown in the lineup;
(2) a witness's identification of a person other than the
suspect in the photographic array or lineup; or (3) a witness's
inability either to identify or to exclude the suspect as the
perpetrator.
                                                                    16


weight to give a failure to identify where there is neither a

positive nor a partial identification.   The research provides

little help in this regard, because there is no near consensus

as to how much information is gained from a failure to identify.

See Wells & Olson, supra ("[T]here has been virtually no

dialogue in the eyewitness identification literature" concerning

appropriate weight that should be given to witness's assertion

that perpetrator is not in lineup, or to witness's

identification of filler as perpetrator).   This is not a simple

area of inquiry, because a failure to identify may be weighed

differently depending on whether the eyewitness got a good,

long, frontal look at close range of a perpetrator who was

wearing no mask, or whether the eyewitness got only a momentary

glance at a masked perpetrator fleeing the scene of the crime.

See, e.g., Commonwealth v. Bourgeois, 404 Mass. 61, 63 (1989)

(witness's nonidentification not shown to be exculpatory because

"there [was] no evidence on the record . . . that the victim had

such an opportunity to view the defendant as would have

permitted the victim to identify the defendant").    In addition,

an eyewitness's identification of a filler in a lineup as the

culprit may be weighed differently from an assertion that no one

in the lineup is the culprit, or that he or she does not know

enough to choose or reject anyone.   See Charman & Wells, supra

at 226; Clark, Howell, & Davey, Regularities in Eyewitness
                                                                   17


Identification, 32 Law & Hum. Behav. 187, 207-208 (2008) (filler

identifications "may be viewed as an indication of the witness's

desire to make an identification despite having a weak memory of

the target"); id. at 206 (witness inability either to identify

or exclude suspect as perpetrator was shown to have "little or

no probative value").     Until we are confident that we can

materially aid the jury in their evaluation of a failure to

identify based on principles that have attained near consensus

in the relevant scientific community, we will not offer even a

provisional model jury instruction regarding an eyewitness's

failure to identify a defendant, where there is no positive or

partial identification.     We therefore leave the question whether

a jury instruction shall be given in these circumstances, and

what it should say, to the sound discretion of the trial judge.

    Conclusion.   The judge did not abuse his discretion by

declining to give an identification instruction where there was

no positive eyewitness identification or other eyewitness

testimony that significantly incriminated the defendant.       Having

found no error, we affirm the defendant's convictions.

                                      So ordered.
