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16-P-754                                                Appeals Court

               COMMONWEALTH    vs.   ROBERT GALIPEAU.


                            No. 16-P-754.

           Norfolk.      October 4, 2017. - May 16, 2018.

              Present:   Green, Hanlon, & Neyman, JJ.


Robbery. Constitutional Law, Identification. Due Process of
     Law, Identification. Evidence, Identification, Photograph.
     Identification. Practice, Criminal, Motion to suppress,
     Identification of defendant in courtroom.



     Indictments found and returned in the Superior Court
Department on May 23, 2013.

     A pretrial motion to suppress evidence was heard by Kenneth
J. Fishman, J., and the cases were tried before Thomas A.
Connors, J.


     Barbara A. Munro for the defendant.
     Stephanie Martin Glennon, Assistant Attorney General, for
the Commonwealth.


    HANLON, J.    After a jury trial, the defendant, Robert

Galipeau, was convicted of armed robbery arising from the

gunpoint theft of cash from three men at approximately 1 A.M. on

April 18, 2013, immediately after the victims left the Assembly
                                                                     2


Bar in Quincy.    The sole issue at trial was the identification

of the robber.    The defendant argues on appeal that his motion

to suppress a photographic identification should have been

allowed and that the trial judge improperly allowed an in-court

identification.    We affirm.

    1.   Motion to suppress photographic identification.     "We

recite the facts as found by the motion judge, supplemented by

uncontroverted testimony" submitted during the evidentiary

hearing on the motion to suppress.    Commonwealth v. Cordero, 477

Mass. 237, 238 (2017).   We accept all of the judge's factual

findings, none of which is clearly erroneous.    See Commonwealth

v. Borgos, 464 Mass. 23, 32 (2012).

    After the robbery, Leo Tang, one of the victims, told the

police that the robber had followed him and his two friends from

the Assembly Bar to his car across the street.    Tang described

the robber as a white male, approximately five feet, ten inches

tall, scruffy looking, with facial hair, and wearing a hooded

sweatshirt, gray shirt, and jeans.    Tang had seen the man in the

bar earlier that night, with a Budweiser beer next to him.

After the police received this information from Tang, an officer

met with Robert Sylva, the bar manager, to view surveillance

videotape.   The videotape depicted a white man drinking a

Budweiser at a table; he fit the description Tang had given.
                                                                      3


Sylva told the officer that the person drinking a Budweiser in

the video was the defendant.

    Once the police had the defendant's name, two officers went

to his home and knocked on his front door but received no

answer.   They went toward the rear door, and, while walking

along the right side of the house, they saw the defendant

standing at the sink in the kitchen of the ground floor

apartment.   The officers then went back to the front door and

knocked again.   They knocked on the door without response for a

lengthy period of time before the defendant finally answered.

He was wearing only a pair of jeans and sneakers, and his face

appeared to be freshly shaved, with cuts on his upper and lower

lip that were actively bleeding.

    At approximately 3 A.M., police officers brought Tang, in a

police cruiser, to the street outside the defendant's house for

a showup identification procedure.   Tang viewed the defendant,

who was standing on the sidewalk, for five to ten minutes.     Tang

did not identify the defendant as the robber at that time,

saying that he could not be sure of an identification because

the robber had been scruffier, with facial hair.

    Later that day, Quincy Police Detective Ricky Wash created

a computer-generated photo array, including the defendant's

photo and six other photos of men with similar physical
                                                                     4


characteristics.1   The photo identification procedure was

administered by Detective Michael Ward, who was otherwise

uninvolved in the investigation.

     Tang viewed the photos one at a time, and, when he came to

the second photo, he said it looked similar2 to the robber, but

he was having trouble making a positive identification because

the robber had been wearing a hat and a hooded sweatshirt.     At

Ward's instruction, Tang went through the remaining photos.

When he returned to the second photo, Ward put a piece of paper

over the upper head of the person depicted and Tang covered the

person's ears with his hands.     Tang then wrote on the photo, at

Ward's request, "I believe this is the suspect because he seems

like an average white male.     The chin structure with a little




     1 One of the photos was of a man with a darker complexion
than the others. Wash also used an old booking photo of the
defendant in the array, rather than a newer photo from the
Registry of Motor Vehicles. The motion judge determined that
the array was fairly composed and we defer to his judgment. See
Commonwealth v. Forte, 469 Mass. 469, 478 (2014).

     2 The defendant attempts to make much of the fact that
Detective Ward used the word "familiar" instead of "similar" in
his testimony. Specifically, Ward testified, "When I turned
over photo number 2, Mr. Tang looked at it and said that looks
familiar and then, starting tapping his finger on the photo for
several minutes." Tang's own testimony, however, was that
photograph number 2 "looked like the guy." This testimony was
sufficient to support the judge's finding.
                                                                     5


facial hair look similar.   I couldn't see his head or ears

because he wore a hat and hoodie at the time."

     a.   Multiple identification procedures.    "For a motion to

suppress a photographic identification to succeed, the defendant

must show by a preponderance of the evidence that, in light of

the totality of the circumstances, the procedures employed were

so unnecessarily suggestive and conducive to irreparable

misidentification as to deny the defendant due process of law."3

Commonwealth v. Borgos, 464 Mass. 23, 32 (2012), quoting from

Commonwealth v. Watson, 455 Mass. 246, 250 (2009).    See Mass. G.

Evid. § 1112(b)(1)(2017).   In reviewing a decision on such a

motion, we "review without deference the judge's application of

the law to the facts as found."   Commonwealth v. Johnson, 473

Mass. 594, 602 (2016).

     The defendant's primary argument is that the unsuccessful

showup tainted the subsequent photo array procedure, rendering

it impermissibly suggestive.   The motion judge addressed this

issue squarely and concluded that conducting a photo array


     3 "Where the defendant satisfies this burden, the out-of-
court identification is per se excluded as a violation of the
defendant's right to due process under art. 12 of the
Massachusetts Declaration of Rights." Commonwealth v. Walker,
460 Mass. 590, 599, n.13 (2011). "Because the standard for
admissibility of an identification under the Massachusetts
Constitution is more favorable to a defendant than the standard
under the United States Constitution," we need not consider any
Federal constitutional claims here. Ibid.
                                                                    6


procedure that included the defendant, after Tang had failed to

identify him at the showup, "may not be ideal, but was warranted

where the defendant had apparently altered his appearance since

the time of the crime."

    We agree with the motion judge.    The evidence before him at

the suppression hearing strongly suggested that the defendant

had shaved immediately before he answered the door to his home

in the early morning hours of April 18, 2013.   In addition, Tang

indicated at the showup that the reason he could not identify

the defendant as the robber was the difference in the very

feature that the defendant had apparently altered.    Under these

circumstances, it was appropriate for the police to conduct a

second identification procedure.

    Moreover, Massachusetts courts have "declined to adopt 'a

per se exclusionary rule condemning as constitutionally infirm

all subsequent identifications of a defendant by any witness who

had previously failed to select the defendant.'"     Commonwealth

v. Paszko, 391 Mass. 164, 171 (1984), quoting from Commonwealth

v. Lacy, 371 Mass. 363, 369 (1976).   Even where the defendant's

photograph is the only one duplicated in multiple arrays, the

resulting out-of-court identification is not necessarily

inadmissible.   See Commonwealth v. Carter, 475 Mass. 512, 518
                                                                      7


(2016).4   See also Paszko, supra at 168-169; Commonwealth v.

Holland, 410 Mass. 248, 254 (1991).   Moreover, the Supreme

Judicial Court has upheld the admission of identification

evidence in circumstances similar to those presented here.5     See

Commonwealth v. Forte, 469 Mass. 469, 476 (2014) (witness made

identification from photo array after failing to identify

defendant at showup and then being shown videotape footage from

security camera).6   Here, the fact that Tang participated in




     4 In Carter, decided a few months after the defendant's
trial, the Supreme Judicial Court stated, "We discourage the use
of repeated arrays containing a suspect's photograph, . . . and
the use of repeated arrays could make identification procedures
unnecessarily suggestive if the police do not have good cause
for the use of such procedure." 475 Mass. at 518. Even though
the defendant in Carter was the only person depicted in two
arrays, the court concluded there was good cause for the
procedure because the second array was shown to each of two
witnesses only after each one "commented that the perpetrator's
hair was shorter than was depicted in the photographs used in
the first array." Ibid.

     5 At oral argument, the defendant's attorney suggested that
a photo array excluding the defendant's photo should have been
shown to Tang in between the showup and the array containing the
defendant's photo, in order to insulate the array procedure from
the risk that Tang would remember the defendant from the showup
and not from the crime. The motion judge considered this
argument, but correctly stated that such a procedure was not
constitutionally required. See Commonwealth v. Martin, 447
Mass. 274, 280 (2006) ("Failure of the police to pursue
alternate identification procedures does not in itself render an
identification unduly suggestive"). See also Commonwealth v.
Dew, 478 Mass. 304, 308 (2017).

     6 In Forte, 469 Mass. at 476, the court stated that the
failed showup "actually could assist the defendant by casting
                                                                       8


multiple identification procedures did not render the

identification "unnecessarily suggestive and conducive to

irreparable misidentification."       Borgos, 464 Mass. at 32

(quotation omitted).

    b.     "Cropping" of the photo.    Next, the defendant contends

that the photo array was impermissibly suggestive because Ward

and Tang covered the upper head and ears of the defendant's

photograph only -- and not the other six.      The defendant's

reliance on Borgos, supra, is, however, misplaced.      There, in

showing the same photographic array to three out of four

witnesses, the administering officer covered the defendant's

hair with a paper after an initial identification by the

witness.   Id. at 32-33.     The Supreme Judicial Court rejected the

argument that covering a part of the photograph was

unnecessarily suggestive, noting that this procedure did not

occur "until after a positive identification had been made by

the witness."   Id. at 34.

    The defendant argues that the initial identifications in

Borgos, supra, were unequivocal, as compared to Tang's less

certain initial selection of the defendant's photo -- and,

therefore, we should read Borgos as supporting his position.




doubt on the defendant's identity as the perpetrator."          The same
could be said here.
                                                                   9


However, even if the defendant is correct that the witnesses in

Borgos were somewhat less equivocal in their initial selection

of the suspect's photo than Tang, that does not mean that the

procedure used here was impermissibly suggestive.    Nothing in

Borgos is to the contrary.    Tang testified at the suppression

hearing that, after he picked out the defendant's photograph on

his own, he told Ward he was having trouble making an

identification because the robber had been wearing a hat and a

hooded sweatshirt.7   Ward's use of the paper to cover the upper

head in the defendant's photograph was a direct response to

Tang's statement.8    Tang then, independently, covered the ears in

the photo with his own hands.    This procedure was not

unnecessarily suggestive, and any equivocation in Tang's initial

identification went to the weight of the evidence, not its

admissibility.   See Commonwealth v. Sullivan, 436 Mass. 799,

806-807 (2002) ("The tentative nature of an identification does

not disqualify it from admission, but goes to its weight").


     7 Tang also testified that he singled out the defendant's
photo "[b]ecause it looked closest to it . . . [t]he facial hair
and the jaw structure."

     8 In addition, the photo array was administered by a police
officer who had no prior involvement in the case. See
Commonwealth v. Silva-Santiago, 453 Mass. 782, 797 (2009)
("double-blind" procedure, where administering officer does not
know identity of suspect, "is the better practice"). See also
Mass. G. Evid. § 1112(b)(1) (enumerating factors judge should
consider regarding photo array).
                                                                     10


       c.   Reliability.   Finally, the defendant urges that, even

if police procedures were not unnecessarily suggestive, Tang's

out-of-court identification of the defendant should have been

excluded as unreliable pursuant to Johnson, 473 Mass. at 604

n.4.   Johnson, however, does not assist the defendant for two

reasons.

       First, the better view of the law existing at the time of

the hearing on the motion to suppress is correctly reflected in

the judge's ruling that he was not authorized to consider the

reliability of Tang's identification once he had determined that

police procedures were not unnecessarily suggestive.     See

Commonwealth v. Cavitt, 460 Mass. 617, 632 (2011), quoting from

Watson, 455 Mass. at 251 ("Where an identification procedure is

not impermissibly suggestive, a pretrial identification is

admissible without any further showing").     See also Paszko, 391

Mass. at 172; Commonwealth v. Warren, 403 Mass. 137, 140 (1988);

Commonwealth v. Ross, 426 Mass. 555, 560 (1998).      Johnson was

decided nearly two years after the judge issued his decision on

the defendant's motion to suppress, and a few weeks after his

trial.      See Commonwealth v. Crayton, 470 Mass. 228, 245 (2014)

(judge did not abuse discretion where admission of in-court

identification was in accord with then-existing case law);

Commonwealth v. Bastaldo, 472 Mass. 16, 21-23 (2016) (trial

judge did not err in giving jury instruction based on law at
                                                                    11


time of trial).    In any event, Johnson did not alter

longstanding authority holding that assessment of an eyewitness

identification is for the jury where the police procedures did

not violate the defendant's constitutional rights.9

     Second, to the extent that the motion judge in this case

was authorized to consider reliability, any exercise of that

authority is reviewable only for abuse of discretion and is not

subject to the independent appellate review afforded a legal

conclusion regarding constitutional rights.    See Johnson, 473

Mass. at 602.     See also Commonwealth v. Thomas, 476 Mass. 451,

465 (2017).10   Here, in an abundance of caution, the motion judge


     9 In Johnson, the court was not concerned with police
procedures that might render an identification unnecessarily
suggestive. There, relying on Commonwealth v. Jones, 423 Mass.
99, 107 (1996), the court explained that, where the police had
no involvement in a suggestive confrontation between a witness
and a defendant, the identification could be suppressed
nonetheless in an exercise of the court's broad authority, to
exclude evidence where its probative value is substantially
outweighed by the danger of unfair prejudice. See Johnson,
supra at 599; Mass. G. Evid. § 403 (2017). The authority
described in Johnson is based on "common law principles of
fairness," and not the art. 12 considerations undergirding the
"unnecessarily suggestive" criterion. Id. at 599-600. The
Johnson decision did not, as the defendant argues, alter the
existing constitutional analysis applicable to identification
procedures conducted by the police, as had been contemplated
five years earlier in Walker, 460 Mass. at 606.

     10In Dew, 478 Mass. at 307, the Supreme Judicial Court
reinforced this distinction. There, the court wrote that
whether there was "good reason" for an inherently suggestive
showup procedure (a question not in issue here because the
defendant does not challenge the original, unsuccessful showup)
                                                                    12


considered reliability and found that, even if a reliability

analysis were legally available, "the identification would not

be considered so unreliable as to require exclusion where

suppression was not constitutionally compelled."11   Having

reviewed the record thoroughly, we see no abuse of discretion in

the judge's finding.

     2.   Trial identification.   The defendant argues that Sylva,

the bar manager, should not have been permitted to identify the

defendant in court at the trial because he had not previously

participated in an out-of-court identification procedure.     The

suggestion that the police should have subjected Sylva to an

out-of-court identification procedure is unreasonable,



is "a question of law to be decided by an appellate court, based
on facts found by the motion judge." Ibid. In considering the
judge's discretionary determination under "common law principles
of fairness" to allow an in-court identification, however, the
court reviewed that evidentiary ruling for an abuse of
discretion. Id. at 315 (quotation omitted). See id. at 322 &
n.5 (Gants, J., concurring).

     11The judge's decision to reach the issue was prescient.
Just a few months after the defendant's trial, in a case
involving multiple photographic arrays administered by police,
the Supreme Judicial Court wrote: "Our conclusion that the
identifications were not 'unnecessarily suggestive' does not end
the inquiry. Even if otherwise admissible, a judge may suppress
identification evidence if 'its probative value is substantially
outweighed by the danger of unfair prejudice.'" Carter, 475
Mass. at 518, quoting from Johnson, 473 Mass. at 599. More
recently, in considering an in-court eyewitness identification,
the Supreme Judicial Court cited Carter, and stated broadly that
"[a] judge applying common law principles of fairness has the
discretion to exclude unreliable eyewitness identification
testimony." Dew, 478 Mass. at 315 (quotation omitted).
                                                                  13


considering that Sylva's prior familiarity with the defendant

was the source of the police officers' original identification

of the defendant as a person of interest in the investigation.

    The defendant is correct that the "good reason" requirement

announced in Crayton, 470 Mass. at 241-242, did not apply to

Sylva's testimony because this requirement explicitly applies

only to in-court identifications by eyewitnesses who were

present during the commission of the crime.    See Commonwealth v.

Collins, 470 Mass. 255, 265 (2014).    There was, however, no harm

in the prosecutor's bringing a motion in limine pursuant to

Crayton and Collins concerning Sylva's proposed testimony.     This

could only have benefited the defendant.    Moreover, to the

extent the "good reason" standard was properly applied to

Sylva's proposed testimony, his familiarity with the defendant

before the crime satisfied that requirement.     See Crayton, supra

at 242.

    For all of these reasons, we are satisfied that, the

Commonwealth's identification evidence was properly admitted and

was sufficient to support the jury's verdicts.

                                      Judgments affirmed.
