Commonwealth v. Carlson

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17-P-35 Appeals Court

COMMONWEALTH vs. JASON C. CARLSON.

No. 17-P-35.

Worcester. November 15, 2017. - February 6, 2018.

Present: Wolohojian, Massing, & Wendlandt, JJ.

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

Indictment found and returned in the Superior Court
Department on January 21, 2014.

A pretrial motion to suppress evidence was heard by Daniel
M. Wrenn, J., and the case was tried before Richard T. Tucker,
J.

Geraldine C. Griffin for the defendant.
Donna-Marie Haran, Assistant District Attorney, for the
Commonwealth.

WOLOHOJIAN, J. A pawnbroker, after a single-photograph

identification procedure, identified the defendant as the man

who had some days earlier pawned certain items of stolen

jewelry. The pawnbroker's identification was an important part
2

of the evidence at the defendant's jury trial, which resulted in

his conviction of larceny over $250.1 The central issue on

appeal is whether the defendant's motion to suppress the

pawnbroker's identification should have been allowed because the

single-photograph identification procedure violated the

defendant's rights under art. 12 of the Massachusetts

Declaration of Rights. Concluding that the motion should have

been allowed, we reverse the judgment.

We summarize the facts found by the motion judge,

supplemented by undisputed evidence introduced at the

evidentiary motion hearing. See Commonwealth v. Dew, 478 Mass.

304, 305 (2017). Pauline and Emile Daigle, a couple in their

seventies, hired a professional moving company to move from

their single-family home in Templeton to a condominium unit in

Hubbardston on August 31, 2013. The next day, Pauline Daigle

reported to police that seventeen pieces of jewelry valued at

approximately $30,000 were missing; only empty boxes remained in

the dresser drawers where she had stored the jewelry.

Templeton police Detective Derek Hall opened an

investigation into the theft. He learned that two moving men

had handled the move: Ronny Norton and the defendant. Norton

1
The defendant was indicted for larceny over $250, G. L.
c. 266, § 30, as a common and notorious thief, G. L. c. 266,
§ 40. After trial, but before sentencing, the Commonwealth
dismissed the latter portion of the charge.
3

was a long-time employee of the moving company; the defendant,

by contrast, had been employed for the day. Norton told Hall

that the defendant had been alone in the Templeton bedroom where

the jewelry had been stored and also when he (the defendant) had

unpacked the bedroom dresser drawers at the end of the move in

Hubbardston. Norton also said that when he gave the defendant a

ride home after the move, the defendant asked to be dropped off

instead at a pawn shop named Sam and Friends. This request

struck Norton as odd for two reasons. First, the pawn shop was

only two doors away from the defendant's home. Second, when

Norton asked why the defendant was going to the pawn shop, he

stated that he was going to pay for a car radio. Norton,

though, knew the defendant did not have a car. In any event,

Norton dropped the defendant at the pawn shop as he requested.

On September 2, 2013, Hall continued his investigation by

going to the pawn shop, where he spoke with its owner, Euidong

Do, and asked whether anyone had come into the store on the day

of the move in order to pawn or sell anything. Do said that a

man, with whom Do had previously dealt at a different store,2 had

come in to the shop around 3:00 P.M. wanting to sell jewelry.

Do was unwilling to buy the jewelry because the man did not have

2
The defendant, as the Commonwealth concedes, is correct
that the motion judge's finding that Do told Hall that the man
was "an individual fitting the description of the defendant" was
not supported by the evidence and is clearly erroneous.
4

photographic identification; therefore, Do only agreed to hold

the jewelry as collateral for a three-week loan, i.e., the

jewelry was pawned.

Do asked whether Hall had a picture of the suspect. Hall

produced a photograph of the defendant and showed it to Do. At

that point, Do positively identified the defendant as the person

who had come into the shop and pawned jewelry on the day of the

move. Do then gave Hall an envelope containing the pawned

jewelry. Hall took the jewelry and later showed it to Pauline

Daigle, who identified the pieces as among those taken during

the move.

The defendant argues that the judge erred in denying his

motion to suppress Do's identification, which was made as a

result of the single-photograph display conducted two days after

the theft and in response Do's request to see a photo of the

"suspect." For constitutional purposes, a one-photograph

identification is the equivalent of an in-person, one-on-one

identification (often referred to as a "showup"). See

Commonwealth v. Nolin, 373 Mass. 45, 51 (1977); Commonwealth v.

Forte, 469 Mass. 469, 477 (2014). One-on-one identification

procedures are generally disfavored as inherently suggestive.

See Dew, 478 Mass. at 306. To succeed in suppressing evidence

of such an identification, however, the defendant must prove by

a preponderance of the evidence that the police procedure was
5

"so unnecessarily suggestive and conducive to irreparable

mistaken identification as to deny [the defendant] due process

of law." Id. at 306-307 (quotation omitted).

"In assessing the suggestiveness of an identification, we

consider 'whether good reason exists for the police to use a

one-on-one identification procedure." Forte, 469 Mass. at 477,

quoting from Commonwealth v. Austin, 421 Mass. 357, 361 (1995).

"The existence of 'good reason' for a showup identification is a

question of law to be decided by an appellate court, based on

facts found by the motion judge." Dew, 478 Mass. at 307. The

"good reason" analysis "cannot be generalized," and "[e]ach case

must be resolved on its own peculiar facts." Austin, supra at

362. See Commonwealth v. Odware, 429 Mass. 231, 235 (1999)

(judge must examine "totality of the circumstances" to determine

whether identification procedure is unnecessarily suggestive

[quotation omitted]). "Relevant to the good reason examination

are the nature of the crime involved and corresponding concerns

for public safety; the need for efficient police investigation

in the immediate aftermath of a crime; and the usefulness of

prompt confirmation of the accuracy of investigatory

information, which, if in error, will release the police quickly

to follow another track." Austin, supra. "Good reason" exists

where some combination of the factors collected in Austin is

present. See ibid. See also Commonwealth v. Harris, 395 Mass.
6

296, 299 (1985); Commonwealth v. Thompson, 427 Mass. 729, 735-

736, cert. denied, 525 U.S. 1008 (1998); Commonwealth v. Martin,

447 Mass. 274, 279-281 (2006); Commonwealth v. Meas, 467 Mass.

434, 441-442, cert. denied, 135 S. Ct. 150 (2014); Commonwealth

v. Figueroa, 468 Mass. 204, 217-218 (2014); Forte, supra at 477-

478; Commonwealth v. Thomas, 476 Mass. 451, 460 (2017); Dew,

supra at 307-308; Commonwealth v. Wen Chao Ye, 52 Mass. App. Ct.

850, 854-855 (2001); Commonwealth v. Sylvia, 57 Mass. App. Ct.

66, 69 (2003); Commonwealth v. Hill, 64 Mass. App. Ct. 131, 133-

134 (2005); Commonwealth v. Martinez, 67 Mass. App. Ct. 788,

791-793 (2006); but have concluded otherwise where none are

present, see Commonwealth v. Moon, 380 Mass. 751, 757-759

(1980); Commonwealth v. A Juvenile, 402 Mass. 275, 280 (1988).

None of the Austin factors are present here. This was a

property crime, not one of violence; there were no immediate

safety concerns; the identification was not made in the

immediate aftermath of the crime; and there is no suggestion

that the detective would be thrown off track unless he used the

single-photograph display. The Commonwealth contends, however,

that the detective's knowledge that stolen jewelry is often

quickly melted down was good reason enough to use an inherently

suggestive identification procedure. The detective's concern of

a general risk, however, is not enough absent some connection to
7

the facts of this particular case.3 See Martin, 447 Mass. at 308

(Cordy, J., dissenting) ("[T]he challenge is to one specific

showup. The 'good reason' required of the police must be

correspondingly specific"). The jewelry had not been sold but

was instead being held as collateral for a three-week loan of

which only two days had passed; the detective had already

located the person who held the jewelry; and the detective could

prevent destruction or alteration of the jewelry simply by

asking for it (as he ultimately did).4

Because we conclude that there was no good reason to

conduct the single-photograph identification procedure in the

circumstances presented, we need not reach the separate question

of the effect, if any, of the procedure on Do. See Figueroa,

468 Mass. at 217 ("Even where there is 'good reason' for a

showup identification, it may still be suppressed if the

identification procedure so needlessly adds to the

suggestiveness inherent in such an identification that it is

'conducive to irreparable mistaken identification'" [quotation

omitted]). If there is no good reason to use an inherently

3
Whether that general knowledge might, in conjunction with
facts not presented here, be sufficient good reason to conduct a
one-on-one identification procedure is a question we need not
answer.
4
We are sympathetic that the detective appears to have had
no impermissible aim or purpose in displaying the single
photograph as he did. But for purposes of this analysis, good
reason is what is required, not good faith.
8

suggestive identification procedure, its actual suggestive

impact on the witness is beside the point.5

For these reasons, the defendant's motion to suppress Do's

identification should have been allowed.

Judgment reversed.

Verdict set aside.

5
The Commonwealth does not argue that, even if erroneous,
the admission of the out-of-court identification was harmless
beyond a reasonable doubt. See Commonwealth v. Jones, 423 Mass.
99, 106 (1996). We note in this regard that Do did not identify
the defendant in court, nor did he confirm his out-of-court
identification.