Commonwealth v. Johnson (Lawyers Weekly No. 10-018-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11876 COMMONWEALTH vs. KYLE L. JOHNSON. Plymouth. October 6, 2015. – February 12, 2016. Present (Sitting at New Bedford): Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Identification. Evidence, Identification. Practice, Criminal, Identification of defendant in courtroom. Indictments found and returned in the Superior Court Department on March 11, 2013. A pretrial motion to suppress evidence was heard by Cornelius J. Moriarty, II, J. An application for leave to prosecute an interlocutory appeal was allowed by Cordy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth. Edward Crane for the defendant. Karen A. Newirth, James L. Brochin, & Jennifer H. Wu, of New York, & R.J. Cinquegrana, for The Innocence Project & another, amici curiae, submitted a brief. Lisa Kavanaugh, Benjamin H. Keehn, Patrick Levin, Radha Natarajan, & Paul R. Rudof, Committee for Public Counsel Services, & David Lewis, for Committee for Public Counsel Services & another, amici curiae, submitted a brief. GANTS, C.J. The issue presented in this case is whether the motion judge, applying the common-law principles of fairness in Commonwealth v. Jones, 423 Mass. 99, 109 (1996), committed an abuse of discretion in allowing the defendant’s motion to suppress the victim’s identifications of the defendant as the intruder he had struggled with in his home. The judge found that, through no fault of the police, the identifications were “impermissibly tainted by the suggestive circumstances.” We provide guidance regarding the application of the Jones standard and conclude that the judge did not abuse his discretion in allowing the motion to suppress.[1] Background. We summarize the facts found by the motion judge, supplemented where necessary with undisputed evidence that was implicitly credited by the judge. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015), citing Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008). On September 21, 2012, Adebayo Talabi, the victim, received a telephone call from a neighbor that the door to his apartment was open. He returned to his home and encountered a stranger, who was armed with […]