Posts tagged "1002817"

Commonwealth v. Thomas (Lawyers Weekly No. 10-028-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-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: 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 […]

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Posted by Massachusetts Legal Resources - February 13, 2017 at 3:25 pm

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