Commonwealth v. Dew (Lawyers Weekly No. 10-174-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12225   COMMONWEALTH  vs.  DASHEEM DEW.       Essex.     May 1, 2017. – November 6, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.[1]     Robbery.  Identification.  Constitutional Law, Identification.  Due Process of Law, Identification.  Evidence, Identification.  Practice, Criminal, Identification of defendant in courtroom.       Indictment found and returned in the Superior Court Department on February 20, 2014.   A pretrial motion to suppress evidence was heard by Timothy Q. Feeley, J., and the case was tried before him.   The Supreme Judicial Court granted an application for direct appellate review.     Merritt Schnipper for the defendant. Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth. The following submitted briefs for amici curiae: James L. Brochin, of New York, Patrick Levin, Committee for Public Counsel Services, & Chauncey B. Wood for Committee for Public Counsel Services & others. Steven Penrod, pro se.     GAZIANO, J.  This appeal from the defendant’s convictions in the Superior Court of masked armed robbery and of being a subsequent offender raises two issues concerning eyewitness identification:  first, whether the defendant established by a preponderance of the evidence that a showup identification procedure was so unnecessarily suggestive and conducive to misidentification as to deny him the due process of law; and second, whether the trial judge committed prejudicial error in denying the defendant’s motion to preclude the victim from making an in-court identification.  In raising this second claim, the defendant argues that an inherently suggestive showup identification can never serve as a prerequisite to an eyewitness’s in-court identification under the rule we adopted in Commonwealth v. Collins, 470 Mass. 255, 259-267 (2014). The case was entered in the Appeals Court, and we allowed the defendant’s motion for direct appellate review.  We conclude that the defendant has not met his burden of demonstrating that the showup identification procedure was unnecessarily suggestive.  We conclude also that there was no abuse of discretion in the judge’s decision to allow the in-court identification testimony.  In so holding, we decline to extend our holding in Collins, supra, to preclude all in-court identifications preceded by out-of-court showup identification procedures.  Accordingly, we affirm the defendant’s convictions. The robbery and showup procedure. Our summary of the facts is based on the findings of the motion judge, who was also the trial judge, after a pretrial evidentiary […]

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