COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss.
JUVENILE COURT
BOSTON DIVISION
DL No.
COMMONWEALTH,
Plaintiff
v.
ST,
Juvenile.
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MOTION TO SUPPRESS IDENTIFICATION
NOW COMES the Juvenile, ST, by and through counsel, and moves pursuant to Mass.
R. Crim. P. 13, the 4th and 14th Amendments to the Constitution of the United States and Article
XII of the Massachusetts Declaration of Rights, that the out of court identification of TS. be
suppressed due to the fact that it was impermissibly suggestive.
TS further moves that this Honorable Court suppress any in court identification of TS by
the alleged victims. See Commonwealth v. Johnson, 420 Mass. 468 (1995).
In support of this motion, TS relies on the following facts and legal arguments:
I.
FACTS
1. TS is charged with acting as a “joint venturer” in one count of assault and battery by
means of a dangerous weapon. She is also charged with a count of assault and
battery by means of a dangerous battery to wit: a knife. The complainant in this
matter is JB. The pretrial identification procedure is a central issue in this case.
2. According to the police report, the police responded to a radio call for an assault and
battery in the area of Clancy and St. James streets. The complainants told police that
a white Hispanic male stopped them and asked them for a cigarette.
The
complainants state that moments later they were approached by six more people, one
of whom demanded money from them.
3. Two of the assailants are described as wearing bandanas over their faces. According
to the police report, no description of any of the seven suspects was given to the
police by any witnesses before TS and the two adult males were arrested.
4. TS was arrested in front of Dartmouth Street, a large apartment building known as
“Tent City”. She was seated on the steps in front of the building when the police
arrived and subsequently placed her under arrest.
5. TS and the two other suspects were taken into custody. The police did not locate a
baseball bat, or a mask or bandana on TS or the other two males she was arrested
with.
6. The identification took place while TS was in police custody.
7. Upon information and belief, the complainants were taken to the location where TS
and the two adult males were detained and identified.
8. TS was identified as a suspect while in police custody.
II.
LEGAL ARGUMENTS:
TS “has a due process right to identification procedures meeting a certain basic standard
of fairness.” Stovall v. Denno, 388 U.S. 293, 301, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). A
Juvenile moving to suppress an out-of-court identification has the burden of proving, by a
"preponderance of the evidence" that the totality of the circumstances rendered the identification
unnecessarily suggestive, and, thus, offensive to due process of law. Commonwealth v. Holland,
410 Mass. 248, 253 (1991); Commonwealth v. Botelho, 369 Mass. 860, 867 (1976). If a Juvenile
meets that burden, evidence of that identification must be excluded from his trial.
Commonwealth v. Melvin. 399 Mass. 201 205 (1987). Additionally, once the Juvenile sustains
that burden, the prosecution cannot introduce evidence of any subsequent identifications unless it
establishes by "clear and convincing evidence" that each of the subsequent identifications had a
source independent of the tainted confrontation. Botelho, 369 Mass. at 865-68. However, when
the identification procedures used are not suggestive, the out-of-court identification is admissible
at trial without a further showing of reliability or an independent source. Commonwealth v.
Warren, 403 Mass. 137, 139 (1988).
When deciding whether a particular confrontation was unnecessarily suggestive, the
judge is to consider the totality of the circumstances surrounding it. Id. at 302. The following
factors are to be considered: “(1) The extent of the witness’ opportunity to observe the Juvenile
at the time of the crime; prior errors, if any, (2) in description, (3) in identifying another person
or (4) in failing to identify the Juvenile; (5) the receipt of other suggestions, and (6) the lapse of
time between the crime and the identification.” Commonwealth v. Johnson, 420 Mass. 458, 1261
(1995), quoting Commonwealth v. Botelho, 369 Mass. 860, 869 (1976).
The police report indicates that there were seven suspects at the scene of the crime. Two
of the suspects were alleged to be wearing masks. No description of any of the suspects was
given to the police. Based on the facts as presented in the police report, there was no justifiable
basis for the police to conduct a “show-up”. The identification procedure used by the police in
their investigation of this case was unnecessarily and impermissibly suggestive.
Dated:
TS
By her attorney,
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Hillary Farber
BBO
Suffolk University Juvenile Justice Clinic
350 Broadway
Chelsea, MA 02150
(617) 887-1974
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Motion has been delivered this th day of
September, 1999 to Suffolk County Assistant District Attorney .
________________________
Hillary Farber