COMMONWEALTH OF MASSACHUSETTS HAMPDEN, ss SUPERIOR CouRT. Docket Nos. 179CR602; 1ST9CR630; 1STBCROO4; 1579CRQ29 COMMONWEALTH HAMPDEN coy vs. ‘SUBEREN, coun FE OF JIMMY ROMAN and another! FEB 08 no mosorvoumesemmsts Che Ze MOTI JPPRESS IDI IN cial ‘The defendants, Fimmy Roman and Brandon ThompsonCtay are both charged with Assault and Battery by Means of Dangerous Weapoa, Armed Assault with Intent to Murder, nd legal Possession of Fteam. The charges arise fom an incident that occured on May 29, 2015, wherein Xsdran Gonzalez was shot tue ines and eritally injured. The defendants move to suppress identification of them made by Gonzsler fom a photographic array onthe rounds that he identification procedure uized was uanecessrily suggestive. For the reasons that follow, the defendants’ motion is DENIED. FINDINGS OF FACT After an evidentiary hearing and review of the exhibits inthis matter, including video recordings of the shooting incident tissue and an audio recording of an interview and. ‘Photographie identification procedure with the vit u, Noun Gouzalez, I make the following, findings of fact, reserving some details for discussion ofthe issues presented, (On May 28, 2015, at about 1:30 p.m, Xsudrian Gonzalez was walking with a fend, ‘Calvin, on the sidewalk infront of s Dunkin Donuts located at 805 Main Street in Springfiel "Brandon Thompson-Clay guste Log, se na g PP 2oee3 Comedie te Bebe: Cee)As the two men walked, two other men approached from the opposite direction, Gonzalez recognized the men as “Jimmy” and “Brandon.” The two men cireled halfway around Gonzalez ‘and Cafeb all ofthe men facing one another? Brandon asked Gonzalez to stop. Jimmy simply said, “What's good?” ‘The men were only six or seven feet apart. Jimmy then pulled a gun from hhis waistband area and Xsadrian retreated. Jimmy shot him thee times. Jimmy and Brandon then fed on ft Gonzalez recognized Brandon and Jimmy ds members of the Sycamore Street Gang with ‘whom he had bad prior encounters. Gonzalez was or had boen a member ofa rival gang, the Knox Street Gang, Gonzalez believes the motive for Jimmy shooting him was in retaliation for the killing ofa Sycamore Street Gang member, Caleb Worrell by members ofthe Knox Steet Gang. ‘Three members ofthe Knox Street Gang had been charged with the killing: Isaish Ayala, ‘Nathan Cruz, and Austin Gareia, Austin Garcia is Gonzalez's cousin, Jimmy and Brandon knew ‘of Gonzalez’s prior afiiation with those persons, Gonzalez had known Brandon for more than a year. Gonzalez had previously boen assaulted by Brandon on two prior occasions; once at a high school football game and another time “on Pine Stet." Gonzalez had witnessed Brandon “pistol-whip” Gonzalez fiend, Willie Peoples the previous summer, Gonzalez had known Jimmy for about two years. He had ‘encountered Jimmy a number of times inthe Forest Park area of Springfield, He knevr that Timmy lived ow Ashley Stcet in Springeld, He knew where Jimmy's grandmother lived, Gonzalez had previously stopped someone from breaking into her home. 2 There isa suneliane video of the encounter; Exhibit 2‘Gonzalez’ cousin, Monice Panarese was across the ste from the Dunkin Dont when she sar him with another person. She was trying to cross Mein Street to greet him and observed other men approach him andthe men formed“ ite circle.” She then heard three or four tzumshots, She didnot se who ire the shos, but saw Gonzalez flo the ground, and then saw people go to hm, She made her way through some tafic on Main Stet, ran to him nd knelt ty him, Within ie to ten seconds of her arvivng crowd gathered and police officer aived. PPanarese asked Gonzalez who did this wo him, and be told he hat it was Jimmy and Brandon, an made reference othe Sycamore gang. Panarese hea the police officer who was here speak on his aio and say the names “Finmy* and “Brandon.” An ambulance arived and Gonzalez was transported i Baysate Medical Cents, Panaese was nol perted ogo with him in the ambulance because she was ot eighteen years-o Panarese tried t call Gonzales mothe, Liertad Mads, but could not get through to her. Panarese called her own mothe, who in tum began tying o contact Madaser, Mudasar eventually checked her phone and saw the mise ells anda ext message informing her hat er son ad been shot. She rushed othe hospital but could nt speak wit him. Gonzalez was taken into surgery. Muar ha to wait hous ta se her son ‘While Mudasar wes at the hospital waiting ose he on, she got a phone call fom Panarese's mother, and then spoke to Panatese, Panarese informed he that Gonzalez had identi Tay sa Bewalon os is asallans, Lae, Detective James Kelly arrived atthe hospital. Mudasar provided him with the names Brandon and Jimmy.Panarese ltercame tothe hospital nd spoke with Mudasr. Panarese had spoken o ‘the persons and then gone on Facehook. ‘Trough infomation fom those unknown persons and online searches, the Facshook name of Brandon Savage was developed. Panarese shared ‘het information with Maas. Gonzalez ame out of surgery and was brought rom the recovery sitet the host room at about 2:00 a.m. on May 30, 2015. He was still groggy from the anesthesia administered ‘and/or pain medication he was on. Mudaser asked him, “Who did this to you?” Aer a moment, Ihe responded! Brandon and Jimmy. Mudasar had not provided or suggested the names she had Tearmed from Panarese. Mudasar remained a the hospital throughout that day and into the next. During th time, ‘when Gonzalez was ale she spoke o him about Fimmy and Brandon, Mudssar beieved that her son might de from his injares, and was anious that his assailants be deitied. She did not ‘now who Jimmy was, but had an idea who Brandon might be. She had previously heard reference to him and knew a Brandon o be dating the daughter of one of her rend, Muasar tied 1 locate a Facebook page for Brandon Savage on he celular phone, and was unable todo s, but founda Faeebook page under the name “B Nid." There was apictre of Brandon. She showed it er son and asked hm, “Who's this" Gonzalez sid, “That's him." ‘Though conversions with her son or otess, Muda leamed tha Jimmy went by the sau J 1y Brovks. She was ule 10 find a Facebook page for Jimmy Brooks. Muudasar called the police station and spoke with Detective Kelly. She told him that, Jimmy and Brandon might use the street andor internet names of Jimmy Brooks and BrandonSavage, She may heve also forvarded via email the Facebook page she had located for Brandon, a/i/a“B idly.” Detective Kelly conveyed that information to Detective James Crogan, who then went onto Facebook and otherwise developed information leading tothe generation of “pedigree sheets” forthe defendants, Jimmy Roman and Brandon Thompson-Ciay. Detective Anthony Pioggia then compiled two photographie arrays tha included Roman ‘and Thompson-Clay. Each array was comprised of eight photographs that included one ofthe suspects and seven “fillers” The “fillers” were selected from photos generated by computer input of data including age, race a ethnicity, height, nd weight. Detective Pioggia selected filler photos that he felt were similar in appearance to the suspect. Detective Pioggia then sought the assistance of Detective Kevin Lee in presenting the Photo arrays to Gonzalez. Lee had not been previously involved in the ease, didnot know the identity ofthe suspects, and did not know which of the photographs inthe arrays were ofthe suspects, He had not seen any of the video evidence that had been obtsined. Pioggia and Lee went to Baystate Medical Center. When they arrived, Mudasar was stil there with her son, She was instructed not to say anything or intercede in any way with the identification procedure. Lee instructed Gonzalez about the provedur, reading fo him from a ‘itt protocol used by the Springfield Police Department. Lee advised Gonzalez as follows (Ube would be asked to view a set of photographs; (2) the alleged perpetrator may or may not 1 it dhe phowwgraplis, (3) Jes just important wo clear x person ows suspicion ws wo ident a person asa suspect (4) individuals depicted inthe photographs may not appear exactly as they did on the date ofthe incident; and (5) regardless of whether an identification is made, theinvestigation will conte, Aer each advisement, Gonzalez was asked ihe derstood, and he ssid that he di. Gonzalez was then show each of he photos inthe arays sequently, He selected photo number 6 fom the ist ary as Jimmy Brooks the person whoa shot him, He vas positive, The person he selected was the defendant, Roman ‘He was then reminded of the instructions that Det. Lee had given him minutes earlier and shown the second array. He again selected photo number 6, identifying the person as Brandon, Tt. was a photo ofthe defendant, Thompsor-Clay. He was again, postive, DISCUSSION ‘A. The Photographis Procedure Was Not Unnecess Suggest In Commonwealth v.Siiva-Santiago, 453 Mass. 782 (2009), the Supreme Judicial Court noted that eyewitness identifications have been long recognized as presenting a substantial risk ‘of misdentification and consequent conviction ofan innocent person. [dl 796, A defendant has due proces right denitication procedures tht ste firand are ot so unnecessarily | suggestive as to be conducive to ieeparable mistaken ideifiation. I at 794, See als, Commonwealth v. Odware, 429 Mass, 231, 295 (1999); Commonweal . Dougan, 377 Mas. 303,316 (1979). A defendant has the burden of showing by a preponderance ofthe evidence that an identification procedure was so unnecessarily suggestive and conducive to ireparable ‘misdentiication a to deny him due process of law. Oaware, 429 Mass, at 235; Conmomeeaith Dore, 369 Mass. 860, 866 (1970), Jn 1999, The United States Department of Justice published guidetnes for identification | procedures: “Eyewitness Evidence: A Guide for Law Enforcement.” ‘Ten yeas later, in SilvaSantiago, the SIC indicated that, atleast with espeet to photographic identification procedures, the DOS guidelines, shouldbe followed by Commonwealth police departments, The Court noted, “We dectne at this time to old tha! the absene of any protocol or comparable wamings to the eyewitnesses requires that he identifications be found inadsibe, but we expect such protocols o be used in the Fut” Siva Santiago, 483 Mass. 798 Jn Commonweal v. Waler, 460 Mas. 590, 2011), he Supreme Jaca Cou decid io hol that an ientication that este fom procedures performed without the protocols suggested by the DOJ was inadmissible, “[bJecause the identification procedure took place before we provided this guidance in ilva-Santiago, supra, ..”. Id at 601, The SIC Stated in a footnote, “We urge district alomeys to provide taining to police i proper identification procedures to ensure thatthe risk of a wrongful conviction ising from a mistaken identification is diminished.” Id. at 604, 1S isclea tom the testimony of Detectives Pioggia and Lee, whose testimony Teed, and a review ofthe tape recording ofthe identification procedures, hath detectives utlized an identification protocol that substantially followed the DOJ Guidelines, The arrays consisted of an adequate number of fillers. The photos themselves wee of similar appearing individuals. Lee instructed Gonzalez, as et fot ove, in ascondance with DOI recommentions. Detective Le did not know anything about the suspects oF even if they ere included in the an, ante ws ting esd sha might have nuenced Gonzales selections, The photos were presented sequentially, He inquired of Gonzalez his evel of certainty. ‘The entre process was recorded, |‘Theres no merit to he dafndans* assertions that the presence of Gonzales mother in the hospital room may have aflunced his selection of the defendants photos from the arrays or increased his confidence i bis identifications. She sid and id nothing hat may have inuenced his selections and he was postive upon making the selections ‘Theres no merit to the defendants" asetion that a comment by Det. ee to Gone, “You're ding god," was “confirmatory feedback." It wasnt. Review ofthe suo coding ‘ofthe procedure makes evident tt the comment sflectd Lees recognition and appresiation of Gonzales aut discomfort an physical distress, and that the comment was intended as encouragement to Gonzaler to complet the procedure ‘There was nothing unduly suggestive about the identification procedure used. The entire process was recorded, B, Gonzalez”s Klentifiction ofthe Defendants Did Not Arise From Prior Highly Suggestive ‘Circumstances fan out-of-court eyewitness identification arises from suggestive circumstances that ‘were not the fault of police, “a judge might find identification testimony tobe so unreliable that it must be excluded ‘as a matter of faimess on due process grounds,"" Commonnesalth v. Johnson, 473 Mass, 594, 599 2016), quoting Commonwealth v. Jones, 423 Mass. 99, 109 (1996). In this ease, Gonzaler’s cousin and his mother, Libertad Mudasar, relying om his initial statement that his assailants were Jimmy and Brandon of the Sycamore Street Gang, conducted independent investigation, principally by using Facebook, to attemps to establish their identities. ‘After finding a Facebook page of Brandon, Gonzalez's mother showed him a picture on that page and Gonzalez confirmed that it was « picture ofthe Brandon who had! assaulted him. The 8information developed was conveyed tothe police and ussisted them in developing Roman and ‘Thompson-Clay as suspects and compiling the arays. Given Gonezaler's prior history and familiarity with the defendants those circumstances didnot render the later photographic identifications unreliable or unfair, Where an eyewitness was familiar with the defendant before ‘the commission ofthe crime, there is less risk that circumstances that might appear to be suggestive will, in fact, cause an unreliable dentitication. Commorowealth v. Crayton, 470 Mass, 228, 242-243 (2014), citing Commonwealth v, Carr, 464 Ma 855. 858 (in-court identifications not impermissibly suggestive where eyewitnesses had known defendant from, cighborhood prior to murder); Commonwealth v. Cong Duc Le, 444 Mass, 431, 443 n9 (2008) (in-court identifieations not impermissibly suggestive where witness knew defendants and ‘demtification was not issue a rial), “Where the witness is not identifying the defendant based solely on his or her memory of witnessing the defendant atthe time of te erime, there is ile risk of misidentificaton arising...” from an otherwise suggestive procedure. Crayton, 470 Mass. at 243, ORDER For the foregoing reasons, the defendants’ motions to suppress their identification are Ag SAorare— Februsry 8, 2017 Soha 8. Ferra, Justice Superior Court DENIED.