Appeals Court -- January 18, 2012
Facts: A man brandished a knife and demanded a Walgreen cashier, Eileen Dumont to give him all the money in the register. Dumont refused and the man walked away. The man was wearing a dark colored coat with light colored hood and sleeves. Officers Niles reported to the scene and interviewed Dumont and Syde, who was a customer standing behind the suspect. Both witnesses gave similar description about the suspect, which matched what Niles saw on the surveillance video. Officer Niles and Officer Copsetta spotted the defendant at a gas station and he had a knife in his pocket. They brought him back to the store for a show-up and Dumont identified the defendant as the man who robbed her.
The defense hired a private investigator, Richard Ferreira, to interview Dumont. Ferreira claimed that Dumont told him she had never identified the defendant. The defense filed a motion to dismiss the indictment to pursant. Motion was denied. Defense then filed a motion to suppress the evidence regarding the showup identification. The motion judge denied the motion after finding the officers’ testimonies credible. Officer Niles put together a photo array at the request of the prosecutor. The photo array was never used nor revealed during the pretrial discovery. Defense regarded that as a serious discovery violation and argued for a continuance, a mistrial, exclusion of the showup evidence, and recusal of the prosecutor. All motions were denied.
Issue #1: Whether or not the showup procedure to identify the defendant was unnecessary suggestive.
No. The police had a good reason to conduct the showup which was in the immediate aftermath of an attempted robbery. If the witness would have told the police that the defendant was not the person, the police could have released the defendant and continued to look for the right person.
Issue #2: Whether or not the prosecutor failed to timely disclose the unused photographic array was a violation under Brady v. Maryland.
No. The defense must be able to prove that the unused photo had any exculpatory value before prevailing in a claim that the prosecution failed to disclose exculpatory evidence. The defense argued that the photo array displayed doubt in the eyewitnesses’ ability on the prosecution side. The personal feelings of the prosecutor regarding the evidence were irrelevant. (YN)
