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16-P-754 Appeals Court

COMMONWEALTH vs. ROBERT GALIPEAU.

No. 16-P-754.

Norfolk. October 4, 2017. - May 16, 2018.

Present: Green, Hanlon, & Neyman, JJ.

Robbery. Constitutional Law, Identification. Due Process of 

Law, Identification. Evidence, Identification, Photograph.

Identification. Practice, Criminal, Motion to suppress, 

Identification of defendant in courtroom.

Indictments found and returned in the Superior Court 

Department on May 23, 2013.

A pretrial motion to suppress evidence was heard by Kenneth 

J. Fishman, J., and the cases were tried before Thomas A. 

Connors, J.

Barbara A. Munro for the defendant.

Stephanie Martin Glennon, Assistant Attorney General, for 

the Commonwealth.

HANLON, J. After a jury trial, the defendant, Robert 

Galipeau, was convicted of armed robbery arising from the 

gunpoint theft of cash from three men at approximately 1 A.M. on 

April 18, 2013, immediately after the victims left the Assembly 
2

Bar in Quincy. The sole issue at trial was the identification 

of the robber. The defendant argues on appeal that his motion 

to suppress a photographic identification should have been 

allowed and that the trial judge improperly allowed an in-court 

identification. We affirm.

1. Motion to suppress photographic identification. "We 

recite the facts as found by the motion judge, supplemented by 

uncontroverted testimony" submitted during the evidentiary 

hearing on the motion to suppress. Commonwealth v. Cordero, 477 

Mass. 237, 238 (2017). We accept all of the judge's factual 

findings, none of which is clearly erroneous. See Commonwealth

v. Borgos, 464 Mass. 23, 32 (2012). 

After the robbery, Leo Tang, one of the victims, told the 

police that the robber had followed him and his two friends from 

the Assembly Bar to his car across the street. Tang described 

the robber as a white male, approximately five feet, ten inches 

tall, scruffy looking, with facial hair, and wearing a hooded 

sweatshirt, gray shirt, and jeans. Tang had seen the man in the 

bar earlier that night, with a Budweiser beer next to him. 

After the police received this information from Tang, an officer 

met with Robert Sylva, the bar manager, to view surveillance 

videotape. The videotape depicted a white man drinking a 

Budweiser at a table; he fit the description Tang had given. 
3

Sylva told the officer that the person drinking a Budweiser in 

the video was the defendant. 

Once the police had the defendant's name, two officers went 

to his home and knocked on his front door but received no 

answer. They went toward the rear door, and, while walking 

along the right side of the house, they saw the defendant 

standing at the sink in the kitchen of the ground floor 

apartment. The officers then went back to the front door and 

knocked again. They knocked on the door without response for a 

lengthy period of time before the defendant finally answered. 

He was wearing only a pair of jeans and sneakers, and his face 

appeared to be freshly shaved, with cuts on his upper and lower 

lip that were actively bleeding. 

At approximately 3 A.M., police officers brought Tang, in a 

police cruiser, to the street outside the defendant's house for 

a showup identification procedure. Tang viewed the defendant, 

who was standing on the sidewalk, for five to ten minutes. Tang 

did not identify the defendant as the robber at that time, 

saying that he could not be sure of an identification because 

the robber had been scruffier, with facial hair. 

Later that day, Quincy Police Detective Ricky Wash created 

a computer-generated photo array, including the defendant's 

photo and six other photos of men with similar physical 
4

characteristics.1 The photo identification procedure was 

administered by Detective Michael Ward, who was otherwise 

uninvolved in the investigation. 

Tang viewed the photos one at a time, and, when he came to 

the second photo, he said it looked similar2 to the robber, but 

he was having trouble making a positive identification because 

the robber had been wearing a hat and a hooded sweatshirt. At 

Ward's instruction, Tang went through the remaining photos. 

When he returned to the second photo, Ward put a piece of paper 

over the upper head of the person depicted and Tang covered the 

person's ears with his hands. Tang then wrote on the photo, at 

Ward's request, "I believe this is the suspect because he seems 

like an average white male. The chin structure with a little 

 

1 One of the photos was of a man with a darker complexion 

than the others. Wash also used an old booking photo of the 

defendant in the array, rather than a newer photo from the 

Registry of Motor Vehicles. The motion judge determined that 

the array was fairly composed and we defer to his judgment. See 

Commonwealth v. Forte, 469 Mass. 469, 478 (2014). 

2 The defendant attempts to make much of the fact that 

Detective Ward used the word "familiar" instead of "similar" in 

his testimony. Specifically, Ward testified, "When I turned 

over photo number 2, Mr. Tang looked at it and said that looks 

familiar and then, starting tapping his finger on the photo for 

several minutes." Tang's own testimony, however, was that 

photograph number 2 "looked like the guy." This testimony was 

sufficient to support the judge's finding.
5

facial hair look similar. I couldn't see his head or ears 

because he wore a hat and hoodie at the time."

a. Multiple identification procedures. "For a motion to 

suppress a photographic identification to succeed, the defendant 

must show by a preponderance of the evidence that, in light of 

the totality of the circumstances, the procedures employed were 

so unnecessarily suggestive and conducive to irreparable 

misidentification as to deny the defendant due process of law."3 

Commonwealth v. Borgos, 464 Mass. 23, 32 (2012), quoting from 

Commonwealth v. Watson, 455 Mass. 246, 250 (2009). See Mass. G. 

Evid. § 1112(b)(1)(2017). In reviewing a decision on such a 

motion, we "review without deference the judge's application of 

the law to the facts as found." Commonwealth v. Johnson, 473 

Mass. 594, 602 (2016). 

The defendant's primary argument is that the unsuccessful 

showup tainted the subsequent photo array procedure, rendering 

it impermissibly suggestive. The motion judge addressed this 

issue squarely and concluded that conducting a photo array 

 

3 "Where the defendant satisfies this burden, the out-ofcourt identification is per se excluded as a violation of the 

defendant's right to due process under art. 12 of the 

Massachusetts Declaration of Rights." Commonwealth v. Walker, 

460 Mass. 590, 599, n.13 (2011). "Because the standard for 

admissibility of an identification under the Massachusetts 

Constitution is more favorable to a defendant than the standard 

under the United States Constitution," we need not consider any 

Federal constitutional claims here. Ibid.
6

procedure that included the defendant, after Tang had failed to 

identify him at the showup, "may not be ideal, but was warranted 

where the defendant had apparently altered his appearance since 

the time of the crime." 

We agree with the motion judge. The evidence before him at 

the suppression hearing strongly suggested that the defendant 

had shaved immediately before he answered the door to his home 

in the early morning hours of April 18, 2013. In addition, Tang 

indicated at the showup that the reason he could not identify 

the defendant as the robber was the difference in the very 

feature that the defendant had apparently altered. Under these 

circumstances, it was appropriate for the police to conduct a 

second identification procedure. 

Moreover, Massachusetts courts have "declined to adopt 'a 

per se exclusionary rule condemning as constitutionally infirm 

all subsequent identifications of a defendant by any witness who 

had previously failed to select the defendant.'" Commonwealth

v. Paszko, 391 Mass. 164, 171 (1984), quoting from Commonwealth

v. Lacy, 371 Mass. 363, 369 (1976). Even where the defendant's 

photograph is the only one duplicated in multiple arrays, the 

resulting out-of-court identification is not necessarily 

inadmissible. See Commonwealth v. Carter, 475 Mass. 512, 518 
7

(2016).4 See also Paszko, supra at 168-169; Commonwealth v. 

Holland, 410 Mass. 248, 254 (1991). Moreover, the Supreme 

Judicial Court has upheld the admission of identification 

evidence in circumstances similar to those presented here.5 See 

Commonwealth v. Forte, 469 Mass. 469, 476 (2014) (witness made 

identification from photo array after failing to identify 

defendant at showup and then being shown videotape footage from 

security camera).6 Here, the fact that Tang participated in 

 

4 In Carter, decided a few months after the defendant's 

trial, the Supreme Judicial Court stated, "We discourage the use 

of repeated arrays containing a suspect's photograph, . . . and 

the use of repeated arrays could make identification procedures 

unnecessarily suggestive if the police do not have good cause 

for the use of such procedure." 475 Mass. at 518. Even though 

the defendant in Carter was the only person depicted in two 

arrays, the court concluded there was good cause for the 

procedure because the second array was shown to each of two 

witnesses only after each one "commented that the perpetrator's 

hair was shorter than was depicted in the photographs used in 

the first array." Ibid. 

5 At oral argument, the defendant's attorney suggested that 

a photo array excluding the defendant's photo should have been 

shown to Tang in between the showup and the array containing the 

defendant's photo, in order to insulate the array procedure from 

the risk that Tang would remember the defendant from the showup 

and not from the crime. The motion judge considered this 

argument, but correctly stated that such a procedure was not 

constitutionally required. See Commonwealth v. Martin, 447 

Mass. 274, 280 (2006) ("Failure of the police to pursue 

alternate identification procedures does not in itself render an 

identification unduly suggestive"). See also Commonwealth v. 

Dew, 478 Mass. 304, 308 (2017).

6 In Forte, 469 Mass. at 476, the court stated that the 

failed showup "actually could assist the defendant by casting 
8

multiple identification procedures did not render the 

identification "unnecessarily suggestive and conducive to 

irreparable misidentification." Borgos, 464 Mass. at 32 

(quotation omitted).

b. "Cropping" of the photo. Next, the defendant contends 

that the photo array was impermissibly suggestive because Ward 

and Tang covered the upper head and ears of the defendant's 

photograph only -- and not the other six. The defendant's 

reliance on Borgos, supra, is, however, misplaced. There, in 

showing the same photographic array to three out of four 

witnesses, the administering officer covered the defendant's 

hair with a paper after an initial identification by the 

witness. Id. at 32-33. The Supreme Judicial Court rejected the 

argument that covering a part of the photograph was 

unnecessarily suggestive, noting that this procedure did not 

occur "until after a positive identification had been made by 

the witness." Id. at 34.

The defendant argues that the initial identifications in 

Borgos, supra, were unequivocal, as compared to Tang's less 

certain initial selection of the defendant's photo -- and, 

therefore, we should read Borgos as supporting his position. 

 

doubt on the defendant's identity as the perpetrator." The same 

could be said here.
9

However, even if the defendant is correct that the witnesses in 

Borgos were somewhat less equivocal in their initial selection 

of the suspect's photo than Tang, that does not mean that the 

procedure used here was impermissibly suggestive. Nothing in 

Borgos is to the contrary. Tang testified at the suppression 

hearing that, after he picked out the defendant's photograph on 

his own, he told Ward he was having trouble making an 

identification because the robber had been wearing a hat and a 

hooded sweatshirt.7 Ward's use of the paper to cover the upper 

head in the defendant's photograph was a direct response to 

Tang's statement.8 Tang then, independently, covered the ears in 

the photo with his own hands. This procedure was not 

unnecessarily suggestive, and any equivocation in Tang's initial 

identification went to the weight of the evidence, not its 

admissibility. See Commonwealth v. Sullivan, 436 Mass. 799, 

806-807 (2002) ("The tentative nature of an identification does 

not disqualify it from admission, but goes to its weight"). 

 

7 Tang also testified that he singled out the defendant's 

photo "[b]ecause it looked closest to it . . . [t]he facial hair 

and the jaw structure." 

8 In addition, the photo array was administered by a police 

officer who had no prior involvement in the case. See 

Commonwealth v. Silva-Santiago, 453 Mass. 782, 797 (2009) 

("double-blind" procedure, where administering officer does not 

know identity of suspect, "is the better practice"). See also 

Mass. G. Evid. § 1112(b)(1) (enumerating factors judge should 

consider regarding photo array).
10

c. Reliability. Finally, the defendant urges that, even 

if police procedures were not unnecessarily suggestive, Tang's 

out-of-court identification of the defendant should have been 

excluded as unreliable pursuant to Johnson, 473 Mass. at 604 

n.4. Johnson, however, does not assist the defendant for two 

reasons.

First, the better view of the law existing at the time of 

the hearing on the motion to suppress is correctly reflected in 

the judge's ruling that he was not authorized to consider the 

reliability of Tang's identification once he had determined that

police procedures were not unnecessarily suggestive. See 

Commonwealth v. Cavitt, 460 Mass. 617, 632 (2011), quoting from 

Watson, 455 Mass. at 251 ("Where an identification procedure is 

not impermissibly suggestive, a pretrial identification is 

admissible without any further showing"). See also Paszko, 391 

Mass. at 172; Commonwealth v. Warren, 403 Mass. 137, 140 (1988); 

Commonwealth v. Ross, 426 Mass. 555, 560 (1998). Johnson was 

decided nearly two years after the judge issued his decision on 

the defendant's motion to suppress, and a few weeks after his 

trial. See Commonwealth v. Crayton, 470 Mass. 228, 245 (2014) 

(judge did not abuse discretion where admission of in-court 

identification was in accord with then-existing case law); 

Commonwealth v. Bastaldo, 472 Mass. 16, 21-23 (2016) (trial 

judge did not err in giving jury instruction based on law at 
11

time of trial). In any event, Johnson did not alter 

longstanding authority holding that assessment of an eyewitness 

identification is for the jury where the police procedures did 

not violate the defendant's constitutional rights.9

Second, to the extent that the motion judge in this case 

was authorized to consider reliability, any exercise of that 

authority is reviewable only for abuse of discretion and is not

subject to the independent appellate review afforded a legal 

conclusion regarding constitutional rights. See Johnson, 473 

Mass. at 602. See also Commonwealth v. Thomas, 476 Mass. 451, 

465 (2017).10 Here, in an abundance of caution, the motion judge 

 

9 In Johnson, the court was not concerned with police 

procedures that might render an identification unnecessarily 

suggestive. There, relying on Commonwealth v. Jones, 423 Mass. 

99, 107 (1996), the court explained that, where the police had 

no involvement in a suggestive confrontation between a witness 

and a defendant, the identification could be suppressed 

nonetheless in an exercise of the court's broad authority, to 

exclude evidence where its probative value is substantially 

outweighed by the danger of unfair prejudice. See Johnson, 

supra at 599; Mass. G. Evid. § 403 (2017). The authority 

described in Johnson is based on "common law principles of 

fairness," and not the art. 12 considerations undergirding the 

"unnecessarily suggestive" criterion. Id. at 599-600. The 

Johnson decision did not, as the defendant argues, alter the

existing constitutional analysis applicable to identification 

procedures conducted by the police, as had been contemplated 

five years earlier in Walker, 460 Mass. at 606. 

10 In Dew, 478 Mass. at 307, the Supreme Judicial Court 

reinforced this distinction. There, the court wrote that 

whether there was "good reason" for an inherently suggestive 

showup procedure (a question not in issue here because the 

defendant does not challenge the original, unsuccessful showup) 
12

considered reliability and found that, even if a reliability 

analysis were legally available, "the identification would not 

be considered so unreliable as to require exclusion where 

suppression was not constitutionally compelled."11 Having 

reviewed the record thoroughly, we see no abuse of discretion in 

the judge's finding. 

2. Trial identification. The defendant argues that Sylva, 

the bar manager, should not have been permitted to identify the 

defendant in court at the trial because he had not previously 

participated in an out-of-court identification procedure. The 

suggestion that the police should have subjected Sylva to an 

out-of-court identification procedure is unreasonable, 

 

is "a question of law to be decided by an appellate court, based 

on facts found by the motion judge." Ibid. In considering the 

judge's discretionary determination under "common law principles 

of fairness" to allow an in-court identification, however, the 

court reviewed that evidentiary ruling for an abuse of 

discretion. Id. at 315 (quotation omitted). See id. at 322 & 

n.5 (Gants, J., concurring).

11 The judge's decision to reach the issue was prescient. 

Just a few months after the defendant's trial, in a case 

involving multiple photographic arrays administered by police, 

the Supreme Judicial Court wrote: "Our conclusion that the 

identifications were not 'unnecessarily suggestive' does not end 

the inquiry. Even if otherwise admissible, a judge may suppress 

identification evidence if 'its probative value is substantially 

outweighed by the danger of unfair prejudice.'" Carter, 475 

Mass. at 518, quoting from Johnson, 473 Mass. at 599. More 

recently, in considering an in-court eyewitness identification, 

the Supreme Judicial Court cited Carter, and stated broadly that 

"[a] judge applying common law principles of fairness has the 

discretion to exclude unreliable eyewitness identification 

testimony." Dew, 478 Mass. at 315 (quotation omitted).
13

considering that Sylva's prior familiarity with the defendant 

was the source of the police officers' original identification 

of the defendant as a person of interest in the investigation. 

The defendant is correct that the "good reason" requirement 

announced in Crayton, 470 Mass. at 241-242, did not apply to 

Sylva's testimony because this requirement explicitly applies 

only to in-court identifications by eyewitnesses who were 

present during the commission of the crime. See Commonwealth v. 

Collins, 470 Mass. 255, 265 (2014). There was, however, no harm 

in the prosecutor's bringing a motion in limine pursuant to 

Crayton and Collins concerning Sylva's proposed testimony. This 

could only have benefited the defendant. Moreover, to the 

extent the "good reason" standard was properly applied to 

Sylva's proposed testimony, his familiarity with the defendant 

before the crime satisfied that requirement. See Crayton, supra

at 242.

For all of these reasons, we are satisfied that, the 

Commonwealth's identification evidence was properly admitted and 

was sufficient to support the jury's verdicts.

Judgments affirmed.