Commonwealth v. Jacquard

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23-P-541 Appeals Court

COMMONWEALTH vs. TYLER JACQUARD.

No. 23-P-541.

Essex. February 26, 2024. – June 28, 2024.

Present: Vuono, Massing, & Toone, JJ.

Open and Gross Lewdness and Lascivious Behavior. Evidence,
Photograph, Identification. Identification.
Constitutional Law, Identification. Due Process of Law,
Identification. Practice, Criminal, Motion to suppress.

Indictment found and returned in the Superior Court
Department on August 26, 2020.

A pretrial motion to suppress evidence was heard by C.
William Barrett, J., and the case was tried before Hélène
Kazanjian, J.

Christopher DeMayo for the defendant.
Kayla M. Burns, Assistant District Attorney, for the
Commonwealth.

MASSING, J. In this appeal, we consider whether the police

had good reason to use a single-photograph identification

procedure in the immediate aftermath of a noncontact sex

offense. A witness who happened to be parked beside the
2

defendant's car in a shopping mall saw him expose his penis and

masturbate. The witness used her cell phone to make a video

recording, which captured, among other things, images of the

defendant's car and license plate. About one hour later, the

police showed the witness the defendant's driver's license

photograph, which they had obtained using the license plate

number she had provided. She confirmed that the man in the

photograph, the defendant, Tyler Jacquard, was the man she had

seen. The defendant's motion to suppress the identification was

denied, and after a trial in the Superior Court in which the

parties stipulated to the defendant's identity, the jury found

him guilty of open and gross lewdness in violation of G. L.

c. 272, § 16. On appeal, the defendant claims that his motion

to suppress was erroneously denied, and that the error requires

reversal of his conviction and a new trial. We affirm.

Proceedings on motion to suppress. The defendant moved to

suppress the identification of him from his driver's license

photograph as unnecessarily suggestive, violating his due

process rights under the Fifth and Fourteenth Amendments to the

United States Constitution and art. 12 of the Massachusetts

Declaration of Rights, as well as common-law principles of

fairness. Two witnesses testified at the evidentiary hearing on

the defendant's motion: the principal witness, whom we will

call Bridget, whose testimony the motion judge found to be "both
3

credible and specific," and Lynnfield police Officer Marco

DePalma, whose testimony the judge also found to be credible.

We set forth the facts found by the judge, supplemented by

undisputed record evidence consistent with the judge's ultimate

findings and conclusions. See Commonwealth v. Jones-Pannell,

472 Mass. 429, 431 (2015).

1. Facts. On a sunny afternoon in June 2020, Bridget was

sitting in her sport utility vehicle (SUV), parked at an outdoor

shopping mall in Lynnfield, waiting to pick up her lunch. A

white Toyota sedan pulled into the space beside her on the left

and its driver started masturbating. Three girls, between

twelve and fourteen years old, were standing on the sidewalk

"directly in front of" him.1 The man exposed and stroked his

penis while looking at the girls, who appeared not to notice.

Bridget, however, had a clear view of the man from the vantage

point of her SUV, and after watching for about fifteen seconds,

she started recording a video with her cell phone as she got out

of her vehicle and yelled at him to "get the fuck out of here."

The twenty-two second video recording showed the license plate

1 The defendant claims that the judge's finding that the
girls were "play[ing] on the park located directly in front of
his car" was clearly erroneous. Our independent review of the
video recording confirms the judge's finding that the girls were
standing directly in front of the defendant's car. It is true
that they appear to be talking rather than playing, and they
were on a sidewalk rather than a "park," but these discrepancies
are irrelevant to any issue in this appeal.
4

of the car, as well as images of the man's profile and a tattoo

on his arm, as he backed his car out of the parking space and

drove away. Bridget called the police, told them what she had

seen, and provided the license plate number she had recorded.

She then picked up her lunch and left.

DePalma, who had recently joined the Lynnfield police after

five years in the Melrose police department, was on patrol when

he received a report of a man "inappropriately touching himself"

at the shopping mall. The report included a license plate

number and the name of the owner of the vehicle associated with

it –- the defendant. DePalma was familiar with the defendant

because the defendant's name had come up frequently at police

department roll calls in the context of sex offenses when

DePalma was working in Melrose. DePalma entered the license

plate number in his cruiser's mobile computer terminal, which

displayed the defendant's Registry of Motor Vehicles (RMV)

driver's license photograph. DePalma "immediately recognized"

the person in the photograph and took a photograph of it using

his cell phone.

DePalma and two other officers met with Bridget, who had

promptly returned to the mall at the request of the police. She

first provided a description of the man she had seen: "white

sh[i]rt, blue shorts, medium build, dark curly hair, and a

scruffy beard." DePalma then showed Bridget the defendant's RMV
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photograph on his cell phone and asked, "Was this him?" Bridget

said yes. Neither DePalma nor any of the other officers told

Bridget anything about the photograph or the defendant before

DePalma displayed the photograph to Bridget. However, after

Bridget made the identification, DePalma and the other officers

exchanged glances that led Bridget to believe that they knew who

he was. Bridget did not tell the officers about her video

recording.

DePalma actively continued the investigation because when

"someone is looking at young girls, . . . it's a heightened call

and you want to try and find the guy." He drove around the

shopping center looking for the defendant's car. He contacted

the shopping center's security personnel to see if they had

surveillance video footage, but he was told that they did not

have a camera in the area where the defendant had been parked.

He called the Melrose police and asked them to check if the

defendant's car was at his house. The Melrose police drove by

the defendant's residence that afternoon but did not see his car

in the driveway. They did not stay and wait for him to return

home.

The next day DePalma learned that Bridget, on her own

initiative, had posted on social media information about the

incident, including her video recording and information about

the defendant that Bridget had obtained from the Sex Offender
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Registry Board's publicly accessible website. Bridget suspected

that a person who exposed himself in public might be listed as a

sex offender, and she found the defendant's information by doing

a geographic search for sex offenders in the community.2 DePalma

contacted Bridget to get a copy of the video recording, which

she provided.

2. Motion judge's ruling. The motion judge denied the

motion to suppress the identification. The judge found that

there were "no special elements of unfairness" in the procedure.

Bridget gave the police a detailed description of the defendant

before the procedure, and the police did not give her any

information about the defendant or say anything else to her

before showing her the RMV photograph. Citing Commonwealth v.

Austin, 421 Mass. 357 (1995), and Commonwealth v. Carlson, 92

Mass. App. Ct. 710 (2018), the judge also found "good reason

. . . for the police to use a one-on-one identification

procedure." The crime was a sex offense committed in a public

place in front of twelve to fourteen year old children, and the

police had knowledge of the defendant's prior sex offenses,

warranting their concern for public safety. Confirming the

defendant's identification was also "an immediate concern" to

2 Although DePalma testified that the defendant was known as
a sex offender in Melrose, DePalma did not specifically testify
that the defendant was a registered sex offender, and no further
evidence about the defendant's status was offered in evidence.
7

enable the officers to pursue their investigation. Given that

Bridget had provided the defendant's license plate number, use

of the single RMV photograph for "prompt confirmation of the

accuracy of the investigation" was reasonable. Finally, the

judge considered that the police did not follow the protocols

established in Commonwealth v. Silva-Santiago, 453 Mass. 782,

797-798 (2009),3 but concluded that under the totality of the

circumstances, the procedure was not unnecessarily suggestive.

Discussion. 1. Good reason for inherently suggestive

procedure. "For constitutional purposes, a one-photograph

identification is the equivalent of an in-person, one-on-one

identification (often referred to as a 'showup')." Carlson, 92

Mass. App. Ct. at 712. "Although disfavored as inherently

suggestive, a showup identification conducted in the immediate

aftermath of a crime is not necessarily impermissible."

Commonwealth v. German, 483 Mass. 553, 557 (2019).

To succeed on a motion to suppress a one-photograph

identification, "the defendant must prove by a preponderance of

the evidence that the police procedure was 'so unnecessarily

suggestive and conducive to irreparable mistaken identification

3 Silva-Santiago sets forth protocols for displaying
photographic arrays. As discussed infra, in Commonwealth v.
German, 483 Mass. 553, 563-565 (2019), the court expanded and
tailored the Silva-Santiago protocols for use in showup
identification procedures.
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as to deny [the defendant] due process of law.'" Carlson, 92

Mass. App. Ct. at 712, quoting Commonwealth v. Dew, 478 Mass.

304, 306-307 (2017). The defendant may prevail by showing, as

the defendant contends here, "that the police did not have a

good reason to conduct this type of disfavored, inherently

suggestive, one-on-one identification procedure." German, 483

Mass. at 558.4

Whether good reason exists depends on at least three

interrelated factors: "[1] the nature of the crime involved and

corresponding concerns for public safety; [2] the need for

efficient police investigation in the immediate aftermath of a

crime; and [3] the usefulness of prompt confirmation of the

accuracy of investigatory information, which, if in error, will

release the police quickly to follow another track." Austin,

421 Mass. at 362. See Mass. G. Evid. § 1112(b)(1)(A) (2024).

"'Good reason' exists where some combination of the factors

collected in Austin is present." Carlson, 92 Mass. App. Ct. at

713. The totality of the circumstances of the interaction

between the witness and the officers conducting the

identification procedure must be considered. See Commonwealth

A defendant may also attempt to show that "the procedure
4

utilized by the police include[d] 'special elements of
unfairness.'" German, 483 Mass. at 558, quoting Commonwealth v.
Crayton, 470 Mass. 228, 236 (2014). On appeal, the defendant
does not challenge the motion judge's conclusion that the
procedure did not involve any special elements of unfairness.
9

v. Otsuki, 411 Mass. 218, 232-233 (1991); Carlson, supra at 712.

"The existence of 'good reason' for a showup identification is a

question of law to be decided by an appellate court, based on

facts found by the motion judge." Dew, 478 Mass. at 307.5

The motion judge found that all three Austin factors were

present in DePalma's decision to show Bridget the defendant's

RMV photograph on DePalma's cell phone. The defendant takes

exception with respect to each factor.

The defendant argues that the first factor, the nature of

the crime and concern for public safety, is inapplicable because

open and gross lewdness is a noncontact offense, and "nothing

about it suggested that it would escalate into a contact offense

or violence." In other words, he suggests that he presented no

5 "Good reason" to conduct a one-on-one identification under
Austin, 421 Mass. at 362, is related to, but distinct from,
"good reason" under Crayton, 470 Mass. at 241-244, to permit an
in-court identification with no prior out-of-court
identification. The good reason that justifies showup
procedures usually "depends on the short duration of time
between the crime and the showup, and will never justify an in-
court showup." Id. at 242. In addition, while the defendant
always bears the burden of proving that an out-of-court
procedure was unduly suggestive, the Commonwealth bears the
burden of production and must file a motion in limine to admit
an in-court identification where there has been no out-of-court
identification. See id. at 243. In another variation on the
theme, if an out-of-court identification is suppressed as
unnecessarily suggestive, an in-court identification may be
conducted, but only if the Commonwealth can demonstrate by clear
and convincing evidence that the witness is able to identify the
defendant from a source independent of the suggestive procedure.
See Commonwealth v. Johnson, 473 Mass. 594, 602 (2016); Mass. G.
Evid. § 1112(c)(1)(B).
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urgent threat to public safety that would supply the police with

good reason to conduct an inherently suggestive identification

procedure. Although the defendant is correct that the nature of

his offense did not pose the same level of danger as the

"dangerous bank robber . . . at large" in Austin, 421 Mass. at

362, a sex offender at large at a shopping mall is not a trivial

concern. Indeed, the essential elements of the crime require

proof of conduct performed in a manner designed to cause, and

actually causing, "shock" or "alarm." Commonwealth v. Maguire,

476 Mass. 156, 158-159 (2017). See Commonwealth v. Fay, 467

Mass. 574, 581, cert. denied, 574 U.S. 858 (2014) (convictions

for noncontact sex offenses could render defendant "menace"

under sexually dangerous persons statute if conduct could

reasonably be expected to instill in prospective victims fear of

being sexually assaulted). Moreover, as the motion judge

recognized, the target of the defendant's conduct was a group of

preteen and young teenaged girls, and the officers were aware

that the possible perpetrator had a history of sex offenses. We

agree with the motion judge that the nature of the offense

raised legitimate public safety concerns providing justification

for the one-photograph procedure.

The defendant downplays the second Austin factor, "the need

for efficient police investigation in the immediate aftermath of

a crime," stating that the police can always argue that the
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speed and convenience of a one-on-one identification procedure

is a benefit, and asserting that it would not have been

difficult or especially time-consuming for the police to have

arranged for a lineup or a photographic array. He also argues

that because the criminal complaint did not issue until three

days after the incident, and he was not arrested until two days

after that, the need for an efficient investigation was

"fiction." We disagree.

Whether an identification procedure will contribute to an

efficient investigation "is not governed by the availability of

another approach." Commonwealth v. Martin, 447 Mass. 274, 280

(2006). See Commonwealth v. Storey, 378 Mass. 312, 317 (1979),

cert. denied, 446 U.S. 995 (1980) (one-on-one identifications

not "constitutionally unacceptable . . . simply because these

identification procedures might have taken place just as easily

in the form of lineups"). The question is whether the

identification procedure used is unnecessarily suggestive. See

Martin, supra; Storey, supra. The procedure here was conducted

promptly, within one hour of the crime. See Commonwealth v.

Figueroa, 468 Mass. 204, 217 (2014); Commonwealth v. Meas, 467

Mass. 434, 441-442, cert. denied, 574 U.S. 858 (2014). DePalma

then took immediate steps to look for the defendant in the

vicinity of the shopping mall, seek surveillance videotapes, and

alert officers in the town where the defendant resided. The
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time it would have taken to prepare a photographic array would

have hampered police efforts to protect the public by

determining whether the perpetrator was still in the vicinity –-

and could have further delayed an arrest. "[E]xigent or special

circumstances are not a prerequisite" for one-on-one

identification procedures. Austin, 421 Mass. at 361, quoting

Commonwealth v. Harris, 395 Mass. 296, 299 (1985). See

Commonwealth v. Crayton, 470 Mass. 228, 235-236 (2014) ("there

is generally 'good reason' where the showup identification

occurs within a few hours of the crime, because it is important

to learn whether the police have captured the perpetrator or

whether the perpetrator is still at large, and because a prompt

identification is more likely to be accurate when the witness's

recollection of the event is still fresh").

Finally, the defendant contends that the third Austin

factor, the need for prompt confirmation or refutation of

investigatory leads, was not truly implicated in this case

because the police had his license plate number and knew that he

was the registered owner of the car. Whether he or someone else

was using his car during the offense, the investigation would

inevitably lead to him. This contention is short sighted.

Although the police knew who owned the car in which the

crime had been committed, Bridget's confirmation that the owner

of the car was the same man she had seen at the shopping mall
13

quickly enabled the police to focus their investigation on a

known suspect. If Bridget had told the police that the RMV

photograph did not depict the man she had seen, the direction of

the investigation would have shifted dramatically. See

Figueroa, 468 Mass. at 217 (prompt identification likely to be

more accurate because eyewitness's memory is fresh, "but also,

more importantly, it allows the police to learn quickly whether

the suspect is the perpetrator of the crime so that, if he is

not, the police can continue the investigation to find the

actual perpetrator"). It would have made a substantial

difference, both for the police and for the defendant, whether

they approached him as the target of the investigation or as a

source to help them identify the perpetrator.

It is helpful to recall why one-on-one identification

procedures are considered "inherently suggestive," a point that

our cases generally take as a given. Showups are considered

inherently suggestive because they convey the message that the

police have knowledge that caused them to single out a

particular suspect. See, e.g., United States ex rel. Kirby v.

Sturges, 510 F.2d 397, 403 (7th Cir.), cert. denied, 421 U.S.

1016 (1975) ("almost any one-to-one confrontation between a

victim of crime and a person whom the police present to him as a

suspect must convey the message that the police have reason to

believe him guilty"); State v. Lawson, 352 Or. 724, 743 (2012)
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(showups less reliable than properly conducted lineups "because

the witness is always aware of whom police officers have

targeted as a suspect"). Because of their inherent

suggestiveness, showup identifications should be employed only

when there is good reason to do so.

Where, as here, a witness provides the police with

personally identifying information, such as a license plate

number, name, address, or telephone number, of someone the

witness saw committing a crime, and the police in response ask

the witness to confirm that person's appearance from a neutral

image associated with the identifying information supplied by

the witness, the message that the police convey is less

suggestive than when the police themselves produce a single

suspect for the witness to identify. Bridget likely knew that

the police were showing her a photograph associated with the

license plate number that she had provided, rather than a person

whom the police had identified as a likely perpetrator. This

circumstance negates much of the suggestiveness inherent in a

usual showup procedure.6 The procedure employed here was not

"designed by the police to suggest to the victim that the

defendant is the criminal," Commonwealth v. Coy, 10 Mass. App.

6 We agree with the judge that the police reaction after
Bridget identified the defendant's photograph did not
retroactively make the procedure suggestive.
15

Ct. 367, 372 (1980), or to "stack the deck against the

defendant" (quotation and citation omitted), Commonwealth v.

Sylvia, 57 Mass. App. Ct. 66, 69 (2003). Thus, not only did the

police have good reason to show Bridget the defendant's

photograph, the procedure was not as inherently suggestive as

many showups.

2. German instruction. Since December 11, 2019,7 police

officers conducting showup identification procedures have been

required to instruct the witness as follows:

"You are going to be asked to view a person; the alleged
wrongdoer may or may not be the person you are about to
view; it is just as important to clear an innocent person
from suspicion as it is to identify the wrongdoer;
regardless of whether you identify someone, we will
continue to investigate; if you identify someone, I will
ask you to state, in your own words, how certain you are."

German, 483 Mass. at 564. See Mass. G. Evid. § 1112(b)(1)(A).

The German instruction is derived from the protocol for

photographic arrays established in Silva-Santiago, 453 Mass. at

797-798. Although no published decision has stated explicitly

that the German instruction is required for one-photograph

identification procedures as well as showup procedures, because

7 The rule announced in German was applied prospectively to
showup identification procedures conducted after the issuance of
the rescript, which occurred on December 11, 2019. See German,
483 Mass. at 554, 564; Mass. R. A. P. 23 (b), as appearing in
481 Mass. 1653 (2019). The identification in this case was
conducted about six months later.
16

the procedures are equivalent for constitutional purposes, we

assume that the same protections apply.

The Commonwealth appropriately concedes that DePalma did

not give Bridget the German instruction. The fact that German

had been in effect for only six months, and had not yet been

applied to one-photograph identification procedures, may

explain, but does not excuse, the error. However, failure to

give the German instruction does not automatically require

suppression. Rather, it "affects a judge's evaluation of the

admissibility of the identification." German, 483 Mass. at 565,

quoting Commonwealth v. Thomas, 476 Mass. 451, 459 (2017). That

is, the officer's failure to instruct the witness as required by

German is another factor that the judge must consider under the

totality of the circumstances to determine whether the

identification procedure, as administered, was unnecessarily

suggestive.8 We agree with the motion judge that, under the

8 Where the identification is found admissible, failure to
administer the German instruction also "affects the judge's
instructions to the jury regarding their evaluation of the
accuracy of the identification." German, 483 Mass. at 565,
quoting Thomas, 476 Mass. at 459. See Commonwealth v. Travis,
100 Mass. App. Ct. 607, 615 (2022) ("In any event, the absence
of recommended protocols goes to the weight of the
identifications, not their admissibility"). In this case, no
special jury instruction on the identification procedure was
necessary because the parties stipulated to the defendant's
identity as the man in the video recording and the man whom
Bridget had seen at the mall.
17

totality of the circumstances here, DePalma's failure to follow

the German instruction did not make the identification

procedure, conducted with good reason and without any special

elements of unfairness, so unnecessarily suggestive and

conducive to mistaken identification as to violate the

defendant's due process rights. The motion to suppress was

properly denied.9

Judgment affirmed.

9 Because Bridget unequivocally identified the defendant in
an admissible pretrial procedure, the in-court identification of
the defendant was also admissible. See Dew, 478 Mass. at 315;
Mass. G. Evid. § 1112(c)(1)(A). As both the single-photograph
identification and the in-court identification were properly
admitted, we need not address the parties' contentions
concerning whether the admission of the identifications was
harmless error and the effect, if any, that the defendant's
stipulation to his identity at trial might have had on the
harmless error analysis.