Commonwealth v. Darren C. Moran.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1410

COMMONWEALTH

vs.

DARREN C. MORAN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a bench trial in the District Court, the defendant

was found guilty of failure to stop for the police and negligent

operation of a motor vehicle. Because the defendant has not

persuaded us that the judge erred in allowing a percipient

witness to identify the defendant in court or that any

prejudicial error resulted from the trial judge's rulings about

the extent of another witness's privilege under the Fifth

Amendment to the United States Constitution, we affirm.

Background. We briefly summarize the trial evidence,

reserving certain facts for later discussion. At approximately

2 A.M. on November 1, 2020, Lakeville police Officer Emily Melo

was on patrol when she saw a grey Kia drive through a red light.
Melo activated her emergency lights and followed the Kia; it

abruptly turned, such that it was driving in the wrong lane of

travel, and then slowly stopped. When Melo stopped her cruiser

and got out, the Kia "took off," making a U-turn and then

turning left and driving away. As the Kia turned left, Melo saw

the driver. Melo pursued the speeding Kia through Lakeville

into Middleboro, where the driver of the Kia abandoned the car

and fled on foot.

Melo conducted an inventory search of the Kia, which was

registered to a woman, E.R., and found an empty prescription

bottle bearing the name "Darren Moran" in the Kia's center

console and a sweatshirt with a company logo on it in the Kia's

back seat. Initially, Melo looked up the defendant using his

license number, which was radioed to her, but she did not

recognize the "one-by-one little picture" from the registry of

motor vehicles (RMV) that the search returned. Melo then

searched Facebook and found photographs of the defendant whom

she recognized "a hundred percent" as the driver of the Kia.

The defendant was arrested several days later; there was no

evidence that Melo was the arresting officer.

Discussion. 1. Identification procedures. a. In-court

identification. At trial, and without objection, Melo

identified the defendant as the person she saw driving the Kia.

On appeal, the defendant argues that the judge erred in allowing

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Melo to make an in-court identification of the defendant because

(1) Melo did not make a constitutionally permissible out-of-

court identification of the defendant before being permitted to

identify him in court, and (2) the Commonwealth failed to

demonstrate a "good reason" for the in-court identification, as

required in the absence of a prior permissible out-of-court

identification. See Commonwealth v. Crayton, 470 Mass. 228,

241-242 (2014). The defendant did not object to the in-court

identification, so to the extent we discern error, our review is

for a substantial risk of a miscarriage of justice. See, e.g.,

Commonwealth v. Belnavis, 104 Mass. App. Ct. 798, 801 (2024).

The defendant argues that in Crayton, the Supreme Judicial

Court limited "[a]cceptable pre-trial identification procedures"

to "non-suggestive photo array[s], suspect lineup[s], or show-

up[s]," and that Melo's use of Facebook could not qualify. We

do not read Crayton so literally. Although the record provides

no detail about how many results Melo's Facebook search for

"Darren Moran" returned, for the purposes of our analysis we

assume without deciding that the search turned up only a single

photograph, and that it was therefore the equivalent of a one-

on-one showup identification. See Commonwealth v. Forte, 469

Mass. 469, 477 (2014); Commonwealth v. Nolin, 373 Mass. 45, 51

(1977). And as we have described, Melo was unequivocal about

her Facebook identification; the defendant does not argue

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otherwise.1 See Commonwealth v. Dew, 478 Mass. 304, 315 (2017)

("unequivocal positive identification" occurs if witness

"identifies the defendant as the perpetrator, such that the

statement of identification is clear and free from doubt").

Accordingly, we do not address the defendant's argument that the

Commonwealth failed to demonstrate "good reason" justifying an

in-court identification in the absence of a prior out-of-court

identification. See Crayton, 470 Mass. at 241. See also

Commonwealth v. Collins, 470 Mass. 255, 265 (2014) (requiring

good reason for in-court identification where out-of-court

identification was less than unequivocal).

b. Out-of-court identification. To the extent that the

defendant challenges the admissibility of the out-of-court

identification, he has not demonstrated that the identification

was so unnecessarily suggestive as to be inadmissible. Although

showup identifications "are generally disfavored as inherently

suggestive," they are not "presumptively impermissible." Dew,

478 Mass. at 306. " Police are permitted to conduct a showup

identification if there is a 'good reason' to secure the prompt

identification of a suspect." Id. at 307. "In determining

1 The defendant only argues that Melo's in-court
identification was less credible, in part due to her failure to
identify the defendant from his RMV photograph and the
suggestiveness of the Facebook search.

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whether the police procedures rendered the identification

unnecessarily suggestive," and simultaneously, whether the

police had the requisite "good reason," a judge must "examine

'the totality of the circumstances attending the

confrontation.'" Commonwealth v. German, 483 Mass. 553, 558-559

(2019), quoting Commonwealth v. Odware, 429 Mass. 231, 235

(1999). The analysis includes consideration of

"the nature of the crime involved and corresponding
concerns for public safety; the need for efficient police
investigation in the immediate aftermath of a crime; and
the usefulness of prompt confirmation of the accuracy of
investigatory information, which, if in error, will release
the police quickly to follow another track."

Commonwealth v. Austin, 421 Mass. 357, 362 (1995). "'Good

reason' exists where some combination of the factors collected

[above] is present." Commonwealth v. Carlson, 92 Mass. App Ct.

710, 713 (2018). "Even where there is a good reason to conduct

a one-on-one identification procedure, the evidence must be

excluded [i]f there are special elements of unfairness . . . ."

(quotation and citation omitted). Dew, supra at 307. "It is

the defendant's burden to prove by a preponderance of the

evidence that the showup was 'so unnecessarily suggestive and

conducive to irreparable mistaken identification as to deny [the

defendant] due process of law.'" Commonwealth v. Martin, 447

Mass. 274, 279-280 (2006), quoting Odware, supra.

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Our analysis of the defendant's argument is complicated by

his failure to develop a factual record about the Facebook

identification: he neither moved to suppress the evidence of

that identification, nor asked for a voir dire of Melo before

she identified the defendant in court, nor examined Melo about

what she saw when she used the defendant's name to search that

platform. Cf. Crayton, 470 Mass. at 233-234 (defendant moved

before trial to preclude in-court identification and requested

voir dire of identifying witnesses). We are not blind to the

risk that Melo's identification of the defendant on Facebook

could have been influenced by Melo's awareness that the search

was limited to the name on the pill bottle she found in the Kia

and by the appearance in the search results of the same company

logo as the one on the sweatshirt she found in the Kia.

However, on the limited record before us, we have no

particularized evidence -- much less any findings by the trial

court judge -- of how the Facebook search was conducted, the

scope of the search results, or the details about how Melo

recognized the defendant from the search results.

Nor can we say that the defendant carried his burden of

showing that Melo lacked "good reason," Dew, 478 Mass. at 306-

307, for the Facebook identification. Even if any immediate

concerns for public safety had abated once the defendant

abandoned the Kia and fled on foot, so far as the record

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reveals, Melo's search was conducted shortly after she saw the

defendant speeding on the wrong side of the road and thus could

reasonably be viewed as part of an effort to rule "Darren Moran"

in or out as the Kia's driver. See Austin, 421 Mass. at 362.

Thus, because the defendant has not shown that Melo lacked good

reason for conducting the Facebook identification nor the

existence of "special elements of unfairness," Dew, supra at 307

(citation omitted), we cannot conclude that the out-of-court

identification was unnecessarily suggestive.

At bottom, the defendant has not persuaded us that the

judge erred in allowing Melo to identify the defendant in court,

or in admitting evidence of the out-of-court identification.

See Dew, 478 Mass. at 306-307, 315; Austin, 421 Mass. at 362.

Given our conclusion, we need not address whether any error

would have created a substantial risk of a miscarriage of

justice.

2. E.R.'s testimony. At trial, Lakeville police Officer

Weston Fazzino testified that on the afternoon of November 1,

2020, the defendant came into the police station with the Kia's

registered owner, E.R., to file a stolen vehicle report. As

relevant to our analysis, Fazzino testified that E.R. told him

who had been driving the Kia the night before, although he was

not permitted to repeat E.R.'s statement identifying the driver,

and that the defendant and E.R. left the police station without

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filing a stolen motor vehicle report.2 After holding an in

camera hearing at which E.R. was represented by her own counsel,

the judge concluded that E.R. had a valid Fifth Amendment

privilege as to "some questions" she might be asked, but the

judge nonetheless permitted the prosecutor to call E.R. as a

witness and required E.R. to answer certain questions. See

Commonwealth v. Martin, 423 Mass. 496, 504-505 (1996). The

defendant objected to this procedure.

On appeal, the defendant argues that the judge erred in

requiring E.R. to answer certain questions because her answers

to those questions exposed her to the possibility of being

prosecuted under G. L. c. 269, § 13A, for making a false report

to the police, and G. L. c. 268, § 13B, for misleading

investigators. This argument is unavailing if for no other

reason than that there was no evidence to show that either E.R.

or the defendant actually reported the Kia stolen. General Laws

c. 269, § 13A, punishes one who "intentionally and knowingly

makes or causes to be made a false report of a crime to police

officers." See Commonwealth v. Gernrich, 476 Mass. 249, 252

(2017) ("The plain language of G. L. c. 269, § 13A, conveys a

2 Fazzino testified that he asked E.R. who was driving the
car and based on her response to that question, determined that
the defendant had been the driver. This determination was
struck, however, after the defendant objected to it.

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single statutory purpose: the prohibition of a false report of

a crime to 'police officers'"). As relevant here, G. L. c. 268,

§ 13B, punishes one who willfully misleads a police officer.

See Commonwealth v. Rateree, 495 Mass. 610, 626 (2025) (for

purposes of G. L. c. 268, § 13B, statutory violation requires

both "knowing or intentional conduct that is objectively

misleading" and "specific intent to 'impede, obstruct, delay,

harm, punish, or otherwise interfere thereby' with a criminal

investigation" [citation omitted]). Whatever E.R. or the

defendant intended to do when they went to the Lakeville police

station, Fazzino's uncontroverted testimony was that they left

the police station without filing a report, and nothing else in

the evidence at trial suggested that E.R. misled the police

about any fact or did anything intended to interfere with a

police investigation.

Because on this record there can be no doubt that the

answers E.R. gave at trial could not possibly tend to

incriminate her, see Commonwealth v. Borans, 388 Mass. 453, 456

(1983), the defendant has not demonstrated that the judge erred

by intruding on E.R.'s privilege against self-incrimination by

requiring her to provide the limited testimony she gave at

trial. Given our conclusion, we do not reach the question of

prejudice stemming from the judge's ruling on the scope of

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E.R.'s Fifth Amendment privilege or the cumulative effect of the

errors the defendant argues in his brief.

Judgment affirmed.

By the Court (Henry, Hand &
Allen, JJ.3),

Clerk

Entered: March 31, 2026.

3 The panelists are listed in order of seniority.

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