Misidentification & Suppressing Photographic Evidence

(Jan. 2019) 
Misidentification & Suppressing Photographic Evidence

A district court convicted the defendant, Scott E. Fielding, of open and gross lewdness based on testimony that he had masturbated in front of a woman in a health club sauna in Tisbury, Massachusetts. The principle defense at trial was misidentification. On appeal, the defendant challenged the admission at trial of a photograph of a man that the victim identified as the perpetrator the day after the incident, as well as the victim’s in-court identification of the defendant. The Massachusetts Court of Appeals affirmed no error in judgment.

On May 2, 2016 at approximately 6:00 PM, the victim was swimming laps at the pool of the health club in question. The defendant appeared at the shallow end of the pool and began talking to the victim. The victim continued her workout but would pause to converse with the defendant between laps. The two interacted in the pool area for approximately 15 minutes.

After the victim finished her swimming workout, the pair went into the club’s hot tub, where they sat close to each other and chatted some more. The two then moved to the sauna. There they conversed some more, bringing their total interaction to about 30 minutes in length. The victim testified that she was “[o]ne hundred percent certain” that the person inside the sauna was the same man from the pool and the hot tub.

A few more minutes of chatting later, the victim heard a “scratching sound” coming from where the defendant was sitting in the sauna. As she got up to leave, the defendant asked her: “[D]o you want to look?”. She turned and observed the man stroking his genitalia, which shocked and angered her.

The following day the victim went to a sexual assault crisis center to report what happened. She then reported the incident to the police. The same day she returned to the health club for a yoga class where she told her instructor what happened. After class, on the advice of the instructor, the victim reported the incident to the club personnel. The yoga instructor, who was present when the victim reported the incident to the club personnel, stated that she thought she knew the defendant because “[a man of similar description] had approached her and her daughter”. The yoga instructor then pulled up a photo of the man she thought the victim described to her on Facebook. Showing that photograph to the victim, the victim affirmed that the man depicted there was indeed the man who exposed himself to her.

In addition to the Facebook photo, police were able to obtain a still image from video surveillance footage in the club, which depicted someone apparently resembling the defendant exiting the health club at 6:35 PM on May 2. Some nine months after the incident, police showed the victim a photographic array, which consisted of five photographs they showed to her serially. She identified the photograph of the defendant in this array as the person who had masturbated in front of her.

Several pretrial motions were filed attempting to suppress evidence implicating the defendant. The judge denied all of the motions accept a motion to suppress the photographic array, on the grounds that it was done so long after the incident that it did not comply with approved photographic array procedures in various respects. With all of this other evidence admitted, the jury ultimately convicted the defendant of the crime charged.

The defendant argued that the judge abused his discretion in concluding that the Commonwealth had authenticated the Facebook photo adequately. The Court disagreed. It ruled that the Commonwealth only offered the Facebook photo as a photograph that the yoga instructor showed the victim, not as a photograph that had been displayed on the defendant’s Facebook page. Additionally, it determined that neither the victim nor any other witness identified the person shown in the Facebook photo as the defendant. The victim’s testimony that the Facebook photo was the one shown to her was sufficient authentication.

 The defendant also argued that the victim being shown the Facebook photo was so suggestive an identification procedure that the judge erred in denying the motion to suppress it. The defendant added that case law recognizes that common-law principles of fairness could justify fairness absent a lack of state action in exposing the photo. The Court dismissed these arguments, ruling that the nature of the interaction between victim and defendant provided the victim with a solid basis for focusing on, and remembering, the appearance of the person with whom she had been conversing one-on-one in the pool, hot tub, and sauna. The Court asserted confidence that, “the judge’s decision to allow the victim to testify about her pretrial identification of the perpetrator in the Facebook photo did not constitute ‘a clear error of judgment in weighting the factors relevant to the decision such that the decision [fell] outside the range of reasonable alternatives’”. 

The defendant further argued that the judge erred in allowing the victim to identify him in court, justifying this with the claim that the yoga instructor having shown the victim the Facebook photo unduly tainted any in-court identification. In accordance with the reasoning of the Court on the previous argument, they dismissed the validity of this argument as well, adding that it is uncontested that the victim looked at the Facebook photo only briefly because she “didn’t want to keep looking at it”.

Citing one case, Commonwealth v. Crayton (2014), the defendant cited a lack of “good reason” being a requirement for an eyewitness’s in-court identification being precluded. The Court ultimately rejected this implication of “a lack of good reason”. First, the Court agreed with the defendant that given that the victim had such an extensive and intensive opportunity to observe the defendant, this was viewed as being a good reason to justify not having a pretrial identification. However, the Court reasoned that the day after the incident the victim did identity the person in the Facebook photo as the perpetrator, and the judge who heard the evidence taken at the motion to suppress hearing specifically found that the person shown in the photograph was the defendant. Therefore, the Court added, even if a pretrial identification properly could be allowed, that requirement was satisfied. 

The Court, based on these facts and reasons, AFFIRMED the judgment. 



Source: Commonwealth vs. Scott E. Fielding, 18-P-342


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