State v. Hummel: Unanimity is not required as to theories (or methods or modes) of a crime.

“Under the text and original meaning of the Unanimous Verdict Clause, unanimity is required only as to the jury's verdict—its determination of guilt, or in other words its determination that the prosecution has proven each element of each crime beyond a reasonable doubt. There is no doubt that the jury was unanimous at that level in this case. And we affirm on that basis." State v. Hummel, 2017 UT 19.

In this case, the defendant challenged his conviction under the Unanimous Verdict Clause of the Utah Constitution. Utah Const. art. I, § 10. He did so on the basis of an alleged lack of unanimity as to alternative factual theories advanced by the prosecution in support of some of the theft counts against him. The court of appeals held that “[t]he Unanimous Verdict Clause requires unanimity as to each count of each distinct crime charged by the prosecution and submitted to the jury for decision. So a generic “guilty” verdict that does not differentiate among various charges would fall short.” Equally important, the court also held that sufficient evidence is not required on every method or means of fulfilling each individual element of each crime in question; rather, such requirement is imposed only for all elements of a criminal charge.

State v. Wadsworth: Complete Restitution if the Offense in Question Results in Bodily Injury

Lost income is available as a component of complete restitution only “if the offense” in question “resulted in bodily injury to a victim.” State v. Wadsworth, 2017 UT 20, ¶ 4.

In this case the Court interpreted the terms of a provision of the Crime Victims Restitution Act, Utah Code section 77-38a-302(5)(b). That provision sets standards for the calculation of “complete restitution.” for victims. It states that “[i]n determining the monetary sum and other conditions for complete restitution, the court shall consider all relevant facts, including” six enumerated categories of economic loss. Utah Code § 77-38a-302(5)(b)(i)–(vi). At issue here was one of the six enumerated categories—subsection 302(5)(b)(iv). That subsection states “the court shall consider ... the income lost by the victim as a result of the offense if the offense resulted in bodily injury to a victim.” Id. § 77-38a-302(5)(b)(iv). The State did not allege that the victim suffered bodily injury as a result of the defendant’s crimes, only that his crimes led to the victim's depression, which required counseling and impacted her ability to work. The Court held that the “if clause expresses a condition.” Thus, lost income is only available to a victim if the offense resulted in bodily injury.

State v. Rushton: Single Criminal Objective and Mandatory Joinder

A conditional plea to the latest charges and defendant's prior guilty plea to different crimes did not concern conduct with a single criminal objective so as to require a single prosecution under the mandatory joinder statute. State v. Rushton, 2017 UT 21. 

The petitioner-defendant argued that the State violated the mandatory joinder statute by prosecuting him from 2011 to 2012 for wage crimes after earlier prosecuting and convicting him in 2009 and 2010 of tax crimes. Under the mandatory joinder statute, the State cannot prosecute a defendant in separate actions for conduct that “is closely related in time and is incident to an attempt or an accomplishment of a single criminal objective.” The defendant argued that his crimes were a “single criminal episode because it was “closely related in time and ... incident to an attempt or an accomplishment of [the] single criminal objective” of misappropriation of money in his business setting.” However, the Court ruled that this reading of a single criminal episode was too broad and instead considered the totality of the circumstances to determine whether conduct aims at a single criminal objective. The Court listed factors that focused “in particular on the location where the crimes were committed, the nature of the offenses (both the similarity in conduct and, as suggested by the concurrence, the extent to which one offense advances the accomplishment of another), whether the crimes involved different victims, and whether the defendant had the opportunity to deliberately engage in the next-in-time offense.” After weighing these factors, the court concluded that the petitioner-defendant’s criminal conduct did not have a single criminal objective.

State v. Mohamud: Lost Evidence Violating Due Process

Defendant claiming the loss or destruction of evidence violates due process must make a threshold showing that there was reasonable probability that evidence would have been exculpatory. State v. Mohamud, 2017 UT 23.

The defendant, who was incarcerated at the Utah State Prison, was found in possession of a shank. One correctional officer testified that he saw the shank being removed by another officer, while a different correctional officer saw the searching officer reach down by the defendant’s ankle where the shank was found. Video footage, if it existed and captured the search, was subsequently taped over inadvertently by the prison. The defendant moved to dismiss the charges against him, arguing that there was surveillance footage that captured the incident, that it had been lost or destroyed by the State, that there was a reasonable probability the evidence would have been exculpatory because it could have impeached the State's witnesses' credibility, and that he was prejudiced by the loss of the evidence. The Court held that under the Tiedemann due process analysis, a defendant must make a threshold showing that there is a reasonable probability the lost or destroyed evidence would have been exculpatory.The Court continued “[o]nce the reasonable probability threshold has been satisfied, the second part of the Tiedemann analysis sets forth two factors that courts must balance both to determine the seriousness of the due process violation and to fashion the appropriate remedy: (1) the culpability of the State in the loss or destruction of the evidence and (2) the prejudice to the defendant as a result of the missing evidence.” Here, the defendant failed to meet the reasonable probability threshold because he proffered only speculation as to what the footage might have shown.

State v. DeJesus: Tiedemann does encompass a threshold reasonable probability requirement

“The due process clause of the Utah Constitution requires a defendant to first establish as a threshold matter a reasonable probability that the lost or destroyed evidence would have been exculpatory. By so doing, the defendant establishes that his or her due process rights have been violated. Once a defendant has made this threshold showing, the court must consider the two factors set forth in Tiedemann—the culpability of the State and the prejudice to the defendant—in order to both evaluate the seriousness of the violation and determine the necessary remedy.” State v. DeJesus, 2017 UT 22, ¶ 19.

In this case, DeJesus kicked a correctional officer during a fight with another inmate. Surveillance footage showed the kicks. The prison failed to make a copy of the recording and after 30 days it was irretrievably lost. DeJesus moved to dismiss the charge under State v. Tiedemann, claiming that the loss or destruction of the surveillance footage constituted a due process violation. The Utah Supreme Court concluded that DeJesus met her threshold burden. The Court then considered the second part of the test and found that the State should have done more to preserve the evidence and failure to do so prejudiced DeJesus. The appropriate remedy in this case was dismissal.

State v. Robertson: Utah Code section 76-1-404 limits the dual sovereignty doctrine

“Section 404 requires courts to employ only the Blockburger–Sosa test for determining whether two offenses are the “same offense.” Under this test, two offenses are not the same if each requires proof of an element that the other does not.” State v. Robertson, 2017 UT 27.

Defendant Chris Robertson was prosecuted and convicted by the federal government for possession of child pornography. The State of Utah subsequently charged him with twenty counts of sexual exploitation of a minor based on the same conduct. Mr. Robertson argued that Utah Code section 76-1-404 prohibits this subsequent state prosecution. That statute states “[i]f a defendant's conduct establishes the commission of one or more offenses within the concurrent jurisdiction of this state and of another jurisdiction, federal or state, the prosecution in the other jurisdiction is a bar to a subsequent prosecution in this state if ... the former prosecution resulted in an acquittal, conviction, or termination of prosecution ...; and [ ] the subsequent prosecution is for the same offense or offenses.” The Court found that this statute bars a Utah prosecution if the defendant has already been prosecuted for the same offense in another jurisdiction. “Thus, the language operates as a limitation on the dual sovereignty doctrine, which permits a defendant to be prosecuted for the same offense in two or more jurisdictions so long as the prosecutions are conducted by different sovereigns.” In this case, the State could not prosecute Robertson because the prosecution was based on conduct that constituted the “same offense” for which he was convicted of federally.

State v. Outzen: A showing of impairment is not required for a conviction for operating a motor vehicle by a person who has any measurable controlled substance or metabolite of a controlled substance in the person's body

“The statute criminalizes driving with “any measurable controlled substance or metabolite of a controlled substance in the person's body.” To limit the measurable controlled substances and metabolites to those that cause impairment would reduce the scope of the statute to less than “any”—a result that is incompatible with the legislature's use of the word any.” State v. Outzen, 2017 UT 30, ¶ 11.

Outzen, the defendant, fell asleep at the wheel and caused a two-car collision. Sobriety tests revealed that Mr. Outzen was not too impaired to drive, but a blood test revealed that he had the primary metabolite of marijuana in his system. He was charged under Utah Code section 41-6a-517 for operating a motor vehicle with a metabolite of a controlled substance in his body. At trial, Outzen moved to dismiss, arguing that the plain language of section 41-6a-517 requires a showing of impairment. The Court held that a showing of impairment is not required for a conviction under this statute because the statute criminalizes driving with any measurable controlled substance or metabolite of a controlled substance in the person's body and not just substances that cause impairments.

Butt v. State: A rudimentary drawing could not support the charge of dealing harmful materials to a minor.

The standard of whether material, taken as a whole, appeals to a prurient interest in sex is met with respect to material that is aimed at appealing to a young child's interest in engaging in sexual activity with a parent, or any adult. Such material is criminal, and thus easily deemed shameful or morbid and outside the protections of the First Amendment. Butt v. State, 2017 UT 33, 398 P.3d 1024.

Petitioner was convicted of two counts of dealing harmful materials to a minor when he drew two rudimentary drawings and sent them to his daughter while he was incarcerated. On appeal, Petitioner argued his defense counsel was ineffective by failing to raise a freedom of speech defense. The issue was whether the drawing qualified as “obscenity” and whether the assertion of a free speech defense would have altered the outcome of the trial.The defendant argued that the drawings did not “appeal to a prurient interest in sex." The Court ultimately held that the rudimentary drawing was not sexual or sexually suggestive, and accordingly did not appeal to a prurient interest in sex based on the Petitioner’s testimony at trial and the drawing itself. Thus, Petitioner’s conviction was reversed.

State v. Lowther: Verde 's Doctrine of Chances foundational requirements have not displaced the Shickles factors for purposes of rule 403.

“Verde 's requirements may help a court assess the probative value of prior bad acts evidence, we clarify that in evaluating doctrine of chances evidence under rule 403, a court may consider any relevant fact and need not necessarily consider Verde 's foundational requirements or limit its analysis to these requirements.” State v. Lowther, 2017 UT 34, ¶ 29, 398 P.3d 1032, 1041.

Lowther, the defendant, was accused of alleged rape or object rape of four women. Each woman identified Mr. Lowther as her attacker, and the State filed charges against him for each alleged crime. The State moved to introduce the testimony of the other women under rule 404(b) of the Utah Rules of Evidence and the doctrine of chances in order to show that the victim did not consent to sexual intercourse with Mr. Lowther. After an evidentiary hearing, the district court granted the State's motion. The Utah Supreme Court granted certiorari to determine whether the lower courts erred in articulating and applying the doctrine of chances. The court of appeals upheld the district court's analysis of rule 404(b), but ultimately concluded that the district court erred when it applied State v. Shickles to conclude that the witnesses' testimony was admissible under rule 403. The Court ruled it is proper for courts do consider Verde’s requirements when determining the admissibility of 404(b) evidence. But then clarified that the Verde requirements have not displaced the Shickles factors in cases where the doctrine of chances is involved. Instead, courts have “discretion to consider any relevant factors that assist in determining whether the “probative value” of the witnesses' testimony is “substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

State v. Mooers & Becker: orders of complete restitution are separately appealable from a criminal sentence, but court-ordered restitution is not separately appealable

“We therefore treat court-ordered restitution in the plea in abeyance context as a condition of the plea rather than part of the sentence, which may or may not ever be entered.”State v. Mooers, 2017 UT 36, ¶ 19, 424 P.3d 1, 6

The issue in this case was whether an order of complete restitution that is part of a plea in abeyance is a final order appealable as of right. Each defendant was appealing the restitution they were ordered to pay as part of their plea in abeyance. The State argued that a district court's order of restitution is not final for a plea in abeyance because the defendant has been neither convicted nor sentenced, and it is the sentence that triggers the time for appeal. The defendants argued that because conviction and restitution have separate timeframes and purposes, an order of restitution should be considered final regardless of whether or when a conviction occurs. The court noted that court-ordered restitution is restitution the defendant to pay as a part of the criminal sentence at the time of sentencing or within one year after sentencing, whereas complete restitution is “restitution necessary to compensate a victim for all losses caused by the defendant.” Ultimately, the Court held, that orders of complete restitution are separately appealable from a criminal sentence. “And even though the order of complete restitution is entered on the civil docket, defendants may still appeal the order of complete restitution from their criminal case. . . .” But, “[c]ourt-ordered restitution, in contrast, is not separately appealable because it is a condition of the plea in abeyance, which is not a final order. It is therefore not appealable unless the sentence is entered.”

State v. Martinez: requesting that a passenger provide identification following traffic stop, and then running a background check on that passenger without reasonable suspicion that the passenger had committed, or was about to commit, a crime did not violate the Fourth Amendment

An officer may request that a passenger provide identification because the officer safety concerns justified the negligibly burdensome extension of the traffic stop.See State v. Martinez, 2017 UT 43, 424 P.3d 83.

A Utah Highway Patrol Trooper stopped a vehicle for an improper lane change and asked both the driver and George Matthew Martinez, a passenger, for identification. The trooper ran a warrant check and learned that Martinez had an outstanding arrest warrant. The officer searched Martinez incident to his arrest and discovered a glass pipe with methamphetamine residue inside. The issue in this case was whether a law enforcement officer violate the Fourth Amendment if she requests that a passenger voluntarily provide identification and then runs a background check on that passenger without reasonable suspicion that the passenger has committed—or is about to commit—a crime. Martinez sought to exclude the evidence, arguing that the officer had violated his Fourth Amendment rights. Martinez claimed that “‘[a]ny further temporary detention’ for investigative questioning after fulfilling the original purpose for the traffic stop constitutes an illegal seizure, unless an officer has probable cause to arrest or a reasonable suspicion of a further illegality.” However, the court recognized that “certain measures promoting officer safety fall within the permissible scope of a traffic stop,” and concluded that the Trooper’s voluntary interaction with Martinez did not violate Martinez's Fourth Amendment rights and the negligible extension of the stop by running Martinez’s background did not unreasonably prolong the detention.

State v. Lambdin, 2017 UT 46

In order to obtain a “extreme emotional disturbance” in connection with the statutory defense to the crime of murder the defendant must show: “(1) when he has no mental illness as defined in section 76–2–305 (insanity or diminished capacity); and (2) when he is exposed to extremely unusual and overwhelming stress; and (3) when the average reasonable person under that stress would have an extreme emotional reaction to it, as a result of which he would experience a loss of self-control and that person's reason would be overborne by intense feelings, such as passion, anger, distress, grief, excessive agitation, or other similar emotions.”State v. Lambdin, 2017 UT 46, ¶ 15, 424 P.3d 117, 121, holding modified by State v. Sanchez, 2018 UT 31, ¶ 15, 422 P.3d 866.

In this case, the Defendant and his wife were in a rocky marriage. A month before he murdered her, she had asked for a divorce. He also discovered she was having an extra-marital affair and was pregnant with another man’s child. A month later, the Defendant killed his wife. The Defendant sought to reduce the level of his offense to manslaughter by proving special mitigation by extreme emotional distress by urging the Court formulate a new definition of extreme emotional distress. The Defendant also argued, in the alternative, that the current definition of extreme emotional distress did not require the defendant to show that his loss of self-control was reasonable. The Court ruled against him on both arguments holding that the definition was correct and that the Defendant defendants to prove that they were “exposed to extremely unusual and overwhelming stress,” and that “the average reasonable person under that stress would have an extreme emotional reaction to it, as a result of which he would experience a loss of self-control and that person's reason would be overborne by intense feelings.”

During Sentencing, Judges Need Not Reply to Every Argument by Defendant

Not unreasonable in sentencing proceedings for a judge to not address every argument the defendant proffers as long as the judge follows the sentencing guidelines

United States v. Wireman, 2017 BL 60890, 10th Cir., No. 15-3291, 2/28/17.

The Tenth Circuit held that judges do not need to address every argument that a defendant proffers during the sentencing stages of the criminal proceedings as long as a judge follows the sentencing guidelines. In the case, the sentencing judge “alluded to the memorandum” offered by the defendant, but did not speak at length about it. While the defendant offered mitigating factors during the process, it was not procedurally unreasonable for the district court to ignore some of his arguments. After reviewing the district court’s reasoning for the defendant’s sentence, the Tenth Circuit found that the court acted reasonably and had no need to address the arguments of the defendant. The circuit court, however, did encourage judges to go beyond the bare minimum during sentencing and to address and refute any and all arguments a defendant might pose.

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Wireman_No_153291_2017_BL_60890_10th_Cir_Feb_28_2?1489094717

Judge Under Investigation Should Have Recused Himself From Trial

A trial judge that was under a bribery investigation by the same district attorney’s office that was prosecuting a defendant in his court should have recused himself from the trial

Rippo v. Baker, U.S., No. 16-6316, 3/6/17.

The United States Supreme Court held that due process under the Fourteenth Amendment requires that a judge recuse himself while under criminal investigation by the same prosecuting office as a defendant in his court. Before trial, the defendant moved to have the judge recuse himself because of the possibility the judge would not be impartial in adjudicating the criminal proceedings. The motion was denied and the defendant sentenced to death. The Supreme Court vacated the judgment, finding that the Due Process Clause may sometimes demand recusal even when a judge “has no actual bias.” In their opinion, the court found that “Recusal is required when….the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.”

https://www.supremecourt.gov/opinions/16pdf/16-6316_32h6.pdf

Lesser DUI Charge Blocked by Double Jeopardy in DUI-Based Vehicular Homicide

When the elements of a lesser charge are incorporated in another and greater crime, double jeopardy bars prosecutors from charging the defendants with the lesser crime

Reyna-Abarca v. People, 2017 BL 59224, Colo., No. 13SC725, 2/27/17.

The Colorado Supreme Court held that double jeopardy bars charges of lesser crimes that incorporate the same elements of similar, yet greater, crime. In the case, the defendant was charged with a DUI as well as vehicular homicide-DUI, which incorporates the same elements of the DUI charge. The court used the test developed in Schmuck v. United States, 489 U.S. 705, 716 (1989), which defines a “lesser included offense.” In the test, if all of the elements of a lesser offense are also included in the greater offense, then the lesser offense is barred.

http://www.bloomberglaw.com/public/document/ReynaAbarca_v_People_2017_CO_15_Court_Opinion.

Inconsistencies between Pretrial Statements and In-Court Testimony Does Not Render Testimony False

The statements made by three witnesses pretrial that were inconsistent with their in-court testimony does not render that testimony inherently false

 State v. Prater, 2017 UT 13.

The Utah Supreme Court found that inconsistent statements made before trial that conflict with later in-court testimony does not make the testimony inherently false. The testimony at issue was provided by three different witnesses to a murder. Although each witness provided false information or denied knowledge of the incident to the police in the initial police reports regarding the murder, their accurate testimony was still submitted to the jury by the district court judge. The defendant argued on appeal claiming that there was insufficient evidence to support his conviction because the testimony was “inherently improbable.” The Supreme Court rejected this argument, finding that despite the inconsistencies in statement and testimony, the jury is able to weigh and assess the credibility of the evidence. 

The court reaffirmed the principles developed in State v. Workman, 852 P.2d 981 (Utah 1993), holding that the “jury serves as the exclusive judge of both the credibility of the witnesses and the weight to be given particular evidence.” The definition of inherently improbable testimony was also expanded under State v. Robbins to “include circumstances where a witness’s testimony is incredibly dubious and, as such, apparently false.” The Court in that decision held that “where (1) there are material inconsistencies in the testimony and (2) there is no other circumstantial or direct evidence of the defendant’s guilt” may the district court “reevaluate the jury’s credibility determinations.” In such instances, a district court can find the testimony false. The three witnesses and their testimony, while inconsistent, had other circumstantial and direct evidence to bolster their veracity and it was not an error of the court to submit their testimony to the jury.

https://www.utcourts.gov/opinions/supopin/State%20v.%20Prater20170307.pdf

Juror’s Racial Bias Enough to Impeach Verdict and Set New Trial

Revelations of a juror’s racial bias during deliberation opens up the jury verdict to impeachment and allows a court to considers the statement’s in whether to grant a new trial.

Pena-Rodriguez v. Colorado, 580 U.S. ___ (2017).

The Supreme Court held that statements made by a juror during a trial that espouses animus or a bias based on race may violate a criminal defendant’s Sixth Amendment right to trial by an impartial jury. In the case, the defendant was convicted of several sex crimes involving minors. After the trial, the defense counsel spoke to jurors about the case and during the conversation, two jurors came forward to alert the defense counsel that one juror made racially disparaging remarks about the defendant to garner support for the conviction verdict. After this discovery, the counsel for the defendant moved for a new trial. The trial court, however, denied the motion under the Colorado rule modeled after FRE 606(b), which prohibits the impeachment of a jury verdict based on statements made by a juror.

The Supreme Court ultimately reversed the decision of the Colorado courts, noting the historical racial bias “implicates unique historical constitutional, and institutional concerns.” Moreover, the court stated “Racial bias is distinct in a pragmatic sense,” while there are safeguards such voir dire or juror observation during the trial, these mechanisms “may be compromised, or….prove insufficient.”

When there is a case where a juror makes a “clear statement that indicates…racial stereotypes or animus [used] to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule gives way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” To show that a racially biased statement impeded a fair trial, there must be a showing that one or more jurors made overtly biased statements that raise doubt on the fairness of the jury deliberations and verdict. The statement must also “show that racial animus was a significant motivating factor in the juror’s vote to convict.”

https://www.supremecourt.gov/opinions/16pdf/15-606_886b.pdf

No Sixth Amendment Right to Counsel before Indictment

A defendant has no right to counsel under the Sixth Amendment before formal charges are levied against him or her, even when plea bargaining and other procedural actions are happening

Turner v. United States, 2017 BL 45346, 6th Cir., No. 15-6060, 2/15/17.

The Sixth Circuit ruled that a federal defendant does not have the right to counsel under the Sixth Amendment until charges are officially levied against the defendant. The issue arose because a defendant was being charged by both the state and federal governments for crimes from the same incident. The defendant retained defense counsel for his state criminal proceedings, but was unable to have counsel appointed for the federal proceedings until he was  officially indicted. During the state proceedings and before a federal indictment, the state-appointed defense attorney gave the defendant advice that later proved detrimental to the defendant’s federal case. In the federal appeal based on the claim of ineffective assistance of counsel, the defendant argued that the state appointed counsel provided bad legal advice regarding a plea bargain before the defendant was indicted. The Sixth Circuit, however, rejected the appeal, finding that the right to counsel did not attach at the time of the bad advice, precluding the ineffective assistance of counsel claim brought in the appeal. Even though the federal prosecutors communicated with the defendant before his indictment, the defendant did not have a right to counsel.

https://www.bloomberglaw.com/public/desktop/document/Turner_v_United_States_No_156060_2017_BL_45346_6th_Cir_Feb_15_201?1487783061

Secured Police Vans Do Not Create Reasonable Expectation of Privacy

Similar to regular police cars, police vans do not create a reasonable expectation of privacy, even when certain security features isolate the arrested individual from law enforcement

United States v. Paxton, 2017 BL 48962, 7th Cir., 14- 2913, 2/17/17.

The Seventh Circuit reversed a lower court’s suppression ruling, finding that defendants do not have a reasonable expectation of privacy in the back of a police van. Without the expectation of privacy, video and audio recordings are not considered an unreasonable search under the Fourth Amendment. During the criminal proceedings, the court suppressed evidence captured from a video and audio recording of five arrested individuals held in a police van. The court suppressed the video and audio evidence, reasoning that the double plexiglass windows separating the driver and the arrested suspects, thick steel panels on the van, and other security features created a reasonable expectation of privacy for the defendants.

In reversing the decision, the circuit court extended the established principle that there is no expectation of privacy in a police cruiser to police vans, even when there is an appearance of privacy. Additionally, the court pointed to recent incidents where serious injuries and deaths have occurred in police vans as external reasons for the need to maintain camera and audio recording equipment in the van.

http://www.bloomberglaw.com/public/document/United_States_v_Paxton_No_142913_2017_BL_48962_7th_Cir_Feb_17_201.

Simultaneous Review of Photos of Suspect not Suggestive

Viewing suspect photos simultaneously, rather than in succession, is not unduly suggestive and does not violate the due process rights of the defendant

Commonwealth v. Thomas, 2017 BL 42301, Mass., No. SJC-12055, 2/13/17.

The Massachusetts Supreme Judicial Court has backed away from an earlier ruling that suggested that photo line-ups for suspect identification should be shown in succession, rather finding that simultaneously showing a collection of photos is not unduly suggestive. In the recent decision, the court pointed towards new studies that indicate that sequentially showing photographs to witnesses for suspect identification were not only more likely to incorrectly choose the suspect, but that they were more likely to choose a completely innocent person. The court affirmed the trial court’s decision to deny the defendant’s motion to suppress the photo identification evidence.

https://www.bloomberglaw.com/public/desktop/document/Commonwealth_v_Thomas_No_SJC12055_2017_BL_42301_Mass_Feb_13_2017_?1487267028