Opinion
13-P-575
11-24-2014
COMMONWEALTH v. ALFREDO COLLAZO.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury convicted the defendant of armed robbery and assault by means of a dangerous weapon. On appeal, the defendant argues that (1) identification procedures involving the display of three separate arrays were impermissibly suggestive; and (2) the prosecutor improperly challenged the credibility of a key defense alibi witness, the defendant's wife, on cross-examination and in closing. We affirm.
1. The armed robbery and assault by means of a dangerous weapon. The following is a summary of the trial evidence. In a lighted parking lot, around 2 A.M. on November 30, 2011, the victim was grabbed from behind, robbed at knifepoint, and shoved forward. Recovering his balance, the victim turned and saw his male assailant, with a knife in his hand, running toward a parked silver vehicle with a female inside. The victim saw the assailant's face as the assailant turned and yelled at the victim before getting into the vehicle and driving away. In a 911 call to the police, the victim reported that he had been robbed by a man he described as a "heavy-set" "dark-skinned black male." When the police responded to the robbery scene, the victim told one officer that the assailant was "a black male." At trial, the victim made an in-court identification of the defendant. As shall be described further, prior to trial, the victim was shown photographic (photo) arrays on three occasions. The victim also gave police the license plate number of what the victim initially described as a silver vehicle.
Three days later, on December 2, 2011, around 1:50 A.M., police stopped a gray vehicle bearing the license plate number provided by the victim. The stop occurred about one block from the site of the armed robbery. The defendant, accompanied by a woman, was driving the vehicle. Following the stop, the defendant was arrested for operating without a license and taken to the police station.
The defendant's brother was the vehicle's registered owner.
2. The photo array procedures. On December 4, 2011, the defendant's photograph was included in a photo array, consisting of eight black and white photographs, that was displayed to the victim. The photo array was compiled using photographs of individuals who resembled the defendant -- and one another -- based on such criteria as age, ethnicity, and weight. The victim was shown the array and identified the defendant's photograph, stating that he was "a hundred percent sure" of the identification. On December 6, 2011, the defendant was arrested for the armed robbery and the assault by means of a dangerous weapon.
The officer who assembled the photo array testified that black and white photos were used because the police department did not have a working color printer.
About ten months later, just prior to trial, in October 2012, the victim was shown two other photo arrays. On October 17, 2012, the prosecutor requested that the victim be shown a second photo array, comprising of eight color photographs, which included a picture of the defendant's brother, the registered owner of the vehicle in which the defendant had been stopped. The second photo array did not include the defendant's photo. From this second array, the victim selected three photographs, all of which he stated "looked alike." One of the three selected photographs was of the defendant's brother. However, the victim picked out one of the three selected photographs and stated that he was eighty-five percent sure that it "look[ed] like the guy that was involved." This photograph was not that of the defendant's brother.
Then, eight days later, on or about October 25, 2012, the victim was shown a third color photo array consisting of eight color photographs. This array included the defendant's photograph, the defendant's brother's photograph, and the two other photographs selected by the victim from the second photo array. The victim identified the defendant's photograph in the third photo array, stating, "[T]hat's the guy, 95 percent sure."
The identification procedures detailed above were not challenged by a motion to suppress. At trial, defense counsel only objected on hearsay grounds to the victim's annotation on the face of the photo arrays. Because suppression of the identification procedures was not pursued before trial and because no voir dire hearing was sought at trial to challenge the identification procedures, we review the record -- including each of the three photo arrays reproduced in the record appendix -- to determine whether a substantial risk of a miscarriage of justice occurred. See Commonwealth v. Poggi, 53 Mass. App. Ct. 685, 690-691 (2002).
The defendant argues that where the victim described the assailant to the police as dark-skinned, heavy, and black, it was improper for police to compile the first photo array using pictures of Hispanic and not African American males. The defendant also contends it was improper that the victim was told by the police that he would be looking at pictures of Hispanic men in that array.
First, we note the terms "Hispanic" and "dark-skinned" are not mutually exclusive descriptions of a person's physical characteristics. Both could be found to apply to the defendant. The defendant is both Hispanic and dark-skinned. Furthermore, contrary to the defendant's contention, the victim described his assailant not just as black, but also as dark-skinned. Therefore, the first photo array was consistent with the victim's skin color description of the assailant. Second, as to officer's comment about the victim viewing Hispanic individuals, we think it would have been better left unsaid. But, "there was no evidence that the [officers] who presented the photographic arrays signaled a particular response to, or otherwise attempted to influence," the victim. Commonwealth v. Silva-Santiago, 453 Mass. 782, 797 (2009). The police officer's reference to Hispanic males compiled in the photo array was a generalized comment that was not directed at any particular photograph in the array, and was not, we conclude, without more, so suggestive as to prompt the victim to single out any particular photograph.
Neither of the defendant's contentions present a substantial risk of a miscarriage of justice such as would arise from an unduly suggestive identification procedure. "The photographic identification procedure[s were] not 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Commonwealth v. Dora, 57 Mass. App. Ct. 141, 148 (2003), quoting from Simmons v. United States, 390 U.S. 377, 384 (1968).
We also reject any suggestion that inclusion of the defendant's photographs in both the December 4, 2011, and the October 25, 2012, photo arrays was improper. "[D]uplication of a defendant's photograph in one or more arrays has not been held sufficient by itself to compel exclusion of a resulting identification." Commonwealth v. Paszko, 391 Mass. 164, 169-170 (1984).
3. Wife alibi witness and challenged credibility. The defendant also argues that the prosecutor improperly cross-examined and, in closing, unfairly attacked the credibility of the defendant's wife. The wife, as an alibi witness, testified that the defendant was at home watching television with his family at the time the crime was committed.
This contention revolves around the prosecutor asking the wife about the date of the defendant's initial arrest, using December 2, 2012, rather than 2011. The defendant points out that the prosecutor, in his cross-examination of the wife and without objection, misstated the date of the defendant's first arrest (for unlicensed operation of a vehicle) and the circumstances of the defendant's hospitalization on that date. The defendant also claims that the prosecutor, in closing, and without objection, improperly attacked the wife's credibility.
The exchange between the prosecutor and the defendant's wife was as follows (emphasis supplied):
Prosecutor: "And are you saying today that you have no knowledge of the fact that your husband was arrested on December 2nd of the year 2012 (sic) and was brought to the hospital by the police after he was arrested?"
Judge: "Just so the record -- let me stop you. I think the question related to a date of December of 2012. Please clarify."
Defense attorney: "That was an error."
Prosecutor: "I'm talking about December 2nd of the year 2011. Do you have any knowledge that your husband was arrested for driving that car without a license and then was brought to the hospital after that by the police?"
Witness: "No."
We have reviewed the unobjected-to statements at issue, and we reject the defendant's contention of error creating a substantial risk of a miscarriage of justice. See Commonwealth v. Yesilciman, 406 Mass. 736, 746 (1990); Commonwealth v. Johnson, 429 Mass. 745, 750 (1999).
Judgments affirmed.
By the Court (Rapoza, C.J. Brown & Berry, JJ.),
Panel members appear in order of seniority.
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Clerk Entered: November 24, 2014.
The defendant was hospitalized on two separate occasions. First, on December 2, 2011, the same day he was arrested for unlicensed operation of a vehicle, the defendant was hospitalized for an epileptic seizure. Second, on December 6, 2011, following his arrest for armed robbery and assault by means of a dangerous weapon, the defendant was taken to the hospital by police after complaining of chest pains.