Opinion
16-P-172
03-31-2017
COMMONWEALTH v. Jose ECHEVARRIA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Jose Echevarria, appeals from his convictions by a Superior Court jury on two indictments for unlawful distribution of cocaine (second offense). He raises two arguments: (1) that the judge erred by admitting Officer Grady's testimony about an out-of-court identification of the defendant by a witness; and (2) that the judge erred by admitting Grady's in-court identification of the defendant where there was no pretrial identification procedure. The defendant preserved both arguments for appeal with timely objections. Therefore, we review error, if any, for prejudice. See Commonwealth v. Cruz , 445 Mass. 589, 591 (2005).
1. Out-of-court identification . The defendant argues that Grady impermissibly testified that the witness identified the defendant out-of-court as the man who sold her cocaine. We conclude that Grady's testimony was not improper because the witness testified at trial and was available for cross-examination on the identification issue.
"For evidence of a witness's prior identification of a defendant ... to be presented by a third party and admissible as substantive evidence at trial, it is essential that the identifying witness ... herself be available to testify and subject to cross-examination about the alleged identification statement." Commonwealth . v. Herndon , 475 Mass. 324, 332 (2016). See Commonwealth v. Cong Duc Le , 444 Mass. 431, 437-439 (2005). Here, the fact that the prosecutor did not specifically question the witness about her prior identification of the defendant, after Grady testified about that identification, did not deprive the defendant of the ability to cross-examine the witness on that issue. See Herndon , 475 Mass. at 335–336. There was no error.
The Herndon court announced that "moving forward, it is appropriate to require that the Commonwealth inquire directly of the alleged identifying witness about the alleged prior identification before introducing evidence of that alleged identification through a third-party witness." Herndon , 475 Mass. at 334. This case was tried before Herndon was decided.
2. In-court identification . The defendant argues that the judge erred by admitting Grady's in-court identification of the defendant because Grady did not merely confirm that the defendant was the person he arrested but further testified that the defendant was the person he saw in the parking lot with the witness during the prearranged controlled buys. In Commonwealth v. Crayton , 470 Mass. 228, 241 (2014), the Supreme Judicial Court stated that "[w]here an eyewitness has not participated before trial in an identification procedure, we shall treat the in-court identification as an in-court showup, and shall admit it in evidence only when there is ‘good reason’ for its admission." The defendant concedes that there was "good reason" for Grady to identify the defendant as the man he arrested, see ibid ., but contends that the further identification by Grady of the defendant as the man he saw during the controlled buys is reversible error. In particular, the defendant relies on the following language from Crayton :
" ‘Good reason’ might also exist where the witness is an arresting officer who was also an eyewitness to the commission of the crime, and the identification merely confirms that the defendant is the person who was arrested for the charged crime. In both of these circumstances, the in-court showup is understood by the jury as confirmation that the defendant sitting in the court room is the person whose conduct is at issue rather than as identification evidence."
Following her initial interaction with the defendant, the witness reported his name to Grady, who, after researching the name, showed her a registry of motor vehicles photograph of the defendant. The witness identified the person in the photograph as the man who sold her cocaine. The witness's identification of the defendant led Grady to set up two controlled buys with the defendant as the sole target. , Grady observed the witness meet a person in the parking lot. Grady testified in court that the defendant was the person that he saw in the parking lots during the two controlled buys. Grady was familiar with the defendant before he made the observations because the defendant was the target of the investigation. For Grady to have participated in an out-of-court identification procedure in these circumstances would have been unnecessary and a waste of resources. The circumstances in this case lack the suggestiveness inherent with in-court identifications in general. Contrast id . at 233 (defendant was not target of ongoing investigation).
The witness contacted the defendant two weeks after their first interaction. The defendant picked her up in his vehicle and sold her cocaine. The following month the witness again contacted the defendant and they conducted another drug transaction.
In addition to the testimony of the witness and Grady, Detective Landis testified that the defendant was the target of their investigation.
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The premise underlying the holding in Crayton —that because in-court identifications may be inherently suggestive, they are not admissible unless there has been a pretrial identification—is not applicable in these circumstances. Grady's identification of the defendant was not based solely on his memory of witnessing the defendant conduct the drug transactions, nor was Grady likely to identify the defendant simply because he was on trial. Here, Grady assisted the witness in determining the identity of the person she had purchased the cocaine from by using that person's name and the registry of motor vehicles database, and then set up controlled buys specifically targeting the defendant. To require that Grady participate in an out-of-court identification procedure where (1) he generated the photograph of the defendant that was used to confirm the defendant's identity as the person who sold cocaine to the witness and (2) set up the subsequent controlled buys, before he could identify the defendant in court, reads too much into Crayton . There was little risk of misidentification arising from Grady's in-court identification of the defendant. Id . at 242.
Judgments affirmed .