Opinion
15-P-649
03-13-2017
COMMONWEALTH v. Katarina A. MITCHELL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury-waived trial, the defendant, Katarina Mitchell, was convicted of operating under the influence of liquor, G. L. c. 90, § 24 (1) (a ) (1), and negligent operation of a motor vehicle, G. L. c. 90, § 24 (2) (a ). She filed a motion for a new trial, which was denied by the trial judge after a nonevidentiary hearing. In this consolidated appeal from her convictions and from the denial of her new trial motion, the defendant challenges the sufficiency of the evidence and argues that her counsel provided ineffective assistance in failing to file a motion to suppress an allegedly suggestive out-of-court identification. For the reasons that follow, we affirm the convictions and the denial of the new trial motion.
The defendant was also convicted of resisting arrest, G. L. c. 268, § 32B, but on appeal she has not argued error in that conviction. Additionally, the trial judge allowed the defendant's motion for a required finding of not guilty on one count of maliciously damaging a motor vehicle, G. L. c. 266, § 28(a ).
Background . On June 1, 2013, Christopher O'Malley, an off-duty reserve officer for the Mansfield police department, was working as a driving instructor. At approximately 6:30 A.M. , he was supervising a student driver on Eddy Street when the driver of a maroon Jeep turned onto the street and drove toward O'Malley and his student at a high rate of speed. The driver, subsequently identified as the defendant, crossed over into O'Malley's lane of traffic, nearly hitting O'Malley and forcing him to use the instructor's passenger-side brake to avoid a collision. O'Malley called the police and, after he dropped off his student, went to the police station to make a report. He described the driver of the Jeep as a woman with blonde, frizzy hair and noted that she was wearing sunglasses. The Jeep had no roof or doors. The defendant was slumped over the steering wheel and had one foot hanging out of the Jeep. O'Malley also provided the Jeep's license plate number: "KAT-6."
At about the same time, Officers Daniel Pennellatore and Derrick McCune were dispatched to the defendant's apartment located on Eddy Street to conduct a well-being check. Upon their arrival, they noticed a maroon Jeep with a license plate of "KAT-6" parked in front of the apartment building. The hood of the Jeep was still warm. The two officers entered the apartment building and knocked on the door, which was answered by the defendant's roommate, Michelle Malinosky. The defendant and Malinosky appeared to be the same age. They had a similar build and the same hair color. Both women were intoxicated. The officers noted that the defendant, in particular, had difficulty standing and had bloodshot, glossy eyes. The defendant told the officers that she and Malinosky "got home ten hours ago." Ultimately, the officers determined that the defendant was not in any danger and they left her in the care of Malinosky, who appeared "competent enough" to take care of the situation.
It appears from the record that this well-being check was unrelated to the incident reported by O'Malley.
Moments after their departure, the officers received a second dispatch sending them back to the defendant's apartment. This time the officers asked the defendant to come outside, which she agreed to do. The defendant was unsteady on her feet and had to lean against the wall for support. Once the defendant was outside, O'Malley arrived at the scene. He immediately identified the defendant as the operator of the Jeep that nearly hit him about twenty minutes earlier. The identification was based in large part on the defendant's "prominent" blonde, frizzy hair. Officer Pennellatore testified that the defendant was in handcuffs when O'Malley identified her. However, both O'Malley and Officer McCune testified that she was not handcuffed until after the identification was made. The defendant reacted aggressively to O'Malley's identification; she cursed and lunged at him before she was placed under arrest. As regards Malinosky, O'Malley testified on cross-examination that he saw her standing in the doorway about thirty or thirty-five feet away, but was never asked to look at her to determine whether she, as opposed to the defendant, could have been the driver of the Jeep. At the time of the trial, O'Malley could not recall what Malinosky looked like.
The judge did not resolve this conflict in the testimony.
The theory of the defense was misidentification. Through cross-examination and argument, trial counsel attempted to show that O'Malley's identification was unreliable and the product of a suggestive identification procedure. He posited that Malinosky, rather than the defendant, was just as likely to have been the driver.
Discussion . 1. Sufficiency of the evidence . The defendant contends that the Commonwealth did not present sufficient evidence to prove that she was the driver of the Jeep and, therefore, her motion for a required finding of not guilty should have been allowed. We review a challenge to the sufficiency of the evidence to determine whether the evidence viewed in the light most favorable to the Commonwealth could have "satisfied a rational trier of fact" of each element of the crimes charged beyond a reasonable doubt. Commonwealth v. Latimore , 378 Mass. 671, 677-678 (1979). Here, the only element of the charged offenses in question is the identity of the defendant. As to that element, the defendant claims that no rational trier of fact could conclude, beyond a reasonable doubt, that she, rather than Malinosky, was driving the Jeep when O'Malley was almost hit. We disagree.
We agree with the defendant that it matters not that his motion for a required finding of not guilty did not specifically raise the issue of misidentification. If the evidence was insufficient to identify the defendant as the perpetrator, she is entitled to an acquittal.
We begin by observing that "the Commonwealth need not prove that no one [other than the defendant] could have committed the crime." Commonwealth v. Conkey 443 Mass. 60, 72 (2004), S .C ., 452 Mass. 1022 (2008). The Commonwealth's evidence will be deemed sufficient if it establishes the defendant's guilt beyond a reasonable doubt without relying on conjecture or surmise. See Commonwealth v. Kelly , 470 Mass. 682, 693–694 (2015) (evidence is not sufficient if the jury would have to rely on conjecture). Viewed in the light most favorable to the Commonwealth, the judge as fact finder was presented with the testimony of O'Malley, a percipient witness, who made an out-of-court identification of the defendant within twenty minutes of the incident while Malinosky was present and within O'Malley's view. He also identified the defendant in the courtroom.
O'Malley's identification testimony was a matter for the finder of fact to evaluate. See Commonwealth v. Johnson , 46 Mass. App. Ct. 398, 403 (1999). Defense counsel conducted a vigorous cross-examination of O'Malley, highlighting the limited time O'Malley had to observe the operator of the Jeep whose face was, as defense counsel emphasized, obscured by sunglasses. Furthermore, as we will discuss in more detail below, trial counsel urged the judge to consider the alleged suggestiveness of the show-up identification. While the judge was not required to accept the reliability of O'Malley's identification, the evidence was sufficient for him to do so. See Commonwealth v. Walker , 460 Mass. 590, 606-607 (2011) ("The jury were capable of making an informed assessment of the accuracy of such identification and assessing its weight, aided by vigorous cross-examination and the judge's instructions").
There was also evidence from which the judge could infer consciousness of guilt. Given the evidence that the Jeep had been recently driven, the defendant's statement that she and Malinosky had both been home for ten hours could be interpreted as false. See, e.g., Commonwealth v. Hardy , 431 Mass. 387, 394-395 (2000) (false statements may constitute evidence of consciousness of guilt), S .C ., 464 Mass. 660, cert . denied , 134 S.Ct. 248 (2013). In addition, the judge could infer from the license plate, which contained a reference to the defendant's first name, that the defendant owned the Jeep and therefore it was likely she, rather than Malinosky, was the driver.
2. Motion for a new trial . The defendant argues that O'Malley's out-of-court identification was obtained as the result of an unnecessarily suggestive show-up procedure and, as such, any ordinary, fallible attorney would have moved to suppress it. The judge concluded otherwise, primarily because he viewed the decision not to file a motion to suppress O'Malley's identification as a reasonable trial strategy. As the judge observed:
"[H]aving presided over this trial and having had the opportunity to review the trial transcript, it is clear that trial counsel was well aware of all of the facts surrounding this particular identification, the procedure that was followed, and the implications of the identification for his client at trial. The trial transcript is replete with instances where trial counsel effectively cross examined the witnesses and used the possibility of another "look-alike" perpetrator for strategic defense purposes at time of trial. There is certainly nothing ineffective about that strategy."
The judge also relied on trial counsel's general reputation for competence. While trial counsel's performance in other cases is not an appropriate consideration, the judge also found that trial counsel had acted competently in this case.
We review the judge's denial of a motion for a new trial for abuse of discretion. Commonwealth v. Marinho , 464 Mass. 115, 123 (2013). Where, as here, the claim of ineffective assistance is based on a failure to file a motion to suppress, the defendant must demonstrate a likelihood that the motion to suppress would have been successful. Commonwealth v. Comita , 441 Mass. 86, 91 (2004). Although the defendant is correct that the judge did not explicitly address the question whether a motion to suppress the identification likely would have been granted had it been filed, it is evident that the judge believed such a motion had a minimal chance of succeeding, otherwise it would not have been necessary to evaluate the reasonableness of trial counsel's defense strategy. In any event, based on the evidence at trial, we cannot conclude that the defendant could have shown by a preponderance of the evidence that "the identification [was] so unnecessarily suggestive and conducive to irreparable misidentification that its admission would deprive the defendant of his right to due process." Walker , supra at 599. Accordingly, the judge did not abuse his discretion in denying the new trial motion.
Relying on Commonwealth v. Drayton , 473 Mass. 23, 32 (2015), the defendant claims that we should conduct an independent review of the judge's denial of her new trial motion because the issue raised is one of "constitutional dimension." However, this higher standard of review has only been applied in cases where the defendant was prevented from introducing third-party culprit evidence. See Commonwealth v. Keohane , 444 Mass. 563, 570-571 (2005) ; Commonwealth v. Ruell , 459 Mass. 126, 132-133, cert . denied , 565 U.S. 841 (2011) ; Commonwealth v. Cassidy , 470 Mass. 201, 215 (2014) ; Commonwealth v. Wood , 469 Mass. 266, 275 (2014). Such is not the case here and, therefore, we apply the abuse of discretion standard.
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In so concluding, we acknowledge that show-up identifications like the one conducted here "are generally disfavored because they are viewed as inherently suggestive[,]" and such a procedure "raises no due process concerns unless it is determined to be unnecessarily suggestive." Commonwealth v. Martin , 447 Mass. 274, 279 (2006) (quotation omitted). Here, however, the police acted promptly and the identification occurred within a short time after the crime at a location close to the crime scene, and the defendant fit O'Malley's description of the driver. See Commonwealth v. Phillips , 452 Mass. 617, 628 (2008). Moreover, although the police were not required to include Malinosky in the show-up procedure, the judge found that, "to an extent," the identification procedure did include the " ‘look-alike’ room-mate" as she was standing approximately thirty feet away. Lastly, even if we were to assume the defendant was in handcuffs when O'Malley observed her, that fact alone would not have rendered the identification impermissibly suggestive. See ibid (identification procedure not rendered unnecessarily suggestive where the defendant "had been detained in a police wagon, was handcuffed, and was flanked by two police officers during the investigation").
We further conclude that, under the circumstances presented, the judge, who heard and evaluated the testimony, did not abuse his discretion in deciding the new trial motion without conducting an evidentiary hearing. "When the motion judge is also the trial judge, as in this case, she may use her ‘knowledge and evaluation of the evidence at trial in determining whether to decide the motion for a new trial without an evidentiary hearing.’ " Commonwealth v. Morgan , 453 Mass. 54, 64 (2009), quoting from Commonwealth v. Wallis , 440 Mass. 589, 596 (2003).
Order denying motion for a new trial affirmed.
Judgments affirmed.