Opinion
20-P-804
10-11-2022
COMMONWEALTH v. THOMAS WALSH
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant, Thomas Walsh, of unarmed robbery, in violation of G. L. c. 265, § 19 (b), assault and battery causing serious bodily injury, in violation of G. L. c. 265, § 13A (b), and assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A (b). On appeal, the defendant raises for the first time a number of arguments related to the victim's "informal" in-court identifications and the admission of Facebook photographs, surveillance photographs, and surveillance video footage. Because the defendant did not object at trial to the admission of any of this evidence, we review the claims to determine whether error, if any, created a substantial risk of a miscarriage of justice. See Commonwealth v. Duncan, 100 Mass.App.Ct. 635, 640-641 (2022). We affirm.
Motions in limine were heard by the trial judge as to some of the now contested evidence, but he either made no ruling on some of the evidence or the defendant's argument as to the evidence was on separate grounds. Both parties agree that the standard of review is a substantial risk of a miscarriage of justice.
There is a substantial risk of a miscarriage of justice when an error "materially influence[d]" the guilty verdict. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
1. Admission of "identification" testimony.
In response to the prosecutor's question about what the victim was doing on the evening of October 11 into October 12, 2016, the victim said that he had gone to a bar in Gloucester and "had run into a familiar acquaintance [Corey] and this Tom Walsh person here." Thereafter, the prosecutor asked the victim who Corey was with when they were at the bar and the victim responded that "[h]e was with the defendant, Tom Walsh." They socialized at the bar for "roughly a couple of hours" or "an hour and a half or so." The defendant and the victim then went to a liquor store at 9:30 P.M. The group then walked from the liquor store to the boat and during that time they stayed out together and stopped and partied along the waterfront. Once at the boat area, they drank together in the patio area and on the boat itself until about 12:30 A.M. In total, it was reasonable for a jury to find that the defendant and the victim were together from approximately 8:00 P.M. to 12:30 A.M. -- a total of between four and five hours before the victim went to sleep on the boat and the others all left.
A few hours later, Corey appeared on the boat and began tapping on the window asking to be let inside. The victim then saw a person peering in and saw that the person was of similar build to the person he knew from earlier in the evening as "Tom." The victim called out, "Hey, Tom," and the man walked over to the victim and said that he and Corey were there to see if the victim would go back out and party. Tom and Corey then attacked the victim and stole some of his belongings. The victim suffered broken ribs, a deflated lung, and lesions to his head.
The defendant asserts that the testimony, "this Tom Walsh person here" and "he was with the defendant, Tom Walsh" constituted improper in-court identifications in violation of Commonwealth v. Crayton, 470 Mass. 228 (2014), because the victim had not participated in any out-of-court identification procedure and there was no "good reason" for the admission of the testimony. In Crayton, supra at 243, the Supreme Judicial Court adopted a rule that the prosecutor must move in limine to admit the in-court identification of the defendant by a witness who was present during the commission of the crime where there has been no out-of-court identification by that witness. Once the motion is filed, the defendant "bear[s] the burden of showing that the in-court identification would be unnecessarily suggestive and that there is not 'good reason' for it." Id. The court adopted this protocol because an in-court identification, where "a prosecutor asks a witness at trial whether he or she can identify the perpetrator of the crime in the court room, and the defendant is sitting at counsel's table . . . is comparable in its suggestiveness to a showup identification." Id. at 236.
In this case, the prosecutor never asked the victim whether he could identify the defendant (or anyone in the courtroom) as the person who had attacked him. The victim never identified the defendant as one of his attackers but only as someone he socialized with hours before the attack. The "suggestive identification" prompted by a prosecutor, which Crayton cautioned against, never took place in this case and, therefore, there was no error.
Even if the statements by the victim could be considered a Crayton in-court identification, the admissions were not error because there was "good reason" for the testimony. The Supreme Judicial Court contemplated that "there may be 'good reason' for the first identification procedure to be an in-court showup where the eyewitness was familiar with the defendant before the commission of the crime." Crayton, 470 Mass. at 242. The court, however, did not foreclose the possibility that good reason for an in-court identification may exist in circumstances where the victim became familiar with the defendant before the commission of the crime. See id. The court was primarily concerned with in-court identifications "based solely on [an eyewitness's] memory of witnessing the defendant at the time of the crime." Id. at 243. However, where a witness identifies the defendant based on an "extensive and intensive opportunity to observe the defendant," good reason will justify its admission because there is minimal risk of misidentification. Commonwealth v. Fielding, 94 Mass.App.Ct. 718, 723 (2019).
The victim was with the defendant at a bar, at a liquor store, and on a boat socializing and speaking to him for at least four hours prior to his attack. There was clearly very ample opportunity for the victim to observe the defendant during this time and therefore good cause for the testimony. That the victim may have been intoxicated during this time goes to the weight of his testimony, not its admissibility. There was no error and thus no substantial risk of a miscarriage of justice.
2. Photographic and video evidence.
At trial, after viewing video footage from the street in front of the bar where the victim went the night of the attack, the victim identified himself, Corey Richard, an unidentified woman, and "Tom Walsh" walking towards the liquor store. Similarly, after watching video footage taken inside the liquor store, the victim again identified himself, the store clerk, and "Tom," and in another clip, "Tom Walsh."
There was no improper identification. The victim was identifying the video footage and still photographs of the person he was with on the night of the attack. The prosecutor never asked the victim whether the person in the footage or photographs was the defendant. Instead, the prosecutor asked the jury to compare the tattoo of the man in the footage and the photographs with the defendant's (which was shown to the jury in the courtroom) and to draw the conclusion that they were all the same person. There was no error.
3. Admission of Facebook photographs.
The victim was presented with two photographs that he testified he located on Facebook after his attack. When asked to identify the first photograph he indicated "[t]hat is Tom Walsh. That is the man that attacked me and spit on me." [The victim was then presented with the second photograph which he testified he "found on the same Facebook profile," and it was "another picture of Tom Walsh." On appeal, the defendant argues that the Facebook photos were not properly authenticated and should not have been admitted.
"With regard to the authentication of evidence, the judge has a gatekeeper role, which requires the judge to assess the evidence and determine whether the jury or judge, acting as the fact finder, could find that the item in question is what its proponent claims it to be. See Mass. G. Evid. § 104(b) (2019)." Commonwealth v. Meola, 95 Mass.App.Ct. 303, 308 (2019). Here, the photographs were identified as the same images that the victim discovered on Facebook of "the man that attacked me," or "Tom Walsh." The victim never identified the person in the photographs as the defendant, nor did he testify that he located the photographs on the defendant's Facebook page. With the victim having testified that the Facebook photographs were the ones he found on the Internet, nothing more was required to authenticate them. See Fielding, 94 Mass.App.Ct. at 722. There was no error in the photographs being admitted in evidence.
The defendant also argues that the victim's testimony regarding the Facebook photographs amounted to an in-court showup and was unnecessarily suggestive. As stated supra, the victim testified that the photographs were of the man who attacked him and ones he found on the Internet. He never identified the photographs as specifically being of the defendant. Once admitted into evidence, the prosecutor was well within her rights to ask the jury to compare the photographs with the still photographs and surveillance footage of the defendant. See Commonwealth v. Hobbs, 482 Mass. 538, 555 (2019) (jury are capable of viewing videotape and drawing own conclusions whether individual in videotape was defendant). There was no error.
Because we see no error in the admission of any of the evidence, we need not discuss the defendant's argument that there was a substantial risk of a miscarriage of justice because of the cumulative effect of the alleged errors.
Judgments affirmed.
Desmond, Sacks & D'Angelo, JJ.
The panelists are listed in order of seniority.