Opinion
20-P-954
06-03-2021
COMMONWEALTH v. Corey E. BERGSTROM.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his conviction, after a District Court jury-waived trial, of assault and battery. On appeal he argues for the first time that the judge abused her discretion in allowing the Commonwealth's motion in limine, under Commonwealth v. Crayton, 470 Mass. 228, 241-242 (2014), to permit first-time in-court identifications of him by the victim, an eyewitness, and an investigating police officer. We see no abuse of discretion or other error, let alone one resulting in a substantial risk of a miscarriage of justice, and therefore affirm.
Once the Commonwealth filed its motion in limine, the defendant bore "the burden of showing that the in-court identification would be unnecessarily suggestive and that there [was] not ‘good reason’ for it" (citation omitted). Crayton, 470 Mass. at 243. Here, the judge asked defense counsel if he had "any problem with" the in-court identification, and counsel replied, "No." The defendant having failed even to attempt to meet his burden under Crayton, the judge did not err in allowing the Commonwealth's motion.
Moreover, it would have been error to deny the motion as to the identification by the police officer, because he was not an eyewitness or present during the commission of the crime, and thus the Crayton procedure did not apply to his identification testimony. See Crayton, 470 Mass. at 242 n.17. See also Commonwealth v. Collins, 470 Mass. 255, 265 (2014) ; Commonwealth v. Chin, 97 Mass. App. Ct. 188, 198-199 (2020) ; Commonwealth v. Galipeau, 93 Mass. App. Ct. 225, 232 (2018).
There being no error, we need not address whether there was a substantial risk of a miscarriage of justice. We note, however, that the defendant's argument on that issue depends on the speculative assumptions that, if the victim and the eyewitness had not identified him, (1) the Commonwealth would not have called the officer as a witness to make the identification in its case-in-chief, and (2) the defendant would then have moved for a required finding of not guilty, asserting the absence of any testimony identifying him as the perpetrator. We decline to engage in such speculation.
The officer testified at trial that the defendant acknowledged being the tow-truck driver involved in the altercation.
Judgment affirmed.