Opinion
13-P-1207
07-16-2015
COMMONWEALTH v. RAFAEL CORRETJER.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
In June, 2010, a jury convicted the defendant of assault by means of a dangerous weapon, a firearm, G. L. c. 265, § 15B(b), of possessing a firearm without a license, G. L. c. 269, § 10(a), and possessing a loaded firearm, G. L. c. 269, § 10(n). According to the victim, while stopped on a street in Lawrence, the defendant ordered the victim out of the car the victim was driving and showed him a gun. The victim quickly put his car in reverse and drove, and the defendant fired shots at the car. The defendant then ran away and fired more shots. The defendant raises several challenges on appeal. He contends the motion judge erred in denying his motion to suppress the victim's out-of-court identification of him. He also challenges the admissibility of the victim's statement at trial that he was one hundred percent certain of his identification, and, lastly, he contests the admissibility of portions of the ballistician's testimony. We affirm.
The jury acquitted the defendant of armed carjacking, G. L. c. 265, § 21A, and armed assault with intent to rob, G. L. c. 265, § 18(b). The prosecution requested, and the judge entered, a nolle prosequi to charges of armed assault with intent to murder, G. L. c. 265, § 18(b), and possession of a firearm in commission of a felony, G. L. c. 265, § 18B.
The on-scene identification. Roughly ten minutes after the street shooting, Sergeant Quaglietta of the Lawrence police department located the defendant approximately three blocks from where the shots had been fired. Believing the defendant matched a broadcast description of the shooter, the officer ordered the defendant to stop and the defendant eventually did. Assisting officers searched the defendant, located a handgun in his waistband, and placed him under arrest. A few minutes later Officer Mangan informed the victim of the shooting that officers were detaining an individual; he brought the victim to the site where the defendant was stopped to see if he could identify the defendant. Officer Mangan used the police car's spotlight to illuminate the defendant, who was standing in the street with police officers. The defendant's handcuffs were not visible. The victim identified the defendant as the shooter.
The defendant asserts this "showup" identification that the police employed was unduly suggestive, and violated his right to due process. He contends the motion judge, therefore, erroneously denied his motion to suppress. "In reviewing a decision on a motion to suppress, 'we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of [the judge's] ultimate findings and conclusions of law.'" Commonwealth v. Meas, 467 Mass. 434, 440, cert. denied, 135 S. Ct. 150 (2014) (citation omitted).
While one-on-one showup identifications "are generally disfavored because they are viewed as inherently suggestive," Commonwealth v. Martin, 447 Mass. 274, 279 (2006), "[a] one-on-one pretrial identification raises no due process concerns unless it is determined to be unnecessarily suggestive. Whether an identification is 'unnecessarily' or 'impermissibly' suggestive . . . involves inquiry whether good reason exists for the police to use a one-on-one identification procedure . . . bearing in mind that . . . '[e]xigent or special circumstances are not a prerequisite to such confrontation.'" Meas, supra at 441, quoting from Commonwealth v. Austin, 421 Mass. 357, 361 (1995). "Each case is fact dependent and the existence of 'good reason' presents 'a question of law for the appellate court to resolve on the facts found by the motion judge.'" Meas, supra, quoting from Austin, supra at 362.
A person firing shots into the community, as was the case here, raises serious public safety concerns, and calls "for efficient police investigation in its immediate aftermath." Meas, supra. "The prompt viewing of the suspect[] . . . guided police in determining whether they were dealing with the shooter or should pursue other leads to locate an armed fleeing suspect." Id. at 442. See Commonwealth v. Crayton, 470 Mass. 228, 235-236 (2014). The judge, therefore, was on sound footing in finding that the police possessed good reason for using a showup identification procedure, which was "promptly conducted in relation to the time of the shooting." Meas, supra at 441-442, citing Commonwealth v. Bowden, 379 Mass. 472, 479 (1980). "The fact that the suspect[] w[as] viewed under ample illumination and while . . . in handcuffs and obviously in custody does not, in the circumstances, create a level of unfairness that violates due process." Meas, supra at 442, citing Commonwealth v. Phillips, 452 Mass. 617, 628-629 (2008). See Commonwealth v. Bresilla, 470 Mass. 422, 434-435 (2015).
The defendant asserts that the procedure was nevertheless unduly suggestive because the victim testified at trial that he had been told by the police, prior to his identifying the defendant, that they had found a gun on the defendant. Even assuming, without deciding, that the victim's testimony could be construed in this way, it was not the testimony before the motion judge. See Commonwealth v. Grandison, 433 Mass. 135, 137 (2001) ("[I]n reviewing a judge's ruling on a motion to suppress, an appellate court 'may not rely on the facts as developed at trial' even where the testimony differed materially from that given at trial"). Moreover, that fact alone would not "have mandated exclusion of the identification." Commonwealth v. Amaral, 81 Mass. App. Ct. 143, 149 n.7 (2012) (even if "police had informed [the witness] before the showup that they had found a knife on the defendant," it did not "mandate[] exclusion of the identification evidence"). Accordingly, we perceive no error.
It is unclear from the victim's testimony whether the police told the victim prior to his identification of the defendant that they had found a gun on the defendant or whether the victim was simply reporting what he later discerned was the police's motivation for seeking an identification.
Contrary to the defendant's position, we also conclude that the facts presented here do not raise "especially suggestive circumstances" that would, under common-law principles, warrant exclusion of the identification. Compare Commonwealth v. Jones, 423 Mass. 99, 107-109 (1996).
Victim's certainty. The defendant claims the victim was impermissibly permitted to testify that he was "100 percent" certain of his out-of-court identification of the defendant. We perceive no error. See Commonwealth v. Cruz, 445 Mass. 589, 595 (2005). Witnesses are permitted to testify as to their confidence in their identification. Ibid. Furthermore, the report commissioned by the Supreme Judicial Court on eyewitness identification, which the defendant contends advances his position, is not binding precedent. See Supreme Judicial Court Study Group on Eyewitness Evidence: Report and Recommendations to the Justices (July 25, 2013) (Report), available at http://www.mass.gov/courts/docs/sjc/docs/eyewitness-evidence-report-2013.pdf (last visited July 10, 2015). Moreover, it does not propose a categorical exclusion at trial of a witness's confidence in his identification. In addition, even were we to follow the recommendation in a minority opinion of the report "that an eyewitness's statement of confidence in his/her out-of-court identification be admissible but only in the words stated by the eyewitness immediately after the identification and before any opportunity for feedback," Report, supra at 160, there is no conflict with the confidence testimony admitted here.
The defendant also asserts that the judge should have included in his instruction a warning to jurors that eyewitness testimony as to confidence in identifications is unreliable. Notably, the proposed jury instruction comes from Commonwealth v. Gomes, 470 Mass. 352, 383 (2015), which was decided after the defendant's conviction. In any event, we see no error creating a substantial risk of a miscarriage of justice from the omission of the Gomes instruction.
Expert testimony. The defendant raises two challenges to the ballistician's testimony. He claims first that the ballistician's testimony that "the projectile [he] took from the window frame of the SUV was fired by [the gun]" recovered from the defendant constituted an improper unequivocal opinion of the source of the bullet that should have been excluded. See Commonwealth v. Heang, 458 Mass. 827, 848 (2011) (a qualified ballistics expert "may offer [his] opinion to a 'reasonable degree of ballistics certainty'"). Assuming without deciding that Heang, which was released after the defendant's trial, controls, we see no error. The ballistician did not offer the certainty of his opinion. He simply offered an opinion that the gun at issue had fired the projectile recovered from the vehicle and conceded on cross-examination that his opinion was "subjective" and the process not "precisely defined." See id. at 845-847.
Next, the defendant contends the ballistician improperly bolstered his testimony and violated the defendant's confrontation rights by stating that another officer (who did not testify) had confirmed his findings of the bullet's source. However, this testimony was elicited by the defendant himself; it does not give rise to reversible error. See Commonwealth v. Barbosa, 457 Mass. 773, 785 (2010) ("A defendant . . . cannot reasonably claim that his right to confront the witnesses against him is violated by the admission of evidence that he elicits on cross-examination").
Defense counsel asked the ballistician if there is a protocol for matching the bullet to the firearm; the ballistician responded that the protocol required another ballistician to make, and that here another ballistician did make, the same findings as he.
Judgments affirmed.
By the Court (Katzmann, Hanlon & Maldonado, JJ.),
Panel members appear in order of seniority. --------
Clerk Entered: July 16, 2015.