Opinion
14-P-1549
10-15-2015
COMMONWEALTH v. LEROY DAVIS.
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
After a jury trial, the defendant, Leroy Davis, was convicted of two counts of indecent assault and battery on a person fourteen or older, see G. L. c. 265, § 13H, and one count of resisting arrest. See G. L. c. 268, § 32B. On appeal, he contends that (1) unreliable eyewitness identifications were improperly admitted in evidence, (2) the prosecutor's closing argument was improper, and (3) the evidence of resisting arrest was insufficient. For the reasons set forth below, we affirm the convictions of indecent assault and battery but reverse the conviction of resisting arrest.
Discussion. 1. Eyewitness identification. The sole defense at trial was identification. The defendant does not argue that the pretrial showup identification was impermissibly suggestive or that the denial of the motion to suppress his pretrial showup identification was in error. Rather, for the first time on appeal, the defendant relies on the Supreme Judicial Court Study Group on Eyewitness Evidence: Report and Recommendations to the Justices (July 25, 2013) (Report) to argue that there should have been a pretrial evidentiary hearing on the reliability of the showup and in-court identifications, and that admission of the identifications violated due process and common-law principles of fairness.
On this record there was "good reason" for the showup, and the procedure employed was not unnecessarily suggestive. Commonwealth v. Figueroa, 468 Mass. 204, 217 (2014). See Commonwealth v. Meas, 467 Mass. 434, 442 (2014).
The defendant also urges us to adopt the recommendation that in-court identifications be restricted, "in the judge's discretion, [to] redirect examination, . . . rebuttal, or in other circumstances where the defendant challenges the witness's ability to make such identification." Report at 113. The Supreme Judicial Court has considered the admissibility of an in-court identification where there has been no previous out-of-court identification, and has not restricted the use of such an identification in this manner. See Commonwealth v. Crayton, 470 Mass. 228, 241-242 (2014).
This argument is best directed to the Supreme Judicial Court, which has applied new procedures regarding eyewitness identification prospectively. See Commonwealth v. Crayton, 470 Mass. 228, 241-242 (2014); Commonwealth v. Collins, 470 Mass. 255, 261-262 (2014). As noted above, the out-of-court identification here was not impermissibly suggestive. See note 1, supra. "Prior to Crayton, an in-court identification was excluded if, in the totality of the circumstances, it was 'tainted by an out-of-court confrontation . . . that [was] "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification."'" Commonwealth v. Bastaldo, 472 Mass. 16, 31 (2015), quoting from Crayton, supra at 238. Here, the out-of-court identification was not impermissibly suggestive, and the in-court identification therefore was admissible.
We note that in Crayton, 470 Mass. at 241, the Supreme Judicial Court extended the existing analysis regarding showup identifications to identifications made for the first time in court, requiring a showing of "good reason." The court in Crayton did not go so far as to require, as a matter of due process or common law, an independent review of the reliability (as opposed to the suggestiveness) of the identification. The Report, upon which the defendant relies, recommends a pretrial hearing in four specified instances, none of which is applicable here.
Nor do we think that the identifications here were so inherently unreliable that the prejudice attendant to admission outweighed any probative value. The defendant elicited evidence that an unnamed person associated with the district attorney's office told the victim that her description of the defendant's T-shirt was incomplete. However, the victim did not expand her testimony regarding the defendant's T-shirt, and while there were some variations in her descriptions of his pants, these variations were fully explored on cross-examination and did not create a substantial risk of a miscarriage of justice.
2. Prosecutor's closing argument. a. Vouching. The defendant contends that the prosecutor vouched for the credibility of the Commonwealth's witnesses. "Because the defendant seasonably objected, we review to determine whether the prosecutor's comment caused prejudicial error." Commonwealth v. Omonira, 59 Mass. App. Ct. 200, 205 (2003).
"Improper vouching can occur if an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury." Commonwealth v. Wilson, 427 Mass 336, 352 (1998). However, "[i]t is not improper to make a factually based argument that, due to the demeanor, disclosed circumstances, and appearance of a witness, a particular witness should be believed or disbelieved." Commonwealth v. Kozec, 399 Mass. 514, 521 (1987).
In reference to the victim's testimony, the prosecutor stated, "I ask that you credit her testimony. She has been very honest on the stand as to what she remembers, what she doesn't." Similarly, in reference to Officer Dupuis's demeanor on the stand, the prosecutor characterized him as "[v]ery demure, very sedated [sic], very honest in terms of his assessment of what he remembers, what he didn't, what happened, what didn't." The prosecutor's argument tread uncomfortably close to the line of permissible rhetoric. Passing on whether the remarks were improper, these two references, if error, were not so prejudicial as to require a new trial. "[I]n light of the 'entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial,'" we find no error. Commonwealth v. Tu Trinh, 458 Mass. 776, 785 (2011) (citation omitted) (description of witness as "honest" not error when viewed in context).
Before closing argument the judge instructed the jury that "what the attorneys may say to you in closing arguments is not evidence." After the prosecutor's closing, the judge noted defense counsel's objection at sidebar. Although there was no request for a curative instruction, the judge immediately thereafter stated, "[I]t is for you and [you] alone to determine the credibility of witnesses. . . . [T]hat's an area for you and you alone to determine based on the facts, the evidence as it came in, and the witness'[s] appearance and demeanor." The judge revisited this in his final charge to the jury, stating, "[y]ou and you alone will determine the credibility based on the witnesses' testimony."
b. Unpreserved errors in closing argument. For the first time on appeal the defendant also contends that the prosecutor misstated the evidence and shifted the burden of proof to the defendant during her closing argument. "Prosecutors must limit the scope of their arguments to facts in evidence and inferences that may be reasonably drawn from the evidence." Commonwealth v. Coren, 437 Mass. 723, 730 (2002). The prosecutor did that here. She argued that the victim "consistently described her attacker" and that she "ha[d] always described him the same way. He's African American, that his hair was braided, that he's young, that he was wearing dark clothing, specifically a black shirt." The Commonwealth was entitled to respond to defense counsel's argument that the victim's descriptions were divergent and incredible. See Commonwealth v. Bregoli, 431 Mass. 265, 276 (2000) (prosecutor could respond to defense counsel's attacks on Commonwealth witness's credibility by referring to earlier, consistent testimony).
There were some differences in the reported description of the attacker in the victim's 911 call, her testimony at the motion to suppress hearing, and her trial testimony. All discrepancies were fully explored at trial, and the defendant argued forcefully that the victim had "improved" her testimony based on coaching by the Commonwealth. The prosecutor did not cross the line in arguing that the victim's testimony and description were consistent.
The defendant also maintains that the prosecutor impermissibly shifted the burden of proof to the defendant when she stated to the jury in closing that "[e]ither you believe [the victim], that this man . . . attacked her . . . or you believe Leroy Davis that he was in the wrong place at the wrong time." The prosecutor's remark was made in the course of arguing that the case was not, as the defendant argued, about mistaken identity, but was rather a case of credibility. In that context, the argument was not improper. See generally Tu Trinh, supra.
3. Sufficiency of the evidence. A defendant resists arrest when he "knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest." G. L. c. 268, § 32B, inserted by St. 1995, c. 276. "The crime is committed at the time of the effecting of an arrest." Commonwealth v. Powell, 459 Mass. 572, 580 (2011). For purposes of the statute, "[a]n arrest is effected where there is [1] 'an actual or constructive seizure or detention of the person, [2] performed with the intention to effect an arrest and [3] so understood by the person detained.'" Ibid., quoting from Commonwealth v. Grandison, 433 Mass. 135, 145 (2001). The defendant contends that the trial judge erred in denying his motions for a required finding on the charge of resisting arrest because there was insufficient evidence under the second prong of the Grandison test to demonstrate that the officers intended to arrest the defendant.
The Commonwealth maintains that the officers' actions "unequivocally indicated they were effecting an arrest," regardless of the officer's subjective intent. Powell, supra at 581. This argument founders in two respects. First, the second prong of Grandison requires proof of subjective intent. Officer Dupuis's testimony was that he did not intend to arrest the defendant, but that he intended to detain the defendant temporarily for purposes of a showup identification. See Commonwealth v. Smith, 55 Mass. App. Ct. 569, 576 (2002) ("In light of [the] testimony [that the officers did not intend to arrest the defendant], we agree with the defendant that his motion for required finding . . . should have been allowed"). Contrast Commonwealth v. Soun, 82 Mass. App. Ct. 32, 36 (2012) ("In view of the direct testimony . . . of the officers' intent to arrest [the defendant], no serious argument can be made that the second Grandison element was not met"). Second, a threshold inquiry is not an arrest. See Commonwealth v. Quintos Q., 457 Mass. 107, 109-110 (2010). To hold otherwise would "conflate our jurisprudence distinguishing Terry-type stops from arrests . . . . Because the flight [and the struggle] prevented police from effecting a stop rather than an arrest, the flight [and the struggle] [are] not covered by the statute." Id. at 111-112.
The following exchange took place during cross-examination of Officer Dupuis:
Q.: "And when he was on the ground handcuffed, he wasn't under arrest, was he?"On redirect examination of the officer this exchange took place:
A.: "He was not."
Q.: "So at the point that you were trying to handcuff him, you weren't trying to arrest him, is that correct?"
A.: "Correct."
Q.: "Officer Dupuis, can you tell me what you meant when you said that the defendant wasn't under arrest?"
A.: "He was being detained because he matched the description that was being broadcasted."
The defendant refused to cooperate with the order to stop and to place his hands behind his back. He was handcuffed thereafter. Even if we consider him to have resisted the handcuffing, "[h]andcuffing the defendant . . . so as to secure [him] for a showup" did not elevate the investigation from a threshold inquiry to an arrest. Commonwealth v. Gordon, 47 Mass. App. Ct. 825, 826-827 (1999).
Thus, even if the officer's testimony were disbelieved, the evidence was insufficient to prove beyond a reasonable doubt that the officer intended to arrest the defendant. Commonwealth v. Quintos Q., 457 Mass. at 111-112.
On the charge of resisting arrest, the judgment is reversed, the verdict is set aside, and judgment shall enter for the defendant. The remaining judgments are affirmed.
So ordered.
By the Court (Berry, Grainger & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 15, 2015.