Opinion
10-P-1325
10-11-2011
COMMONWEALTH v. ARNALDO DEJESUS.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of armed robbery. See G. L. c. 265, § 17. In this appeal, the defendant claims error in (1) the denial of his motion to suppress a knife, (2) the denial of his motion to suppress his identification by the victim in a showup, and (3) the substance of a cross-racial jury instruction.
1. The knife suppression issue. The knife was found in the bedroom of an apartment where the defendant was found sleeping. Specifically, when the police entered the bedroom, the defendant was lying on the floor, either sleeping or feigning sleep. The defendant had braids and was wearing a blue shirt, which matched the victim's description of the robber's clothing. The knife was on the dresser next to the sleeping defendant.
At the outset, we note that given omissions in the defendant's affidavit in support of his motion to suppress the knife, there is a substantial question whether the defendant was even entitled to an evidentiary hearing. Commonwealth v. Mubdi, 456 Mass. 385, 388-391 (2010). See also Mass.R.Crim.P. 13(a)(2), as appearing in 442 Mass. 1516 (2004). The defendant's affidavit in full states only as follows:
'I, Arnaldo DeJesus, hereby state that the following is true to the best of my knowledge, information and belief:
'1. I am the defendant in the above-entitled matter.Given the deficiencies in the defendant's affidavit, which establishes no reasonable expectation of privacy in the searched premises, denial of the suppression motion would have been justified for failure to comply with Mass.R.Crim.P. 13(a)(2) alone.
'2. On August 22, 2008, I was arrested at 410 Walnut Street in Springfield.
'3. Police officers entered the building, where they knocked on the door and immediately entered.
'4. They then searched the premises.
'5. They state that they recovered a knife from the premi ses.
'6. This knife is the basis for the charge of Armed Robbery against me.
'6.[sic] The police had no consent to enter the premises.
'7. I was not shown a warrant authorizing the above search.
'8. There were no other circumstances that would justify their entry upon the premises.'
In any event, notwithstanding the inadequate affidavit, the judge gave the defendant the opportunity to offer evidence at a suppression hearing. Since the defendant was not charged with a possessory crime, he is not entitled to automatic standing. He was, however, present when the police entered the bedroom, and the motion judge correctly found that this was sufficient to give him standing. Thus, the principal issue at the hearing involved whether the defendant had a reasonable expectation of privacy. See Commonwealth v. Williams, 453 Mass. 203, 207-208 (2009); Commonwealth v. Mubdi, supra at 391- 394.
Following the hearing, the judge did not credit the testimony of the police that they had been given consent to enter the apartment by the tenant/owner, who was the mother of one of the men also found in the bedroom. The judge determined, however, that suppression of the knife was not warranted because the defendant 'failed to assert his status as an overnight guest, or to present any evidence of such a status' and therefore failed to establish that he had a reasonable expectation of privacy in the bedroom. Indeed, neither the defendant's affidavit nor evidence at the suppression hearing asserted that the defendant or anyone else 'had a reasonable expectation of privacy in the place searched' such that there was a search 'in the constitutional sense.' Commonwealth v. Mubdi, supra at 392-394. Accordingly, suppression of the knife was properly denied.
2. The showup identification. Other than establishing that there was a showup identification procedure, the defendant has not met his burden of demonstrating that the identification procedure was constitutionally improper. Although disfavored, a showup is not per se unduly suggestive. Thus, a defendant has the burden of establishing undue suggestiveness and may not just rest on the bald assertion that a showup happened. See generally Commonwealth v. Sylvia, 57 Mass. App. Ct. 66, 69 (2003).
There were also glaring omissions in the affidavit urging suppression of the showup identification, so that this affidavit did not meet either the standards under Mass.R.Crim.P. 13(a)(2) or the defendant's burden. Indeed, the defense counsel's affidavit concerning the showup, after two introductory paragraphs identifying counsel, merely states as follows:
'3. I have reviewed the police report in the instant case.Given that this affidavit does not meet the defendant's burden, the motion to suppress the showup identification could have been denied based on inadequacies in the affidavit alone under Mass.R.Crim.P. 13(a)(2).
'4. It states that after detaining Mr. DeJesus at 410 Walnut Street in Springfield, he was shown to the complainant who identified Mr. DeJesus as a person who had robbed him.
'5. It appears that this identification would have taken place when Mr. DeJesus was accompanied by police officers and shown singly to the complainant in the street at approximately 2:00 a.m.
'6. I therefore have reason to believe that there took place an unnecessarily suggestive out-of-court identification procedure that was conducive to a misidentification and would further taint any in-court identification at trial.'
Again, notwithstanding the affidavit's omissions, the judge granted the defendant a suppression hearing and took evidence. But at the hearing, the defendant did not offer evidence that established undue suggestiveness in the identification procedure. The judge's findings from the hearing may be summarized as follows: After the discovery and seizure of the knife, both the defendant and another man who had been in the bedroom (the son of the apartment owner/tenant) were brought outside and displayed to the victim, who was seated in the rear of a cruiser. Neither man was handcuffed. There was full lighting provided by new street lights and a bright spot light. There was no evidence that any statements were made or acts done by the police to unfairly influence the identification. To the contrary, the victim carefully distinguished between those other persons merely present as the robbery unfolded and the man who held the knife. At the showup, the victim unequivocally identified the defendant as the man who had wielded the knife. The judge found 'no evidence to suggest that the identification procedure was unnecessarily suggestive, and the use of a show-up identification was proper.' That ultimate finding is well justified, as is the denial of the motion to suppress the identification.
3. The cross-racial instruction. At a charge conference, the trial judge fully informed counsel what instructions would be given on identification. The judge offered two versions of a cross-racial instruction and asked which the defendant would prefer. The defendant selected the first version. This was the instruction the judge gave. There was no objection. We see no error in the instruction. In addition to the cross-racial identification instruction, the judge also gave an honest but mistaken identification instruction. See Commonwealth v. Pressley, 390 Mass. 617, 619- 620 (1983).
The defendant also contends that the robbery conviction cannot stand because the Commonwealth did not prove the victim was in fear. The trial record is to the contrary. The victim testified that he was walking back to his car around midnight in a well-lit parking lot, when the defendant spoke to him and demanded, 'Run your fucking pockets.' The defendant was standing 'right up on' him and pulled out a knife with a black handle. The victim testified that he was scared because the defendant had a knife and that he gave the defendant eighty dollars and his cellular telephone.
Judgment affirmed.
By the Court (Berry, Meade & Milkey, JJ.),