Opinion
11-P-1298
12-17-2012
COMMONWEALTH v. MICHAEL GONZALEZ.
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
A jury found the defendant, Michael Gonzalez, guilty of multiple offenses stemming from his shooting of Charles Demailly. On appeal, he contends that a substantial risk of a miscarriage of justice arises from the introduction of Demailly's out-of-court, and in-court, identification of the defendant. We affirm for substantially the reasons expressed in the Commonwealth's brief at pages thirteen through nineteen.
Without having filed a motion to suppress, prior to trial the defendant moved to preclude the Commonwealth from introducing Demailly's identification of the defendant from a photographic (photo) array, as well as Demailly's in-court identification. The gist of the defendant's argument was that Demailly's photo identification was equivocal (five or six on scale of one to ten). The defendant never argued or provided a factual basis for contending that the photo array or the circumstances of Demailly's identification of the defendant, either out-of-court or in-court, were unnecessarily or impermissibly suggestive. In denying the defendant's motion, the judge reasoned that the degree of Demailly's certitude was fair game on cross-examination, but the defendant had provided no factual basis for contending that Demailly's identification of the defendant was so unnecessarily or impermissibly suggestive as to implicate due process. See Commonwealth v. Miles, 420 Mass. 67, 77 (1995). See also Commonwealth v. Botelho, 369 Mass. 860, 866 (1976) (identification excluded if due process implicated).
The defendant never moved for an evidentiary hearing pursuant to Commonwealth v. Dougan, 377 Mass. 303, 316-317 (1979). Nor did he request a voir dire of witnesses pretrial in furtherance of his motion in limine.
The defendant rejected the judge's offer to conduct an in-court lineup.
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On appeal, the defendant argues that Demailly's out-of-court identification of the defendant should have been excluded because, when he was interviewed at the hospital immediately after being shot in the face, Demailly told Officer Jonathan Pavao that he didn't know who shot him. The defendant's argument fails for the reason, if no other, that he never moved to exclude Demailly's identification on that basis, and Pavao's testimony did not arise until he was called in rebuttal. See Commonwealth v. Silva-Santiago, 453 Mass. 782, 795 (2009).
Even beyond that deficiency, we discern no error in the introduction of Demailly's out-of-court and in-court identifications. Even at this juncture, the defendant has proffered no factual support for a claim that the photo array or the identification procedure from which Demailly identified the defendant was so unnecessarily or impermissibly suggestive as to violate due process. See Commonwealth v. Miles, supra.
The defendant has not established that an error, much less a substantial risk of a miscarriage of justice, arose from the introduction of Demailly's out-of-court and in-court identifications. See Commonwealth v. Powell, 72 Mass. App. Ct. 22, 25 (2008). Indeed, given that Demailly spent the better part of the night socializing and using cocaine with the defendant and was shot when he attempted to leave without paying the defendant for the cocaine, Demailly's identification of the defendant had more to do with their time spent together than with any speculative claim of suggestiveness in the identification procedure. See Commonwealth v. Odware, 429 Mass. 231, 235 (1999).
Judgments affirmed.
By the Court (Grasso, Vuono & Milkey, JJ.),