Opinion
No. 12–P–1721.
06-10-2016
COMMONWEALTH v. Thomas HAMPTON (and five companion cases).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury convicted the defendants, Thomas Hampton and Edwin Acevedo, of armed robbery, assault and battery by means of a dangerous weapon, and mayhem. The charges related to the robbery, beating, and maiming of Cristian Guzman on October 19, 2007. On appeal, both defendants challenge the denial of their pretrial motions to suppress the victim's identification of them and the failure of the trial judge to give an honest but mistaken identification instruction. Acevedo argues separately that he was improperly precluded from cross-examining the victim regarding criminal charges pending against him and other prior bad acts, and Hampton claims that the judge improperly sustained an objection to a statement his attorney made during closing argument. We affirm.
We spell the victim's name as it appears in the indictments.
The defendants make no separate argument with respect to the denial of their motions for new trial.
Discussion. 1. Motions to suppress. The defendants moved to suppress the victim's one-on-one identification of them, arguing that there was no “good reason” to justify the individual showup, and the procedure used was unduly suggestive. The motion judge made findings of fact after an evidentiary hearing and the defendants have not argued that any of the findings are clearly erroneous. We therefore turn to our obligation to “conduct an independent review of his ultimate findings and conclusions of law.” Commonwealth v.. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).
At about 11:15 P.M. on October 19, 2007, Detective Cueva from the Lawrence police department responded to a call at Melo's Market, where the victim, speaking only in Spanish, told him that he had been brought into a house, robbed, beaten, and burned with an iron and then kicked out only a few minutes earlier. The victim was bleeding and had injuries consisting of severe burns to his ear, forehead, hands, back, and arms.
The victim explained that he had been walking past a house on Bunker Hill Street, when a man whom he knew lived there, called to him and asked if he wanted to come inside to see his new baby. The victim agreed, and upon entering the apartment, the man locked the door behind him, and “three or four guys came out of the back room armed with handguns [and] a shotgun.” They threw him face down on the floor and one man placed a shotgun at the back of the victim's head. The victim said a dark skinned man whom he assumed was not Hispanic because the man could not understand what the victim was saying in Spanish, burned him with an iron. The assailants took his money and released him.
After the victim received initial medical treatment at the market, he accompanied Cueva, followed by other police units, and identified the house where the incident occurred, 91 Bunker Hill Street, about a block from the market. The two-family home was in a congested residential area and had a single front entrance and two rear entrances leading directly to the first and second floor apartments, respectively. Police approached the house and apprehended a man, who was later identified as Lennin Abreu, a codefendant, trying to run out a back door. Abreu was handcuffed and brought to the front of the house, where the victim looked through the back window of the vehicle and was asked if he was one of the individuals who had assaulted and robbed him. The victim said yes, he had one of the guns.
The victim briefly returned to the station with Cueva, where Cueva received information that two more individuals had been detained coming out of the house. Cueva asked the victim to return to the premises “to see if he could [identify] them as suspects” or as the “individuals [who] had assaulted and robbed him.” En route, Cueva received a radio report, in English, that an additional person had been apprehended leaving the house.
Upon their arrival back in the vicinity of the Bunker Hill Street residence, Cueva had each suspect brought within range of his cruiser's high beams because it was a dark night and the lighting in the area was not bright. Each individual was handcuffed and accompanied by one police officer. Within seconds of the first man, Edwin Acevedo, being illuminated by the headlights, the victim identified him as the individual who had a shotgun. The victim identified the second individual, Thomas Hampton, just as quickly, and said he was “the one that had the iron.” The victim identified the third individual, Angel Rivera, a codefendant, as the person who had called him into the house, and whom the victim had previously described as wearing an ankle bracelet. The identifications took place within about fifty minutes of the incident.
Although showup identifications are generally disfavored because they are viewed as inherently suggestive, due process concerns are implicated only when the defendant can prove by a preponderance of the evidence, in light of the totality of the circumstances, that the procedures employed were unnecessarily or impermissibly suggestive. See, e.g., Commonwealth v. Johnson, 420 Mass. 458, 463–464 (1995) ; Commonwealth v. Watson, 455 Mass. 246, 250–251 (2009). “Whether an identification procedure is ‘unnecessarily’ or ‘impermissibly’ suggestive ... involves inquiry whether good reason exists for the police to use a one-on-one identification procedure ...,” Commonwealth v. Martin, 447 Mass. 274, 279 (2006), quoting from Commonwealth v. Austin, 421 Mass. 357, 361 (1995), and “whether the police avoided any ‘special elements of unfairness, indicating a desire on the part of the police to “stack the deck” against the defendant.’ “ Commonwealth v. Martinez, 67 Mass.App.Ct. 788, 792 (2006), quoting from Commonwealth v. Leaster, 395 Mass. 96, 103 (1985). Nonetheless, “showups of suspects to eyewitnesses of crimes have been regularly held permissible when conducted by the police promptly after the criminal event.” Commonwealth v. Phillips, 452 Mass. 617, 628 (2008) (quotation omitted).
“Relevant to the good reason examination are [1] the nature of the crime involved and corresponding concerns for public safety; [2] the need for efficient police investigation in the immediate aftermath of a crime; and [3] the usefulness of prompt confirmation of the accuracy of investigatory information, which, if in error, will release the police quickly to follow another track.” Commonwealth v. Austin, supra at 362.
Here, as soon as the victim entered the apartment, he witnessed the defendants come toward him from a back room. The victim was held in the apartment for a period of time long enough to allow one assailant to obtain a hot iron and inflict numerous severe burns on at least four separate areas of the victim's body. The burn to the victim's forehead suggests that he could see his attackers while some of the burns were inflicted. Moreover, the victim's subsequent identification of Abreu as the individual wielding a handgun, Acevedo as the man holding the shotgun, and Hampton as the person who used the iron, demonstrated an ability to distinguish among his assailants, as noted by the motion judge, and permitted the inference that the victim had had ample time to view them. See Commonwealth v. Phillips, 452 Mass. at 628. In addition, the showup involving the defendants occurred within less than one hour of the crime and both defendants were identified by the victim without hesitation. Ibid. See Commonwealth v. Watson, 455 Mass. at 254 ; Commonwealth v. Ayles, 31 Mass.App.Ct. 514, 518 (1991).
The defendants state in their briefs that the victim “could not” provide a description of Acevedo or Hampton, other than that Hampton was dark skinned. It is not clear from the record, however, whether the victim “could not” provide such descriptions or he was simply never asked by Cueva, who by his own admission focused on finding the house where the crime had occurred. See Commonwealth v. Watson, 455 Mass. at 248–249, 252–253 (photograph array displayed to victim—who was assaulted, bound with duct tape, and shot, and whose description of his two assailants consisted solely of stating that he knew one of them by the name of Troy—was not unduly suggestive even though police indicated suspect's photograph was in the array).
Contrary to the defendants' argument, the identification procedure was not unnecessarily suggestive based on the statements to the victim preceding the identification, or the manner in which each suspect was displayed. See Commonwealth v. Phillips, 452 Mass. at 628 ; Commonwealth v. Watson, 455 Mass. at 251–253 ; Commonwealth v. Meas, 467 Mass. 434, 437, 442–443 (2014). Contrast Commonwealth v. Moon, 380 Mass. 751, 756–759 (1980) (identification procedure unnecessarily suggestive where “the police suggested the name of the defendant to the victim, and ... showed the victim a photograph taken from the defendant's car” and only then did the witness identify the defendant as the assailant).
“The police had good reason to conduct the showup in this manner .” Commonwealth v. Phillips, 452 Mass. at 629. They were investigating a violent crime that involved up to five men armed with handguns and a shotgun in one apartment in a two-family home in a congested residential area. “[P]rompt identification served to limit risk to the public and to avoid the escape of dangerous suspects.” Ibid. In addition, it is important “[t]o have the witness view the suspect while his recollection or mental image of the offender is still fresh, before other images crowd in or his attempts to verbalize his impressions can themselves distort the original picture.” Commonwealth v. Leaster, 395 Mass. at 103. Finally, a negative identification, besides releasing the innocent, permits the police to quickly follow a different track. See ibid.; Commonwealth v. Austin, 421 Mass. at 362.
The defendants' argument that there was no good reason to conduct a showup identification because there was no ongoing threat where the police had the house surrounded and because the violence had been directed against a single individual who was no longer in danger, assigns a predictability to armed felons that does not exist. Moreover, the “[f]ailure of the police to pursue alternate identification procedures does not in itself render an identification unduly suggestive.” Commonwealth v. Martin, 447 Mass. at 280. Nor is there any merit to the defendants' claim that there was probable cause to arrest persons leaving the Bunker Hill Street residence, and, therefore, a showup identification was unnecessary. We disagree. A showup identification is a procedure that enhances the ability of police to speedily and accurately identify or confirm they have apprehended the right person. This was particularly important here, where the house was a two-family residence and people other than the assailants may have been present.
2. Trial. The facts adduced at trial were more detailed than those presented at the suppression hearing, but similar in all material respects.
a. Jury instruction. The defendants argue that the trial judge's omission of the so-called “honest but mistaken” identification instruction was error. See Commonwealth v. Pressley, 390 Mass. 617, 620 (1983). Because the defendants did not object to its omission at the conclusion of the judge's charge, we review to determine whether the error, if any, created a substantial risk of a miscarriage of justice. Commonwealth v. White, 452 Mass. 133, 137–139 (2008).
The parties requested and the judge agreed to give an identification instruction that included the Pressley language, but the judge appears to have inadvertently omitted the instruction from her final charge, and because neither defense attorney brought it to her attention, Hampton correctly acknowledges that the issue is reviewed under the substantial risk standard.
Because the judge's identification instruction mirrored the one approved as a model in Commonwealth v. Rodriguez, 378 Mass. 296, 310–311 (1979) (Appendix), as modified in Commonwealth v. Cuffie, 414 Mass. 632, 640–641 (1993) (Appendix), and Commonwealth v. Santoli, 424 Mass. 837, 845 (1997), it “was adequate to avoid basing the identification analysis solely on the veracity of the identifying witness.” Commonwealth v. Rodriguez, 457 Mass. 461, 475 (2010). This is particularly true here, where the thrust of the defense was not that the victim had made an honest but mistaken identification, but rather that he was not credible and simply identified anyone who was apprehended coming from the Bunker Hill Street home out of anger and a desire to protect his family. See Commonwealth v. White, 452 Mass. at 139.
We recognize that the Supreme Judicial Court has announced changes to the Rodriguez instruction, but those changes are not retroactive, and, therefore, do not apply here. Commonwealth v. Gomes, 470 Mass. 352, 376, 379–388 (2015) (Appendix).
b. Cross-examination. Acevedo argues that he was improperly prohibited from cross-examining the victim about then pending drug charges in Federal court to elicit any bias the victim may have had to curry favor with the government or about prior bad act evidence to impeach his credibility.
A Federal drug investigation revealed the victim's involvement in a conspiracy to distribute marijuana, among other potential crimes, beginning in January, 2009, about fifteen months after the crimes at issue. Because there was no material difference between the statements the victim made to police on the night of the incident in question and the victim's trial testimony, there is no indication of any motivation to seek favor with the government. See Commonwealth v. Haywood, 377 Mass. 755, 762–763 (1979) ; Commonwealth v. Santiago, 54 Mass.App.Ct. 656, 663 (2002). Moreover, the victim had confirmed during the voir dire preceding his testimony that the prosecutor had made no representations that he could help the victim in the Federal prosecution and, further, that no promises or threats of any kind had been made.
Similarly unpersuasive is Acevedo's claim that he should have been permitted to impeach the victim with evidence of his alleged prior bad acts such as the use of aliases and false social security numbers, participation in numbers racketeering, his status as an illegal alien, or (because drugs were found at the Bunker Hill Street residence) the fact that, at the time of trial, the victim was being held on a drug charge. The defendant made no showing how any of the alleged misconduct was relevant to prove that as a witness, the victim was biased or prejudiced against him, or had a motive to lie. Absent such proof, its use was only for the prohibited purpose of impeaching the victim's credibility with prior bad acts. See, e.g., Commonwealth v. Hightower, 400 Mass. 267, 271 (1987) ; Commonwealth v. Andrews, 403 Mass. 441, 459 (1988).
Nor did Acevedo's claim that the victim's criminal dealings likely created enemies motivated to assault him, permit Acevedo to inquire about these alleged dealings on the basis of an otherwise wholly speculative third-party culprit theory. The jury were not unaware that the victim was involved in questionable if not criminal activity. The victim explained that he had $2,300 in cash in his pocket because he was in the business of making personal loans and was on the way to collect a loan payment on the night in question. The evidence also permitted the inference that the victim may have been going to the residence to buy a large amount of cocaine.
c. Hampton's closing argument. The Commonwealth objected to the statement in Hampton's closing argument that the defendant could not have been in that house “because the DNA on the iron doesn't match his.” The evidence however, established only that the second DNA profile was “not matched” and that the analysis “[wasn't] able to identify it.” The judge properly sustained the objection and gave a curative instruction that the testing related to the second DNA profile detected on the iron “did not rule out anybody,” adding that, “[I]f you can't exclude someone, that means they might in fact be there.” There was no error and, in any event, Acevedo's closing argument emphasized the point Hampton was permitted to make, that “whatever was found on that iron was not shown in any fashion to belong to Thomas Hampton or Edwin Acevedo.”
There appears to have been a stipulation regarding the report outlining the results of the DNA testing and the judge appeared to review the report before giving her limiting instruction. The report was marked for identification but not admitted in evidence.
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Judgments affirmed.
Orders denying motions for new trial affirmed.