Opinion
18-P-1008
08-30-2019
COMMONWEALTH v. Antonio HERNANDEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court jury convicted the defendant, Antonio Hernandez, of operating a motor vehicle with a suspended license in violation of G. L. c. 90, § 23, negligent operation of a motor vehicle in violation of G. L. c. 90, § 24 (2) (a ), and failing to stop for police in violation of G. L. c. 90, § 25. We affirm.
The judge also found the defendant responsible for several civil infractions, including driving the wrong way on a State highway in violation of 720 Code Mass. Regs. § 9.05 (1996) ; failing to have the rear license plate illuminated in violation of G. L. c. 90, § 6 ; and improper operation of a motor vehicle in violation of G. L. c. 90, § 16.
Background. 1. Suppression hearing. After an evidentiary hearing, the judge found the following facts, which we supplement based on the uncontroverted testimony of the sole witness, State Trooper Patrick O'Keefe. At approximately 1:30 A.M. , O'Keefe attempted to stop a Honda Civic automobile (Honda) that was traveling north on Route 3 in Billerica. O'Keefe activated his cruiser lights and the Honda slowed down and began pulling over. The Honda then made a U-turn and traveled in the wrong direction on Route 3. During that U-turn, O'Keefe observed a white or light-skinned Hispanic male with a beard driving the Honda. Rather than pursue, O'Keefe put out a bulletin to be on the lookout for a Honda with plate number 30F343.
At approximately 3:00 A.M. , local police informed O'Keefe that they had stopped a Honda Civic with a plate matching O'Keefe's bulletin. Less than an hour later, O'Keefe arrived at the scene and observed a male, Francisco Ortiz, in handcuffs standing outside the Honda. Ortiz owned the Honda; however, O'Keefe did not identify Ortiz as the driver on Route 3. O'Keefe asked Ortiz who used the Honda earlier that evening. Ortiz informed O'Keefe that his friend, Antonio, had taken the Honda. Another trooper told O'Keefe that the front seat passenger in a second car at the scene was named Antonio Hernandez. O'Keefe asked the front seat passenger to step out of the second car. O'Keefe then identified him, the defendant, as the driver of the Honda on Route 3 who fled. O'Keefe arrested the defendant.
2. Trial. During trial, O'Keefe's testimony was consistent with his testimony during the suppression hearing. O'Keefe also testified that during transport to the barracks, the defendant admitted that his license was suspended. Also, O'Keefe testified that he told the defendant that if the defendant had just stopped on Route 3, he would only have received a summons and would not have been arrested. The defendant responded, "I know." The defendant offered two alibi witnesses. This appeal followed.
Discussion. 1. Motion to suppress identification. The defendant first argues that the motion judge erred because he did not make findings as to O'Keefe's experience or opportunity to view the event. However, because "the ultimate conclusion is clearly evident from the record, the failure to make written findings is not fatal." Commonwealth v. Foxworth, 473 Mass. 149, 153 (2015).
The defendant further argues that the motion judge erred in denying the motion to suppress the eyewitness identification because the identification was an unnecessarily suggestive showup and the police did not have good reason. We disagree. As an initial matter, the motion record does not establish that O'Keefe identified the defendant in a showup identification procedure. Rather, the local police called O'Keefe to identify Ortiz. His identification of the defendant was the product of an unplanned encounter during an investigation. See Commonwealth v. Cavitt, 460 Mass. 617, 632-633 (2011) (no one-on-one showup identification where identifying witness "simply looked around as he exited the detective bureau and observed the defendant's photograph on [a] screen"); Commonwealth v. Jones, 423 Mass. 99, 103 n.5 (1996) (explaining accidental encounters between witness and suspect are permissible).
Even if O'Keefe's identification constituted a showup as to the defendant, the identification was "not the product of unnecessarily suggestive police procedures." Cavitt, 460 Mass. at 633. To the contrary, another suspect -- Ortiz -- was standing, handcuffed, next to the Honda and O'Keefe did not identify Ortiz as the Route 3 driver.
Moreover, an identification is not unnecessarily suggestive simply because an alternate identification procedure is available. Mass. G. Evid. § 1112(b)(3) (2019). Here, "the nature of the crime involved and corresponding concerns for public safety; the need for efficient police investigation in the immediate aftermath of a crime; and the usefulness of prompt confirmation of the accuracy of investigatory information" provided good cause for the police to identify the defendant at the roadside. Commonwealth v. Rivera, 91 Mass. App. Ct. 796, 801 (2017), quoting Commonwealth v. Austin, 421 Mass. 357, 362 (1995). Finally, there was no "indicati[on of] a desire on the part of the police to ‘stack the deck’ against the defendant." Commonwealth v. Leaster, 395 Mass. 96, 103 (1985). Accordingly, the motion judge properly denied the motion to suppress identification.
The defendant also argues that an identification subsequent to an unnecessarily suggestive identification procedure is admissible only where it comes from an independent source. However, given our conclusion, we need not engage in an independent source analysis. See Commonwealth v. Johnson, 473 Mass. 594, 603 (2016).
2. Identification instruction. The defendant next challenges the judge's identification instruction. The defendant did not object to the instructions at trial, so we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 293-295 (2002). Under this standard, we consider whether the instruction "materially influence[d]" the jury's verdict, Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting Commonwealth v. Freeman, 352 Mass. 556, 564 (1967), recognizing that trial judges have "considerable discretion in framing jury instructions, both in determining the precise phraseology used and the appropriate degree of elaboration." Commonwealth v. Kelly, 470 Mass. 682, 688 (2015), quoting Commonwealth v. Newell, 55 Mass. App. Ct. 119, 131 (2002).
In fact, the defendant noted satisfaction with the trial judge's instruction.
In the Model Jury Instructions on Eyewitness Identification, 473 Mass. 1051 (2015) (model jury instruction), "[t]he court recommended that judges use the language of the Instruction unless a judge determines that different language would more accurately or clearly provide comparable guidance to a jury or better promote the fairness of a trial." The defendant takes issue with the identification instruction, or lack of instruction, on the opportunity to view the event, exposure to outside information, the stress level of the witness, cross-ethnic identification, and cross-racial identification. We conclude the judge's instruction did not create a substantial risk of a miscarriage of justice.
Although the trial judge did not provide the jury with the model jury instruction's exact wording, the jury received extensive instructions on the opportunity to view the event and exposure to outside information. Moreover, there was no testimony regarding O'Keefe's stress levels and "a judge need only give the portions of the ... instruction that are relevant to the eyewitness identification evidence involved in the case." Commonwealth v. Gomes, 470 Mass. 352, 377 (2015), overruled in part by Commonwealth v. Bastaldo, 472 Mass. 16 (2015).
Regarding the opportunity to view the event the trial judge instructed: "Are you convinced that the witness had the capacity and an adequate opportunity to observe the person?" The trial judge then explained the factors a jury should consider in determining whether the opportunity to view the event was adequate. As to the exposure to outside information, the trial judge instructed: "If a witness'[s] identification may have been influenced by the circumstances under which the defendant was presented to the witness for identification, you should scrutinize the identification with great care .... Another factor that you may consider in determining the reliability of any identification is the length of time that lapsed between the occurrence of the crime."
"[A] cross-racial instruction should always be included when giving the model eyewitness identification instruction, unless the parties agree that there was no cross-racial identification." Bastaldo, 472 Mass. at 18. However, on this record, we conclude a cross-ethnic or cross-racial instruction would not have materially influenced the jury's verdict. See Alphas, 430 Mass. at 13. O'Keefe did not identify Ortiz as the driver despite the fact that Ortiz and the defendant share the same ethnicity and Ortiz stood next to the Honda handcuffed. Moreover, the jury could have found the defendant admitted guilt when he said, "I know," in response to O'Keefe stating he would not have been arrested had he stopped on Route 3.
O'Keefe described both Ortiz and the defendant as "[a] light skinned, Hispanic male."
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3. Ineffective assistance of counsel. The defendant additionally asserts that his trial counsel was ineffective for failing to request the model jury instruction.
Here, the defendant did not raise this claim through the preferred method of a motion for new trial accompanied by affidavits. See Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006). Thus, the defendant presents a claim in its " ‘weakest form’ because ‘it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight.’ " Commonwealth v. Diaz, 448 Mass. 286, 289 (2007), quoting Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). "Because the defendant raises [this] claim[ ] for the first time on direct appeal, [its] factual basis must appear ‘indisputably on the trial record’ for us to resolve [it.]" Commonwealth v. Vera, 88 Mass. App. Ct. 313, 323 (2015), quoting Commonwealth v. Dargon, 457 Mass. 387, 403 (2010). This is not such a case.
Without an affidavit explaining trial counsel's strategy, the factual basis supporting the ineffective assistance claim does not appear indisputably on the trial record. Therefore, we refrain from determining the legitimacy of the defendant's claim under the well-known Saferian analysis. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Judgments affirmed.