Opinion
13-P-804
10-09-2014
COMMONWEALTH v. LARRY McCONAGA.
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 convicted the defendant of assault by means of a dangerous weapon and larceny. The defendant appeals his convictions on several grounds. We affirm.
1. Background. We rehearse such facts as the jury would have been warranted in finding. In the early morning of January 6, 2012, at or around 5 A.M. the victim arrived at the Back Bay MBTA station and sat on a circular bench as he waited for the 5:15 A.M. train to New Jersey. The station was nearly empty.
The victim had three bags with him. His smallest bag contained his most valuable items, a Canon 7 camera and video and audio equipment. As the victim sat and waited, the defendant approached him and asked for money for food. The defendant was wearing a blue hooded jacket and white sneakers, and had a cut over his eye. The victim told the defendant he did not have any money but he did offer the defendant a cigarette.
The defendant then sat on the opposite side of the bench on which the victim was seated. Moments later, the victim observed that his largest bag had been moved. The victim moved the bag back near his other bags. As the victim returned to his seat, he saw the defendant fleeing with his smallest bag. The victim chased the defendant, tackled him, and ripped the bag out of the defendant's hand. The victim, keeping an eye on the defendant, walked back toward his other bags.
The defendant then headed toward the victim and pulled out a syringe. The defendant told the victim that the syringe was "filled with AIDS" and began jabbing the syringe at the victim. As the victim dodged the jabs, the defendant snatched the victim's smallest bag and ran down the stairs toward the tracks.
The victim pursued the defendant, and bargained with him to exchange his bag for twenty dollars and a promise not to call the police. The defendant asked for forty dollars. The victim gave the defendant thirty dollars, and the defendant gave the bag to the victim and ran away. The time between when the defendant first snatched the victim's bag until when the defendant returned the bag lasted five minutes; the victim obtained a solid view of the defendant for two of those minutes.
After recovering the bag, the victim went back upstairs and called the police. When the police arrived, the victim gave them his contact information and a general description of the defendant, including the cut over his eye and his clothing. The victim then boarded his train to New Jersey.
In the afternoon of February 14, 2012, an MBTA detective arrived at the victim's place of work. She told the victim that she had a potential suspect. The detective showed the victim a photographic array of eight potential suspects and asked him if he recognized anyone. Two of the photographs contained a picture with a man with a cut over his eye. The detective turned each photograph over one at a time as the victim looked through them. The victim chose the defendant's photograph from the photographic array and made an oral and written identification.
2. Discussion. The defendant claims that his convictions should be vacated because there was insufficient evidence that the victim's identification was accurate, the photographic array was unnecessarily suggestive, and the jury instruction lacked any descriptive guidance on the vagaries of eyewitness identification.
The defendant relies heavily on a report conducted by a study group regarding eyewitness evidence. See Report and Recommendations to the Justices of the Supreme Judicial Court from the Supreme Judicial Court Study Group on Eyewitness Evidence, submitted July 25, 2013. Although the Supreme Judicial Court accepted comments on the report through January 24, 2014, the court has not adopted the recommendations as of the date of this decision.
Passing the question whether the defendant should have moved pretrial to suppress the victim's identification or moved in limine or at trial to suppress evidence of the victim's identification, see, e.g., Commonwealth v. Walker, 460 Mass. 590, 606-607 (2011), we have no difficulty affirming the defendant's convictions.
a. Eyewitness identification. The defendant's claim that the victim's identification lacks accuracy is the equivalent to the assertion that it lacks credibility. The credibility of an eyewitness is a matter for the jury to decide. Commonwealth v. James, 424 Mass. 770, 785 (1997). The victim's photographic array identification, in-court identification, still photograph identification, and testimony concerning the identification of his attacker were sufficient for the jury to find the defendant guilty.
In short, our examination of the procedure surrounding the use of the array of photographs reveals no substantial risk of miscarriage of justice. See Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986). Nor do we discern any constitutional invalidity. The detective's behavior did not reach the level of impermissive suggestiveness that would give rise to a "very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384 (1968). See and compare Commonwealth v. Watson, 455 Mass. 246, 253 (2009). b. Jury instructions. The defendant's claim that the jury instructions failed to describe the vagaries of eyewitness identification is of no avail. The defendant did not object to the jury instructions or the manner in which they were given, nor does the record reflect any specific requested instruction was later denied. See Commonwealth v. Vick, 454 Mass. 418, 423 n.5 (2009).
For example, the victim did not select the defendant's photograph solely on the basis of the defendant's distinguishing cut. See Commonwealth v. Melvin, 399 Mass. 201, 207 n.10 (1987).
The jury were given extensive instruction on how to weigh the victim's testimony and were instructed to scrutinize the victim's identification with great care. The jury were instructed to consider whether the victim had an opportunity to observe the offender at the time of the offense, the credibility of the victim, whether the victim's identification was accurate and not an honest mistake, whether the victim was telling the truth, whether the victim's identification was the product of his own recollection or influenced by the circumstances in which the defendant was presented to him for identification, and whether the victim had the ability and opportunity to make a reliable identification. The judge further instructed the jury to consider the length of time available for observation, the distance between the victim and the perpetrator, whether the victim had the occasion to see or know the person in the past, and the lighting conditions when the offense took place. Viewing these instructions and the charge in its entirety, we discern no error.
The victim had three hours of sleep the night before the incident, but testified he felt well rested.
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Accordingly, based substantially on the authorities (particularly, Commonwealth v. Sylvia, 456 Mass. 182, 190-191 [2010]) and reasoning set out in the Commonwealth's brief, we affirm the defendant's convictions.
Judgments affirmed.
By the Court (Kafker, Brown & Carhart, JJ.), Clerk Entered: October 9, 2014.