Opinion
No. 15–P–1253.
07-07-2016
COMMONWEALTH v. Carlos PINERO, Jr.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Carlos Pinero, Jr., was convicted of armed robbery (G.L. c. 265, § 17 ), and assault and battery by means of a dangerous weapon (G.L. c. 265, § 15A ), following a jury trial in Superior Court. On appeal, the defendant contends that: (1) the jury instructions erroneously negated his Bowden defense; (2) the prosecutor impermissibly vouched for a witness during her closing argument; and (3) the trial judge should have, sua sponte, conducted a reliability hearing concerning an eyewitness identification of the defendant. We affirm.
See Commonwealth v. Bowden, 379 Mass. 472, 485–486 (1980).
Background. We recite the facts as the jury could have found them, reserving certain details for later discussion. On September 8, 2012, at approximately 11:00 P.M., the victim, Gabriel Santos (Santos), was working as a taxicab (taxi) driver in Lawrence. While Santos was waiting in his taxi for his next customer, the defendant approached the front passenger side of the taxi and indicated that his girl friend, later identified as Katrina Pagan (Pagan), was “not doing well” and needed a ride. At that point, Santos only saw the defendant's face from above his lip. Santos agreed to drive them, and the defendant and Pagan entered the back of the taxi.
Pagan was tried jointly with the defendant but found not guilty.
When Santos reported to his dispatcher that he was driving two customers, the dispatcher directed him to pick up another, unrelated customer at 31 Poplar Street in Lawrence. Shortly after Santos began driving, the defendant pulled Santos's seatbelt, pinning him to the driver's seat, and put a gun to the right side of Santos's neck. The defendant told Santos that he was being robbed and threatened to “explode” him if he attempted to contact help. Santos gave the defendant between thirty-two and thirty-seven dollars. The defendant repeatedly hit Santos in the head with the gun as he continued driving.
A short time later, the defendant ordered Santos to stop the taxi near 31 Poplar Street, coincidentally, the same address where Santos had been dispatched to pick up his next customer. When Santos stopped the taxi, the customer waiting at 31 Poplar Street, Laura Colon Polanco (Colon), entered and sat in the front passenger seat; Santos continued driving. The defendant then touched Colon on the left shoulder with the gun stating, “You got in the wrong cab.” Colon looked back at the defendant and, after seeing his face and the gun, she jumped out of the then moving taxi. Santos continued driving until he saw several fire fighters gathered near a fire station, at which point he crashed the taxi into a “post.” The defendant and Pagan alighted from the taxi and fled the scene. Pagan was apprehended approximately ten minutes later and brought back to the crash scene. Santos identified her as the woman accompanying the man who robbed him.
Several days after the robbery, Santos went to the Lawrence police station and was shown an eight-photograph array, which included a photograph of the defendant. He identified the defendant as the man who robbed him but indicated that he was only “50 to 60 percent” sure in his selection. Colon was also shown the eight-photograph array and she identified the defendant as the man she saw in the taxi on the night of the robbery. Both Santos and Colon identified the defendant in court.
The detective who compiled the photograph array did not administer it to Santos, or to Colon. An officer with no knowledge of the array or the defendant's photograph presented it to Santos. A different officer also with no knowledge of the array or the defendant's photograph presented it to Colon.
At trial, the defense contested the reliability of the identifications and the adequacy of the police investigation. Concerning the identification, the defense focused on Santos's statement that he was only fifty to sixty percent sure that he correctly selected the photograph of the man who robbed him. The defense also argued that the brevity, lighting conditions, and tense nature of the robbery could have resulted in a misidentification. As to the adequacy of the police investigation, the defense emphasized that the police failed to interview any of the people who observed the defendant run from Santos's taxi in order to develop a robust description of the defendant. Furthermore, the defense highlighted the fact that the police were just relying on a description of a “skinny Hispanic male” in their investigation, and they did not interview Santos or Colon to develop a more accurate description before compiling the photograph array.
Discussion. Jury instruction. The defendant contends that the judge's instructions removed his challenge to the adequacy of the police investigation from the jury's consideration. It is well established that:
“[p]ursuant to a Bowden defense, a defendant may introduce evidence regarding the police investigation in order to create an inference ‘that the evidence at trial may be inadequate or unreliable because the police failed to conduct the scientific tests or to pursue leads that a reasonable police investigation would have conducted or investigated, and these tests or investigation may have led to significant evidence of the defendant's guilt or innocence.’ “
Commonwealth v. Wood, 469 Mass. 266, 277 (2014), quoting from Commonwealth v. Silva–Santiago, 453 Mass. 782, 801 (2009). While a judge is not required to provide a Bowden instruction, “a judge may not remove the issue from the jury's consideration.” Commonwealth v. O'Brien, 432 Mass. 578, 590 (2000).
Defense counsel requested a Bowden instruction. The judge refused to so instruct, but indicated that the defendant's rights were saved. The judge then provided the instruction infra, explaining that the jury could consider the adequacy of the police investigation. There was no further objection. The parties disagree about whether the objection was thereby preserved. We need not decide the question, and its effect on the standard of review, as we discern no error in the judge's instruction, as discussed infra.
The judge provided the following instruction to the jury:
“Ladies and gentlemen, in this case there has been some argument and questioning of evidence relating to the adequacy of the Lawrence Police Department's investigation.... [T]hose questions and arguments are perfectly appropriate because you can consider the adequacy of the police investigation in determining whether the Commonwealth has proven a defendant guilty beyond a reasonable doubt. That's something you can consider in reaching your verdict. Remember, however, that this trial is not a referendum on how the police perform their job. This is the real world, and the police are not held to a standard of a perfect investigation. After all, sometimes the most thorough investigation will not produce evidence beyond a reasonable doubt, and sometimes the most limited or inept police investigation will produce evidence beyond a reasonable doubt.
“So instead what you do is consider all the evidence and determine whether the Commonwealth has proven a particular defendant guilty of a charge beyond a reasonable doubt.”
That instruction conveyed the accurate legal principle; the jury could consider the adequacy of the police investigation in determining whether the Commonwealth had proved the defendant guilty beyond a reasonable doubt. Indeed, the judge did not advise the jury to disregard the defense and he reiterated that point several times. The additional statements that “th[e] trial is not a referendum on how the police perform their job,” and that the thoroughness of an investigation does not determine whether the Commonwealth can produce evidence to prove its case beyond a reasonable doubt were better left unsaid. However, those additional statements did not remove the adequacy of the police investigation from the jury's consideration. Contrast Commonwealth v. Bowden, 379 Mass. 472, 485 (1980) (“The judge instructed the jury that the nonexistence of certain scientific tests and other evidence was not to be considered in reaching a judgment”). Accordingly, we discern no error in the judge's instruction. See Commonwealth v. Roberts, 378 Mass. 116, 130 (1979) (“the phraseology, method and extent of the charge [were] matters within [the judge's] discretion”).
While we previously discouraged a judge's use of the “referendum” language in the context of an instruction concerning a defendant's challenge to the adequacy of a police investigation, the decision in Commonwealth v. Delacruz, 86 Mass.App.Ct. 1119 (2014), was released after the trial in this case. Therefore, the judge did not have the benefit of that decision.
Vouching. In closing, the defense argued that Santos was a credible witness, but because of the circumstances, his identification of the defendant as the attacker was unreliable. The prosecutor echoed that Santos's credibility was not disputed and stated:
“Santos was a credible witness. And you can rely on his testimony and you can rely on his identification because he was frank with you as to the things he saw. But he was also upfront and he owned the things that he didn't see, because he didn't see the gun at this time. And he told you he didn't.”
The defendant objected. On appeal, the defendant claims that by first stating that Santos “owned the things that he didn't see,” followed by “because he didn't see the gun at this time,” the prosecutor suggested she had special knowledge to confirm that Santos did not actually see the gun. See Commonwealth v. Ortega, 441 Mass. 170, 181 (2004) (attorney may not express personal belief in credibility of witness or indicate that he or she has knowledge independent of evidence before jury). The prosecutor's statement merely conveyed that Santos was forthright in acknowledging the limitations of his observation.
The prosecutor's statement that Santos was honest because he testified that he was only fifty to sixty percent certain in his identification also did not constitute improper vouching. See Commonwealth v. Kozec, 399 Mass. 514, 521 (1987) (“not improper to make a factually based argument that ... particular witness should be believed”). Rather the prosecutor was again describing the witness as credible because he appropriately recognized the uncertainty of his own identification testimony.
Reliability of identification. The defendant contends that because Santos was only fifty to sixty percent certain in his identification, the trial judge should have, sua sponte, conducted a hearing to assess the general reliability of that identification. The defendant did not move to suppress Santos's identification, claim that the identification was obtained through suggestive police procedures, or claim that counsel was ineffective for failing to request a pretrial reliability determination of the identification. The Supreme Judicial Court has “not suggested, however, that in the absence of an unnecessarily suggestive police identification procedure or especially suggestive circumstances, a judge must serve as a gatekeeper of eyewitness identifications offered by the Commonwealth and admit only those identifications the judge finds to be reliable.” Commonwealth v. Walker, 460 Mass. 590, 605 (2011). Accordingly, we reject the defendant's claimed error.
The Supreme Judicial Court in Walker further stated that even if it did “revisit [its] jurisprudence regarding such evidence ... [it would] not do so in a case where the defendant did not move to suppress the identification and where the issue is whether the defendant's attorney was ineffective in failing to do so.” Id. at 606.
Judgments affirmed.