Opinion
No. 15–P–1099.
10-05-2016
COMMONWEALTH v. Anthony RODRIGUEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of armed robbery while masked as well as assault and battery by means of a dangerous weapon. On appeal, he claims that the motion judge improperly denied his motion to suppress evidence, that a substantial risk of a miscarriage of justice occurred due to the trial judge's eyewitness identification instructions, and that prejudicial error occurred when the prosecutor questioned the complaining witness about his fears of the codefendant's gang affiliation. We affirm.
1. Motion to suppress. The defendant claims that the motion judge's denial of his motion to suppress evidence obtained from his pickup truck was in error because the defendant's consent via a written form, verbally translated from English to the defendant's native Spanish, was not voluntarily given as he was not “informed of his right to refuse consent.” We disagree.
This court accepts the motion judge's subsidiary findings of fact absent clear error, but independently evaluates the ultimate findings and conclusions of law. Commonwealth v. Scott, 440 Mass. 642, 646 (2004). Here, the motion judge credited Officer Cruz's testimony that the defendant, who was not in handcuffs, was “comfortable, friendly, not[ ] combative,” and that Cruz determined the defendant was able to understand him, even asking the defendant if he understood what was read to him, to which he “said he understood.” In her written findings of fact, the motion judge found that Officer Cruz “fully and accurately translated the consent form to the defendant who stated he understood it. The defendant then signed the form giving permission for the police to search his pickup truck.” During the motion hearing, Officer Cruz explained that he translated the consent to search form into Spanish “line by line,” which included the passage:
Officer Cruz testified that he has been fluent in Spanish since childhood.
“[H]aving been informed ... of my Constitutional Right not to have a search made of the premises and property owned by me and or under my care, custody and control, without a search warrant. Knowing of my lawful right to refuse to consent to such a search, I willingly give my permission ... to conduct a complete search of the premises and property, including all building and vehicles.”
At no point was the defendant coerced, nor was there any show of authority that could render his consent involuntary. Officer Cruz told the defendant that the consent was to a search of his pickup truck, and the defendant willingly signed the form. The motion to suppress was properly denied.
2. Eyewitness identification instruction. The defendant contends that defense counsel failed to request, and the trial judge failed to instruct the jury with the proper eyewitness testimony instructions, resulting in prejudicial error. We disagree.
The trial judge informed the jury of the proper eyewitness identification instructions, as adopted in Commonwealth v. Gomes, 470 Mass. 352, 379–388 (2015) (Appendix), virtually verbatim. He also included optional language, giving the defendant the benefit of further instruction relevant to his case. , There was no error and therefore no substantial risk of a miscarriage of justice.
That included multiple instructions relating to if a disguise was involved or features obscured, distinctive face or feature, weapon involvement, and duration of the crime.
Defense counsel rejected the trial judge's offer to give the Gomes instruction relevant to photographic array identification.
3. References to gang affiliation. Finally, the defendant claims that the prosecutor's examination of the victim and her closing argument relating to the gang affiliation of the codefendant were overly prejudicial and not relevant to the case. Further, he claims that defense counsel should have called an expert witness to opine on the gang affiliation evidence. We disagree.
The victim did not identify the defendants by name immediately following the robbery. According to the victim's testimony, over objection, he believed that the codefendant was in a gang and this delayed his identification of the defendants due to his fear of potential gang retaliation. In her closing, the prosecutor pointed to this fear and the victim's explanation of why he was not forthcoming about the identity of the robbers when he first spoke with police.
To be admissible, evidence must be relevant and its prejudicial effect must not outweigh its probative value. Commonwealth v. Dunn, 407 Mass. 798, 807 (1990). Admission is at the discretion of the trial judge. Commonwealth v. Phim, 462 Mass. 470, 477 (2012). Gang affiliation evidence may be relevant to providing an explanation for reluctance to initially identify perpetrators to police. See Commonwealth v. Leng, 463 Mass. 779, 783 (2012). While evidence of gang affiliation may be prejudicial to a defendant, here, there was no mention that the defendant himself was involved in a gang. Furthermore, there is no requirement that gang affiliation evidence must be introduced through the use of an expert. See Commonwealth v. Akara, 465 Mass. 245, 267–268 (2013) (gang affiliation evidence introduced through lay witnesses).
The claim relative to the prosecutor's closing argument is waived due to defense counsel's failure to object to the prosecutor's mention of the gang affiliation in her closing argument. Because the evidence was relevant and not unduly prejudicial, there was no error and thus no risk that justice miscarried.