Opinion
19-P-236
02-05-2020
COMMONWEALTH v. JASON RUGGS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Superior Court, the defendant, Jason Ruggs, was convicted of armed assault with intent to rob in violation of G. L. c. 265, § 18 (b); assault and battery by means of a dangerous weapon in violation of G. L. c. 265, § 15A (b); and unlawful possession of a firearm in violation of G. L. c. 269, § 10A. On appeal, the defendant argues that the victim should not have been permitted to make an in-court identification of him; his trial counsel's failure adequately to challenge the Commonwealth's identification evidence amounted to ineffective assistance; and the evidence failed to establish that he was the person who shot the victim. We affirm.
A nolle prosequi entered on the charge of armed assault with attempt to murder. The jury found the defendant not guilty of conspiracy.
Background. A. The shooting. We summarize the trial evidence, reserving certain facts for later discussion. On January 20, 2014, the victim's friend, Angel Quinones, contacted the victim to arrange a drug deal. Quinones and another friend met the two ostensible buyers, an African-American man and a white man whom Quinones did not know, and a female, Natasha Thibault, near the victim's house. Quinones, his friend, and the two men met the victim at his house, then moved into the backyard to transact the deal. When the victim removed a bag of marijuana from his sweater, the African-American man brandished a gun and told the victim, "[G]ive me your shit." The victim handed over the baggie of marijuana. The white man told his companion to shoot the victim. Quinones and the victim heard two bangs in quick succession, then ran into the victim's house, where they discovered that the victim had been shot in the leg. The "buyers" left the victim's yard. Neither the victim nor Quinones saw where the gun came from, or who shot the victim, although during their interaction, Quinones saw the African-American man with the gun in his hands, pointed at the victim.
Quinones testified that he "wasn't looking" at the moment the shots were fired, but that he did not at any time observe the white male in possession of the gun. The victim testified that his attention was focused on the white male.
B. The identification. The day after the shooting, the police showed the victim two photographic arrays in an effort to identify the two men who had been involved in the incident. The victim was unable to identify the defendant in the array in which his photograph appeared. At trial, the Commonwealth sought to have the victim make an in-court identification of the defendant. The defendant objected, noting that the victim had failed to identify the defendant through the out-of-court photographic array, thus raising, although not explicitly, an objection under Commonwealth v. Collins, 470 Mass. 255, 266 (2014). See id. (requiring "good reason" for admission of in-court identification where witness failed to make unequivocal positive identification of defendant before trial).
The defendant's failure to refer explicitly to Collins is perhaps unsurprising, given that, as we note, infra, the Commonwealth failed to file the motion in limine required under the circumstances. As the defendant alerted the court to the Collins issue created by the victim's proposed identification of the defendant, and renewed that objection when the victim made the in-court identification, we treat any error on that score as preserved. See Commonwealth v. Morin, 52 Mass. App. Ct. 780, 783 n.3 (2001).
The judge responded appropriately by conducting a voir dire of the victim. Out of the presence of the jury, the victim confirmed that when shown a photographic array by police, he was unable to identify the defendant, who had a different "hair expression" in the photographic array than he had at the time of the incident. He explained, however, that a few months after the shooting, "different types of people" showed him Facebook photographs of the defendant, and that as a result, he then recognized the defendant as the African-American male who had been in his backyard when he had been shot. Over the defendant's objection, the judge allowed the victim to identify the defendant once the jury had returned and the trial recommenced.
He did not provide any further detail about who showed him the Facebook photographs, or about the circumstances under which he saw those photographs.
Independent of this evidence, at trial, and without objection, both Quinones and Thibault positively identified the defendant.
Discussion. A. Identification evidence. Because Collins rests on "[c]ommon law principles of fairness," rather than on due process considerations, see Commonwealth v. Dew, 478 Mass. 304, 318 (2017) (Gants, C.J., concurring), we review the admission of the victim's in-court identification of the defendant for prejudicial error. See Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). While we conclude that the victim's in-court identification should not have been admitted, we discern no prejudice.
As an initial matter, the record does not reflect that the Commonwealth filed (or even raised) the motion in limine required under Collins with respect to the victim's proposed in-court identification. That failure alone could render the evidence inadmissible. See Collins, 470 Mass. at 266.
Putting that issue aside, however, we conclude that even had the Commonwealth followed the required procedure, it failed here to demonstrate the "good reason" required under Collins to admit the victim's in-court identification, given his failure to identify the defendant from an earlier out-of-court photographic array. See Collins, 470 Mass. at 265-266. The Commonwealth did not show, for example, that the victim was familiar with the defendant before the commission of the crime, and we discern nothing in the limited evidence on voir dire of the victim's out-of-court identification of the defendant via Facebook pictures to suggest that the identification was more "reliable than the witness's earlier failure to make a positive identification." Id. at 265.
In the circumstances of this case, however, the error in admitting the victim's out-of-court statement was not prejudicial -- the defendant was positively identified by two other witnesses. See Commonwealth v. Galicia, 447 Mass. 737, 747-748 (2006) (erroneously admitted evidence not prejudicial if "merely cumulative" of properly admitted evidence [citation omitted]). Viewing the evidence as a whole, there could be little doubt that the defendant was the African-American man whom Quinones had brought to the victim's backyard. See Cruz, 445 Mass. at 591.
B. Ineffective assistance. Examining the defendant's claim of ineffective assistance under the familiar standard articulated in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), we are unpersuaded by the defendant's contention that trial counsel was ineffective for failing to call an expert on the accuracy of eyewitness identifications, for failing to adequately cross-examine the witnesses on the factors affecting the accuracy of their eyewitness identifications, and for failing to file a motion to suppress the photographic array.,
We note that the defendant raises these arguments for the first time on direct appeal, rather than by a motion for new trial. See Commonwealth v. Zinser, 446 Mass. 807, 809 n.2 (2006) ("our case law strongly disfavors raising ineffective assistance claims on direct appeal").
The defendant also argues that trial counsel was ineffective for failing to raise the issue of cross-racial identification; however, at trial the parties agreed that cross-racial identification was not an issue. Additionally, when prompted, the defendant did not request a cross-racial identification instruction. The judge did not abuse her discretion in not giving the instruction. See Commonwealth v. Bastaldo, 472 Mass. 16, 29-30 (2015).
The defendant points to no precedent requiring expert testimony on the reliability of eyewitness identification testimony, and we are aware of none. Relying, instead, on cross-examination of the Commonwealth's witnesses, defense counsel did a thorough job of eliciting evidence that the percipient witnesses here were subject to and experienced the types of adverse conditions and stresses that have been recognized as negatively impacting the credibility of eyewitness testimony. See, e.g., Commonwealth v. Gomes, 470 Mass. 352, 369-376 (2015). For example, defense counsel garnered testimony that the victim was frightened, and that the shooting occurred "quick[ly]," as well as evidence that Quinones was shocked and frightened by the course of events leading up to the shooting. See id. at 379-388 (Appendix). Defense counsel capitalized on this evidence in his closing argument. Additionally, in her final jury charge, the judge included detailed instructions about the factors that the jury were required to consider in assessing eyewitness testimony, including the witness's familiarity with the defendant, the degree of stress to which the witness was subject at the time of the observations about which he testified, the length of time that the witness had to make his observations, and the effect of other information upon the witness's recollection at trial. See Commonwealth v. Kolenovic, 478 Mass. 189, 201 (2017) (presumed that jury follows judge's instructions). The defendant has failed to establish that his attorney fell below the minimum standards of practice in his handling of the identification evidence. See Saferian, 366 Mass. at 96.
Alternatively, the defendant argues that his trial counsel was ineffective in failing to move to suppress as unduly suggestive the photographic array in which the defendant's picture appeared. In order to demonstrate ineffectiveness in failing to file the motion to suppress, the defendant must establish that had the motion been filed, it would have been successful. See Commonwealth v. Comita, 441 Mass. 86, 91 (2004). We conclude that he did not meet this burden. The defendant argues that because his photograph was the only one in the array depicting a person whose teeth were visible, the array should have been suppressed. We disagree.
The fact that the defendant's photograph may have differed from others in some respect is not sufficient to establish that the array was impermissibly suggestive. See Commonwealth v. Worlds, 9 Mass. App. Ct. 162, 166-167 (1980) (fact that defendant's photograph was black and white while some other photographs in array were not did not establish array was suggestive). Further, there is no evidence that the witnesses who positively identified the defendant from that photograph in a pretrial photographic array made their identifications on that basis. See Commonwealth v. Thornley, 406 Mass. 96, 100 (1989) (identifications based on suggestive array admissible if clear that witness did not rely on distinctive feature in selecting photograph).
C. Sufficiency of the evidence. Finally, we reject the defendant's argument that the evidence was insufficient to establish the defendant's identity as the shooter. In the light most favorable to the prosecution, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the evidence showed that while traveling to the marijuana sale set up by Quinones, the defendant removed a handgun from the glove compartment of the car in which he was riding and "show[ed] it off" to Thibault. Accompanying Quinones into the victim's backyard, the defendant forced the victim at gunpoint to give him the marijuana the victim had met him to sell; the white male urged the defendant to shoot the victim and the victim was, in fact, shot in the leg. After the shooting occurred, Thibault heard the defendant say that he "shot somebody." Viewed in the light most favorable to the Commonwealth, the evidence was sufficient to establish the defendant's identity as the person who shot the victim. See Latimore, supra at 677.
The defendant's motions for a required finding of not guilty focused on the conspiracy charge, and did not include reference to the sufficiency of the identification evidence. We review the defendant's unpreserved claim as to the sufficiency of the identification evidence for a substantial risk of a miscarriage of justice. See Commonwealth v. Azar, 435 Mass. 675, 686-687 (2002).
To the extent that the defendant argues that the gun potentially changed hands prior to the shooting, that argument is not supported by any view of the evidence. See Commonwealth v. Combs, 480 Mass. 55, 61-62 (2018) (proof of essential element of crime based on reasonable inferences, not conjecture).
The fact that the defendant reportedly said that he had shot somebody "in the head" does not alter our conclusion.
Judgments affirmed.
By the Court (Rubin, Lemire & Hand, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 5, 2020.