Opinion
14-P-999
09-28-2015
COMMONWEALTH v. RICARDO TORRES.
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
The defendant was convicted of larceny over $250, G. L. c. 266, § 30, by a jury in Superior Court. On appeal, he asserts that the trial judge erred in denying his motion for a required finding of not guilty based on insufficient identification evidence. We recount the facts the jury could have found in light of the evidence and the issues on appeal.
Background. The complaining witness testified that she encountered the defendant in a hallway at her place of employment, a home care service agency. After having a "gut feeling" that the defendant had taken her belongings, the complaining witness engaged the defendant in conversation. When the defendant turned around, the witness saw that he had her purse in his hands. After reclaiming her purse, the witness directed and followed the defendant to an office area where some of her colleagues worked in an attempt to alert someone to contact the police. In the office, the defendant asked a few questions, then turned to leave. The police were alerted as the defendant escaped from the building. During this encounter, which lasted no longer than five minutes, the defendant give his name to the complaining witness as "Jose Torres."
The defendant's mother is a client of the agency and the defendant lives with her.
Moments after the police arrived, the nurse that provided daily at-home care to the defendant's mother arrived on scene. Having seen the defendant leaving the house earlier that morning, she described him as wearing a "white shirt, khaki pants, short pants, and . . . a Nike type of flexible bag." She also provided a different first name for the defendant, "Ricardo."
Within hours of the incident, the police compiled a photograph array of eight individuals, including the defendant, based on the description from the complaining witness. The complaining witness and two of her colleagues from the office separately viewed the array. The complaining witness tentatively identified the photograph of an individual who was not the defendant whereas her colleagues both identified the defendant. One colleague testified that she had seen the defendant the day before the incident. However, on the day of the incident, she recollected that while she spoke briefly to the defendant in her office, it was not in the presence of the complaining witness. The other colleague testified that she saw the complaining witness come into the office with the defendant, but did not witness the defendant speaking with anyone in the office. Both colleagues described the defendant as having similar physical attributes and clothing to those described by the complaining witness.
The complaining witness described the defendant as follows: "short, stocky, Hispanic, shaved head," wearing "beige shorts, white socks, black sneakers, and a gray . . . tank top[,]" and carrying a black Nike bag.
On cross-examination, the officer who administered the photograph array explained that "[a]fter hesitation and stating that she was nervous and it happened quickly[,] she did end up identifying somebody that wasn't [the defendant] but she wasn't sure if that was the individual."
One colleague described the defendant as wearing khaki shorts and carrying a Nike book bag. The other colleague described him as short and bald.
At the close of the Commonwealth's evidence, the defendant moved for a required finding of not guilty based on insufficient identification evidence. The trial judge denied the motion, finding that the evidence was sufficient. The motion was renewed at the conclusion of the defendant's case; it was again denied.
Discussion. The sole issue within our purview involves the sufficiency of the eyewitness accounts in identifying the defendant as the perpetrator. We "view[] the evidence in the light most favorable to the [Commonwealth]," and "find that there was enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).
Three witnesses identified the defendant as the perpetrator of the crime. Two of the witnesses observed him at the complainant's workplace; one had a conversation with him and the other was present when the complainant brought the defendant into the office before identifying him as the person who had "tried snatching her purse." The third witness was familiar with the defendant and had seen him "every day" for a period of "between two to three weeks straight." That third witness described his attire and the bag he had been carrying when he left his home, located an approximate four-minute drive or fifteen-minute walk from the scene of the theft. The description matched that provided by both the complainant and one of the other witnesses in material respects.
Positive identification by a complainant is not the exclusive means to provide sufficient evidence of the identity of a defendant, and we decline to impose such a requirement. On this record, the standard imposed by Latimore is met. There was no error in the judge's denial of the motion for a required finding of not guilty.
Judgment affirmed.
By the Court (Berry, Grainger & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: September 28, 2015.