Opinion
15-P-1565
07-13-2020
COMMONWEALTH v. ANTOINE VITAL.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant, Antoine Vital, appeals from his conviction after a Superior Court jury trial of armed robbery, G. L. c. 265, § 17. Concluding that his various claims of reversible error are without merit, we affirm the conviction and the order denying his motion for a new trial.
1. Background. On August 29, 2012, at approximately 12:15 A.M., two men robbed the victim at gunpoint near a bakery. After the victim turned over his wallet and cell phone to the codefendant, the defendant ran up to the victim and said, "[Y]ou better get out of here or we're going to fucking kill you." The victim described the defendant as a "white kid with red facial hair and freckly face."
The victim then ran home and called the police within five to ten minutes of the robbery. "[V]ery quickly after that," the police officer arrived, and the victim provided a description of the two robbers. Within a few minutes, the officer brought the victim to a showup identification outside of the bakery, where, from the police vehicle, he identified the codefendant, but failed to identify the defendant. After the showup identification, the defendant was arrested for disorderly conduct and resisting arrest. The victim went to the police station to complete some paperwork. As the victim walked towards the back room of the police station, he passed the defendant sitting in the hallway and handcuffed to a bench, and recognized the defendant by his unique skin tone, beard, and freckles.
2. Motion to suppress eyewitness identification. On appeal from a decision denying a motion to suppress, "[w]e accept all of the judge's factual findings" unless clearly erroneous, Commonwealth v. Galipeau, 93 Mass. App. Ct. 225, 226 (2018), and we "review without deference the judge's application of the law to the facts as found." Commonwealth v. Johnson, 473 Mass. 594, 602 (2016). "Out-of-court identifications made without police wrongdoing are analyzed under common law principles of fairness." Commonwealth v. McCray, 93 Mass. App. Ct. 835, 841 (2018). "The defendant bears the burden of proving suggestiveness by a preponderance of the evidence." Id. If the defendant meets this burden, the judge is "required to examine the probative value of the identification testimony in light of 'the strength of its source independent of the suggestive circumstances of the identification.'" Commonwealth v. Dew, 478 Mass. 304, 316 (2017), quoting Commonwealth v. Carter, 475 Mass. 512, 518-519 (2016). Where there is no police wrongdoing, the judge should admit the identification unless "the identification is so unreliable that it would be unfair for a jury to give it any weight in their evaluation of the evidence." Johnson, supra at 602.
The suppression motion judge determined that the encounter "was accidental and without any orchestration by the police officers." As the trial occurred over a year before the Johnson decision, neither the suppression judge nor the trial judge contemporaneously considered the Johnson factors. Nonetheless, the trial judge considered the factors in denying the defendant's motion for a new trial, reasoning that "all of the foregoing factors support the notion that [the victim's] identification of [the defendant] at the police station was accurate, while diminishing the likelihood that a reconstruction error, such as unconscious transference, occurred."
"In determining the strength of an identification's independent source, we consider such factors as the quality of the witness's opportunity to observe the offender at the time of the crime, the amount of time between the crime and the identification, whether the witness's earlier description of the perpetrator matches the defendant, and whether the witness earlier identified another person as the perpetrator or failed to identify the defendant as the perpetrator." Johnson, 473 Mass. at 601.
Here, the defendant could not meet the Johnson standard of demonstrating that the identification was "so unreliable that it would be unfair for a jury to give it any weight in their evaluation of the evidence." Johnson, 473 Mass. at 602. The victim identified the defendant while walking by him sitting in a hallway at the police station within an hour of the robbery. See McCray, 93 Mass. App. Ct. at 840-842 (identification not unnecessarily suggestive when witness drove past defendant who was being arrested). The victim was not asked to, or expected to, make an identification and did not notice whether the defendant was in handcuffs. Contrast Commonwealth v. Jones, 423 Mass. 99, 110-111 (1996) (identification suppressed when witness saw defendant and codefendant in courtroom handcuffed and shackled together). The victim had provided "a description of the man with physical features consistent with those of [the defendant] within ten minutes of the robbery." The fact that the victim had not identified the defendant at the earlier showup identification from twenty-five to thirty feet away was certainly grounds for argument, but it did not make the identification so unreliable that a jury could not consider it at all. We discern no error. See Commonwealth v. Vasquez, 482 Mass. 850, 860 (2019).
3. In-court identification. Because the defendant objected to the in-court identification, we review for prejudicial error. See Dew, 478 Mass. at 305. We cannot apply the principles of Commonwealth v. Collins, 470 Mass. 255, 261-262 (2014), because the trial in this case commenced prior to the Collins opinion. See id. at 265 ("this new rule shall apply prospectively to trials that commence after the issuance of this opinion").
There was no basis for excluding the in-court identification under pre-Collins law. The Supreme Judicial Court has rejected the proposition that "an inherently suggestive showup identification is always questionable, and therefore can never produce an 'unequivocal' identification." Dew, 478 Mass. at 314, quoting Collins, 470 Mass. at 262. For the same reasons that the police station identification was at least worthy of the jury's consideration, it did not taint the in-court identification to an extent that the probative value of the in-court identification was substantially outweighed by its prejudicial effect.
4. Eyewitness identification instructions. The trial judge denied the defendant's request for jury instructions consistent with the report of the Supreme Judicial Court Study Group on Eyewitness Evidence: Report and Recommendations to the Justices (July 25, 2013) (report). We review for an abuse of discretion. See Commonwealth v. Gomes, 470 Mass. 352, 359 (2015).
The judge acted within her discretion in advising the jury consistent with the law in effect at the time of trial. See Gomes, 470 Mass. at 376 ("We intend the new instruction to have no retroactive application"). "[T]he report itself does not represent a binding statement of governing law, and neither the provisional nor the new model eyewitness identification instructions were in existence at the time of the defendant's trial." Commonwealth v. Herndon, 475 Mass. 324, 329 (2016). Additionally, the court in Gomes held that there was no abuse of discretion in using the old instruction where, as here, the defendant failed to present "expert testimony, scholarly articles, or treatises." 470 Mass. at 359.
The judge instructed the jury about an honest but mistaken identification in addition to utilizing the then-existing model instruction on identifications. In closing, defense counsel argued the misidentification defense and highlighted the problems raised in the report. We discern no abuse in discretion. See Herndon, 475 Mass. at 330.
5. Grand jury testimony. "[P]rior inconsistent statements by a witness before a grand jury can be admitted as substantive evidence if certain conditions are met." Commonwealth v. McGhee, 472 Mass. 405, 422 (2015). "The foundational requirements for the admissibility of the inconsistent grand jury testimony are that '(1) the witness can be effectively cross-examined at trial regarding the accuracy of the statement; and (2) the statement was not coerced and was more than a "mere confirmation or denial of an allegation by the interrogator," i.e., the statement must be that of the witness and not of the interrogator.'" Commonwealth v. Ragland, 72 Mass. App. Ct. 815, 823 (2008), quoting Commonwealth v. Clements, 436 Mass. 190, 192 (2002).
Here, the grand jury testimony elicited by the defendant should have been admitted substantively. See Commonwealth v. Belmer, 78 Mass. App. Ct. 62, 67-68 (2010). Assuming that the defendant preserved the issue, we discern no prejudice. See Commonwealth v. Wray, 88 Mass. App. Ct. 403, 405-406 (2015). During the trial, the victim testified that he looked at the defendant for "30 seconds." Before the grand jury, the victim testified that he had seen the defendant for "a second or two, at that time, [he] ran." Defense counsel questioned the victim about this inconsistency on cross-examination and the victim testified that it was "longer than a second or two, but it was -- yeah. It wasn't -- it was pretty brief." When defense counsel impeached the victim with his grand jury testimony, the victim responded, "[c]learly I'm not that great with the number of seconds that things took place." Defense counsel stressed the grand jury testimony and urged -- without objection -- the jury to credit it substantively. Accordingly, the jury was well aware that the victim's exposure to the defendant at the time of the robbery was brief, and the defendant was not prejudiced. See Commonwealth v. Andrade, 481 Mass. 139, 143-144 (2018).
The defendant did not request that the grand jury testimony be admitted substantively at the time it was elicited, but did object to the trial judge's instruction two days later that all prior inconsistent statements could not be considered substantively. Cf. Commonwealth v. Prunty, 462 Mass. 295, 316 n.27 (2012) (issue not preserved where defendant did not ask to admit testimony as substantive evidence and did not object to prior inconsistent statement instruction).
6. Dismissal of empaneled juror. "When evaluating juror impartiality, it is sufficient for the judge to inquire whether potential jurors can set aside their own opinions, properly weigh the evidence, and follow the judge's instructions." Commonwealth v. Chambers, 93 Mass. App. Ct. 806, 809 (2018). "A trial judge is vested with the discretion to discharge a juror prior to deliberations 'in the best interests of justice.'" Commonwealth v. Howard, 479 Mass. 52, 66 (2018), quoting G. L. c. 234A, § 39. "[A] determination by the judge that a jury are impartial will not be overturned on appeal in the absence of a clear showing of abuse of discretion or that the finding was clearly erroneous." Chambers, supra.
On the second day of trial, a juror wrote a note to the judge describing her discomfort with the trial because "the cops [were] very inconsistent with their reports, making it difficult to know exactly what happened." The juror felt as though she could not make a proper verdict. Defense counsel agreed that it would be appropriate for the judge to instruct the juror on needing to keep an open mind. During the colloquy, the judge explained the role and responsibility of a juror. The judge then asked the juror whether she would be able to follow her instructions on keeping an open mind until she heard all of the evidence, received the instructions on the law, and heard the opinions of her fellow jurors. The juror, who had already stated, "I just feel like I kind of already made up my mind," responded, "Honestly, no. No."
Although the judge was not required to conduct a colloquy of the juror, she had the discretion to do so once the juror questioned her ability to reach a proper verdict. See Chambers, 93 Mass. App. Ct. at 810 (judge inquired after juror sent note after first day of trial stating that stress of missing school may result in biased decision). See also Commonwealth v. Alicea, 464 Mass. 837, 848-849 (2013) (judge reinstructed whole jury and appointed foreperson after report that juror made up his mind on second day of trial). Once the juror stated that she could not follow the judge's instructions, it was within the judge's discretion to discharge the juror. See Commonwealth v. Hampton, 457 Mass. 152, 168 (2010).
7. Effective assistance of counsel. "[W]e review the denial of a motion for a new trial for 'a significant error of law or other abuse of discretion.'" Commonwealth v. Duart, 477 Mass. 630, 634 (2017), quoting Commonwealth v. Forte, 469 Mass. 469, 488 (2014). Where, as here, "the motion judge was also the trial judge, her rulings are 'afforded special deference.'" Commonwealth v. Gaudette, 56 Mass. App. Ct. 494, 503 (2002), quoting Commonwealth v. Hung Tan Vo, 427 Mass. 464, 467 (1998). When the basis for a motion for a new trial is a claim of ineffective assistance of counsel, "the defendant must show that the behavior of counsel fell measurably below that of an ordinary, fallible lawyer and that such failing 'likely deprived the defendant of an otherwise available, substantial ground of defence.'" Commonwealth v. Prado, 94 Mass. App. Ct. 253, 255 (2018), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Here, it was a reasonable tactical decision for trial counsel to elect not to call an expert witness on memory where, as the motion judge explained, such testimony "could serve to enhance the reliability of the identification." Where defense counsel extensively cross-examined the victim about the reliability of the identification and argued the inconsistencies in closing argument, it was not unreasonable for counsel to rely on those efforts. See Commonwealth v. Watson, 455 Mass. 246, 257-258 (2009) (decision not to seek funds for expert witness not manifestly unreasonable where counsel cross-examined witness about reliability of identification).
Similarly, it was a reasonable strategic and tactical decision for trial counsel not to call the defendant or the defendant's fact witness. Either of those witnesses would have put the defendant at the scene when the armed robbery took place. Placing the defendant at the scene of the crime would not have been helpful for the misidentification defense; consequently, we discern no error. See Commonwealth v. Watkins, 473 Mass. 222, 240 (2015).
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Kinder, Henry & Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 13, 2020.