Opinion
18-P-1294
06-15-2020
COMMONWEALTH v. MICHAEL WILLIAMS.
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
This appeal stems from a nighttime break-in of a Boston home, located at 27 Concord Square, on July 28, 1999. Violence ensued in the home; the sole assailant battered the residents, Linda Giedl and Ruth Whiting, causing serious injuries to both. Just ahead of the arrival of the Boston police, the assailant fled from the home, escaping by means of a back entrance and a rear yard. Soon after arriving on the scene, four Boston police officers discovered the defendant ducking behind some bushes and a stockade fence on a neighboring property. Officers briefly detained him for investigative purposes so as to allow the two victim eyewitnesses to observe him -- a common police procedure known as a "showup" -- while their memories were fresh. Both women positively identified him as the assailant. The police then arrested the defendant. He was later indicted, tried before a Superior Court jury in 2003, and found guilty of all charges. In 2011, our court, in a published opinion, set aside the defendant's convictions and ordered a new trial in the Superior Court. Commonwealth v. Johnson, 80 Mass. App. Ct. 505 (2011).
A panel of our court had previously affirmed the convictions, in an unpublished decision. Commonwealth v. Johnson, 70 Mass. App. Ct. 1107 (2007).
After a retrial in 2014, a Superior Court jury convicted the defendant of two counts of burglary with assault on an occupant of a dwelling, G. L. c. 266, § 14, and a single count of assault and battery causing bodily injury on a person (Whiting) age sixty or older, G. L. c. 265, § 13K (b).
He was acquitted on the remaining charges. A robbery charge, which the jury rejected, was critically undermined by the fact that the allegedly stolen items (jewelry and cash) were missing when the retrial commenced in 2014, some fifteen years after the break-in.
The defendant now appeals from his 2014 convictions and from the denial of his pretrial motion to suppress evidence of his identification by the victims. He argues that the showup procedure was so unnecessarily suggestive as to deny him due process. He also argues that errors marred his retrial at several stages: the jury empanelment process; admission of expert testimony; the prosecutor's closing remarks; and the trial judge's supplemental instructions to the jury. We discern no error. Accordingly, we affirm the judgments.
Background. The defendant does not raise a challenge to the sufficiency of the evidence for the jury's guilty verdicts if the identification evidence was admissible at retrial. He does not dispute the Commonwealth's proof of the break-in, or the attacks on Giedl and Whiting, aged fifty-eight and seventy-seven, respectively. The crux of this case concerns the victims' identification of the defendant. Thus, we turn first to the judge's decision denying the motion to suppress. Commonwealth v. Corradino, 368 Mass. 411, 413 (1975). The motion judge's subsidiary findings of fact, in summary, with some supplementation from otherwise uncontroverted parts of the hearing testimony, are as follows.
At the hearing, with respect to the showup identification, the Commonwealth offered the testimony of Sergeant Robert Donaruma and Sergeant Detective Michael Linskey of the Boston police department. Both held the rank of patrol officer during the time in question.
1. Motion to suppress. a. Facts. At about 11:45 P.M., on July 28, 1998, a Boston police department (BPD) dispatcher radioed officers of a robbery in progress at 27 Concord Square, which is in the South End section of the city. Boston police officers Mike Trevizoni and Gerry Harrigan were the first to arrive on the scene. Officer Robert Donaruma, his partner, Officer Christine Melia, as well as Officer Michael Linskey and Officer Robert Griffin, then arrived at the home within a matter of a few minutes after receiving the dispatcher's call. Trevizoni and Harrigan went into the home; the others went to the back of 27 Concord Square, which was bordered by a narrow alley. While the officers were in the alley, a concerned citizen yelled out ("he's right there"), pointing to a fence-enclosed yard at 32 Rutland Square, directly across from the victims' home. A wooden stockade fence separated the yard of 32 Rutland Square from the alley. As they entered that yard, the officers observed the defendant, crouching behind some bushes in a corner of the yard. When the defendant failed to comply with the officers' commands to come out with hands raised, Officers Linskey and Griffin physically removed the defendant from the corner and another officer handcuffed him. As the officers then led him out to the alley, either Giedl or Whiting came out onto the elevated rear deck of 27 Concord Square and indicated to the officers that the assailant wore a hat. Officer Linskey retraced his steps into the yard at 32 Rutland Square, where he was joined by Officer Melia; with the aid of a flashlight, they found a dark-colored baseball cap and latex gloves in the same spot where the defendant had taken cover. The officers did not have a description of the assailant nor were they aware of the assailant's race or age. Meanwhile, Officers Griffin and Donaruma placed the defendant in a police cruiser and brought him to the front of the 27 Concord Square home, where the lighting conditions were more favorable for an identification, if one could be obtained, as opposed to the dimly lit alley. It was close to midnight. The police had the defendant stand at the bottom of the front staircase of 27 Concord Square. About ten feet away from him, Giedl and Whiting stood at the top of the staircase, where they were accompanied by (at least) one police officer. The defendant's hands were cuffed behind his back; he was flanked on either side by Officers Donaruma and Griffin. Prior to an identification, one victim referred to the hat that the assailant had worn. Then, in front of Giedl and Whiting, Officer Donaruma put the baseball hat on the defendant's head.
Officers Trevizoni and Harrigan had radioed the others that the suspect was running out back.
Donaruma added a further detail, in his hearing testimony, that the sweatband of the hat was damp to the touch. In describing the demeanor of the defendant, Linskey testified: "He was sweating profusely, out of breath, and he just seemed very nervous."
Officer Linskey passed the hat to Officer Griffin, who then brought the defendant around to the front of the home.
We refer here to the hearing testimony of Sergeant Donaruma and Sergeant Detective Linskey who both, on cross-examination, confirmed that they did not have any descriptive information as to the suspect.
After observing the defendant, Giedl stated: "I think that's him." Whiting stated: "That's definitely him." Soon after, Boston emergency medical technicians took Giedl and Whiting to a hospital for treatment.
The police then arrested the defendant and took him to the District-4 station for booking.
At the motion hearing, the defendant focused his argument on three aspects of this showup. He argued that his due process rights were violated when the police placed the hat on his head, in the presence of the victims, just before the victims identified him as the assailant. The placement of the hat, the defendant had argued, amounted to an impermissible signal from the police to the victims, suggesting that he was the assailant. Combined with the additional circumstance that this was a cross-racial identification, the defendant argued that the showup procedure was "so unnecessarily suggestive and conducive to a mistaken identification as to deny him due process." The defendant bore the burden to "establish by a preponderance of the evidence that the [showup] procedure was unnecessarily suggestive." Commonwealth v. German, 483 Mass. 553, 557 (2019). See Perry v. New Hampshire, 565 U.S. 228, 238-239 (2012). The motion judge ruled that the defendant did not meet his burden.
He also contended in the Superior Court that the police did not separate the victims but instead had them together as each made a positive identification. He does not press this argument on appeal.
In support of his suppression argument, the defendant refers to the testimony of trial witnesses. Our review, however, is limited to those facts developed at the suppression hearing, not at trial. Commonwealth v. Borgos, 464 Mass. 23, 27 n.10 (2012). See generally J.A. Grasso, Jr., & C.M. McEvoy, Suppression Matters Under Massachusetts Law § 2-12, at 2-34 (2019).
b. Law. In reviewing a ruling on a motion to suppress, "we conduct an independent review of [the (motion) judge's] ultimate findings and conclusions of law" (citation omitted). Commonwealth v. Meas, 467 Mass. 434, 440 (2014). Here, the motion judge squarely addressed and rejected the defendant's claims. The judge concluded that the investigating officers had good reason, particularly for public safety concerns, to conduct the showup at the scene, and that, as conducted, it conformed to constitutional standards. We agree.
Due process issues that bear on a showup identification procedure are not novel. See Stovall v. Denno, 388 U.S. 293, 301-302 (1967); Commonwealth v. Barnett, 371 Mass. 87, 91-92 (1976); Commonwealth v. Bumpus, 354 Mass. 494, 501 (1968), cert. denied, 393 U.S. 1034 (1969). The Supreme Judicial Court has long held that police showups of suspects to "eyewitnesses" of crimes, while disfavored due to their inherently suggestive character, "have been regularly held permissible when conducted by the police promptly after" the criminal episode in question. Barnett, 371 Mass. at 92. See German, 483 Mass. at 557; Commonwealth v. Moore, 480 Mass. 799, 811-812 (2018); Commonwealth v. Figueroa, 468 Mass. 204, 217 (2014).
The Supreme Judicial Court's holdings are closely aligned with Stovall, the seminal opinion of the United State Supreme Court, which held that the showing of the suspect to a badly injured eyewitness during an "immediate hospital confrontation was imperative" in the given circumstances. 388 U.S. at 302.
"In general, a defendant may challenge a showup identification as unnecessarily suggestive in two ways." German, 483 Mass. at 558. A defendant may attempt to establish that the police did not have a "good reason" to undertake a showup procedure, or that the officers who did so utilized "special elements of unfairness" indicating a desire to "stack the deck" against the defendant. Id. at 558, 559. The motion judge determined that the defendant did not establish either scenario.
On appeal, the defendant has abandoned his argument that the police did not have good cause to conduct the showup in front of 27 Concord Square. His claim is confined to the circumstance that the police placed the baseball hat on his head in the presence of the victims before the victims identified him as the assailant. The judge acknowledged that the placement of the hat on the defendant in this manner was less than ideal, but ultimately concluded it did not cause the showup to be unnecessarily suggestive. We agree that the placement of the hat did not constitute a special element of unfairness for two interlinked reasons.
First, the police acted, essentially, at the behest of one of the victim eyewitnesses who had made pointed references to the fact that the assailant wore a hat during this criminal episode. The police reasonably could infer that the hat, which was found at the location where they had apprehended the defendant, had in fact belonged to the defendant. This was not a situation where the police insisted that the defendant wear a particular article of clothing that belonged to another individual. Second, there is no evidence to suggest that the officers placed the hat on the defendant in order to "stack the deck" against him. The officers' conduct, as a whole, does not support an inference that they were motivated by improper purposes.
There is the relevant hearing testimony of Sergeant Detective Linskey, see supra note 6, that the defendant was "sweating profusely" and the testimony of Sergeant Donaruma that the sweatband of the hat was "damp" when he touched it.
Among other factors, (a) the officers made a collective decision to bring the defendant to the front of the home where lighting conditions were more optimal for an identification, as opposed to the dark alley; (b) the officers made no arrest but instead undertook a brief stop of the defendant for justifiable investigatory reasons so as to allow the victims to have a look at him; (c) the officers did not conduct a search of the defendant, other than a patfrisk to check for a weapon; and (d) the officers conducted the showup promptly after the crimes occurred.
Based on our holding that the showup was not unnecessarily suggestive, it follows that the in-court identification of the defendant by Giedl was admissible at the retrial, without further showing by the Commonwealth. See Barnett, 371 Mass. at 91. The motion judge carefully appraised the totality of circumstances surrounding the showup, and thoughtfully balanced the defendant's due process claims against the practical concerns that the police faced in investigating a violent crime in a dense residential area.
We refuse the defendant's invitation to apply, retroactively, the prospective rule established by the Supreme Judicial Court in Commonwealth v. Collins, 470 Mass. 255, 265 (2014).
2. Peremptory challenge. The defendant contends that on the second day of jury empanelment, the prosecutor exercised a peremptory challenge for a discriminatory purpose to dismiss a prospective juror, an African-American female, identified as no. 171. Relatedly, the defendant faults the judge for allowing the prosecutor's peremptory challenge without making a finding that the prosecutor had provided an adequate and genuine group-neutral reason for dismissing juror no. 171. The defendant, drawing from these alleged errors, argues that he was deprived of a trial free of racial discrimination in the jury empanelment process, in violation of his constitutional rights to equal justice, under art. 12 of the Massachusetts Declaration of Rights, see Commonwealth v. Soares, 377 Mass. 461, 486-488, cert. denied, 444 U.S. 881 (1979), and the equal protection clause of the Fourteenth Amendment to the United States Constitution. See Batson v. Kentucky, 476 U.S. 79, 84-88 (1986); Flowers v. Mississippi, 139 S.Ct. 2228, 2234 (2019).
To put the defendant's Soares-Batson claim in context, we must assess the record facts. In brief outline, at the outset of the jury empanelment process, the trial judge decided to seat sixteen jurors and allowed each party sixteen peremptory challenges. On the second day of the empanelment process, the trial judge called juror no. 171 for an individual voir dire. By this time, the trial judge had already seated fourteen of the sixteen jurors. Defense counsel had not raised an objection to the prosecutor's having used a peremptory challenge for discriminatory purposes. When the judge concluded his voir dire of juror no. 171, the prosecutor requested that this juror be excused for cause. The voir dire had revealed that juror no. 171 was then working for an organization that assisted individuals "involved" with the Commonwealth's Department of Children and Families; in a prior job, she had assisted men (with juvenile records) to secure employment. The trial judge refused to excuse juror no. 171 for cause, prompting the prosecutor to exercise one of his five remaining peremptory challenges against juror no. 171. Defense counsel objected, citing a "pattern" of prior peremptory challenges exercised by the Commonwealth toward prospective jurors of color. The trial judge inquired of the prosecutor as to why an earlier peremptory challenge had been directed toward a young African-American man, a circumstance that, in the judge's view, implicitly called into question the prosecutor's latest use of a peremptory challenge against juror no. 171. The prosecutor stated he was inclined to withdraw his peremptory challenge against juror no. 171 in order to avoid a mistrial. Then the following exchange occurred:
In its brief, the Commonwealth tries to argue that the race of juror no. 171 is not self-evident on this record. We disagree.
Judge: "Why would you exclude this woman?"
Prosecutor: "For the same reasons, I moved for cause. Her background has been working with youthful offenders. Before that time --" [speech cut off]
Judge: "She said that she was working with youth, and then before that time she worked with youthful offenders. Why would that be cause? Why would that be something that would be somehow or other affect her ability to be impartial."
Prosecutor: "I think she would be much more sympathetic and unfairly sympathetic towards criminal defendants."
Judge: "I'm going to take no position on it and I'll allow the peremptory challenge."
Defense counsel: "Please note my objection."
Judge: "Noted."
We accept, without deciding, that the trial judge found a prima facie case of the discriminatory use of peremptory challenges, which then placed the burden on the prosecutor to provide a group-neutral reason for exercising the peremptory challenge to juror no. 171. See Commonwealth v. Oberle, 476 Mass. 539, 545 (2017). We agree, as the defendant has argued, that the trial judge did not make the requisite third stage finding -- the "judge must then determine whether the [prosecutor's] explanation [for exercising the peremptory challenge] is both 'adequate' and 'genuine'" (citation omitted) before the judge may allow the peremptory challenge, id. -- in this instance as to juror no. 171.
The Supreme Judicial Court has held that a reviewing court may, where appropriate, affirm a judge's allowance (or denial) of a peremptory challenge, "even without explicit findings when the record as a whole permits us to do so." Commonwealth v. Benoit, 452 Mass. 212, 221 (2008). We think the record permits us to reasonably conclude that the prosecutor had articulated an adequate and genuine group-neutral reason for using a peremptory challenge against juror no. 171. We accept, for present purposes, that the judge acted well within his broad discretion in refusing to excuse juror no. 171 for cause. Commonwealth v. Jaime J., 56 Mass. App. Ct. 268, 271-272 (2002) ("trial judge has broad discretion in determining the partiality of a prospective juror"). However, the fact that the prosecutor sought to excuse juror no. 171 for cause, albeit unsuccessfully, does bear on the prosecutor's overall thought process respecting this prospective juror's possible bias, based on her life experiences assisting youthful offenders. The prosecutor offered a plausible reason, unrelated to the race or gender of juror no. 171, for excluding this juror. While the judge took no position on whether the potential juror would be "unfairly sympathetic towards criminal defendants," in the judge's words, by allowing the challenge, the judge apparently concluded that the prosecutor's rationale was both genuine and adequate. We agree. No error of a constitutional dimension followed from the trial judge's allowing the prosecutor's peremptory challenge to juror no. 171.
3. DNA expert. The defendant argues that his right of confrontation under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights was infringed by the judge's admitting the expert opinion testimony of Julie James, the DNA unit supervisor at the Boston police crime laboratory (BPD lab), who testified as to the results of DNA testing performed by another analyst at the BPD lab, Joseph Varlaro, who was no longer employed by the BPD at the time of trial. We do not agree. James had conducted a full technical review of the other analyst's DNA report respecting the testing that had been performed and the results of that testing. See Commonwealth v. Barbosa, 457 Mass. 773, 786-786 (2010). At his retrial, the defendant had a full and fair opportunity to confront and cross-examine James as to the reasonable bases for her expert opinion of the DNA evidence that linked the defendant to the attack of Whiting. The defendant scrutinized James's direct testimony and elicited the fact that James had not reviewed the raw data upon which the Commonwealth's DNA profiles were based. Commonwealth v. Mattei, 90 Mass. App. Ct. 577, 578-580 (2016). There was no error in permitting James to testify as to her own independent opinions based on data generated by DNA testing performed by her lab colleague Varlaro. See Commonwealth v. Barry, 481 Mass. 388, 408 (2019); Barbosa, supra; Commonwealth v. Taskey, 78 Mass. App. Ct. 787, 794-795 (2011).
4. Prosecutor's closing remarks. The defendant also claims prejudice from certain remarks of the prosecutor in his closing argument. Commenting on Giedl's identification testimony, the prosecutor stated: "And you heard [Giedl's] testimony. She identifies this man as the man who was in her room and attacked her not once but three times, out of the closet, in the doorway, throwing a space heater, and coming right after that space heater beating on her. She identified this man as the person who did these acts. She was certain on July 28, 1999, and you hear her be certain again this week from the witness stand."
At the end of the prosecutor's closing, defense counsel objected, asserting that the prosecutor had misstated Giedl's testimony. The trial judge disagreed. Counsel did not request a curative instruction. On appeal, the defendant says that the prosecutor's misstatement "transformed exculpatory evidence of doubt into inculpatory evidence of certain identification." We are not persuaded by the defendant's analysis of the prosecutor's remarks, which we review "in light of the 'entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial.'" Commonwealth v. Rodriguez, 437 Mass. 554, 565 (2002), quoting Commonwealth v. Lamrini, 392 Mass. 427, 432 (1984).
While prosecutors may argue forcefully for a defendant's conviction, closing arguments must be confined to the evidence and the fair inferences from the evidence. See Commonwealth v. Alvarez, 480 Mass. 299, 305 (2018); Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). Here, the prosecutor could point to fact-based reasons why the eyewitness Giedl should logically be believed, see Commonwealth v. Wiggins, 477 Mass. 732, 746-747 (2017), and we think that the prosecutor's description of the strength of her identification ("certain" now and then) did not stray beyond a fair comment as "to what conclusions the jury should draw from the evidence." Commonwealth v. Paradise, 405 Mass. 141, 154 (1999), quoting Commonwealth v. Ferreira, 381 Mass. 306, 316 (1980). The judge charged the jury that it was their function alone to find the facts and it was their memory of the evidence and the inferences therefrom which would govern and not the arguments of counsel. There was no error.
5. Supplemental jury instruction. The jury commenced their deliberations on a Friday afternoon and recessed for the weekend without reaching a verdict. The jury reconvened on the following Monday, and at 10:41 A.M., the jury submitted a note to the judge, asking two questions: "What happens if we cannot reach a unanimous decision? What is the procedure for a hung jury?" Once he read the jury's note to defense counsel and the prosecutor, the judge solicited suggestions from both sides as to the content of a response to the jury's note. Defense counsel requested the judge to reiterate an instruction on the burden of proof but the judge wisely refused, explaining that this topic had been well covered in his main charge and he did not believe it was prudent to repeat it.
Following a rather extended conference with defense counsel and the prosecutor, the judge chose to recall the jury to the court room, rather than just sending a written response to them. Using plain language, the judge answered the jury's questions and explained why he believed it was "premature" to delve any deeper into these topics at such an early stage of the jury's deliberations. The judge politely asked the jurors to continue to deliberate, instructing them:
"I appreciate your concerns that are evidenced in this note but all I'm going to say to you is to please return to deliberations to consider the evidence, to consider the instructions I gave you, to consider the instructions that I gave you not only on the law but the instructions that I gave you on your deliberations. So I am going to ask you and the foreperson to resume with your deliberations. Thank you."
After the jury retired to resume their deliberations, defense counsel objected to this supplemental instruction, arguing that the judge ought to have included language that reminded the jurors "to not surrender their own firmly held beliefs, should they have them." Defense counsel ignored the fact that the judge's supplemental instruction had referred the jury to his main charge, which included this same language, in describing the deliberative process. On appeal, in a brief argument (one-half page length), the defendant says that the judge's supplemental instruction, in effect, coerced a guilty verdict, by failing to inform the jurors, expressly, not to surrender firmly held views. He cites Commonwealth v. O'Brien, 65 Mass. App. Ct. 291, 295 (2011), which approved such language, to support his claim.
The defendant's claim here is precluded as a matter of fact and logic, by the jury's own words. In a second note, submitted at 2:25 P.M. on Monday, about three and one-half hours after the jurors had received the quoted supplemental instruction, the jury stated: "We, the jury, are unable to reach a unanimous decision on all charges. Those of us who are of the dissenting opinion are not and will not change our positions." It is impossible for us to hold that the judge's supplemental instruction was somehow "coercive," when the jury disclosed, in their subsequent note that jurors "of the dissenting" camp refused to abandon their "positions" on all charges in order to reach a unanimous verdict.
In response, the judge read the Tuey Rodriguez instruction to the jury. See Commonwealth v. Rodriguez, 364 Mass. 87, 98-101, 101-102 (1973) (Appendix); Commonwealth v. Tuey, 8 Cush. 1, 2-4 (1851). Ninety minutes later, at 4:14 P.M., the jury reached a unanimous verdict. That instruction is intended to remind the jurors "it is [their] duty to decide [this] case if [they] can do so conscientiously" (citation omitted). Commonwealth v. Ray, 463 Mass. 1, 3 n.3 (2012). They obviously followed that guidance.
To the extent that any contentions of the defendant are not expressly addressed, "they 'have not been overlooked. We find nothing in them that requires discussion.'" Commonwealth v. Brown, 479 Mass. 163, 168 n.3 (2018), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
So ordered.
By the Court (Green, C.J., Massing & Lemire, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 15, 2020.