COMMONWEALTH v. WIGGLESWORTH (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury-waived trial in the District Court, the defendant was convicted of attempting to commit a breaking and entering of a motor vehicle in the daytime to commit a misdemeanor, G. L. c. 274, § 6. We affirm.

Discussion. The defendant's primary argument is that, at trial, the car owner (victim) was erroneously allowed to identify him as the person who attempted to break into her car, in violation of the rule that “[w]here an eyewitness [who was present during the commission of a crime] has not participated before trial in an identification procedure, [a court] shall treat the in-court identification as an in-court showup, and shall admit it in evidence only where there is ‘good reason’ for its admission.” Commonwealth v. Crayton, 470 Mass. 228, 241 (2014). The Commonwealth introduced the identification without first showing, through a motion in limine, good reason for its admission. See id. at 243; Mass. G. Evid. § 1112(c)(2) (2020). Because the defendant did not object at trial, we review for whether any error created a substantial risk of a miscarriage of justice.² See Commonwealth v. Traylor, 472 Mass. 260, 267 (2015). There is a substantial risk of a miscarriage of justice when an error “materially influence[d]” the guilty verdict. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

Although the Commonwealth did not follow the proper procedure to admit the victim's in-court identification, any error in admitting the identification did not create a substantial risk of miscarriage of justice. As an initial matter, although the investigating officer did not ask the victim to identify the defendant at the scene on the day in question, the victim's testimony was that she saw the defendant in the back of the police cruiser and that he was the person who tried to break into her car. She observed him in a neighbor's yard and near her car for approximately twenty minutes. In any event, ample circumstantial evidence supported the defendant's identification and his defense did not rest on misidentification. The defendant was arrested only six or seven houses away from where the victim's car was parked and she testified that the police found him there. The defendant matched the victim's description. The defendant also admitted that he was the individual near the victim's car and that he “flicked” the car door handle. He denied trying to enter the car. We discern no substantial risk of a miscarriage of justice. See Traylor, 472 Mass. at 267.

The defendant fares no better by framing his unpreserved claim of error as a claim of ineffective assistance of counsel. Where, as here, a defendant alleges that “his failure to preserve an issue stems from ineffective assistance of counsel,” the ineffectiveness claim is not reviewed separately, and the unpreserved claim is reviewed under the same substantial risk standard. Commonwealth v. Randolph, 438 Mass. 290, 296 (2002).

Judgment affirmed.

FOOTNOTES

2.   Despite the lack of objection to the identification, the trial judge asked the testifying police officer if a purpose of bringing the defendant back to the scene was to do a showup. The officer responded that he did not ask the victim to identify the defendant, and that he just returned to the scene to investigate. Based on the Commonwealth's questions, it appears that it had assumed otherwise and was not expecting this testimony.