COMMONWEALTH v. ANDRADE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Alexander M. Andrade, appeals from convictions of unarmed robbery, G. L. c. 265, § 19 (b), and armed carjacking, G. L. c. 265, § 21A.² We affirm the judgments, addressing the defendant's various claims in turn.

1. Admission of photographic array. The defendant's claim that trial counsel was ineffective for failing to seek suppression of the victim's identification of the defendant from a photographic array is without merit because any such attempt would have been unsuccessful.

In order to succeed on a motion to suppress a photographic identification, “the defendant must show by a preponderance of the evidence that, in light of the totality of the circumstances, the procedures employed were so unnecessarily suggestive and conducive to irreparable misidentification as to deny the defendant due process of law.” Commonwealth v. Miles, 420 Mass. 67, 77 (1995).

Contrary to the defendant's contention, the record reflects that the police officers employed a double-blind procedure in administering the photographic array and the administering police officer displayed the photographs sequentially to the victim.³ Furthermore, the administering police officer read the full instructions to the victim prior to commencing the identification, and the victim indicated he understood.⁴ Because the array was properly administered and was not unnecessarily suggestive, the defendant cannot claim ineffective assistance of counsel for the failure to file a motion where there is no indication that it “might have accomplished something material for the defense.” Commonwealth v. Lally, 473 Mass. 693, 703 n.10 (2016), quoting Commonwealth v. Satterfield, 373 Mass. 109, 115 (1997).

2. Admission of photograph of defendant. There is no merit in the defendant's claim that trial counsel provided ineffective assistance by failing to object to the admission of a photograph depicting the defendant kneeling and restrained by a chain. The photograph was one of five photographs admitted relevant to the collection of gunshot residue samples from the defendant, and probative of the source of the relevant samples.⁵ See Commonwealth v. Jones, 472 Mass. 707, 716 (2015). The photograph was taken shortly after the defendant was taken into custody, and the jury were aware of the defendant's arrest incident to the investigation. See Commonwealth v. Waters, 399 Mass. 708, 715 (1987) (no prejudice because “jury knew that the defendant had been arrested for the crime[s] being tried”).

3. Admission of prior consistent statement. Similarly, any objection by trial counsel to the admission of a prior consistent statement identifying the defendant as the perpetrator of the crime would have been fruitless. Although a witness's prior statement that is consistent with that witness's trial testimony is generally inadmissible, where the witness identifies the defendant in court “evidence that the witness made a prior extrajudicial identification of the defendant is admissible both to corroborate the in-court identification and as substantive evidence of the defendant's guilt” (citation omitted). Commonwealth v. Almonte, 444 Mass. 511, 521, cert. denied, 546 U.S. 1040 (2005).

4. Closing argument. We discern no cause to disturb the convictions based on the prosecutor's remarks in closing argument. Because the defendant did not object to any of the statements at trial, the defendant is entitled to relief only if the statements were improper and created a substantial risk of a miscarriage of justice. See Commonwealth v. Staines, 441 Mass. 521, 535 (2004).

Taken “in light of the entire argument, the judge's instructions, and the evidence at trial,” the prosecutor's closing argument was not improper. Commonwealth v. Burns, 49 Mass. App. Ct. 677, 679 (2000). Although the prosecutor referred to gunshot residue particles as “delicate” in contravention to the expert's testimony, the prosecutor made the reference only once and it was not central to the thrust of the closing argument. Additionally, the prosecutor's suggestion that the defendant's flight indicated a strong consciousness of guilt was not improper. A prosecutor is “entitled to marshal the evidence and suggest inferences that the jury may draw from it.” Commonwealth v. Drayton, 386 Mass. 39, 52 (1982).⁶

Even if we were to conclude that the prosecutor's statements were improper, there was no substantial risk of a miscarriage of justice. The trial judge instructed the jury on multiple occasions that closing arguments were not evidence and provided a limiting instruction regarding flight as evidence of a consciousness of guilt. Additionally, the evidence against the defendant was otherwise overwhelming and there is no indication that the result of the trial might have been different had the prosecutor not made the remarks in closing. See Commonwealth v. Azar, 435 Mass. 675, 687 (2002).

Judgments affirmed.

FOOTNOTES

2.   A grand jury indicted the defendant on a count of armed robbery. See G. L. c. 265, § 17. The jury convicted the defendant of the lesser included offense of unarmed robbery.

3.   Even if the photographic array procedures were neither double-blind nor sequential, suppression would not have been assured; the choice of procedure bears on the weight of identification, not on its admissibility. See Commonwealth v. Marrero, 484 Mass. 341, 350 (2020); Commonwealth v. Thomas, 476 Mass. 451, 464 (2017).

4.   Further limiting any suggestiveness of the array, the instructions explained, amongst other things, that the photographs were in a random order, that the defendant may or may not be included in the group of photographs so the victim should not feel compelled to make an identification, that the photographs would be administered sequentially, and that the administering officer could not comment on the results of the process.

5.   We note that any prejudicial effect of the photograph is further limited by the fact that the evidence of gunshot residue was not inculpatory.

6.   The defendant also argues that the prosecutor's reference to the victim as approximately five feet, three inches tall when the victim was actually five feet, four inches tall gave rise to a substantial risk of a miscarriage of justice. We discern no such risk in this innocuous misstatement, especially in light of the fact that the prosecutor only made the reference once.