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Appeals Court of Massachusetts.



Decided: March 17, 2021

By the Court (Rubin, Singh & Hand, JJ.1)


Following a Superior Court jury trial, the defendant was convicted of attempted assault and battery by means of the discharge of a firearm, carrying a firearm without a license, and possession of a loaded firearm without a license. On appeal, he challenges the denial of his motion to suppress photographic (photo) identification and argues prosecutorial misconduct in closing argument. Discerning no error, we affirm.

Discussion. 1. Photo identification. Prior to trial, the defendant moved to suppress a witness's identification of the defendant from a photo array. After an evidentiary hearing, the judge denied the motion, concluding that the identification procedure was not unnecessarily suggestive and that external factors did not unfairly affect the reliability of the identification. On appeal, the defendant contends that the photo identification should have been suppressed based on common-law principles.

“Common law principles of fairness” allow a judge to suppress an out-of-court eyewitness identification if it “resulted from a ‘highly’ or ‘especially’ suggestive confrontation with the defendant” (citation omitted). Commonwealth v. Johnson, 473 Mass. 594, 598-599 (2016). Further, a judge has discretion to exclude relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice.” Id. at 599, quoting Commonwealth v. Crayton, 470 Mass. 228, 249 n.27 (2014). After “weighing the probative value of the identification against the danger of unfair prejudice, and determining whether the latter substantially outweighs the former,” the judge has discretion to allow the admission of a suggestive identification or to exclude it. Johnson, supra at 600. We review for abuse of that discretion. Id. at 599.

According to the motion judge's findings, the Quincy police were called to a scene where shots had been reported fired around 12:45 a.m. on August 22, 2016. They encountered three men, including the identifying witness, who alleged shots had been fired at them before the police's arrival. The men indicated that a white sports utility vehicle (SUV) had parked in front of the residence of the identifying witness. After the vehicle had been there about fifteen minutes, the men approached it, telling the driver to move. An argument ensued with the occupants of the SUV that degenerated into a physical fight. One of the men punched a male occupant of the SUV who then lifted his shirt and pulled from underneath it a firearm. The male occupant fired at least three rounds that did not strike anyone. The three men immediately fled and the SUV drove away from the area.

On August 24, 2016, police interviewed the identifying witness, who described the shooter as a light-skinned black or Hispanic male in his mid-twenties whose hair was braided in corn-rows. He stated that the assailant was not someone who was known to him.

On October 4, 2016, the police asked the identifying witness to review a series of eight photographs depicting men of similar age and complexion, however, none of the men had hair braided in corn-rows. Upon viewing a photograph of the defendant included in the array, the identifying witness stated that he looked like the person who had fired the gun and wrote, “[T]his guy is similar to the shooter.”

On appeal, the defendant contends that the photo identification should have been excluded because the circumstances precluded a reliable identification. Specifically, he points to the darkness of night, the brevity of the encounter, and the high stress nature of the interaction as all contributing to a poor opportunity to observe. In addition, he argues that the time lapse between the observation and the identification further detracted from reliability. Finally, he contends that the identification itself was premised on an array that did not match the description given by the identifying witness.

The judge recognized these factors but also noted that the area was illuminated by a streetlight and that at least fifteen minutes had elapsed before the conflict, such that there was sufficient lighting and time for observation before the stressful encounter. The judge also noted that, even though the identification occurred sometime after the event and the photo array did not include individuals with hair braided in corn-rows, the witness previously had viewed a different photo array that did not include a photograph of the defendant and made no identification. Under the circumstances, we discern no abuse of discretion in the judge's determination that the probative value of the identification outweighed any risk of unfair prejudice. See Johnson, 473 Mass. at 602.

2. Closing argument. The defendant contends that the prosecutor improperly argued that the evidence that (1) the codefendant spent the night at the defendant's girlfriend's apartment and (2) the defendant drove a different car after the shooting, constituted consciousness of guilt and thereby created a substantial risk of a miscarriage of justice. “In closing argument, ‘[p]rosecutors are entitled to marshal the evidence and suggest inferences that the jury may draw from it.’ Those inferences need only be reasonable and possible.” (Citation omitted.) Commonwealth v. Roy, 464 Mass. 818, 829 (2013).

Here, the defendant was tried with a codefendant who was charged with being an accessory after the fact of the defendant's attempted assault and battery by means of discharge of a firearm. From the trial evidence, the jury could have inferred that the white SUV involved in the shooting belonged to the codefendant, and that immediately after the shooting, the defendant and the codefendant traveled to the defendant's girlfriend's apartment, arriving through the garage. The codefendant spent the night on the couch. Later that day, police observed the codefendant driving another car belonging to a third party, while in the company of the defendant.

With respect to the codefendant spending the night on the defendant's girlfriend's couch, the prosecutor stated:

“[The codefendant] had to sleep on that couch, because if there's one thing [the codefendant] did not want to be at that point is driving around, looking as she does, driving a white SUV in Quincy. That just couldn't happen because that would result in the police following her.

“So the Commonwealth has to prove that [the codefendant] aided in the escape and assisted [the defendant] in avoiding arrest. Folks, that's not just driving him from the scene of the shooting; that is also, she also aided him in avoiding arrest by keeping herself in that apartment and not driving around in that SUV, not chancing driving home. That aided in preventing his arrest, too.”

With respect to the codefendant driving a different car after the shooting, the prosecutor argued:

“[The police] encountered [the codefendant] and [the defendant] together in a car, and that was in Boston. What's important about that evidence? What's the takeaway from that evidence? Well, first of all, [the codefendant] had a brand new 2016 CX5 registered to her, but yet ․ she's driving a different car. Why? Because her car was just involved in a shooting the night before. That's important.”

Contrary to the defendant's argument on appeal, the prosecutor's statements were supported by the evidence. No speculation was required to conclude that the codefendant spent the night at the defendant's girlfriend's apartment and later drove a different car in order to avoid detection through her white SUV. See Commonwealth v. Tu Trinh, 458 Mass. 776, 781 (2011). Although there may well have been innocent explanations for the codefendant's conduct, that is the nature of consciousness of guilt evidence. See Commonwealth v. Prater, 431 Mass. 86, 97 (2000) (it is for jury to decide whether defendant's actions resulted from consciousness of guilt or some other reason).

We discern no impropriety in the prosecutor's closing argument and therefore no substantial risk of a miscarriage of justice.

Judgments affirmed.

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