COMMONWEALTH v. PEREZ CALDERON (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On appeal from his conviction of various charges,² the defendant raises multiple claims of error in the admission of out-of-court and in-court identifications of him by the victim. Additionally, he contends that the trial prosecutor misstated the evidence in his closing argument and that a Bowden instruction should have been given by the trial judge. We discern no grounds to disturb the judgments and affirm, addressing the defendant's various claims in turn.

1. Identifications. The defendant contends that the motion judge erred in denying his motion to suppress two out-of-court identifications by the victim, one from a Facebook photograph and another from a police-administered photographic array. He claims that suppression was required under common law principles of fairness and due process under art. 12 of the Massachusetts Declaration of Rights. Additionally, he argues that because the out-of-court identifications were improperly admitted, the trial judge should not have allowed the victim to identify the defendant in court.

a. Facebook identification. “In reviewing a decision on a motion to suppress, we accept the judge's subsidiary findings absent clear error but conduct an independent review of [the] ultimate findings and conclusions of law” (quotations and citations omitted). Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). The admission of the victim's Facebook identification did not violate common law principles of fairness under Commonwealth v. Jones, 423 Mass. 99, 109 (1996), for substantially the reasons explained in the memorandum of decision by the motion judge.

The defendant's principal contention that the motion judge erred in finding that the victim recognized the defendant at the crime scene as a former coworker from Walmart is unavailing. The record permitted the motion judge to find that the victim voluntarily let the defendant into his home, and the victim recognized the defendant as someone with whom he had worked at Walmart; indeed, the defendant mentioned several of the victim's coworkers at Walmart and called the victim by his first name. As the motion judge observed, the victim “had no difficulty in recognizing the man. He simply did not recall the man's name. In light of this prior familiarity, the danger of unfair prejudice does not substantially outweigh the probative value of the identification.” As the “evidence was sufficient to warrant ․ the subsidiary findings made by the judge,” Commonwealth v. Murphy, 362 Mass. 542, 547 (1972), there was no error in admitting the Facebook identification.

b. Photographic array. 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. Watson, 455 Mass. 246, 250 (2009), quoting Commonwealth v. Miles, 420 Mass. 67, 77 (1995). We agree with the motion judge that the photographic array procedure was not unnecessarily suggestive, as the police complied with the requirements summarized in Commonwealth v. Vardinski, 53 Mass. App. Ct. 307, 311-312 (2001), S.C., 438 Mass. 444 (2003), and followed a double-blind procedure. As the motion judge found, all the photographs in the array depicted men with the “same general characteristics described by the witness,”³ id. at 311, and Detective Paul Fonseca's mere presence during the administration did not influence the victim's choice.⁴ As the two out-of-court identifications by the victim were properly admitted,⁵ there was no error in allowing the victim to identify the defendant in court. See Commonwealth v. Soares, 76 Mass. App. Ct. 612, 616 (2010).

2. Prosecutor's closing argument. The defendant challenges the prosecutor's statement during closing argument that the victim gave the “same description to all the officers” about the robber's appearance, when the evidence showed that the victim gave inconsistent descriptions to the officers. As the defendant timely objected at trial, we review the statement for prejudicial error. See Commonwealth v. Beaudry, 445 Mass. 577, 584-585 (2005).

“A prosecutor is permitted to argue the evidence and the reasonable inferences that may be drawn from that evidence.” Commonwealth v. Miles, 46 Mass. App. Ct. 216, 219 (1999). See Commonwealth v. Murchison, 418 Mass. 58, 59 (1994). While there were minor differences in the victim's descriptions, such as whether the robber had a beard and how dark his skin tone was, they were substantially the same. The victim generally described the robber as a tall, darker-skinned Hispanic male, wearing a black jacket with fur. In light of the substantial similarity in the victim's descriptions, it was reasonable for the prosecutor to characterize them as the same. Moreover, even if the prosecutor had erred, the error was not prejudicial, since it was insignificant in the context of the entire closing argument, and there was independent evidence outside of the defendant's appearance that connected him to the crimes. See Miles, supra at 221.

3. Bowden instruction. The defendant contends that the trial judge abused his discretion by refusing to give a Bowden instruction. See Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). We discern no merit in this argument, as “a judge is not required to instruct on the claimed inadequacy of a police investigation” under Bowden, and “the defendant was free to argue, and did argue ․ that the police investigation was inadequate.” Commonwealth v. Durand, 475 Mass. 657, 674 (2016).

Judgments affirmed.

FOOTNOTES

2.   The defendant was convicted of (1) armed assault in a dwelling, see G. L. c. 265, § 18A; (2) armed assault with intent to rob, see G. L. c. 265, § 18 (b); (3) attempted assault and battery by discharging a firearm, see G. L. c. 265, § 15F; and (4) carrying a firearm without a license, see G. L. c. 269, § 10 (a).

3.   While there is some validity to the defendant's observation that the defendant's photograph was noticeably darker than the other photographs in the array, we conclude that the suggestiveness of the array and the risk of misidentification were slight in the circumstances.

4.   We find no merit in the defendant's additional contention that the police failed to follow the Silva-Santiago protocol. See Commonwealth v. Silva-Santiago, 453 Mass. 782, 797-798 (2009). As the motion judge found, Detective Wadman asked the victim about his level of certainty in identifying the defendant, and the victim replied with a high degree of certainty, explaining “[t]hat's him” because he had worked with the defendant before.

5.   As noted by the motion judge, since the photographic array “identification procedure was not unnecessarily suggestive,’ ․ it could not have been ‘especially suggestive’ in violation of common law principles of fairness.” See Commonwealth v. McWilliams, 473 Mass. 606, 617 (2016).