Com. v. Cruz

• Decision Date: 21 December 2005
• Citation: 445 Mass. 589,839 N.E.2d 324
• Parties: COMMONWEALTH v. Hector CRUZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

839 N.E.2d 324

445 Mass. 589

COMMONWEALTH v. Hector CRUZ.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued October 3, 2005.

Decided December 21, 2005.

Benjamin H. Keehn, Boston, Committee for Public Counsel Services, for the defendant.

Sheryl F. Grant, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

SPINA, J.

After a jury trial in the Superior Court, the defendant was convicted of armed robbery while masked, assault and battery, and assault by means of a dangerous weapon. He appealed from these convictions, arguing that (1) the judge abused her discretion by admitting in evidence five photographs of the defendant selected by the victim at an out-of-court identification procedure and (2) the judge erred in failing to give the defendant's requested jury instruction that there is no correlation between a witness's confidence in his or her identification and the accuracy of that identification. We transferred the case from the Appeals Court on our own motion, and we affirm.

1. Background. The jury could have found the following facts. At approximately 5:15 A.M. on July 18, 2002, a man entered a variety store in Lowell armed with a large kitchen knife and wearing a hat and a cloth mask over his face, with only his eyes visible. He shouted to the victim, the store clerk, several times, "Give me the money," and stood next to the victim while he opened two cash registers. After taking $350 from the registers, he ordered the victim to "get down" on the floor and punched him in the face. He then took three packages of Newport cigarettes off the counter. As the perpetrator was leaving, a customer entered the store. Brandishing the knife, the perpetrator ordered him to the floor, but the customer ran out the door, and the perpetrator ran out in the opposite direction. When the police arrived shortly after the robbery, the victim described the perpetrator and told police that he was "Spanish." The robbery also was recorded by the store's video cameras.

On July 24, 2002, the victim informed a Lowell detective that, during the robbery, he had recognized the perpetrator's voice as belonging to a frequent customer, although he did not know the man's name. This customer had visited the store almost every day for six months to buy Newport cigarettes, and the victim had spoken with him briefly on each occasion. The victim also had seen this customer multiple times at a nearby supermarket; in fact, ten days before the robbery, they had an argument at that supermarket about the price of stamps at the variety store. The victim explained that he did not immediately disclose this information to police because he feared retaliation by the defendant. When the victim went to the Lowell police station the next day, the detective entered information the victim provided about the defendant's appearance (age, ethnicity, and hair style) into the department's photographic imaging system, which generated a computerized display of 1,344 photographs of men fitting this general description. While the detective waited outside the room, the victim reviewed these images and selected five different photographs of the defendant, Hector Cruz, identifying him as the customer who committed the robbery. On August 2, 2002, Lowell police arrested the defendant, who was later indicted on charges of armed robbery while masked, assault and battery, and assault by means of a dangerous weapon.

At trial, the victim testified to the facts described above; he also stated that he had no doubt that the defendant was the perpetrator. The defendant challenged the victim's identification and presented an alibi defense.¹ The defendant presented a motion in limine to exclude the five photographs, but the judge denied this motion, over the defendant's objection, finding the photographs relevant to the issue of identification. The judge also observed that the photographs lacked any indicia of mug shots, and she instructed the jury to draw no negative inferences from the fact that the police possessed photographs of the defendant. The defendant requested a jury instruction stating that there is no correlation between a witness's certainty in his or her identification and the accuracy of that identification. The judge declined to give this instruction, noting the defendant's objection, but she instructed the jury that a witness may be honest but mistaken regarding an identification.² The jury convicted the defendant of all charges.

2. Standard of review. Because the defendant preserved both issues on appeal with timely objections, we review the proceedings below for prejudicial error. This requires a two-part analysis: (1) was there error; and (2) if so, was that error prejudicial. An error is not prejudicial if it "did not influence the jury, or had but very slight effect"; however, if we cannot find "with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error," then it is prejudicial. Commonwealth v. Flebotte, 417 Mass. 348, 353, 630 N.E.2d 265 (1994), quoting Commonwealth v. Peruzzi, 15 Mass.App.Ct. 437, 445, 446 N.E.2d 117 (1983).

3. Photographic evidence. The defendant maintains that the judge abused her discretion in admitting the five photographs in evidence. He argues that the Commonwealth had no need to introduce these photographs because the victim did not use them to identify the perpetrator; instead, he maintains, the victim recognized the perpetrator's voice as belonging to a frequent customer, then selected photographs of that customer, who may or may not have been the person who committed the robbery. The Commonwealth contends that the photographs were necessary to prove its case because the victim's ability consistently to identify the defendant out of more than 1,300 photographs demonstrated his familiarity with the defendant and his corresponding ability to recognize the defendant's voice.

Decisions about the admissibility of photographic evidence are "left to the discretion of the trial judge, and we will overturn the judge's decision only where a defendant is able to bear the heavy burden of demonstrating an abuse of that discretion." Commonwealth v. Waters, 399 Mass. 708, 715, 506 N.E.2d 859 (1987). The admission of photographs that form the basis of an out-of-court identification is "relatively routine." Commonwealth v. Picher, 46 Mass.App.Ct. 409, 416, 706 N.E.2d 710 (1999), quoting Commonwealth v. Austin, 421 Mass. 357, 364, 657 N.E.2d 458 (1995). Police photographs used in out-of-court identification procedures may be admitted if the following criteria are satisfied: (1) the prosecution must show some need for their introduction; (2) the photographs should be offered in a form that does not imply a prior criminal record; and (3) the manner of their introduction should not call attention to their source. Commonwealth v. McAfee, 430 Mass. 483, 493, 722 N.E.2d 1 (1999). Commonwealth v. Rodriguez, 378 Mass. 296, 309, 391 N.E.2d 889 (1979). "In circumstances where (as here) the defense claims misidentification and alibi, the Commonwealth's need for the photographs is apparent.... The photographs helped to buttress the reliability of the identification[s]." Commonwealth v. Picher, supra at 416, 706 N.E.2d 710. See Commonwealth v. Weaver, 395 Mass. 307, 309, 479 N.E.2d 682 (1985) (no error in admitting photograph where "assailant's identity was a live issue at trial"); Commonwealth v. Gee, 36 Mass.App.Ct. 154, 158, 628 N.E.2d 1296 (1994) ("Where the sole issue at trial was the identification of the defendant, there can be little doubt as to the Commonwealth's need to use the photographs"). Identification was a central issue in this case: the strongest evidence that the defendant was the person who committed the robbery was the victim's identification of him as the perpetrator. Because the victim testified that he recognized the defendant based primarily on his voice, a key issue before the jury was whether the victim knew the defendant well enough to identify his voice. See Commonwealth v. Mezzanotti, 26 Mass.App.Ct. 522, 527, 529 N.E.2d 1351 (1988) ("a voice identification may be considered by a jury as long as the witness expresses some basic familiarity with the voice he or she claims to identify"). The victim's selection of five photographs of the defendant, with different clothing, hair styles, and facial hair, was relevant to the issue of familiarity: the victim's ability to identify the defendant's photographs could indicate how well he knew the defendant, which would be relevant to how often he had heard the defendant speak and consequently, how familiar he was with the defendant's voice.

The defendant contends that the Commonwealth had no need to introduce the photographs in this case because he "effectively conceded" that the victim's identification of him as a customer was accurate. See Commonwealth v. Smith, 21 Mass.App.Ct. 619, 622, 489 N.E.2d 203 (1986), S.C., 400 Mass. 1002, 508 N.E.2d 598 (1987). We disagree. The defendant did not concede that the victim properly identified him as the perpetrator, or even that he was the same customer identified by the victim. The defendant testified that he did not go into the store frequently, that he did not speak with the victim often, and that there was no confrontation in the supermarket before the robbery, all of which is contrary to the victim's testimony that he saw the defendant and spoke to him every day for six months and argued with him less than two weeks before the robbery. Furthermore, defense counsel, on cross-examination, challenged the victim's ability to see and hear the perpetrator during the robbery and argued in his closing that the victim did not interact with defendant enough to be familiar with his voice. The Commonwealth bore the burden of persuading the jury of the...