Com. v. Dejesus

• Decision Date: 29 May 2008
• Docket Number: No. 06-P-619.,06-P-619.
• Citation: 71 Mass. App. Ct. 799,887 N.E.2d 283
• Parties: COMMONWEALTH v. Julio DeJESUS.
• Court: Appeals Court of Massachusetts

887 N.E.2d 283

71 Mass. App. Ct. 799

COMMONWEALTH v. Julio DeJESUS.

No. 06-P-619.

Appeals Court of Massachusetts, Hampden.

Argued January 10, 2008.

Decided May 29, 2008.

Dianne M. Dillon, Assistant District Attorney, for the Commonwealth.

Susan E. Taylor for the defendant.

Present: GREEN, KATZMANN, & GRAINGER, JJ.

KATZMANN, J.

On May 31, 2005, the defendant, Julio DeJesus, was convicted by a Superior Court jury of unlawful possession of a firearm, in violation of G.L. c. 269, § 10(a) unlawful possession of ammunition without an identification (F.I.D.) card, in violation of G.L. c. 269, § 10(h) and assault and battery by means of a dangerous weapon, in violation of G.L. c. 265, § 15A(b).¹ He now appeals from those convictions, as well as from the denial of his pro se motion for a new trial. He raises a variety of claims, principally involving photographic identification evidence and severance. We affirm.

Background. On January 13, 2004, near a Springfield car wash and gasoline station, from different vantage points, three eyewitnesses — Stuart MacGregor, James DeGray, and Fernando Basile — observed a gun fight break out between a shooter from a green Honda Accord automobile, later identified as Israel Cardona, and a single shooter from a silver Acura vehicle. It was not disputed that when arriving at the scene, the defendant had been seated in the front passenger seat of the silver Acura, and that his brother, Vito Resto, a codefendant as trial began, had been driving.² At trial, the primary issue was the identity of the shooter from the silver Acura who engaged in the firefight with Cardona. By the time of trial, Cardona, who refused to testify, had already pleaded guilty. As trial began, the jury were thus presented with the question whether the defendant (and his brother Resto) had assaulted Cardona with a firearm, G.L. c. 265, § 15A(b), and whether, being armed with a firearm, they had assaulted Cardona with intent to murder him, G.L. c. 265, § 18(b). At the close of the Commonwealth's case, the judge entered a required finding of not guilty for Resto, leaving the defendant to proceed alone. The defendant testified, and was the lone defense witness.

Discussion. 1. Photographic evidence issues. The defendant argues that the admission of photographic evidence at trial, together with accompanying police testimony, constituted mug shot evidence impermissibly informing the jury that he had a prior criminal history and propensity for criminality. He contends that defense counsel's failure to object when the evidence was introduced created a substantial risk of a miscarriage of justice and amounted to ineffective assistance of counsel. He further contends that counsel was ineffective for not accepting the judge's offer to provide immediately a curative jury instruction after the police testimony.

In order to prevail on a claim of ineffective assistance of counsel, the defendant must demonstrate that there has been (i) "serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer," and (ii) that this incompetence "has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Rubeck, 64 Mass.App.Ct. 396, 398, 833 N.E.2d 650 (2005), quoting from Commonwealth v. Pike, 53 Mass.App.Ct. 757, 760, 762 N.E.2d 874 (2002), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). We note at the outset that a claim of ineffective assistance of counsel is usually "best left for resolution in the first instance by the trial judge on a motion for new trial." Commonwealth v. Adamides, 37 Mass.App.Ct. 339, 344, 639 N.E.2d 1092 (1994), quoting from Gibney v. Commonwealth, 375 Mass. 146, 148, 375 N.E.2d 714 (1978). "[O]ur case law strongly disfavors raising ineffective assistance claims on direct appeal," Commonwealth v. Zinser, 446 Mass. 807, 809 n. 2, 847 N.E.2d 1095 (2006), because this issue "is most appropriately left to the trial judge." Commonwealth v. Ramos, 66 Mass.App.Ct. 548, 553, 849 N.E.2d 243 (2006). However, because here the trial record alone permits us to address the second prong of Saferian, and thus to dispose of the defendant's claim, we resolve the issue on direct appeal. See Commonwealth v. Adamides, 37 Mass.App.Ct. at 344, 639 N.E.2d 1092.

In this case, the Springfield police department compiled a photographic array of possible suspects to show to the three eyewitnesses. The array included frontal individual photographs of eight men, each standing in front a cinder block wall. The top of each page of the photo was labeled "Springfield Police Department Photo Array Images Associated with Case Number 04-228-AR." Officer Reid testified that he obtained the defendant's picture from a section of the police database containing photographs of people with past arrests. He stated that "in the computer system of the police department, they have a section of whoever was arrested[.] [A] photograph is taken of them and through this Records Management System, there is a particular field to recreate photo arrays." On the night of the shooting, from the array (which did not include a photograph of Resto), eyewitnesses DeGray and MacGregor identified the defendant as the shooter. The photo was entered into evidence.

In responding to the contention that the photographs constituted inadmissible mug shot evidence, which should have drawn an objection from counsel, the Commonwealth claims, citing Commonwealth v. Lamont L., 54 Mass.App.Ct. 748, 752, 767 N.E.2d 1105 (2002), S.C., 438 Mass. 842, 784 N.E.2d 1119 (2003), that "none of the photographs included in the array had any markings identifying them as mugshots." This claim fails to recognize that the array evidence cannot be viewed in isolation, but must be assessed in the context of the accompanying testimony. It is true that the photographs here did not contain the common attributes of mug shots, such as "height scales in the background or chest plates that bear a name or number," Commonwealth v. Smith, 29 Mass.App.Ct. 449, 452, 561 N.E.2d 520 (1990), see Commonwealth v. Cruz, 445 Mass. 589, 594, 839 N.E.2d 324 (2005), and would, by themselves, likely be deemed sufficiently sanitized. See, e.g., Commonwealth v. Smith, supra at 451-453, 561 N.E.2d 520. However, the accompanying police testimony, explaining that the photographs were compiled from a database of those with a prior arrest history, unduly raised the taint of prior criminal activity. Contrast Commonwealth v. Payton, 35 Mass.App.Ct. 586, 595, 623 N.E.2d 1127 (1993) ("no testimony ... that the photograph was taken in connection with any other criminal event"). In sum, the jurisprudence governing the admission of mug shots is applicable here.

"It is a matter of fairly common knowledge that the central photographic files maintained by police do not ... contain the likenesses of any save those who have had some contact with criminal law." Commonwealth v. Gibson, 357 Mass. 45, 48-49, 255 N.E.2d 742, cert. denied, 400 U.S. 837, 91 S.Ct. 75, 27 L.Ed.2d 70 (1970). Accordingly, the courts have recognized that there is a "risk that any use in evidence of photographs ... ordinarily used in police identification files will suggest to the jury that the defendant may have a prior criminal record." Commonwealth v. Gerald, 356 Mass. 386, 388, 252 N.E.2d 344 (1969). To minimize this risk of prejudice, the Supreme Judicial Court has concluded that "[m]ugshots may be admitted in evidence where `[1] the prosecution shows some need for their introduction, [2] they are offered in a form that does not imply a prior criminal record, and [3] the manner of their introduction does not call attention to their source.'" Commonwealth v. Martin, 447 Mass. 274, 286, 850 N.E.2d 555 (2006), quoting from Commonwealth v. McAfee, 430 Mass. 483, 493, 722 N.E.2d 1 (1999).

The police testimony here arguably violated the second and third Martin prongs.³ As has been noted, that testimony about the array, referencing the criminal arrest database, strongly suggested that the defendant possessed a criminal record, and also showed the origins of the photographs. Moreover, Officer Reid testified that he showed this array to the eyewitnesses on the very same night that the firefight occurred. Another police officer testified that the eyewitnesses were shown the array rather than the defendant himself due to the seriousness of the defendant's injuries at that time. The jury were therefore fully aware that the detective compiled the array at a time when the defendant was hospitalized and could not possibly have been available to be photographed in front of a cinder block wall. This strongly suggested that the police already possessed a photograph of the defendant prior to the January 13, 2004, shooting. Compare Commonwealth v. Gee, 36 Mass.App.Ct. 154, 158, 628 N.E.2d 1296 (1994) (placards appearing in photographs impermissibly suggested that police were in possession of defendant's picture due to criminal activity prior to offense at issue).

Whether or not the prosecution intentionally elicited this introduction of the defendant's prior bad acts, this testimony was inappropriate. "Evidence of prior bad acts may not be admitted to prove bad character or criminal propensity ...." Commonwealth v. Kent K., 427 Mass. 754, 756, 696 N.E.2d 511 (1998), citing Commonwealth v. Rodriguez, 425 Mass. 361, 370, 682 N.E.2d 591 (1997). While the evidence of prior bad acts may have been introduced unintentionally, the circumstances in which the evidence was admitted tended to demonstrate criminal propensity, which is prohibited. Commonwealth v. Kent K., supra at 756, 696 N.E.2d 511.⁴

The detective's testimony did not draw an objection from counsel. The judge, however, offered to give a curative instruction immediately.⁵ Trial counsel twice declined, stating that he preferred to have...