Commonwealth v. Matos

• Decision Date: 23 May 2019
• Docket Number: No. 17-P-1380,17-P-1380
• Citation: 126 N.E.3d 106,95 Mass.App.Ct. 343
• Parties: COMMONWEALTH v. Nicholas MATOS.
• Court: Appeals Court of Massachusetts

95 Mass.App.Ct. 343

126 N.E.3d 106

COMMONWEALTH

v.Nicholas MATOS.

No. 17-P-1380

Appeals Court of Massachusetts, Bristol..

Argued December 10, 2018

Decided May 23, 2019

K. Hayne Barnwell for the defendant.

Stephen C. Nadeau, Jr., Assistant District Attorney, for the Commonwealth.

Present: Green, C.J., Wolohojian, & Wendlandt, JJ.

WOLOHOJIAN, J.

The defendant was convicted after a jury trial of unarmed robbery ( G. L. c. 265, § 19 [b ] ) and assault and battery ( G. L. c. 265, § 13A ). On appeal, he argues that evidence he terms in-court and out-of-court identifications was erroneously admitted. He also contends that the judge erred in failing to give a specific unanimity instruction with respect to the unarmed robbery charge. Finally, he contends that various improprieties in the prosecutor's closing argument require reversal of his convictions. We affirm.

Background. We summarize the trial evidence as the jury could have found it. Around 5:30 P.M. on March 2, 2015, Michael Nichols was sitting inside the main entrance of Morton Hospital in Taunton, having completed his shift as a technician at the hospital, where he had worked for eighteen years. Nichols, who did not drive, was waiting for a taxicab (taxi) to take him to a bar where his pool league was to meet. Nichols had several items with him on that particular evening: a carrying case containing his pool stick, his cell phone (phone), and a backpack that contained various personal items, including his checkbook. As he waited for the taxi, Nichols was approached by a white man of medium build with a darker complexion who was wearing a red hat, a black North Face brand jacket, and blue jeans. Nichols did not know the red-hatted man, but he nonetheless agreed to the man's request to borrow his phone. The man took the phone outside and returned a few minutes later, saying that he had left the phone in his car. The man also told Nichols that Nichols should follow him to his car in the parking lot to get the phone back. Accordingly, Nichols followed the man to his car, which was one to two hundred feet away in the hospital parking lot. The man offered to drive Nichols back to the hospital entrance, and so Nichols got into the man's car. Leaving Nichols in the car, the man went inside the hospital; he returned about five minutes later with two other men, who got into the rear passenger compartment of the car. Nichols asked for his phone, but the red-hatted man made no response. Instead, he drove a block away from the hospital and demanded Nichols's backpack. When Nichols refused, the red-hatted man punched Nichols twice in the nose and grabbed one of the straps of the backpack to restrain Nichols. Nichols managed to slip his arms out of the backpack and to escape from the car. The man drove away with Nichols's backpack, phone, and pool stick case.

A police officer happened to be nearby, and Nichols immediately reported to him the assault and robbery along with the car's license plate number and a description of the men involved. Nichols was visibly upset and shaken, his nose was bleeding, blood was running down his face, and his lip was swollen. Using the license plate number Nichols provided, the police determined that the car was registered to the defendant's girlfriend. The police then went to the hospital, where they viewed video footage captured by the hospital's surveillance system. Still images from the hospital's surveillance system¹ were consistent with Nichols's account of what had happened. Those stills showed Nichols seated in the hospital lobby, a man approaching him wearing a red hat,² Nichols (wearing his backpack and carrying his pool stick case) following a man in the hospital parking lot, a man in a red hat standing near the hospital's main lobby desk a few minutes later, and that same man joined by another man wearing a gray hooded coat, black sneakers, and white baseball cap with a "P" insignia on front.

The following day, Taunton police arrested Jeremy Craven and Matthew DaSilva for shoplifting at a department store. In Craven's pocket was Nichols's checkbook. DaSilva was wearing a gray hooded sweatshirt and a baseball hat with a "P" insignia similar to those worn by the man standing with the red-hatted man in the hospital lobby. The defendant was arrested several days later at his girlfriend's apartment.

Discussion. 1. Identifications. Because Nichols did not know his assailant, the identity of the man in the red hat was the central issue at trial. Although the defendant identified the man in the red hat in the surveillance still images as the man who assaulted and robbed him, he never identified the red-hatted man as the defendant. As a result, the Commonwealth sought to establish that the defendant was the man in the red hat (1) by having the jury themselves assess the defendant's resemblance to the man shown in the still images (which were admitted), (2) through the testimony of the defendant's mother, who testified that the man in the red hat shown in the still images was her son, the defendant, (3) through the testimony of the arresting officer, who identified the defendant as the man he arrested and as the man in the booking photograph, and (4) through circumstantial evidence, such as the fact that the vehicle used in the crime belonged to the defendant's girlfriend. Because Nichols had never made an out-of-court identification of the defendant, the trial judge agreed with the defendant that Nichols should not be allowed to make an in-court identification of the defendant. See Commonwealth v. Crayton, 470 Mass. 228, 236-237, 241-242, 21 N.E.3d 157 (2014). The defendant now contends, however, that several "identifications" nonetheless occurred.

a. Surveillance images. The first of these "identifications" was introduced by defense counsel, who introduced the portion of Nichols's grand jury testimony where Nichols was shown two of the still images from the hospital's security system.³ The first still image showed a man at the hospital's entrance who fit Nichols's description of the red-hatted man; the image was recorded when Nichols was waiting outside in the man's car. Nichols identified the man as the person who borrowed his phone. The second image showed the hospital entrance twelve minutes earlier, with both Nichols and the man in the frame.⁴ Nichols testified to the grand jury that the image showed the same man when the man asked to borrow his phone. The defendant contends that there was no good reason to conduct this showup identification or photographic (photo) array, that it was impermissibly suggestive, and that Nichols should not have been allowed to testify to this identification at trial.

Showup identifications are one-on-one identification procedures in which a victim or witness is asked to identify a suspect (usually in person) in the immediate aftermath of the crime, often near or at the scene. See Commonwealth v. Dew, 478 Mass. 304, 306-307, 85 N.E.3d 22 (2017). No such procedure occurred here. Nor was Nichols shown a photo array as the defendant claims. A photo array is a procedure by which a victim or witness is asked to identify a suspect from among a series of photographs showing similar-looking people. See generally Commonwealth v. Silva-Santiago, 453 Mass. 782, 794-796, 906 N.E.2d 299 (2009) (procedures regarding photo arrays). Again, no such process occurred here.

Nonetheless, we accept arguendo the defendant's proposition that when questioning Nichols before the grand jury, the prosecutor engaged Nichols in a process "analogous to a one-on-one identification" when she asked him whether he recognized the man in the first still image, i.e., the one that showed only the man in the red hat. Commonwealth v. Forte, 469 Mass. 469, 477, 14 N.E.3d 900 (2014). "An identification stemming from a videotape containing only one individual is analogous to a one-on-one identification, which is considered inherently suggestive." Id. To suppress this identification, the defendant is required to prove "by a preponderance of the evidence, in light of the totality of the circumstances, that the identification procedure employed was ‘so unnecessarily suggestive and conducive to irreparable misidentification that its admission would deprive the defendant of his right to due process.’ " Id., quoting Commonwealth v. Walker, 460 Mass. 590, 599, 953 N.E.2d 195 (2011). This, the defendant has not done.

To begin, we note that the defendant has not pointed us to (nor have we found) any case standing for the proposition that asking a witness to identify him- or herself in a photograph is unduly suggestive, even if the witness is the only person in the image. The risk of misidentifying one's own self in a photograph seems so small as to verge on the hypothetical and, in any event, absent other circumstances, is unlikely to be the product of any suggestiveness inherent in the process of showing an image depicting only one person.

As a corollary, we believe that asking a witness to identify him- or herself in a photograph that happens to include another person also does not raise concerns of unnecessary suggestiveness absent some other circumstance. Nor does asking the witness to identify the other person shown in such an image raise such concerns. In all of these situations, absent some other circumstance, the presence of the witness him- or herself in the image helps to protect against any suggestiveness that otherwise inheres in a single-person identification process. This is especially true where, as here, an image captures the witness in the moment when he or she is the victim of a crime and the events experienced by the witness during the crime are shown in the photograph. Contrast Forte, 469 Mass. at 473-474, 14 N.E.3d 900 (witnesses shown videotape depicting suspect walking alone); Commonwealth v. Austin, 421 Mass. 357, 361, 657 N.E.2d 458 (1995) (witnesses shown videotape of robbery suspect committing different robbery); Commonwealth v....