Commonwealth v. Santiago
| Decision Date | 11 February 2022 |
| Docket Number | 20-P-743 |
| Parties | COMMONWEALTH v. JOSE SANTIAGO. |
| Court | Appeals Court of Massachusetts |
Heard: October 20, 2021.
Armed Assault with Intent to Murder. Assault and Battery by Means of a Dangerous Weapon. Firearms. Constitutional Law Identification. Due Process of Law, Identification. Evidence Identification. Identification. Practice, Criminal, Motion to suppress, New trial, Identification of defendant in courtroom, Assistance of counsel.
Indictments found and returned in the Superior Court Department on May 29, 2014. A pretrial motion to suppress evidence was heard by Tina S. Page, J.; the cases were tried before John S Ferrara, J.; and a motion for a new trial was considered by him.
Michael J. Fellows for the defendant.
Lee Baker, Assistant District Attorney, for the Commonwealth.
Present: Milkey, Henry, & Walsh, JJ.
A Superior Court jury convicted the defendant of armed assault with intent to murder, assault and battery by means of a dangerous weapon, and illegal possession of a firearm.[1] The defendant appeals from the judgments, claiming error in the denial of his motion to suppress two out-of-court identifications. He also appeals from the denial of his motion for a new trial based on a claim of ineffective assistance of counsel. For the reasons that follow, we affirm.
Background.
We summarize the relevant trial evidence as follows. On the evening of April 9, 2014, the victim and the defendant's son, D.G., met in Holyoke to fight. The victim's cousin, Rosa Colon, encouraged the brawl because she felt "disrespected" by D.G.[2]
As the victim prepared to fight, a crowd of twenty to thirty onlookers formed, including Colon and Ana Lucerna, who is an aunt of both Colon and the victim. At some point, the defendant stepped forward out of the crowd and approached the victim, seeking to discourage the fight as D.G. was a minor. The two men began to argue, and the defendant threatened to shoot the victim, yelling, The defendant pulled a silver handgun from his waistband and fired three rounds. The victim sustained a gunshot wound to the buttocks while attempting to flee to safety.
Holyoke police investigated the shooting and spoke to witnesses, including Colon. She identified the father of D.G. as the shooter, who police later learned was the defendant, Jose Santiago. Police also collected evidence, including text messages, photographs from the social media platform Facebook, and video footage (video).[3]
Two days after the shooting, Detective John Sevigne visited the victim at his home. He brought a photographic array (array) of eight potential suspects, including the defendant. Sevigne compiled the array from booking photographs in the Holyoke Police Department database by matching basic characteristics including age, race, and weight. Of all the individuals pictured, the defendant was the only person not wearing a shirt.
Prior to showing the victim the stack of eight color photographs, Sevigne read out loud the written instructions from the Holyoke Police Department "Photo Array Checklist" for identifications (checklist). The victim, after acknowledging he understood the instructions, was unable to make an identification. Lucerna was also present in the home when Sevigne visited. She asked to see the photographs, too. Sevigne read the instructions to Lucerna, who paused when she saw the defendant's photograph, but did she not identify anyone from the array.
Later that same day, Colon visited the police station to provide a statement. Sevigne showed her a second array, created using photographs that Sevigne had selected from the registry of motor vehicles database. The defendant was wearing a shirt in this photograph. Sevigne created the second array because he was aware that the three potential witnesses all lived together and he had not informed them that they should not talk to one another about the case or the identification procedure. In order to reduce the chance that the witnesses had in fact talked to one another about the photographic identification, inadvertently causing them to be influenced by one another, he created the new array.[4]
Colon looked through all eight photographs, choosing three out of the array but stopping short of making a full identification. On one photograph, she wrote "[forty] percent shooter," on another "[fifty] percent," and on a third -- the photograph of the defendant -- she wrote "[sixty] percent shooter." Sevigne proceeded to take Colon's statement. When they finished the interview, Colon looked at the photographs once more, selecting the photograph of the defendant and writing "[one hundred] percent" on it. Below the defendant's photograph she wrote the following: "If he shot in front of a bunch of kids in front of my house, what makes you think he won't come after me and my family?" She testified at trial that she initially had recognized the photograph of the defendant as the shooter but hesitated to tell police because she was scared that the defendant would retaliate.
The next day, April 12, Lucerna visited the police station to give a statement and, of her own volition, asked to look at the photographs again. Sevigne had another officer, Lieutenant James Albert, show the second array to Lucerna to "err on the side of caution" because Sevigne had already shown Lucerna the first array (from booking photographs) at her home.
Albert followed the written instructions from the checklist and showed Lucerna the second array, and she identified the defendant. On his photograph, she wrote: "This is the person th[e] shooter." She testified that she made this identification with one hundred percent certainty. She also testified that she failed to make a positive identification while looking at the first array because she was afraid that the defendant would harm her.
Prior to trial, the defendant moved to suppress the identifications made by both women, arguing that the procedures employed by police were impermissibly suggestive. An evidentiary hearing was held before a judge in the Superior Court (motion judge) in September of 2016, and the motion was denied soon thereafter. At trial before a different judge (trial judge), Lucerna and Colon testified to their out-of-court identifications. Both women also identified the defendant as the shooter in court.
The defendant timely appealed from the three judgments against him. He then filed a motion for a new trial. In that motion, he argued that his trial counsel was ineffective for (1) failing to seek exclusion of the out-of-court identifications under common-law fairness principles, and (2) failing to seek exclusion of the in-court identifications under Commonwealth v. Collins, 470 Mass. 255, 266-267 (2014) . The trial judge denied the defendant's motion for a new trial without holding an evidentiary hearing.[5] The defendant's appeal from the order denying the motion for a new trial was consolidated with his direct appeal.
Discussion.
In reviewing a motion to suppress, we accord deference to the motion judge's findings of fact, only disturbing them for clear error, but conduct an independent review of the "application of constitutional principles to the facts as found." Commonwealth v. Watson, 455 Mass. 246, 250 (2009) .
Under art. 12 of the Massachusetts Declaration of Rights, a witness's out-of-court identification is inadmissible if the defendant proves, by a preponderance of evidence and given the totality of the circumstances, that "the identification is so unnecessarily suggestive and conducive to irreparable misidentification that its admission would deprive the defendant of his right to due process."[6] Commonwealth v. Crayton, 470 Mass. 228, 234 (2014), quoting Commonwealth v. Walker, 460 Mass. 590, 599 (2011). See Mass. G. Evid. § 1112(a)(1) (2021).
The defendant claims that the motion judge erred by failing to find the initial array shown to Lucerna unnecessarily suggestive on the ground that the defendant was the only individual pictured not wearing a shirt. He avers that this improperly "dr[ew] the viewer's attention to [him]." We disagree.
Our courts "disapprove of an array of photographs which distinguishes one suspect from all the others on the basis of some physical characteristic." Commonwealth v. Silva-Santiago, 453 Mass. 782, 795 (2009), quoting Commonwealth v. Melvin, 399 Mass. 201, 207 n.10 (1987). Nevertheless, we have permitted such identifications where the witness did not choose the defendant's photograph based on that characteristic. See Commonwealth v. Arzola, 470 Mass. 809, 813-814 (2015), cert, denied, 577 U.S. 1061 (2016). We likewise have permitted such identifications where the distinctive feature complained of did not relate to the defendant's appearance at the time of the crime. See, e.g., Commonwealth v. Marrero, 484 Mass. 341, 349 (2020) ().
The motion judge did not err in declining to suppress Lucerna's identification of the defendant based on the two arrays. As noted in the testimony at the suppression hearing, Lucerna did not make an identification while examining the first array (where the defendant was shirtless), suggesting that the defendant's lack of clothing did not impermissibly draw her attention. Moreover the first array was like others that the Supreme Judicial Court has upheld, where the witness did not identify the defendant based on their defining characteristic. See Arzola, 470 Mass. at 813-814; Commonwealth v. Melvin, 399 Mass. 201, 206-207 (1987); Commonwealth...
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